Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Alok Singh and Ravindra Maithani, JJ. entertained an appeal filed by the appellant-wife who challenged the judgment passed by the Family Court, dissolving the marriage of the appellant and respondent.

In the initial case, the respondent-husband had alleged that the appellant was mentally sick and she suffered from generalized epilepsy, it was further contended that the case of the appellant was incurable. The respondent narrated that on the third day of marriage itself the appellant felt unconscious and with the passage of time due to the mental illness of the appellant the couple was not able to consummate. Hence on the basis of mental disorder, the respondent sought divorce which was duly awarded by the Family Court, after examining witnesses and evidences.

The said appellant hence filed the instant appeal and contended that she never suffered from such mental disorder and thus, the allegation of the respondent was false. She also contended that the marriage was consummated and she was pregnant at a point of time but pregnancy was aborted due to uncertain circumstances. She denied all the allegations made by the appellant and alleged that demand of dowry was made by the respondent’s family, as the demand was not fulfilled the respondent deserted her. It was further contended that the decision of the Family Court was not justified and the appellant never wanted divorce.

The Family Court had observed that the appellant-wife had not presented any evidence or witness in support of her claim and she had simply denied the claims and allegation made by the respondent.

In the instant appeal the counsel for the appellant, J.P. Joshi, placed reliance on Kollam Chandra Sekhar v. Kollam Padma Latha, 2013 AIR SCW 5559, where Supreme Court observed that if mental illness is proved, and even then the family court was not justified in granting the divorce. The Court observed that all the witnesses produced by the husband supported his case. It was further observed that the husband stated that appellant–wife was not able to do her day to day work; he had to maintain her in every possible way. The Court found that the appellant wife had not disclosed about her illness prior to marriage. The statement of the medical practitioner was attached who examined the appellant and found that she suffered from mental illness. The Court found the story of the respondent to be true. It was held that, “Since there is no rebuttal with proof on the part of appellant wife, we have no option except to accept the version of respondent-husband that appellant wife is mentally sick and she was unable to manage her matrimonial life. Appellant wife had neither produced any witness nor got herself examined as a witness.” The Court stated that in the present case the decision of Kollam was not applicable as in Kollam the wife did not show any symptom of psychotic illness and responded well to the treatment but in this particular case wife was not able to manage her daily martial life. Hence the judgment of the Family Court was upheld.[Mamta Negi v. Yogendra Singh Negi, First Appeal No. 36 of 2012, decided on 12-07-2019]

Case BriefsHigh Courts

Patna High Court: Ahsanuddin Amanullah, J. dismissed an application filed under Section 482 of the Code of Criminal Procedure, 1973 praying for quashing of cognizance taken against petitioner, in a case pertaining to demand of dowry and torture therefor.

Petitioner, along with eight others, was charged with offence of torture, assault, demand of dowry and conspiracy to kill the opposite party 2 (daughter-in-law of the petitioner herein). In a complaint case filed by opposite party 2, the learned Sub-Divisional Judicial Magistrate passed an order taking cognizance of offences under Sections 323, 498-A of Penal Code, 1860 and Sections 3 and 4 of Dowry Prohibition Act, 1961. Aggrieved thereby, the instant application was filed praying for quashing of the said order.   

Learned counsel for the petitioner, Sanjay Kumar Ojha, contended that the opposite party 2 did not reside in the matrimonial home and she had got divorced from the petitioner’s son in 2011.

Learned Assistant Public Prosecutor, Jharkhandi Upadhyay contended that the matrimonial case wherein divorce was granted to opposite party 2, was filed in the year 2010 while the complaint case in question was filed in 2004. Thus, the opposite party 2 was still the petitioner’s daughter-in-law when the complaint case was filed. Hence, the petitioner’s main contention of divorce was of no relevance. Further, the cognizance order in complaint case, was passed in the year 2003, i.e., ten and a half years ago, which made the application unfit for consideration. 

The Court noted that the complaint case was of the year 2004 and the order of cognizance was also of the same year. Thus, the present application, filed in the year 2015, challenging cognizance order of the year 2004 was clearly unfit to be entertained on the ground of gross delay and laches. Further, the main contention of the petitioner that her son and opposite party  2, were already divorced, was of no consequence, as the matrimonial case (for divorce) was filed in the year 2010 by opposite party 2; and that itself was proof of the fact that she was tortured in the matrimonial home. 

