Case BriefsHigh Courts

Punjab and Haryana High Court:  Deepak Sibal, J. dismissed the present petition as the impugned order was not defective on the ground that framing of the issue was not challenged by the petitioner and evidence were led only on the same ground. 

A petition was filed against the dismissal order in which application filed by the petitioner was prayed for withdrawal of divorce petition with permission to file afresh.

The brief facts of the case were that petitioner filed a petition under Section 13 of the Hindu Marriage Act, 1955 for dissolution of the marriage between the parties on the ground of cruelty.  During the course of the trial, at the final argument stage, petitioner filed an application under Order 23 Rule 1 of the Code of Civil procedure, 1908 seeking withdrawal of his divorce petition with permission to file a fresh petition on the same cause which through the order impugned in the present proceedings has been dismissed.

Manish Kumar Singla, counsel for the petitioner submitted that there was a formal defect in the petition as averments had been made in the petition with regard to the respondent-wife having deserted the petitioner but since between the alleged date when the respondent-wife had deserted him and the filing of his petition the statutory period of 2 years had not elapsed, the Trial Court erred in not permitting the petitioner to withdraw his divorce petition with permission to file a fresh one on the same cause.

Karan Bhardwaj, counsel for the respondent submits that with regard to the issue of desertion, there was no formal defect in the petitioner’s petition and therefore, the petitioner cannot be allowed to withdraw his petition with permission to file fresh one on the same cause.

The Court opined that the respondent-wife had refused to join the company of the petitioner would not give a cause to the petitioner to seek divorce on the ground of desertion and there was no formal defect in the petitioner’s defect. It was further submitted that the ground of desertion was neither available to the petitioner nor taken by him. During the pendency of the petition, even if such ground has become available, the same would not make the petitioner’s petition as defective. Thus the matter was dismissed. [Kulwinder Singh v. Manmohan Kaur, 2019 SCC OnLine P&H 1337, decided on 25-07-2019]

Case BriefsHigh Courts

Calcutta High Court: Biswajit Basu, J. dismissed a revision application of the filed by a lady seeking alimony pendente lite.

The husband/respondent and the wife herein had filed a matrimonial suit seeking dissolution of their marriage by a decree of divorce, inter alia, on the grounds of cruelty. In the said suit, the wife had filed an application before the learned trial judge under Section 36 of the Special Marriage Act, 1954 praying alimony pendente lite at the rate of Rs 50,000 per month. The wife alleged that the husband is working in a reputed organization in the USA and was earning around Rs 75,00,000 per annum. Thus, she was entitled to maintenance proportionate to the income of the husband. However, after assessing her salary certificates for December 2018, January 2019 and March 2019, the learned judge opined that the present income of the wife is not less than Rs 74000 being sufficient for her support particularly when she herself assessed her requirement at Rs 50,000 in the application for alimony pendente lite.  And as Section 36 provides for temporary financial support pending any action under Chapter V or VI of the said Act “to the wife who has no independent income sufficient to maintain herself”, refused the prayer of the wife for alimony pendente lite.

The High Court dismissed the case, holding the decision of the learned trial Judge as absolutely justified.[Somdatta Chatterjee nee Raychaudhari v. Anindya Chatterjee, 2019 SCC OnLine Cal 1627, decided on 11-06-2019]

Case BriefsHigh Courts

Jharkhand High Court: Anil Kumar Choudhary, J. dismissed an interlocutory application praying for grant of special leave under Section 378 (4) of the Code of Criminal Procedure, 1973 against a judgment passed by Judicial Magistrate, Deoghar on the grounds of discrepancy in evidence and absence of perversity in the judgment.  

