Case BriefsHigh Courts

Punjab and Haryana High Court: A Division Bench comprising of M.M.S. Bedi and Hari Pal Verma, JJ. allowed an appeal filed by the wife against the judgment of the family court, which declined her petition for divorce.

The appellant claimed that her husband was addicted to the vice of drinking, gambling and taking medical intoxicants. He used to spend all his income on these addictions. He used to beat the appellant and demanded her to bring money from her parent’s home. He pressurized her to bring Rs. 8 lakhs, and when she showed her disability, the appellant was beaten after which she was forced to leave her matrimonial home. She filed a divorce petition on grounds of cruelty, which was dismissed by the family court. Feeling aggrieved, the petitioner approached the High Court.

The High Court perused the record and found that no rebuttal evidence was produced by the respondent-husband against the pleadings of the appellant. Considering the statements of the appellant and other witnesses, and in absence of a rebuttal by the respondent, the Court held that the facts as alleged by the appellant in divorce petition were established. Furthermore, the Court was informed that the respondent was settled in Australia and had no intention to contest the matter. In such circumstances, holding the factum of cruelty as established against the respondent, the High Court allowed the appeal and granted divorce to the appellant. [Yogita v. Sandeep Kumar,2018 SCC OnLine P&H 726, dated 01-06-2018]

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

Madras High Court: The Single Judge Bench comprising of M.V. Muralidaran J., held that “If the husband is healthy, able-bodied and in a position to support himself, he is under the obligation to support his wife under Section 125 CrPC, for wife’s right to receive maintenance under the Section, unless disqualified, is an absolute right.”

The petition for divorce was first filed by the husband/petitioner subsequently followed by a petition by the wife seeking restitution of conjugal rights and while these petitions were still pending, the wife of the petitioner filed another petition seeking interim maintenance for which the petitioner was asked to pay Rs. 16,000/- per month to the respondent/wife.

The petitioner in his submission stated that he was unemployed and was living under the shadow of his father which makes him incapable of providing such huge amount of interim maintenance. But for the same stated issue the respondent/wife contended that it was the husband’s duty to maintain his wife/child with the provision of all the basic needs, and also the contention of the petitioner is incorrect as he runs his own business.

The Hon’ble High Court, on noting all the facts and circumstances stated that it is the obligation of the husband to maintain his wife and he cannot be permitted to plead that he is unable to maintain his wife due to financial constraints as long as he is capable of earning. Therefore, the Criminal Revision was partly allowed by reducing the sum of interim maintenance to Rs. 10,000/- per month by directing the Family Court judge to dispose of the petition without giving any further adjournment. [Vishnuprasad v. Vishnupriya,  2018 SCC OnLine Mad 1306, dated 11-04-2018]

Case BriefsHigh Courts

Chhattisgarh High Court: The Court recently heard an appeal from the Family Court under Section 19(1) of the Family Courts Act, 1984 by wife against decree allowing the respondent husband’s prayer for dissolution of marriage. Both the parties got married in 2005 and have a girl child aged 8 years from the wedlock. The appellant wife lodged the FIR against the respondent and his family members for offence punishable under Section 498-A IPC and on completion of trial after the FIR, the accused persons were acquitted.

At the same time, the wife had filed a case for claiming maintenance for herself and for her minor daughter to which the respondent had refuted in the trial court that that the appellant wife was residing separately for more than two years without any reasonable and justifiable cause. On this ground, the respondent pleaded for the divorce decree on the ground of desertion for which he said, action arose when appellant left his company and he and his family members were acquitted in the case filed against them under Section 498-A IPC.

To this, the appellant had submitted that the Sessions Court acquitted the accused persons not on merits, but only on the ground that there was delay in filing FIR by her whereas the FIR was lodged immediately when the effort for reconciliation failed even after repeated Panchayat meetings arranged by parents of both the parties. Further, she told the court that she was in the same village as respondent and used to meet him frequently.

The Court going through the records of the case observed that Family Court framed only one material issue for determination as to whether the appellant/wife has treated the respondent/husband with cruelty and its finding clearly indicates that that the ground of cruelty urged by the plaintiff was not proved in trial.

The trial court also examined another aspect of cruelty as to whether the appellant wife has lodged false report for demand of dowry and has, thus, caused cruelty to the plaintiff and referred to Apex Court’s ruling in K. Srinivas v. K. Sunita, (2014) 16 SCC 34 in which it had been held that lodging of false complaint with intent to harass and humiliate the respondent and his family members has been treated to be amounting to cruelty and divorce was allowed on the same ground.