In view of the above, it was held that the cognizance order did not suffer from any infirmity, and it did not warrant any interference by the Court in exercise of its inherent power under Section 482 CrPC.[Sushila Devi v. State of Bihar, 2019 SCC OnLine Pat 653, decided on 13-05-2019] 

Case BriefsHigh Courts

Calcutta High Court: Sahidullah Munshi, J. allowed the appeal for the subsequent dates being asked for by the husband for the potency test but dismissed the appeal made by the husband for the virginity test of the wife as it did not appear to the Court a sound proposition of law.

In the instant case, two revision applications were heard together because the question of law and facts were identical. The suit was filed by the wife seeking annulment of marriage by a decree of nullity under Section 25(i) of the Special Marriage Act, 1954 and alternatively for divorce under Section 27(1)(d) of SMA. Wife filed an application, praying for the potency test of the husband and the same was allowed and on that basis wife pleaded that the marriage was not consummated, considering it a void marriage. The husband filed an application seeking a virginity test on his wife which was rejected. The husband appeared before the Medical Board for the said test and it was unanimously held by the Board that the party should be referred to FMS Department, Calcutta Medical College. The husband did appear before the Board but, he, later on, filed an application before the Court for subsequent dates for his appearance before the board.

The trial court rejected husband’s application seeking virginity test and relied on a passage of renowned author that stated “Virginity test is not a reliable indicator of a female having actually engaged in sexual intercourse because the tearing of the hymen may have been the result of an involuntarily sexual act”. The trial court further rejected the husband’s application for extending the date of potency test before the Medical Board finding him reluctant to appear before the Board.

Learned counsel, Dipanjan Datta, Sayan Datta and Rituparna Saha, for the petitioner, contended that since the wife has made allegations that the marriage was not consummated, she should be subjected to a virginity test.

Learned counsel, Ankit Agarwala and Alotriya Mukherjee, appeared on behalf of the opposite party contended that delay in the potency test would be a great loss to the wife.

The Court opined that the trial court was not justified in rejecting the prayer of the husband for extension of time when it was apparent that the result of the test was crucial and it would decide the fate of the parties. The application was to be allowed for the benefit of both the parties stating that delay in the test is a loss for wife, was not considered valid for refusing the application. Therefore, the revision application was allowed. The Court directed the medical college to allow the petitioner on a subsequent date but that shall be fixed within two months from the date of communication of the order and the petitioner was directed to communicate the same to the Superintendent of medical college. The Court did not find any irregularity or material illegality in the order passed regarding the virginity test. [Sri v. Smt, CO No. 3309 of 2018, decided on 21-06-2019]

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

Delhi High Court: A Bench of Jyoti Singh and G.S. Sistani, JJ. allowed an appeal filed by the husband against the decision of the family court whereby it had granted a decree of judicial separation under Section 10 of the Hindu Marriage Act, 1955 instead of a decree of divorce as prayed for by the husband in a divorce petition filed under Section 13(1)(i-a) and (iii).

The husband had alleged various incidents of cruelty against the wife. But the same were held to be omnibus allegations by the trial court. However, the trial court was of the view that a case for granting a decree of judicial separation was established and therefore it passed the impugned order. The High Court upheld most of the findings of the trial court. However, it was held that the allegation in relation to the criminal case filed by the wife against the husband amounted to matrimonial cruelty. The husband was working in the Indian Air Force when the criminal case under various sections IPC including Section 498-A was filed. He had to undergo imprisonment for 111 days. However, the wife did not appear in the trial and the husband was ultimately acquitted. It was noted that the case was filed on the advice and under pressure of her brother. However, due to the imprisonment, the husband was not granted extension in his employment with the Indian Air Force which jeopardized his career and he suffered a great loss of reputation.

