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on 15-10-2011; the application for withdrawal was filed on 28-11-2011, and the High Court dismissed the appeal as withdrawn on 20-12-2011.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]