The High Court on examining all these aspects of the case observed that matters before the family Court and the issue concerning commission of cruelty is to be tested on the basis of evidence adduced before the Family Court and not only on the ground that in criminal case the husband has been acquitted referring to the judgment passed by Supreme Court in Raj Talreja v. Kavita Talreja2017 SCC Online SC 462 and therefore, Prashant Kumar Mishra, J. said that in the case at hand the decree of divorce is not sustainable inasmuch as in absence of any pleading that such criminal case has caused cruelty and the decree of divorce is sought on this ground alone, the wife was precluded from defending herself.

The Division Bench comprising of Prashant Kumar Mishra, J. and Arvind Singh Chandel, J. further commented that when the dispute occurs between the husband and wife, it cannot be expected of the wife that the moment the dispute arose she would straightway lodge the FIR without making any effort to save the marital institution and the efforts for reconciliation put by husband and wife before the panchayat can never be treated as a ground to disbelieve the prosecution case.

The Court went on to explain that though this appeal was not about the validity of the order of acquittal passed by the Sessions Court, but in these circumstances of the case, it becomes necessary for us to analyze the whole gamut of evidence to conclude as to whether such acquittal would by itself amount to lodging of false FIR for harassing the husband and/or his relatives. Finally, it held that the appeal would succeed and no false case had been lodged by wife against husband and thus, there would be no cruelty. Hence, no ground would stand for divorce. [Durga Bai v. Narayan Sinha, 2017 SCC OnLine Chh 1246, decided on 08.11.2017]

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: After conducting a 6-day hearing during summer vacations, the historic verdict on the validity of Triple Talaq is out and this is what the 5-judge Constitution Bench has held:

“In view of the different opinions recorded, by a majority of 3:2 the practice of ‘talaq-e-biddat’ – triple talaq is set aside.”

The 395-pages long judgment begins with the dissenting opinion of JS Khehar, CJ and SA Nazeer, J where the judges asked the Union of India to consider appropriate legislation, particularly with reference to ‘talaq-e-biddat’ and requested the different political parties to keep their individual political gains apart, while considering the necessary measures requiring legislation. CJI, writing the judgment for himself and Nazeer, J said that till the time a law comes into force, the Muslim husbands should be injuncted from pronouncing ‘talaq-e-biddat’ as a means for severing their matrimonial relationship. The instant injunction will be operative for a period of six months and if the legislative process commences before the expiry of the period of six months, and a positive decision emerges towards redefining ‘talaq-ebiddat’ (three pronouncements of ‘talaq’, at one and the same time) – as one, or alternatively, if it is decided that the practice of ‘talaq-e-biddat’ be done away with altogether, the injunction would continue, till legislation is finally enacted. Failing which, the injunction shall cease to operate.

Stating that while examining issues falling in the realm of religious practices or ‘personal law’, it is not for a court to make a choice of something which it considers as forward looking or non-fundamentalist, the 2 judges said,

“It is not for a court to determine whether religious practices were prudent or progressive or regressive. Religion and ‘personal law’, must be perceived, as it is accepted, by the followers of the faith. And not, how another would like it to be.”

CJI and Nazeer, J also took note of the fact that the AIMPLB has undertaken to issue an advisory through its website, to advise those who enter into a matrimonial alliance, to agree in the ‘nikah-nama’, that their marriage would not be dissolvable by ‘talaq-e-biddat’.

Nariman, J, writing down the majority judgment for himself and Lalit, J noted that given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place. It was held that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India. The Court, hence, held that the Muslim Personal Law (Shariat) Application Act, 1937, insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of the expression “laws in force” in Article 13(1) and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq. After going through the Hanafi jurisprudence, the Court noticed that very jurisprudence castigates Triple Talaq as being sinful. The Court said that Triple Talaq is a form of Talaq which is itself considered to be something innovative, namely, that it is not in the Sunna, being an irregular or heretical form of Talaq, it was held that:

“the fundamental nature of the Islamic religion, as seen through an Indian Sunni Muslim’s eyes, will not change without this practice.”

It was, hence, held that Triple Talaq was not a part of Article 25(1) of the Constitution and hence, the Muslim Personal Board that the ball must be bounced back to the legislature does not hold good as Article 25(2)(b) would only apply if a particular religious practice is first covered under Article 25(1) of the Constitution.