The appellant-complainant alleged that her husband (private respondent 2), after the birth of their daughter, physically and mentally tortured her to extract a sum of Rs 2,00,000 as dowry despite receiving Rs 7,50,000 at the time of their marriage. It was further alleged that he threw hot water at the appellant-complainant, after which she was treated at a hospital. The assault allegedly extended to the forceful acquirement of pieces of jewellery worth Rs 85,000. Witnesses were examined from both sides.  The complainant witnesses (hereinafter, CW) claimed that matrimonial disputes arose after two years of marriage. However, none could provide any specific date, day or year with regard to claims of assault nor could they provide medical records for treatment at the hospitals after the assault. Furthermore, there were contradictions in the testimony of CW 4. The defence witnesses, however, unanimously claimed that the appellant-complainant was rude and disliked staying in her paternal house.  Taking into account the testimonies, evidence and noting the contradiction in complainant’s testimony and the complaint, the trial court acquitted private respondent 2. Wife filed an appeal against this order of acquittal.

The complainant-appellant was represented by  Khalida Haya Rashmi who submitted a three-fold argument. Firstly, the court failed to study evidence, facts, and circumstances in its entirety such as that of dismissal of private respondent 2’s petition to dissolve the marriage by a family court. Secondly, the judgment by the trial court was perverse inasmuch as it failed to recognize appellant-complainant’s attempts to restitute her family life which caused a delay in filing of the case. Lastly, the discrepancy in evidence was a minor one, hence, cannot be solely relied upon to rule. The defense represented by the Public Prosecutor concurred with the observation of the trial court on the discrepancy in evidence and inordinate delay in lodging of FIR. Further, it was submitted that the lack of evidence for the offence in the present case was the right ground for acquittal.                                               

The Court concurred with the defense’s contentions holding that discrepancy in testimony and evidences do not clearly demarcate any specificity with regard to the duration or manner of cruelty. Further, relying on Rupali Devi v. State of U.P, 2019 SCC OnLine SC 493 where it was held that “Even if the acts of physical cruelty committed in the matrimonial house may have ceased and such acts do not occur at the parental home, there can be no doubt that the mental trauma and the psychological distress caused by the acts of the husband including verbal exchanges, if any, that had compelled that wife to leave the matrimonial home and take shelter with her parents would continue to persist at the parental home’. 

Thus, the Court dismissed the contention of ignoring discrepancy in evidence. Also, the Court holds that since no proceedings under Section 13 of the Hindu Marriage Act were brought about, therefore, no such proceedings can be referred to as precedents. The Court found no illegality or perversity as claimed against the trial court Judgment; rather, termed it as reasonable and plausible. Hence, the appeal was dismissed. [Meena Devi v. State of Jharkhand, 2019 SCC OnLine Jhar 769, decided on 13-06-2019] 

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Sudhanshu Dhulia and Ramesh Chandra Khulbe, JJ. entertained an appeal by the appellant-wife under Section 19 of Family Courts Act, 1984 against the impugned judgment granting divorce passed by Principal Judge of Family Court.

Facts giving rise to this appeal were, the respondent had filed a suit earlier under Section 13 of Hindu Marriage Act, 1955 which was decreed already. When the marriage was solemnized between the parties, the respondent was working as a Sepoy in the Indian Army and it was a smooth sail for both of them. Subsequently, respondent-husband filed for divorce and for dissolution of marriage on the grounds that appellant was suffering from epilepsy prior to marriage and such essential fact was not disclosed to him, the appellant also suffered from different ailments which served as a hindrance, physically and mentally in their prosperous marriage. But the actual ground on which suit was filed for divorce was cruelty and desertion.

The Court observed that parties are living separately for a long time, the issues framed by the Family Court were sufficient to grant a divorce in this particular case. It was also observed that the Family Court found that appellant suffered from epilepsy and was treated for the same in addition to it she also suffered from tuberculosis, and such physical suffering of the appellant served as mental cruelty upon the husband. The expert opinion stated that due to such ailments the appellant was not in a fit state to conceive a child. The Court appreciated that such ailments were not relevant grounds to prove cruelty and to dissolve the marriage prime facie but non-disclosure of such important facts before marriage led to cruelty which is a proper ground for divorce.

