Case BriefsHigh Courts

Allahabad High Court: An appeal filed by the wife against the decree of divorce by mutual consent, was allowed by a Division Bench comprising of Pankaj Mithal and Rajiv Joshi, JJ.

A decree was passed by the family court under Section 13-B of Hindu Marriage Act (HMA), 1955 for dissolution of the marriage of the appellant-wife and her husband by mutual consent. The wife preferred the appeal under Section 28 HMA read with Section 19 of Family Courts Act 1984, against the said decree contending that her consent was obtained by undue influence. The question before the Court was ‘whether an appeal under Section 19 of Family Courts Act would lie against a decree passed under Section 13-B HMA?’

The Court perused Section 13-B and held that a decree of divorce by mutual consent could be passed by the Court only if all the conditions mentioned under the said Section are complied with. The Court referred to Section 23(1) (bb) and relying on Sureshta Devi v. Om Prakash, (1991) 2 SCC 25, held that before passing a decree under Section 13-B, the Court must satisfy itself that the consent of the parties was not obtained by coercion, fraud or undue influence. Further, Section 28 HMA did not place any rider on appeals against a consent decree under the Act. In light of the discussion as mentioned herein, the Court admitted the appeal and directed the issuing of notice to the respondent. [Pooja v. Vijay Chaitanya,  2018 SCC OnLine All 513, dated 06.04.2018]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Single Judge Bench comprising of Ajay Mohan Goel, J. allowed the matrimonial proceedings to be transferred from the Court of Additional District Judge at Amb to the Court of Additional District Judge at Dehra.

Proceedings under Section 13 (1), (1-a) and (1-b) of the Hindu Marriage Act, 1955 were pending against the petitioner before the said Court at Amb. She prayed for transfer of proceedings to Circuit Court at Dehra as she was presently serving as an Assistant Professor (Economics) at the Government College, Kangra. Also, she had a minor school going daughter who was residing with her. According to her, it was difficult to contest the case at Amb.

Having gone through the averments made in the petition, the High Court was of the view that transferring the said proceedings from Amb to Dehra would be in the interest of justice. The Court relied on a Supreme Court decision in Sumita Singh v. Kumar Sanjay, (2001) 10 SCC 41, wherein it was held, “in matrimonial proceedings, it is the wife’s convenience which must be looked into.” While delivering the judgment, the High Court was alive to the fact that such applications are not to be allowed in each and every case; however, in the facts and circumstances of the instant case, the Court transferred the proceedings pending against the wife under Section 13 of Hindu Marriage Act from the Courts at Amb to Dehra. The petition was accordingly allowed. [Monika Sharma v. Manish Kumar, 2018 SCC OnLine HP 631, dated 24-05-2018]

Case BriefsSupreme Court

Supreme Court: In a unique case where a 19-year-old girl Thushara, who had married a 19-year-old boy Nandakumar on 12.04.2017, was sent to the custody of her father by the Kerala High Court on the ground that Thushara was not lawfully wedded to Nadakumar as Nandakumar was not of a marriageable age, the bench of Dr. AK Sikri and Ashok Bhushan, JJ removed Thushara from the custody of her father & held that the freedom of choice would be of Thushara as to with whom she wants to live.

The present case holds strong similarities to the Hadiya case, where a father had sought the custody of his major daughter as she had married a man of her choice. In the present case as well, Thushara’s father had alleged that she was in illegal custody of Nandakumar and hence, her custody should be entrusted to her. The High Court noticed the fact that Nandakumar will be attaining the marriageable age of 21 years on 30.05.2018 & hence, Thushara was not lawfully wedded wife. The High Court also remarked that apart from the photographs of marriage which were produced in the High Court, there was no evidence to show that a valid marriage was solemnised between the parties. Hence, the custody of Thushara, who was already a major when she married Nandakumar, was entrusted to her father.

When Nandakumar approached the Supreme Court against the order of the High Court, the Court noticed that merely because Nandakumar was less than 21 years of age, it cannot be said that marriage between the parties is null and void. The Court said that both the parties are Hindus and such a marriage is not a void marriage under the Hindu Marriage Act, 1955, and as per the provisions of section 12, which can be attracted in such a case, at the most, the marriage would be a voidable marriage.