Joseph, J, writing down a separate judgment but agreeing with the majority opinion, said,

“Merely because a practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible.”

He said that the purpose of the Muslim Personal Law (Shariat) Application Act, 1937 was to declare Shariat as the rule of decision and to discontinue anti-Shariat practices with respect to subjects enumerated in Section 2 which include talaq and therefore, in any case, after the introduction of the 1937 Act, no practice against the tenets of Quran is permissible and hence, there cannot be any Constitutional protection to such a practice. [Shayara Bano v. Union of India, 2017 SCC OnLine SC 963, decided on 22.08.2017]

 

Case BriefsHigh Courts

Karnataka High Court: While passing the order in a writ petition filed under Articles 226 and 227 of the Constitution, a Single Judge Bench comprising of Aravind Kumar, J. held that the contention of the respondent that the present application for maintenance was not maintainable on account of the petitioner having already filed an application under S. 125 CrPC could not be accepted.

The marriage was solemnized between the petitioner wife and the respondent husband in 2001. The petitioner filed a petition under S. 13(1 (ia) and (ib) of the Hindu Marriage Act, 1955 for dissolution of marriage. During the pendency of proceedings, the petitioner filed an interlocutory application under S. 24 of the Act claiming interim maintenance. The respondent contended that he was already paying Rs. 10,000 p.m. to the petitioner as maintenance under S. 125 CrPC.

The Court held that there cannot be any bar for claiming maintenance under S. 24 HMA, even in the event of application under S. 125 CrPC having been filed. The Court further held that a reading of S. 24 HMA, would disclose that while awarding maintenance, court has to take into consideration the income of parties before deciding the quantum of maintenance. During the pendency of divorce proceedings, at any point of time, if wife establishes that she has no sufficient independent income for her support, it would always be open for her to claim maintenance pendent lite. In case respondent-husband attempts to stove off the claim for maintenance sought for by the wife, it is trite law that husband will have to satisfy the court that either due to physical or mental disability, he is handicapped to earn and thereby, he is unable to pay maintenance to his wife and offspring.

The Court allowed the petition in part and affirmed the order of the lower court awarding maintenance at Rs. 20,000 p.m. to the petitioner. [Smt Sunita Motwani v. Amitabh Sinha, W.P. No. 15406/2017 C/with W.P. No. 20884/2017 (GM-FC), order dated July 27, 2017]

 

Case BriefsSupreme Court

Supreme Court: In the case where the wife made reckless, defamatory and false accusations against her husband, his family members and colleagues, thereby lowering his reputation in the eyes of his peers, the Court held that mere filing of complaints is not cruelty, if there are justifiable reasons to file the complaints. Merely because no action is taken on the complaint or after trial the accused is acquitted may not be a ground to treat such accusations of the wife as cruelty within the meaning of the Hindu Marriage Act 1955. However, if it is found that the allegations are patently false, then there can be no manner of doubt that the said conduct of a spouse levelling false accusations against the other spouse would be an act of cruelty.

Considering the fact that later, the wife had filed another complaint alleging that her husband along with some other persons had trespassed into her house and assaulted her and that the police found, on investigation, that not only was the complaint false but also the injuries were self-inflicted by the wife, the Court held that though the acts of the wife in filing false complaints against the husband amounts to cruelty, the Court is, however, not oblivious to the requirements of the wife to have a decent house where she can live and since, her son and daughter-in-law may not continue to live with her forever, therefore, some permanent arrangement has to be made for her alimony and residence. As per the facts of the case, the wife continues to live in the house which belongs to the mother of the husband whereas the husband lives along with his parents in a separate house and the son and daughter-in-law of the parties live with the wife. The son is working with the husband.

The Bench of A.K. Goel and Deepak Gupta, JJ, hence, directed the husband to pay to the wife a sum of Rs. 50,00,000 as one time permanent alimony within 3 months and she will not claim any further amount at any later stage. The Court also directed that the wife shall continue to live in the house which belongs to the mother of the husband till the husband provides her a flat of similar size in a similar locality. For this purpose, the husband is directed to ensure that a flat of the value up to Rs. 1,00,00,000 be transferred in the name of his wife. [Raj Talreja v. Kavita Talreja, 2017 SCC OnLine SC 462, decided on 24.04.2017]

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

Delhi High Court: There was an appeal against the decision of the Family Court  which had dismissed the request for annulment of the marriage between the respondent and appellant on ground of desertion and cruelty by wife. The High Court reversed the order of Family Court and even noted that certain observations made by it were contrary to law. The wife had stated before the Court that her husband was more interested in other girls than in he and she had herself seen him with a girl to which he instead of explaining, had abused her without telling about the girl. Also, she had at several occasions received her husband’s phone from different girls.