Apart from that. the parties were living separately for 15 years. There was no scope of reconciliation. The gap between them could not be bridged. It was observed: “the marriage has irretrievably broken down. While this may not be a ground for divorce under the Hindu Marriage Act, 1955 but in cases where the marriage is seen to be beyond repair, the courts have taken this as an important circumstance amongst other grounds including cruelty to severe the material tie. Marriage is an institution which is based on love, faith and trust and sentiments and emotions for each other. But if the parties have lost these virtues for each other, an artificial reunion is of no consequence.” It was noted that although the wife suffered remorse and regret her follies, she seemed to be undecided on what she wants in life. Even though she might want to go back, the husband was not willing to stay with her at all. Their marriage had reached a stage beyond salvage. Therefore, due to the cruelty inflicted upon the husband by causing his wrongful imprisonment, coupled with an irretrievable breakdown of the marriage, the Court granted a decree of divorce. [M.S. v. S.D., 2019 SCC OnLine Del 8234, decided on 23-04-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: The Bench of G.S. Ahluwalia, J., dismissed a revision filed in respect of waiving off of the mandatory 6 months period under Section 151 CPC.

The present application was filed following the stated facts, in which it has been stated that applicant and respondent filed an application under Section 13-B of Hindu Marriage Act for grant of divorce by mutual consent. The case was adjourned for a period of 6 months with the advise to parties to reconsider their decision for obtaining a divorce.

An application under Section 151 CPC was filed after the above order of adjournment was passed for seeking a waiver of a mandatory period of 6 months. The stated application was rejected on the ground that it is not in accordance with the law.

Counsel for the applicant, Awadhesh Pratap Singh Sisodiya submitted that, “Provision of 6 months under Section 13-B of Hindu Marriage Act is merely directory in nature and not mandatory.”

“For waiving the period of 6 months as provided under Section 13-B (2) of Hindu Marriage Act, parties should point out that there is no possibility of cohabitation or there is no possibility of alternative rehabilitation, but the personal inconvenience of parties cannot be a ground.”

The High Court stated that, an application under Section 151 CPC was filed on the singular ground that the respondent is a teacher and applicant a private doctor, therefore, they cannot come to the Court frequently. Further, the Court went on to state that, application for waiver of mandatory 6 months period under Section 13-B(2) of the Hindu Marriage Act is not tenable.” Once parties have approached the Court seeking relief, they have to abide by the procedure provided under the statute.

Therefore, Trial Court did not commit any mistake by rejection the application under Section 151 CPC. [Mayank Shrivastava v. Ritu Shrivastava, CR-256 of 2019, Order dated 09-04-2019]

Case BriefsHigh Courts

Delhi High Court: A Bench of Jyoti Singh and G.S. Sistani, JJ., allowed an appeal filed by the appellant-wife against the judgment of the family court whereby it had granted divorce in favour of the respondent-husband under Section 13(1)(i-a) of the Hindu Marriage Act, 1995 on the ground of cruelty.

In his divorce petition, the husband had alleged that the wife taunted him as impotent, misbehaved with his parents and relatives threw utensils, etc. The family court allowed his petition and granted a decree of divorce in his favour. Aggrieved thereby, the wife filed the present appeal.

 V.P. Singh Bidhuri, Advocate for the wife assailed the impugned judgment. Per contra, Rajender Yadav, Advocate appearing for the husband supported the same.

The High Court noted that there were no material particulars or details in the divorce petition and the averments were very general in nature. Citing Rule 7 of the Hindu Marriage Rules, 1979 which prescribes as to what should be the contents of the petition filed under HMA, the Court observed, ” a perusal of the Rule shows that it is a statutory requirement as well that the acts/offences alleged in matrimonial cases should be set out with specific particulars of time, place, etc. The present divorce petition clearly does not meet the requirement of Rule 7. Merely stating that the appellant was neglecting her duties or that she was abusive and insulting, would not be sufficient to constitute an act of cruelty unless and until specific instances showing such conduct are pleaded and proved.” In such and other views of the matter, the Court allowed the present appeal and set aside the impugned judgment passed by the family court. [J v. JC, 2019 SCC OnLine Del 7703, dated 28-02-2019]

Hot Off The PressNews

Supreme Court: A bench headed by Chief Justice Ranjan Gogoi dismissed a plea of a Kerala-based outfit challenging the constitutional validity of an ordinance which makes the practice of instant ‘triple talaq’ a punishable offence. The Court said that it would not like to interfere.

The Muslim Women (Protection of Rights on Marriage) Ordinance was first notified on September 19 last year, hours after the Union Cabinet had cleared it.

Instant ‘triple talaq’, also known as ‘talaq-e-biddat’, is an instant divorce whereby a Muslim man can legally divorce his wife by pronouncing ‘talaq’ three times in one go.