Noticing that both the parties were major at the time of marriage, the Court said:

“Even if they were not competent to enter into wedlock (which position itself is disputed), they have right to live together even outside wedlock. It would not be out of place to mention that ‘live-in relationship’ is now recognized by the Legislature itself which has found its place under the provisions of the Protection of Women from Domestic Violence Act, 2005.”

The Court also took note of the 3-judge bench verdict in Shafin Jahan v. Asokan K.M. & Ors.’ [2018 SCC Online SC 343, wherein it was held:

“It needs no special emphasis to state that attaining the age of majority in an individual’s life has its own significance. She/He is entitled to make her/his choice. The courts cannot, as long as the choice remains, assume the role of parens patriae. The daughter is entitled to enjoy her freedom as the law permits and the court should not assume the role of a super guardian being moved by any kind of sentiment of the mother or the egotism of the father. We say so without any reservation.”

[Nandakumar v. State of Kerala, 2018 SCC OnLine SC 492, decided on 20.04.2018]

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Supreme Court: The Bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ refused to interfere with the provisions of the Hindu Marriage Act, 1955 when a 26-year-old Karnataka woman sought direction to make prior consent of a boy or a girl mandatory before marriage under the Hindu Marriage Act. The Court said that the concept of consent is already present in the Act and it does not warrant the interference of the Court. The bench observed that the Section 12C of the Hindu Marriage Act provides for annulment of marriage if there is forced or fraudulent consent.

The woman, who is the daughter of a Karnataka politician had fled to Delhi from her wedding ceremony as she did not approve of the marriage. The Court said that it would treat this petition as a habeas corpus plea and would not deal with the constitutionality of certain provisions of the Act as sought by senior advocate Indira Jaising, who was representing the aggrieved woman.

Though the Court refused pass the directions sought by the woman, it asked the Police to provide security to her. The court directed the superintendent of police concerned to serve notice on the respondents and fixed the matter for further hearing on 5 May.

Source: ANI

Case BriefsHigh Courts

Karnataka High Court: A Single Judge Bench comprising of Vineet Kothari, J., decided a writ petition filed by the petitioner-wife under Article 227 of the Constitution, wherein the order of the trial court allowing her Rs. 17,000/- per month as maintenance under Section 24 of the Hindu Marriage Act, was upheld.

The parties were before the Family Court in a divorce petition. The abovesaid order allowing pendent lite maintenance was passed under Section 24 of HMA. The petitioner-wife submitted that she was not a working lady, whereas the respondent-husband was a software engineer and was earning Rs. 1,00,000 per month. She contended that the amount of maintenance granted by the court below was very low and needs to be increased.

On perusal of the record, the High Court found that even the petitioner was a highly qualified lady being a software engineer. And this fact was properly considered by the court below while appreciating the evidence and passing the impugned order. After considering this fact the trial court passed the order of maintenance for the wife as well as their son. The High Court was of the view that a highly qualified wife is capable of maintaining herself as well as the child. Therefore, the High Court did not find any error with the order passed by the trial court and accordingly, the petition was dismissed. [Sandhya K. v. A. Manohar, WP No. 8216 of 2018 (GM-FC), decided on 8.3.2018]

Case BriefsHigh Courts

Karnataka High Court: While deciding an appeal filed under Section 28 of the Hindu Marriage Act, 1955, a Division Bench comprising of L. Narayana Swamy, J and Dr. H.B. Prabhakara Sastry, J. dissolved the marriage solemnized between the appellant-husband and the respondent-wife holding that the wife deserted the husband for a continuous period of not less than two years.

The husband filed the petition under Section 13(1)(ib) of HMA against his wife, seeking dissolution of their marriage. The said petition was dismissed by the learned Principal Judge. The appellant contended that the court below committed a serious error even after assessing the evidence of the respondent who categorically stated in her disposition that she did not want to live with the appellant.

The High Court perused the material on record and submissions made in behalf of the parties. The Court found that the respondent in her cross-examination admitted that she resided with her husband for two years after the marriage and she had lived in her parental home after the marriage for about six years. This meant that after her marriage for more than half of the period she lived at her parental home. It was also noticed that even after graduating in her studies she did not join the husband to live with him. The respondent did not give any reason for her living separately from her husband. It was found that in total, the respondent lived separately from her husband for about 16 years, which fact was established. Accordingly the factum of separation was also established.