To this allegation, response of the Family Court was that the husband must remove the suspicion from his wife’s mind and said that unchastity by a wife is to be viewed seriously because a higher level of fidelity is expected from a wife and it denied treating the allegation of infidelity made against the husband as mental torture. The Division Bench  expressed their shock at such a gender bias approach of the Family Court and made an important observation that an act of infidelity by either spouse would be treated on equal footing and amount to mental cruelty to other spouse. However, the facts of the case were such that the wife was unable to prove her allegations against her spouse.

In the present case, another important observation made by the Court relying on the facts was that the relations between husband and wife were more or less spoilt and they had reached the prime of their age. Also, they found out that there would be no good cause served by re-uniting them as the children were already major and could take care of themselves. It held that there was an irretrievable breakdown of marriage between both the parties in the case before them and granted the decree of divorce on the same ground while cruelty of one against the other was not sufficiently proved. However, there were serious allegations of both against each other indicating that compelling them to live with each other would in itself be an act of cruelty toward them. [Navratan Baid v. Neetu Baid, 2017 SCC OnLine Del 6884, decided on 6.02.2017]

Case BriefsHigh Courts

Delhi High Court: While upholding the impugned judgment of the Family Court granting divorce to the parties, the Division Bench of Pradeep Nandrajog, Yogesh Khanna, JJ. found that the unilateral withdrawal of consent by the appellant from a settlement deed for divorce by mutual consent, without any sufficient cause, amounted to mental cruelty.

The respondent wife had filed a petition for divorce under Section 13(1)(ia) of Hindu Marriage Act alleging that the appellant demanded dowry from her, took away her money and belongings, and casted aspersions on her character. On the other hand, the appellant denied the allegations of cruelty and rather alleged that the respondent was getting rid of him by filing divorce since he is a heart patient. Later, the appellant gave an apology letter to the Assistant Commissioner of Police, admitting his wife’s allegations and seeking reconciliation. However, he contended that the letter was written merely to satisfy false ego of his wife. The appellant had also entered into a settlement with the respondent agreeing to divorce on mutual consent on satisfaction of certain conditions. However, before the Family Court, the appellant withdrew his consent from the settlement deed.

The Court noted that no prudent man would write such an apology, as written by the appellant, for the acts he never committed, and found his contention that such writing was merely to satisfy the ego of his wife, to be frivolous. The Court also noted that though the appellant asserted his right to withdraw his consent at any time prior to the divorce being granted by mutual consent, but when there was no allegation that he signed the Settlement due to force, fraud or under influence and also when the respondent had acted upon the Settlement by forsaking her claim to custody of their son and of her permanent alimony, then the withdrawal of consent would have a different connotation as it adds to the cruelty meted to her. The Court thus concluded that the totality of the evidence established the mental cruelty upon the Respondent by the Appellant, and there was no infirmity in the impugned judgment passed by the Family Court. The appeal was accordingly dismissed. [Rajiv Chhikara v. Sandhya Mathur, 2016 SCC OnLine Del 6224, decided on 08.12.2016]

Case BriefsHigh Courts

High Court of Kerala: Deciding the question on whether subsistence of matrimonial relationship is a sine-qua-non for seeking reliefs under Sections 18 and 20 of the Protection of Women from Domestic Violence, 2005 (D.V. Act), the Bench of Sunil Thomas, J. ruled that even a divorced wife is entitled to initiate proceedings under Sections 18, 19, 20, 21 and 22 of the D.V. Act to seek appropriate reliefs. It was held that the scope of the DV Act is not confined within the limits of time and space and even after the dissolution such obligations continue.

The Court said that though it may appear to be paradoxical to argue that protection orders can be sought even after separation of spouses, such a cause of action may not be rare, which arises subsequent to the divorce, but relatable to the earlier matrimonial relationship. It is not unusual that even after divorce, certain obligations arising from past matrimonial relationship continue, like, maintenance, custody of children, liability to pay amounts or assets received, operation of bank accounts and personal safety of divorced wife and children born in the wedlock. It will be illogical and absurd to hold that the moment of divorce is granted, scope of protection order also ceases.