The Court stated that there was enough evidence before the court below to establish that there was cruelty on the part of the appellant/wife, such as threatening the husband to falsely implicate in criminal cases and making a complaint to the superior officers of the husband. The wife had also made unnecessary allegations against the respondent before the Commanding Officer, which lowered his esteem in the eyes of his superior officer.

Hence, the Court awarded permanent alimony and disposed the application of maintenance under Section 125 CrPC, it also found that there was no need to interfere with the Order of Family Court and setting aside the divorce decree.[Himani v. Rohit Bisht, 2019 SCC OnLine Utt 448, decided on 13-05-2019]

Case BriefsHigh Courts

Allahabad High Court: A Division Bench of Shashi Kant Gupta and Pradeep Kumar Srivastava, JJ. affirmed the Judgment of lower court granting a divorce to a lady under Section 13(1) of the Hindu Marriage Act, 1955, on the ground that her husband committed forcible unnatural sex with her.

The issue, in this case, was as to whether a marriage can be dissolved on the basis of allegations of forcible unnatural sex with wife. Facts in the case were that a lady (respondent herein) lodged an FIR against her husband (appellant herein) for offences under Sections 498A, 323, 504 and 377 the Penal Code, 1860 and Sections 3 and 4 of Dowry Prohibition Act, 1961. She filed a petition seeking divorce on the grounds that her husband committed forcible unnatural sex with her several times after marriage. On her refusal to comply with his demands, he beat her up and threatened to not spare her 5-year old daughter and make sexual relations with her as well. He also demanded Rs 40 lakhs and a car in dowry after marriage. She was granted divorce on the basis of her allegations. Husband challenged the judgment of the lower court by way of the present appeal, on the ground that there was no evidence of dowry demand, harassment or unnatural sex. Further, it was argued that medical report had been ignored and the lower court had relied upon the unsupported solitary statement of his wife by ignoring contradictions in her own testimony.

The Court pointed out that no cross-examination had been done by the husband on the point of unnatural sex because of which it was assumed that those facts had been proved against him. Regarding the contention that wife’s statements were not supported by any witnesses, it was concluded that all the matrimonial wrongs were done inside the wedlock which meant that these were private affairs of the parties. Hence, gathering independent witnesses was not possible. Regarding medical examination, it was concluded that the petition for divorce was filed much after the date of the incident of unnatural sex and sodomy so the medical report could not be obtained.

The Court agreed with the view taken by the Kerala High Court in Bini T. John v. Saji Kuruvila, 1997 SCC OnLine Ker 27 and Karnataka High Court in Grace Jayamani v. E.P. Peter, 1981 SCC OnLine Kar 208 that unnatural sex, sodomy, oral sex and sex against the order of the nature, against the wishes of a woman or wife was a criminal offence and a marital wrong amounting to cruelty which was a good ground for dissolution of marriage. It was observed that the standard of proof required in a matrimonial case is preponderance of probability.

The Court also noted that appellant’s first wife had divorced him for similar reasons, which fact supported the wife as far as unnatural sex was concerned. It was held that since the wife was not a consenting party, she would not be in the position of an accomplice; and her testimony could be accepted without corroboration if it inspired confidence. Thus, the impugned judgment was affirmed and the appeal was dismissed.[Sanjeev Gupta v. Ritu Gupta, 2019 SCC OnLine All 2255, decided on 24-05-2019]

Case BriefsForeign Courts

Supreme Court of Pakistan: The Three-Judge Bench of Mian Saqib Nisar, CJ and SH. Azmat Saeed and Ijaz-Ul-Ahsan, JJ. dismissed the appeal filed by a husband challenging the amount awarded to his wife after the dissolution of their marriage.