The ordinance making the practice of instant ‘triple talaq’ a punishable offence was issued for the third time in less than a year on February 21.

(Source: PTI)

Also read:

In the historic judgment, SC says that Triple Talaq is not fundamental to Islam; Practice set aside by a 3:2 majority

Lok Sabha passes Bill making Triple Talaq unconstitutional

‘Triple Talaq Ordinance’ promulgated in wake of ending the arbitrary custom of oral unilateral divorce

The Triple Talaq Bill passed in Lok Sabha

Triple Talaq ordinance re-promulgated

Amendments to existing lawsLegislation Updates

An Act further to amend the Divorce Act, 1869, the Dissolution of Muslim Marriages Act, 1939, the Special Marriage Act, 1954, the Hindu Marriage Act, 1955 and the Hindu Adoptions and Maintenance Act, 1956.

BE it enacted by Parliament in the Seventieth Year of the Republic of India as follows:—

CHAPTER I
PRELIMINARY

1. (1) This Act may be called the Personal Laws (Amendment) Act, 2019.
(2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

CHAPTER II
AMENDMENT TO THE DIVORCE ACT, 1869

2. In the Divorce Act, 1869, in Section 10, in sub-section (1), clause (iv) shall be omitted.

CHAPTER III
AMENDMENT TO THE DISSOLUTION OF MUSLIM MARRIAGES ACT, 1939

3. In the Dissolution of Muslim Marriages Act, 1939, in Section 2, in ground (vi), the words “leprosy or” shall be omitted.

CHAPTER IV
AMENDMENT TO THE SPECIAL MARRIAGE ACT, 1954

4. In the Special Marriage Act, 1954, in Section 27, in sub-section (1), clause (g) shall be omitted.

CHAPTER V
AMENDMENT TO THE HINDU MARRIAGE ACT, 1955

5. In the Hindu Marriage Act, 1955, in Section 13, in sub-section (1), clause (iv) shall be omitted.

CHAPTER VI
AMENDMENT TO THE HINDU ADOPTIONS AND MAINTENANCE ACT, 1956

6. In the Hindu Adoptions and Maintenance Act, 1956 in Section 18, in sub-section (2), clause (c) shall be omitted.

[Dated: 21-02-2019]

Ministry of Law and Justice

OP. ED.

Efficacy of Foreign Decree of Divorce

We are in some context or the other confronted with the question as to “how good is a decree of divorce granted by a foreign court with regard to a Hindu couple married in India?” This question is becoming a familiar question with all of us.

The foremost answer that would surface with us would be, that, the Hindu couple residing/working in a foreign land ought to be governed by the matrimonial laws in force at that place. As a corollary, the decree of divorce granted by the foreign court should be valid.

However, the pride of the place is taken by Section 1 of the Hindu Marriage Act, 1955 which reads thus:

  1. Short title and extent—(1) This Act may be called the Hindu Marriage Act, 1955.

      (2) It extends to the whole of India except the State of Jammu and Kashmir, and applies also to Hindus domiciled in the territories to which this Act extends who are outside the said territories.

It is for this reason that Hindus married as per Hindu Rights in India, although settled abroad, are primarily required by law to process divorce proceedings only as per the said Act i.e. applying the Hindu Marriage Act, 1955.

The other emphasis of the Indian law is the mandate of Section 13 of the Hindu Marriage Act, 1955. The said Section mentions that divorce can be taken exclusively on the stated grounds. When the grounds have been specifically elucidated, it excludes the scope of granting divorce on any other ground. Few grounds mentioned in the said Act are as follows:

(i) petitioner has been treated with cruelty;

(ii) petitioner has been deserted;

(iii) respondent has ceased to be a Hindu; and

(iv) respondent has been of an incurable unsound mind.

To complete the narration of codified law on the subject, reference to Section 13 of the Code of Civil Procedure, 1908 is essential which reads as under:

  1. When foreign judgment not conclusive —A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except—

            (a) where it has not been pronounced by a court of competent jurisdiction;

             (b) where it has not been given on the merits of the case;

            (c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable;

             (d) where the proceedings in which the judgment was obtained are opposed to natural justice;

             (e) where it has been obtained by fraud; and

             (f) where it sustains a claim founded on a breach of any law in force in India.