In the present case, the petitioner’s wife and child sought maintenance under Sections 18 and 20, after their divorce in May 2015, invoking Section 13-B of the Hindu Marriage Act. The reliefs sought were a protection order against domestic violence, return of gold ornaments and passport of the respondent. The petitioner sought to quash the above proceedings in lieu of the specific, categoric agreement that they had entered into that the wife will not claim ornaments, money or maintenance against the husband in future and also that the reliefs can be sought only during the subsistence of the marriage and that the marriage had been brought to an end legally and factually.

The Court rejecting the petitioner’s contention, held that contracting out of the statutory rights conferred on the wife under Sections 19 to 22 of D.V. Act is against public policy and hence cannot be recognized, unless it is proved that there was a mutually satisfactory settlement of all claims. The Court, hence rejected the contention of the petitioner and held that the reliefs sought is not maintainable and that the legally divorced wife has a locus standi during her entire life-time. [Bipin v. Meera D.S., 2016 SCC OnLine Ker 19559, decided on 13.10.2016]

Case BriefsSupreme Court

Supreme Court: Stating that extra-marital relationship, per se, or as such would not come within the ambit of Section 498-A IPC, the Court held that it would be an illegal or immoral act, but other ingredients are to be brought home so that it would constitute a criminal offence. It was further said that solely because the husband is involved in an extra-marital relationship and there is some suspicion in the mind of wife that cannot be regarded as mental cruelty which would attract mental cruelty for satisfying the ingredients of Section 306 IPC.

In the present case, the deceased had committed suicide due to the alleged extra-marital affair of her husband with a girl named Deepa, who later committed suicide not being able to digest the humiliation. The Couet said that the present case had the potentiality to shock a sensitive mind and a sincere heart, for the materials brought on record show how “suspicion” can corrode the rational perception of value of life and cloud the thought of a wife to such an extent, that would persuade her to commit suicide which entail more deaths, that is, of the alleged paramour, her mother and brother who being not able to emotionally cope up with the social humiliation, extinguish their life-spark.

Explaining the concept of ‘cruelty’, the Court said that coercive harassment can have the attributes of cruelty that would meet the criterion as conceived of under Section 498-A of the IPC. Thus, the emphasis is on any wilful conduct which is of such a nature that is likely to drive the woman to commit suicide.

The bench of Dipak Misra and Amitava Roy, JJ said that in such a situation, it is extremely difficult to hold that the prosecution has established the charge under Section 498A IPC and the fact that the said cruelty induced the wife to commit suicide. The Court said that the wife was guided by the rumour that aggravated her suspicion which has no boundary but such an event will not constitute the offence or establish the guilt of the accused-appellant under Section 306 of the IPC. It was held that if the husband gets involved in an extra-marital affair that may not in all circumstances invite conviction under Section 306 of the IPC but definitely that can be a ground for divorce or other reliefs in a matrimonial dispute under other enactments [K.V. Prakash Babu v. State of Karnataka, 2016 SCC OnLine SC 1363,  decided on 22.11.2016]

 

Case BriefsSupreme Court

Supreme Court: Dealing with the case where the husband had sought divorce from his wife on the ground that she was forcing him to leave his parents as he was proving them financial support, the Court said that in a Hindu society, it is a pious obligation of the son to maintain the parents. If a wife makes an attempt to deviate from the normal practice and normal custom of the society, she must have some justifiable reason and hence, the Karnataka High Court erred in holding that mere monetary consideration was a justifiable reason to separate the husband from his parents.

The Bench of A.R. Dave and L. Nageswara Rao, JJ added that no son would like to be separated from his old parents and other family members, who are also dependent upon his income, the Court also said that the persistent effort of the wife to constrain the husband to be separated from the family would be torturous for the husband and will constitute as an act of ‘cruelty’.