Appellant (husband) and Respondent 3 (wife) filed a suit for dissolution of marriage vide which their marriage was dissolved. A suit for return of dowry articles was also filed which was decreed by the learned Family Court for an amount of Rs 25,000. The decretal amount was enhanced to Rs 4 lakhs by the First Appellate Court in an appeal filed by Respondent 3. Appellant filed a writ petition in Lahore High Court assailing the order of appellate authority. The petition was partly accepted and amount in lieu of dowry articles was reduced to Rs 3 lakhs. Being still aggrieved, the appellant preferred the instant appeal before this Court.

Learned counsel for the appellant Mr Sarfraz Khan Gondal submitted that the Family Court had granted a decree for a sum of Rs 25,000 with regards to claim for dowry. Hence, in view of Section 14(2) of the Family Courts Act, 1964, no appeal was maintainable against the said Judgment. Therefore, the Judgment and decree of the First Appellate Court were wholly without jurisdiction. Consequently, the impugned order of Lahore High Court partly affirming the same was also liable to be set aside.

Learned counsel for Respondent 3 Mr Mian Shah Abbas contended that the embargo placed on the right of appeal applied only to the husband and not to a wife dissatisfied with the quantum or denial of relief.

The Court noted that Family Courts are a special forum for adjudication of family disputes in accordance with the special procedure set forth in the 1964 Act, purpose whereof is expeditious settlement and disposal of disputes relating to marriage and family affairs.

It was opined that the purpose of curtailing the Right of Appeal under Section 14 of the Act was to avoid the benefits of the decree being tied up in an appeal before a higher forum. However, the said provision could not be interpreted so as to exclude a right of appeal to a wife whose claim of dower or dowry has been partially or entirely declined as it would defeat the purpose and object of the Act and frustrate its beneficial nature. In view thereof, the appeal was dismissed for being devoid of merit.[Saif-ur-Rehman v. Addl. District Judge, Toba Tek Singh, 2018 SCC OnLine Pak SC 19, decided on 17-04- 2018]

Case BriefsHigh Courts

Calcutta High Court: A Single Judge Bench comprising of Ashis Kumar Chakraborty, J. allowed a challenge to the order passed by Additional District Judge whereby he allowed an amendment application filed by the husband in a matrimonial suit.

The husband filed the application for amending the plaint on the basis of two hand written declarations alleged to be written by the wife. The wife contended that no such declaration was executed by her. However, the Additional District Judge allowed the application holding that the suit for dissolution of marriage was filed by the husband on grounds of mental cruelty and the amendment sought to be made was only an elaboration of facts of mental cruelty perpetrated upon the plaintiff by his wife. Aggrieved thus, the wife challenged the said order.

The High Court was of the view that the order impugned could not be sustained. It was observed that the amendment application of the husband did not disclose the said self-written declarations allegedly executed by the wife. Furthermore, it was not even the case of the husband that the facts sought to be incorporated by him in the plaint were necessary for elaboration of the ground for divorce. The Court held that the Additional District Judge committed an patent illegality in passing the order impugned, and hence it was set aside. [Dyutimala Chatterjee nee Bagchi v. Subhrajit Chatterjee,  2018 SCC OnLine Cal 6152, dated 07-09-2018]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of S.A. Bobde and L. Nageswara Rao, JJ. allowed an appeal filed against the judgment of Delhi High Court whereby the marriage between the appellant and the respondent was held void.

The interesting factual matrix of the case is that, earlier, the appellant was married to one Rachna Agarwal. In August 2009, she had filed a divorce petition under Section 13(1)(ia) of the Hindu Marriage Act, 1955 which was allowed by the Additional District Judge and thus their marriage was dissolved. The appellant filed an appeal against the decree in the High Court. During pendency of the appeal, the appellant and the said Rachna Agarwal reached a settlement. Pursuant to the settlement, the appellant filed an application for withdrawing the appeal. It is pertinent to note that the settlement was reached on 15-10-2011; the application for withdrawal was filed on 28-11-2011, and the High Court dismissed the appeal as withdrawn on 20-12-2011. In the meanwhile, on 6-12-2011, the appellant married the respondent. Subsequently, consequent to matrimonial discord, the respondent filed a petition for declaring the marriage void under Section 5(i) read with Section 11. The main ground being that the appellant married the respondent during pendency of appeal against the decree of divorce from his first wife. The family court dismissed the respondent’s petition. However, on appeal, the High Court declared the marriage between the appellant and the respondent as null and void. Aggrieved by the same, the appellant filed the instant appeal.