It was also observed that ‘desertion’ mentioned under Section 13(1)(ib) of the HMA is not the withdrawal from a place but from a state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state. In the instant case, the wife sated that she was not ready to live with the husband. As such, the animus deserendi on the part of the wife was established.

Accordingly, the appeal was allowed. The impugned order was set aside and the marriage between the parties was dissolved. [Dundappa v. Renuka, MFA No. 21724 of 2010 (MC), order dated 11.10.2017]

Case BriefsSupreme Court

Supreme Court: Holding that the minimum period of six months stipulated under Section 13B(2) of the Hindu Marriage Act, 1955 for a motion for passing decree of divorce on the basis of mutual consent is not mandatory  is not mandatory but directory, the bench of AK Goel and UU Lalit, JJ said that it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.

The Court also said that in conducting such proceedings the Court can also use the medium of video conferencing and also permit genuine representation of the parties through close relations such as parents or siblings where the parties are unable to appear in person for any just and valid reason as may satisfy the Court, to advance the interest of justice.

Waiver of the statutory period under Section 13B(2) can be done after considering the following:

  1. the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself;
  2. all efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act, 1984 to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;
  3. the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;
  4. the waiting period will only prolong their agony.

The court also said that the waiver application can be filed one week after the first motion giving reasons for the prayer for waiver and if the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the concerned Court. [Amardeep Singh v. Harveen Kaur,  2017 SCC OnLine SC 1073, decided on 12.09.2017]

Case BriefsSupreme Court

Supreme Court: Explaining the scope of ‘cruelty’ as a ground for dissolution of marriage, the Bench of R.K. Agrawal and A.M. Sapre, JJ held that a petition seeking divorce on some isolated incidents alleged to have occurred 8-10 years prior to filing of the date of petition cannot furnish a subsisting cause of action to seek divorce on the ground of cruelty after 10 years or so of occurrence of such incidents. The incidents alleged should be of recurring nature or continuing one and they should be in near proximity with the filing of the petition.

In the present case, the husband had alleged that his wife’s behaviour towards his family immediately after their wedding in the year 1999 amount to cruelty. However, they continued to live together and 2 daughters were born out of the wedlock in 2002 and 2006. Considering the facts of the case, the Court said that few isolated incidents of long past and that too found to have been condoned due to compromising behavior of the parties, as admittedly both lived together till 2006 and the appellant gave birth to their second daughter in 2006, cannot constitute an act of cruelty within the meaning of Section 13 (1)(ia)of the Hindu Marriage Act, 1955.

It was noticed that most of the incidents of alleged cruelty pertained to the period prior to 2006 and some were alleged to have occurred after 2006. Those pertained to period after 2006 were founded on general allegations with no details pleaded such as when such incident occurred (year, month, date etc.), what was its background, who witnessed, what the appellant actually said etc. Hence, the marriage between the parties was held to subsist. [Suman Singh v. Sanjay Singh, 2017 SCC OnLine SC 215, decided on 08.03.2017]

Case BriefsHigh Courts

Bombay High Court: Hearing an appeal, a Division Bench comprising of BP Dharmadhikari and Swapna Joshi, JJ held that  simply performing two rites, that of sindoor and mangalsutra, does not make a marriage valid. The Court passed this order against an order of the Family Court, Nagpur which had allowed the petition filed by respondent woman in her mid thirties seeking restoration of conjugal rights. The respondent woman was earlier married to another man and later divorced, though she continued to stay with him in the interest of her two children. Later she met the appellant and fell in love with him. The appellant ‘married’ her by putting mangalsutra and applying vermilion on her forehead before the idol of Lord Krishna.

The Court noted that as per provisions of the Hindu Marriage Act, 1955, a wedding must be performed as per ceremonies, rites and rituals recognised by either of the parties. Under the Act, importance is given to Satpadi which was not performed in this case. The Court also observed that even though there was physical relationship between the two parties, they were not in a live-in relationship, hence there was no valid marriage between the two and the Family Court’s order which held to be erroneous and was quashed. [Nitin Omprakash Agarwal vs. Rekha Agarwal, Family Court Appeal 57 of 2015, decided on 31-01-2017]

Case BriefsHigh Courts

High Court of Bombay: While considering the appeal filed by the appellant/wife against the impugned judgment and order passed by the Family Court at Mumbai, converting the marriage petition of the respondent/husband for divorce into a petition for divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955 and thereby allowing the converted petition without giving an opportunity to appellant to place before the Court that the terms as agreed between the parties are not acceptable terms of settlement, the Bench comprising of Abhay Oka and GS Kulkarni, JJ., criticizing the impugned judgment and order held that there is a serious error on the part of the Family Court in passing a decree of divorce as merely allowing the application to convert the marriage petition into a petition for divorce by mutual consent under Section 13-B of the Act was not sufficient, as it was necessary that the requirements of Section 13-B are present in the averments/statements as made in the petition thereby directing the Family Courts to follow the law in letter and spirit, while hearing matters of divorce with mutual consent.