The husband had also contended that the wife had levelled serious allegations against him regarding his character and about his extra-marital relationship with the maid named ‘Kamla’. However, it was found that no maid named Kamla worked in their house. Hence, the Court said that except for the baseless and reckless allegations, there is not even the slightest evidence that would suggest that there was something like an affair of the husband with the maid named by the wife. On this the Court said that to suffer an allegation pertaining to one’s character of having an extra-marital affair is quite torturous for any person – be it a husband or a wife and amounts to mental cruelty. [Narendra v. K. Meena, 2016 SCC OnLine SC 1114, decided on 06.10.2016]

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

Madras High Court: While deciding upon an appeal against the order and decree passed by the Family Court, Tirunelveli, the Division Bench of K.K. Sasidharan and B. Gokuldas, JJ., set aside the decision of the Family Court dismissing the joint petition for dissolution of marriage of the appellants for want of reasons for separation. The Court further observed that the Family Courts are not allowed to enlarge the scope of enquiry under Section 13B (2) of the Hindu Marriage Act, 1955, and once it is satisfied that the essential requirements under Section 13B (2) has been fulfilled and substantiated then the Family Court must venture to grant the decree of divorce to the parties. It is not for the Family Court to decide as to whether parties were justified in living separately as it is not the scope of a petition filed under Section 13-B of the 1955 Act.

In the present case, the appellants had filed a joint petition under Section 13B (2) of the 1955 Act with mutual consent seeking for dissolution of marriage as the appellants were living separately and there was no chance of any re-union. However their petition was dismissed as the Family Judge noted that the parties have not mentioned the reasons for their separation.

Perusing the facts of the case, the Court observed that the parties have been living separately form 18.04.2014 and as per the affidavit presented by the appellants there has been no cohabitation between them since the stated date of separation. The Court observed that the only requisite of Section 13B (2) is that the parties applying for dissolution of marriage must be living separately for a period of one year or more, irrespective of any reason for doing so, and when the ingredient was satisfied by the appellants in the present case, it was unnecessary for the Family Court to enquire about the reasons behind their separation. As per the provision the only duty of the Family Court was to ensure that whether the marriage has been solemnised and that the averments in the petition are true. The Court also observed that when the parties were willing to part ways as their marriage had turned out to be a failure, the Family Court should have respected the sentiments of the parties and should have granted the divorce. With these observations, the Bench set aside the order of the Family Court and granted the decree for dissolution of the marriage of the appellants. [A.C. Mathivanan  v B. Sathyabama, 2016 SCC OnLine Mad 8884, decided on 03.08.2016]

 

Case BriefsHigh Courts

Karnataka High Court: Expressing concern over the insensitive approach of the Family Court, Bellary in the present case wherein it had granted a decree of divorce in favour of the respondent/ husband without properly analyzing the medical evidences ascertaining the medical condition of the appellant/wife, the Division Bench of H.G. Ramesh and Rathnakala, JJ., observed that the Family Court acted with extreme insensitivity by branding the appellant wife to be a complete paranoid schizophrenic when the medical evidences were clearly indicating that she was capable to lead a normal life with regular medication and family support. The Court observing the negative impact of the ‘condemnation’ by the Family Court upon the sentiments of the wife, cautioned the Family Courts in future to be alert and alive in each case that comes before it. The Court went on to say that the Family Courts must understand the distinction that each case carries due to its facts and circumstances, therefore a Judge cannot afford to “sit with a preoccupied mind and extract reasoning’s from the void, when the record before him is bereft of legal evidence”.

In the present case, the respondent husband had been granted a divorce decree under Section 13(1) (iii) of the Hindu Marriage Act, 1955, as according to his pleadings, his wife (appellant) was suffering from ‘Auditory Hallucinations’. The Family Court had allowed the petition both on the grounds of mental cruelty and incurable unsoundness of mind. Challenging the decree, V. Vidya Iyer, representing the wife, contended that though the appellant was suffering from paranoid schizophrenia, the doctors of NIMHANS had made it clear that regular check ups and medication can control her suffering and she can ably discharge her marital responsibilities, however the condition is incurable.

The Court upon perusing the evidences and the opinions of various psychiatrists observed that no case was made out under Section 13(1) (iii) of the Hindu Marriage Act, because the appellant falls under the category of those schizophrenic patients who can be kept under control with regular medication. The Court further noticed that the appellant had successfully completed her education without any hassles related to her mental health. The Court even gave the example of renowned mathematician John Forbes Nash Jr. who was also a paranoid schizophrenic, but went on to win the Nobel Prize. The Court highlighted that how his wife stood by him during his trying times. The Court further expressed its anguish over the fact that the Family Court, in the absence of any pleading or proof by the husband, itself comprehended the case to be of violation of Section 5 of Hindu Marriage Act and declared the wife to be unfit for marriage and procreation, thereby transgressing its propriety and jurisdiction. The Court with the above observations, set aside the divorce decree. [Shilpa v. Praveen S.R., 2016 SCC OnLine Kar 2642 decided on 20.07.2016]

Case BriefsSupreme Court

Supreme Court: In a divorce matter, where the wife was found suffering from a life threatening disease, the Court held that it is a duty of the husband to take care of the health and safety of the wife and provide facilities for the her treatment.