To adjudicate the issue, the Supreme Court, inter alia, perused Section 15 of the Act. The Court observed that the section provides that it shall be lawful for either party to marry again after dissolution of marriage if there is no right to appeal against the decree. A second marriage by either party is lawful only after dismissal of an appeal against the decree of divorce is filed. The object of the provision was observed to provide protection to the appellant party and ensure that the said appeal is not frustrated. The purpose of the section is to avert complications that would arise due to a second marriage during pendency of the appeal, in case the decree of dissolution of marriage is reversed. The protection that is afforded is primarily to a person who is contesting a decree of divorce. In the instant case, after entering into the settlement as mentioned hereinabove, the appellant did not want to contend the decree of divorce. His intention was made clear by filing the application for withdrawal of appeal. The Court was of the view that it could not be said that he had to wait till a formal order was passed in the appeal, or otherwise his marriage dated 6-12-2011 was unlawful. Following the principles of purposive construction, the Court held that the restriction placed on second marriage under Section 15 till dismissal of an appeal would not apply to a case where parties have settled the matter and decided not to pursue the appeal. The judgment of the High Court annulling the marriage between appellant and respondent was held to be erroneous. Accordingly, the judgment impugned was set aside and the appeal was allowed. [Anurag Mittal v. Shaily Mishra Mittal, 2018 SCC OnLine SC 1136, dated 24-08-2018]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench at Goa comprising of C.V. Bhadang, J., confirmed the decree of dissolution of marriage between the parties passed by Court of Queen’s Bench of Alberta, Calgary, Canada.

An application under Article 1102 of the  Portuguese Civil Code was filed seeking the confirmation of the abovesaid decree of the abovementioned Court. A perusal of the Certificate of Divorce issued by the competent court showed that the marriage between the parties was dissolved. It was evident from the Separation Agreement that the dissolution was by consent of parties.

The High Court reiterated the requirements for confirmation  of such a decree, which included:

  • Authenticity of the judgment as well as the correctness of the reasoning;
  • Judgment of foreign court having become res judicata according to the law of the country;
  • Judgment being delivered by a court of competent jurisdiction;
  • Dispute between the parties not being subject to defences of lis pendens or res judicata.
  • Defendant having been duly summoned;
  • Judgment not going against the Portuguese public order; and
  • Judgment having been delivered not in violation of any of the Portuguese Private Law.

The Court held that the requirements as listed above were satisfied in the instant case. The application was, thus, allowed. [Joaquim Cardozo v. Fanny Margaret Mascarenhas E. Cardozo, 2018 SCC OnLine Bom 1830, dated 26-07-2018]

Case BriefsHigh Courts

Uttaranchal High Court: In a recent case addressed by the Court, the appellant husband whose plea for dissolution of marriage under S. 13(1)(a) of the Hindu marriage Act had been rejected by the Family Court stating that the ground for dissolution- cruelty could not be proved by the husband. The appellant pleaded that the evidence submitted by him was not duly considered by the lower court.

Counsel for the appellant submitted that he had proved every incident of cruelty suffered by his client. The Court on this decided to go through his contentions put forth before the trial court. He had stated that since the inception of his marriage with respondent, he was not being treated as a husband is treated and was threatened with dire consequences to fulfil every illegitimate demand of his wife. He placed before the Court the fact that his wife was a strong believer of superstition and supernatural powers and due to this belief of hers, all precautions were required to be taken for a period of allegedly so-called by her as “black month”. He told that during this black period, she used to force him to accompany her to a tantrik to adopt means of worship as per her wishes and to satisfy his deceased mother’s soul which she thought was responsible for their ill-fate.