The above provisions were considered in detail by the Supreme Court of India in Y. Narasimha Rao v. Y. Venkata Lakshmi[1]. This Court ruled that:

(a) Court of competent jurisdiction would be the one which the law under which parties are married, recognises. Any other court would be court without jurisdiction, unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that Court.

(b) It was held that the decision must be given on the “merits” of the case i.e.:

           (i) The ground of divorce in the decision of the foreign court should be a ground available under the Hindu Marriage Act, 1955. For instance, if the ground of the foreign decree was cruelty on the applicant, this would be acceptable, as “cruelty” is a stated ground under the Hindu Marriage Act, 1955. But the same cannot be said for “irretrievable breakdown of marriage”, as this is not a ground under the Hindu Marriage Act, 1955.

          (ii) The decision should be a result of contest between the parties. The non-applicant should have unconditionally submitted to the jurisdiction of the foreign court and contested the claim or agreed to the passing of the decree. The concept of acquiescence to jurisdiction would not suffice.

(c) Refusal to recognise the law of India, is covered by saying that the ground for divorce in the foreign decree is a ground available under the Hindu Marriage Act, 1955.

(d) The foreign judgment was obtained as opposed to natural justice. The concept of natural justice is the provision of fair hearing; absence of bias of Judge and following the elementary principles of fair play. This is a larger concept but shortly can be stated as essential trappings in order to have a fair adjudication. Where for instance respondent was denied documents filed by the other side or where the respondent was denied the opportunity to cross-examine witnesses of the other side, without a justifiable cause, these would be opposed to the principles of natural justice.

(e) Where the foreign decree was obtained by fraud. Fraud at any stage vitiates legal proceedings. It is often said that law and fraud cannot co-exist.

In Satya v. Teja Singh[2], when the respondent had instituted a foreign court proceeding, in a court in whose jurisdiction the applicant has never lived, respondent had made a false representation that respondent was a bona fide resident of that State. It was held that the respondent had practised fraud on the foreign court by concealing this fact. Therefore, that foreign court had no territorial jurisdiction. That foreign court decree was declared invalid by the Supreme Court of India.

Law on this has hardly undergone any development in the last 27 years. Y. Narasimha Rao case[3] stands alone, so to say.

Briefly, the expression “where it has not been given on merits of the case” was commented upon by the Supreme Court of India in International Woollen Mills v. Standard Wool (UK) Ltd.[4] The view taken was when evidence was led by the plaintiff applicant in the foreign court, even though the opposite side may have been served but not appearing, the decision would be “on merits”. This Court concurred with the law laid down in another case which stated that:

A decision on the merits involves the application of the mind of the Court to the truth or falsity of the plaintiff’s case and therefore though a judgment passed after a judicial consideration of the matter by taking evidence may be a decision on the merits even though passed ex parte, a decision passed without evidence of any kind but passed only on his pleadings cannot be held to be a decision on the merits.

Situation before the Indian Courts

In the above background, Indian courts were confronted with situations wherein Hindu couples married in India as per Hindu Law, settled in a foreign land, develop matrimonial disputes and approach a foreign court. This situation demanded the Indian courts to determine whether the decrees passed by the foreign court as a consequence of the matrimonial disputes between the Hindu couples settled abroad, had any efficacy in India.

 Concept of “Comity of Courts”

This is a view taken by the courts, which is known as the concept of “comity of courts”. This means that courts in various countries grant probity to decrees of foreign courts. The understanding being, the courts all over the world adjudicate the rights of the parties and therefore, show mutual respect. This principle was first laid by the Court of England and subsequently approved by the Supreme Court of India in Elizabeth Dinshaw v. Arvand M. Dinshaw[5]. The Court recorded the observation that:

                9. … it is the duty of all courts in all countries to do all they can to ensure that the wrongdoer does not gain an advantage by his wrongdoing.

The courts in all countries ought, as I see it, to be careful not to do anything to encourage this tendency. This substitution of self-help for due process of law in this field can only harm the interests of wards generally, and a Judge should, as I see it, pay regard to the orders of the proper foreign court unless he is satisfied beyond reasonable doubt that to do so would inflict serious harm on the child.