The husband had sought divorce on ground that his wife had committed various acts of cruelty after solemnization of their marriage. The matter was later transferred to the Supreme Court Mediation Centre where the husband had agreed to pay Rs.12,50,000 towards full and final settlement as alimony, maintenance for past and future or any other claim of the petitioner-wife. In a subsequent application it was urged that divorce be granted by way of mutual consent as the petitioner-wife was in urgent need of funds for her medical treatment.

Considering the abovementioned facts, the bench of M.Y. Eqbal and C. Nagappan, JJ said that it cannot be ruled out that in order to save her life by getting money, the petitioner-wife agreed for a settlement of dissolution of marriage. The Court further said that it is a pre-existing duty of the husband to look after her comforts and not only to provide her food and clothes but to protect her from all calamities and to take care of her health and safety.

Directing the husband to pay Rs. 5, 00, 000 out of Rs.12,50,000/- to the petitioner-wife immediately within a week for her treatment and meeting other medical expenses, the Court held that After the petitioner is fully cured from the disease or within six months whichever is earlier, the Family Court at Hyderabad, where the divorce petition is ordered to be transferred, shall take up the case along with a fresh application that may be filed by the parties under Section 13B of the Hindu Marriage Act, 1955 for divorce by mutual consent.[ Vennangot Anuradha Samir v. Vennangot Mohandas Samir, 2015 SCC OnLine SC 1266, decided on 02.12.2015]

High Courts

Bombay High Court: Deciding on the question whether a couple having their native place in particular city or state can file for divorce in Family Court situated in another city or state, a bench comprising V.M. Naik & P.B. Varale, JJ  has ruled that when such a question is raised, the Family Court must first address the issue of jurisdiction, before proceeding with the case.

In the present case, the wife had appealed in the High Court against the divorce granted by the Family Court at Nagpur on the grounds that since no cause of action arose there, the Court did not have jurisdiction to entertain and decide the petition. She also denied the allegations of cruelty and desertion made against her.

The Court noted that neither the marriage was solemnised in Nagpur, nor did the couple reside there at any time. When her husband moved to Nagpur she did move there with him. It was further noted that despite the specific objection of the wife that the Petition should not be entertained by the Family Court, it did not frame the issue with regard to the jurisdiction. The Court set aside the judgment and remanded the case back to the Family Court for framing and deciding the issue of jurisdiction and then deciding the case on merits. Kalpana Dhone vs. Gorakhnath Govinda Dhone2015 SCC OnLine Bom 4709, decided on July 8, 2015

High Courts

Himachal Pradesh High Court– While deciding the present divorce matter wherein repeated false and frivolous allegation of adultery were made by the appellant wife against the respondent husband, a bench of Sanjay Karol, J., held that the said allegations were made out of vengeance and were unverified and unsubstantiated. The Court dismissed the appeal made by wife and further held that the false allegations of adultery made by the appellant were not unintentional and have affected the respondent’s reputation in the society, thus amounting to cruelty.

According to the facts, appellant got married to the respondent and two children were born out of the wedlock. But with time incompatibility prompted the parties to live separately. The appellant made allegations that the respondent was having illicit relationship with his sister-in-law which were repeated in a petition filed by the appellant under Section 125 of Code of Criminal Procedure. However, the respondent husband claimed that the allegations which were false have caused grave mental cruelty and the marriage has broken out irretrievably. The husband filed for divorce on such grounds.

While deciding, the Court referred to Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, (2003) 6 SCC 334 where it was noted that conscious and deliberate statement delivered with pungency placed on record through pleadings cannot be ignored lightly or brushed aside while determining acts of cruelty in a petition for divorce. The Court while upholding the decision of the Trial Court of granting divorce on account of cruelty, observed that as there is reasonable doubt in the mind of the respondent that it would be harmful to live with his wife any further. Moreover, he cannot be expected to live with his wife due to the serious and unsubstantiated allegations of adultery amounting to cruelty. Monika Sharma v. Kuldeep Kumar Dogra2015 SCC OnLine HP 1856,  decided on 31.07.2015