The husband further submitted that she also pressurized that if the husband and his family members refused to visit her tantrik living in Himachal Pradesh, she would file frivolous petitions under the Dowry Prohibition Act or other law for the purposes of adopting a retrogressive attitude and mental cruelty. During this period, even their son was born when the wife had gone to Delhi to her parents’ place and the cruelty as contended by the husband was such that that he was not even allowed to meet his son.

The husband submitted that he made all efforts to make the wife come back to the matrimonial home, the wife gave lame excuses that she had no money to travel, the husband supplied the money for travel to the wife by depositing the amount in her account but despite that she has not returned to the matrimonial home.

On the other hand, wife alleged against the husband’s attitude towards her and submitted that the husband was an escapist who wanted to shy away from his domestic responsibilities, apart from the fact all bunch of allegation made by husband for the purposes of filing petition for dissolution of marriage are based on facts pleaded, but not proved only any cogent and independent evidence.

On hearing the contentions of both the parties, the Division Bench comprising Rajiv Sharma, J. and Sharad Kumar Sharma, J. referred to a few judgments of the Apex Court which explain what mental cruelty is and its parameters. The Court then thus observed that what required is not only the submission of a ground of divorce, but also the factum of that ground must be proved. The Bench further observed that Hindu marriage being a sacramental relationship cannot be broken only because of slight difference in ideologies and beliefs of spouses.

The Court held that in the instant case, there was not even a single evidence which had been brought on record or established by the husband in consonance to the pleadings to attract the concept of cruelty and hence, upheld the decision of the trial court. [Satish Kumar v. Poonam, 2017 SCC OnLine Utt 1535, decided on 20.12.2017]

Case BriefsForeign Courts

High Court of Kenya:  The petition was filed pertaining to the issue of dissolution of marriage on the grounds of cruelty and adultery. Petitioner had submitted the marriage certificate as an evidence to prove her marriage with the respondent. It has also been stated by the petitioner that, following their marriage they initially cohabited in Magongo and later moved to Nairobi, where they stayed for 6 months after which they returned to Mombasa. E N was the child out of petitioner and respondent’s marriage, along with two other sons who were in their twenties from respondent’s first marriage.

Petitioner has contended that she was subjected to cruelty and also respondent was unable to support her to the amount of providing food too. The reason put forward for not being able to support the petitioner as stated by her was, that he had provided Kshs. 30,000/ for the delivery of their son. Incidents of beating up the petitioner were also pointed out.

Further, this matter was reported at the Changamwe Police Station, where P3 form was issued and petitioner averred that the other two sons of the respondent from the first marriage had also threatened her with rape. Though the petitioner has strongly accused respondent of adultery, she has no evidence of that, as she has not seen any women with the respondent. Finally, on 13.11.2011, she left the matrimonial home.

Respondent in his contentions states that he had never treated the petitioner with cruelty and instead claimed of being tortured by the petitioner of her endless demands which were not affordable on the part of the respondent. Respondent in turn  accused the petitioner of being in an extra-marital affair and also that he did not want the divorce.

Judge M. Thande observed that according to Section 65 of the Marriage Act, 2014, mental and physical cruelty is one of the grounds upon which a Christian marriage may be dissolved. The petitioner had given sufficient evidence by submitting the P3 form which shows the assault that took place on 13.6.14, whereas the respondent failed to rebut the evidence of P3 form, for which Court found the respondent guilty of cruelty. As both the parties had failed to submit any evidence in regard to the accusation of adultery,  that stood cancelled on the part of both the parties. Finally, the Court directed that the marriage solemnized on 15.8.09  be dissolved and the decree to be made absolute within one month. [I M W v. L W M S, Divorce Cause No. 18 of 2015, decided on 14.7.2017]