The appellant/wife  moved the Court against the impugned judgment of the learned Principal Judge since the decree was passed without giving a fair hearing to the wife as she was not present when the Family Court pronounced the impugned judgment and the affidavit was filed by the respondent/husband alone before the Family Court incorporating the consent terms, basing on which the decree for divorce with mutual consent was passed, were not acceptable by the appellant/wife since the husband had committed a fraud by lying to the court that all consent terms were fulfilled, where as another notarized document revealed different amount of permanent alimony.

The Court held that the Family Court  had acted in haste and has completely overlooked the mandate of provisions of Section 13-B read with Section 23 (1)(bb) of the Act as in cases where parties have sought a decree for divorce by mutual consent, a complete compliance of Section 13-B read with Section 23(1)(bb) in its letter and spirit is required to be followed and since the Family Court has converted the divorce petition into a petition for divorce by mutual consent under Section 13-B, without any corresponding amendments being made to the divorce petition and allowing the converted petition without giving an opportunity to the appellant/wife to be heard thus the Family Court judgment is “defective and incorrect”.  The Court stated non-adherence to this basic mandate of law in our opinion is sufficient for quashing and setting aside the impugned  judgment and directed the marriage petition to be heard afresh. [Bharti Bhausaheb Aher v. Bhausaheb Kautik Aher, 2017 SCC OnLine Bom 7, decided on 6th January 2017]

Case BriefsHigh Courts

Delhi High Court: Hearing an appeal against the Family Court’s order dismissing the appellant husband’s petition for dissolution of marriage on grounds of cruelty, the Court observed that the law pertaining to cruelty is if by resuming cohabitation the spouse claiming victim of cruelty forgives the other spouse who commits the cruelty, the alleged act of past cruelty cannot be relied upon to seek divorce on account of the cruelty unless they are revived by subsequent acts of cruelty.

The appellant/husband got married to the respondent/wife on November 22, 2004 according to Hindu rites and ceremonies and a son was born on January 01, 2006. The husband filed a petition under Section 13(1)(i-a) of Hindu Marriage Act, 1955 citing several instances of cruelty stated to have been committed by the respondent/wife.

While observing that there was no allegation of physical cruelty being committed by the wife and divorce is being sought on the allegations of mental cruelty, held that the appellant husband failed to prove that he was treated with cruelty.

The Bench of Pradeep Nandrajog and Pratibha Rani, JJ observed that the respondent did not seek dissolution of marriage on account of desertion under Section 13(1)(i-b) of the Hindu Marriage Act but on account of the mental cruelty being committed by the respondent wife. The Court agreed with the findings of the Family Court that none of the incidents enumerated except the accusation of illicit relationship with his bhabhi or creating a scene when he was alleged to be in his bhabhi’s room, amounted to mental cruelty of a level envisaged under Section 13(1)(i-a) of the Hindu Marriage Act. The Court held that it was not a case of dissolution of marriage on the ground of cruelty being caused to the appellant husband. Even if there was any act of mental cruelty, the same was condoned by the appellant by cohabiting till his wife left on April 06, 2008. There was no instance of cruelty being committed by the respondent wife thereafter.