The Supreme Court of India in another case Alcon Electronics (P) Ltd. v. Celem SA of FOS 34320 Roujan[6], recorded the following:

                19. The principles of comity of nation demand us to respect the order of English Court. Even in regard to an interlocutory order, Indian courts have to give due weight to such order unless it falls under any of the exceptions under Section 13 CPC.…

These are the competing considerations before the Indian courts. That is the codified laws and the concept of “comity of courts”. These have to be reconciled by the Indian courts.

In a different context, namely, custody of child, in an inter-country dispute, Supreme Court of India had occasioned to opine in Ruchi Majoo v. Sanjeev Majoo[7]. It may be clarified that custody of child matter is to be viewed completely differently as against dissolution of marriage. This is for the reason that in custody of child matters, welfare of the child is of paramount consideration by the Court.

Supreme Court of India took the view that:

Recognition of decrees and orders passed by foreign courts remains an eternal dilemma inasmuch as whenever called upon to do so, courts in this country are bound to determine the validity of such decrees and orders keeping in view the provisions of Section 13 CPC. … Simply because a foreign court has taken a particular view on any aspect concerning the welfare of the minor is not enough for the courts in this country to shut out an independent consideration of the matter. Objectivity and not abject surrender is the mantra in such cases. Judicial pronouncements on the subject are not on virgin ground. Since no system of private international law exists that can claim universal recognition on this issue, Indian courts have to decide the issue regarding the validity of the decree in accordance with the Indian law. Comity of courts simply demands consideration of any such order issued by foreign courts and not necessarily their enforcement.

In that context, Supreme Court of India in Prateek Gupta v. Shilpi Gupta[8], balanced the foreign court order on custody by holding that it is one of the relevant factors without getting fixated therewith. Court held that:

           32. … while examining the question on merits, would bear in mind the welfare of the child as of paramount and predominant importance while noting the pre-existing order of the foreign court, if any, as only one of the factors and not get fixated therewith.…

A different situation arose before the Delhi High Court in Harmeeta Singh v. Rajat Taneja[9]. Here the husband had filed proceedings in the foreign court. Wife has approached the Delhi High Court by way of a civil suit. High Court restrained the husband for continuing with the proceedings in the foreign court, as the wife had no spouse visa, she possibly could not defend the proceeding in the foreign court. Of course, there was no occasion for the wife to submit to jurisdiction of the foreign court.

Broadly Two Categories of Cases

Broadly speaking two categories of cases can be carved out on the basis whether the opposite party in the foreign court appeared and actively participated or not. Therefore, the subject can be easily stated under the following two heads:

(i) Did Not Attend Nor Actively Participated

The non-applicant always has an option not to attend nor actively participate in the foreign court proceedings. This would be taken as, the non-applicant did not submit to the jurisdiction of the foreign court. This, however, does not mean that the non-applicant is not even required to be served in the foreign court proceedings. Non-service would amount to denial of opportunity to be heard.

As the non-applicant did not submit to the jurisdiction, it is further said that this non-applicant did not chance a judgment in his/her favour. Challenge to the foreign court decree in such a situation may be entertained by the Indian courts. It cannot, therefore, be said that having participated, having submitted to the jurisdiction and having made submissions before the foreign court, now because the verdict of the foreign court is against the non-applicant, he is now challenging the same in the Indian court.

The non-applicant must be served with notice of the foreign court proceedings. Or else, the proceedings would be taken in law to be a nullity i.e. of no value in law. If this is a situation, Indian courts are likely to declare the entire foreign court proceedings as void.

(ii) Did Attend And Actively Participated

This question automatically answers itself, when contrasted with the above answer. Having attended and having participated, the non-applicant (respondent) in the foreign court cannot complain that he/she was not heard, if the respondent had voluntarily submitted to the jurisdiction of the foreign court. The respondent is free to make an alternative plea under the jurisdiction of the foreign court for grant of alimony or monthly maintenance. To adjudicate the same, the foreign court would be free to follow laws laid by its own land.

Another form of “attend and actively participate” is when the non-applicant consents to the passing of the decree of divorce.

Consequences of a Foreign Decree of Divorce Being Held as Invalid

Respondent cannot sit with the comfort that he/she has a decree for divorce from a foreign court. Consequences may appear soon thereafter or maybe years later. The other side may apply for its cancellation in the Indian court. In such an eventuality if:

       (i) The respondent remarries, he may be prosecuted for bigamy. Case in point is Y. Narasimha Rao v. Y. Venkata Lakshmi[10].

       (ii) Opposite party may file for maintenance.

       (iii) Issue of custody of children can be raised.

       (iv) Opposite party may claim share in the property of the respondent.

Executability of Foreign Court Decree

There is a provision in Indian law for execution of foreign court decrees. This is contained in Section 44-A CPC read with Section 13 CPC.

Although Section 44-A CPC is couched in general phraseology and would seem to apply to the execution of foreign decrees in general. However, when it comes to specific laws i.e. the Hindu Marriage Act, 1955 or the issue of custody of the child, Section 44-A seems to have little application.

These specific Acts have an overbearing effect on Section 44-A CPC. This is clear from sub-section (3) of Section 44-A which makes it clear that this is subject to the decree falling in any of the exceptions contained in Section 13 CPC.

Conclusion

The above discussion only shows how complicated the position is regarding the validity of a foreign court decree of divorce. It can perhaps be stated that a Hindu couple married in India would be well advised to seek a divorce from an Indian court only.

There can be little comfort from the fact that the foreign court decree was passed and some time has elapsed or that there is inaction of the opposite side. Consequences may appear several years later.

A Probable Way Ahead

The process of simplification could begin for instance from a Hindu couple permanently settled abroad. If facts show that they were indeed permanently settled in the foreign land, then, such a couple could be said to have causal and most immediate territorial connection with the foreign land. It could be held that their court of competent jurisdiction could be foreign court and their proper law i.e. codified law would be the foreign law. This is stated on the strength of principles given by the Supreme Court of India in Surinder Kaur Sandhu v. Harbax Singh Sandhu[11]:

                     10. … The modern theory of conflict of laws recognises and, in any event, prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case.… Ordinarily, jurisdiction must follow upon functional lines. That is to say, for example, that in matters relating to matrimony and custody, the law of that place must govern which has the closest concern with the well-being of the spouses and the welfare of the offsprings of marriage.…

By adopting this approach a practical way may appear for couples settled abroad. They may not need to have recourse to Indian courts. The development of law could march in this direction.

——————————————————–

† Advocate, Supreme Court of India

[1]  (1991) 3 SCC 451

[2] (1975) 1 SCC 120

[3] (1991) 3 SCC 451

[4] (2001) 5 SCC 265

[5] (1987) 1 SCC 42, 47

[6] (2017) 2 SCC 253, 262

[7] (2011) 6 SCC 479

[8] (2018) 2 SCC 309, 330

[9] 2003 SCC OnLine Del 60 : (2003) 2 RCR (Civ) 197

[10] (1991) 3 SCC 451

Legislation UpdatesStatutes/Bills/Ordinances

The Union Cabinet, chaired by the Prime Minister Narendra Modi, has given its approval to the following proposals:

  1. Promulgation of an Ordinance, namely the Muslim Women (Protection of Rights on Marriage) Second Ordinance, 2019, as per Appendix-III (pages(9 to 12) under clause (1) of Article 123 of the Constitution; and
  2. Move necessary official amendments in the Muslim Women (Protection of Rights on Marriage) Bill, 2018 pending in Rajya Sabha to replace the aforesaid Ordinance with such modifications of drafting and consequential nature as may be considered necessary.

Benefits:

The proposed Ordinance will protect the rights of married Muslim women and prevent divorce by the practice of instantaneous and irrevocable ‘talaq-e-biddat’ by their husbands. It will discourage the practice of triple talaq i.e. talaq-e-biddat. Promulgation of the proposed Ordinance will provide the rights of subsistence allowance, custody of minor children to victims of triple talaq i.e. talaq-e-biddat.

Ministry of Law and Justice

Case BriefsHigh Courts

Bombay High Court: The Bench of Mridula Bhatkar, J. quashed and set aside the order passed by Additional Sessions Judge,  refusing to discharge the petitioner/accused from offence punishable under Section 377 of Penal Code, 1860.

The present petition was filed in respect of challenging the order passed by the Metropolitan Magistrate, Girgaon, Mumbai rejecting the discharge of petitioner under Section 377 IPC.