The appellant also urged that the marriage had broken down irretrievably as more than eight years had passed since the respondent wife had left the matrimonial life, hence the marriage may be dissolved by a decree of divorce. Dismissing the appeal, the Court observed that the wife had nowhere expressed her desire to seek a divorce, besides no sincere effort was made by the appellant to save the marriage by remaining in touch with his wife and son or to provide some amount for better upbringing of their son. The case was to seek dissolution of marriage on account of cruelty and not on desertion, hence the appellant was not entitled to seek a decree of divorce claiming that the marriage had broken down irretrievably. [Neeraj Kumar v. Pooja Verma,  2016 SCC OnLine Del 4625, decided on August 19, 2016]

Case BriefsHigh Courts

Delhi High Court: Reiterating the factors to be considered while considering the merits of an application for grant of interim maintenance under Section 24 of the Hindu Marriage Act, 1955 the Court held that the object behind Section 24  is to provide for maintenance, pendente lite, to a spouse in matrimonial proceedings so that during the pendency of the proceedings the spouse can maintain herself/himself and also have sufficient funds to carry on the litigation and  not unduly suffer in the conduct of the case for want of funds. A spouse unable to maintain himself/herself is entitled to maintenance on the principle of equistatus and respect that the spouse would have enjoyed if he/she continued to live with other spouse.

The Court reiterated the factors to be considered while determining the amount of maintenance as laid down in Bharat Hegde v. Saroj Hegde,  2007 SCC Online Del 622 : (2007) 140 DLT 16:

  • Status of the parties.
  • Reasonable wants of the claimant.
  • The independent income and property of the claimant
  • The number of persons, the non applicant has to maintain.
  • The amount should aid the applicant to live in a similar life style as he/she enjoyed in the matrimonial home.
  • Non-applicant’s liabilities, if any.
  • Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant.
  • Payment capacity of the non-applicant.
  • Some guess work is not ruled out while estimating the income of the non-applicant when all the sources or correct sources are not disclosed.
  • The non-applicant to defray the cost of litigation.
  • The amount awarded under Section 125 of the Criminal Procedure Code is adjustable against the amount awarded under Section 24 of the Act.

The Division Bench of Pradeep Nandrajog and Pratibha Rani, JJ. held that the court has to necessarily arrive at prima facie determination about the earning capacity of the rival claimants. The determination cannot be made with exactitude; it is essentially interim in nature. Capacity of the other party to earn cannot be taken into consideration – it is only the actual earning of the opposite party on the basis of which relief can be granted. Permanent income and not casual income is relevant. Where there was sufficient means in the husband’s family on the strength of which the husband got married he has to share the burden of supporting his wife during the course of annulment of such marriage

The Court  further observed that “the provisions of Section 24 are beneficent in nature and the power is exercised by the court not only out of compassion but also by way of judicial duty so that the indigent spouse may not suffer at the instance of the affluent spouse. The legislature, in its discretion, has not fixed any guideline regarding ceiling limit of maintenance, pendente lite, as in the case of the Divorce Act or the Parsi Marriage Act. The word “support” in Section 24 is not to be narrowly interpreted. It does not mean bare existence. It means that the claimant spouse should have the same comfort as the other. Of course, the section is not intended to bring about arithmetical equality between the two.” [Sujit Kumar v. Vandana, 2016 SCC OnLine Del 4397, decided on August 8, 2016]

Case BriefsHigh Courts

Madras High Court: While dismissing the petition challenging the validity of Section 7-A of the Hindu Marriage Act, 1955, the Division Bench of S.K. Kaul, C.J. and T.S. Sivagananam, J. relying on the decision of S.Nagalingam v. Sivagami, (2001) 7 SCC 487, upheld the validity of Section 7-A [as inserted by the Hindu Marriage (Tamil Nadu Amendment) Act, 1967] as the provision applies to any marriage between two Hindus solemnized in the presence of relatives, friends or other persons and that the presence of a Priest is not mandatory for the performance of a valid marriage.

In the present petition it was contended that Section 7-A is ultra vires the Section 7 (which mandates the Saptapadi) read with Section 3(a) of the Hindu Marriage Act and contrary to the tenets of Hinduism. The petitioner appearing for himself, also contended that the impugned provision violates Article 14 of the Constitution.

The Court however refused to entertain the arguments raised by the petitioner and observed that Section 7-A mainly provides for a particular type of marriage i.e. the Suyamariyathai marriages which has been in prevalence for over half a century and thus the impugned provision cannot be declared invalid on the ground of discrimination as it is the prerogative of the parties to enter into matrimony as according to the requisites of Section 7 or Section 7-A of the Hindu Marriage Act. The Court further stated that there is a presumption in favour of the constitutionality of an enactment and unless the petitioner proves that the enactment has transgressed any of the Constitutional principles. [A. Asuvathaman v. Union of India, 2015 SCC OnLine Mad 9765decided on 30.10.2015]