Petitioner in the present case is a co-accused prosecuted under Sections 498-A, 377, 323, 504  r/w Section 34 of IPC. The facts of the case are that the complainant is married with a son of 6 to 7 years old. Complainant states that after 4-5 years of marriage she realised that her husband was gay, and on realising that she refused the parallel relationship of her husband. She also stated that she was ill-treated by her husband due to which she had left for her father’s house but later agreed to come back to her husband’s place when she again witnessed no change and continuation of the gay relationship of her husband with different males.

On realising the fact that her husband was not ready to stop his relationship with the petitioner/accused and being ill-treated a number of times, she finally lodged an FIR. Later, the Additional Sessions Judge partly allowed the revision application but maintained the charge under Section 377 IPC against the accused. Aggrieved by the same, the present petition was filed.

High Court while placing reliance on the Apex Court’s judgment in Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, held that though the ground for divorce could be the extramarital consensual sexual relationship as cruelty to the complainant, but it does not constitute an offence under Section 377 IPC, because both are adults and had a consensual sexual relationship.

Thus, in the present case, no victim exists and the order of the Additional Sessions Judge is quashed. [Daniel Crasto v. State of Maharashtra, 2019 SCC OnLine Bom 188, dated 30-01-2019]


Note: The 5-Judge Constitution Bench comprising of CJ Dipak Misra and R.F. Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra, JJ. in their landmark judgment held Section 377 IPC unconstitutional insofar it criminalised gay sex between consenting adults. [2018 SCC OnLine SC 1350]

Case BriefsHigh Courts

Madhya Pradesh High Court: The application was filed before the Bench of S.C. Sharma, J. under Section 438 of Criminal Procedure Code for grant of anticipatory bail.

Applicants were apprehending their arrest for offences punishable under Section 498-A, 506 and 34 of the Penal Code registered with Police Station Pandrinath, Indore. Applicant 1 was the husband and other applicants were the father and mother-in-law of the complainant. Applicant 1 had stated that after 15-20 days of his marriage with complainant he came to Indore. Applicants were alleged for dowry demand and cruelty to complainant. Applicants contended that complainant was having an affair with someone and she was stopped from chatting with him. Even after efforts to peacefully end the marriage, a false complaint against applicants was made. Further, they submitted that they are respectable persons and they do not intend to abscond. It was brought before Court that FIR was lodged against the applicants only after a suit for divorce was filed.

High Court was of the view that bail ought to be granted to the applicants and the applicants should adhere to the conditions mentioned in Section 438(2) CrPC. [Kunal Bagdi v. State of M.P., 2019 SCC OnLine MP 215, Order dated 30-01-2019]

Case BriefsHigh Courts

Delhi High Court: The Bench of Sanjeev Sachdeva, J. disposed of a petition holding that the petitioner (wife) was not entitled to maintenance under Section 125 CrPC for a period prior to the grant of divorce.

The petitioner and the respondent (husband) were married. They were living separately since 2004. Divorce was granted in 2015 on an application filed by the respondent on the ground of mental cruelty and desertion by the wife. The decree of divorce was upheld by the Supreme Court. Prior to that in 2007, the petitioner had applied under Section 125 CrPC for interim maintenance. By the impugned judgment, the trial court dismissed the application for maintenance on petitioner’s failure to show that she had sufficient cause to live separately.

S.K. Srivastava and Gurjeet Singh, Advocates for the petitioner assailed the impugned judgment while Senior Advocate Kirti Uppal with Sidharth Chopra and Shaini Bharadwaj, Advocates representing the respondent supported it.

The High Court referred to Section 125(4)which states that wife is not entitled to receive maintenance is not entitled to receive maintenance if without any sufficient reason she refuses to live with her husband. Relying on Rohtash Singh v. Ramendri, (2000) 3 SCC 180, the Court held that as the divorce decree was passed on ground of desertion which was upheld by Supreme Court, the petitioner was clearly disentitled to maintenance under Section 125. However, it was cleared that she could still file application for maintenance provided she is able to satisfy the condition of Section 125(1)(a) that she is unable to maintain herself. [Archita v. Sunil Seth, 2019 SCC OnLine Del 6484, Order dated 11-01-2019]

Case BriefsHigh Courts

Delhi High Court: The Bench of Sunil Gaur, J. quashed an FIR filed against the petitioners for offences punishable under Sections 498-A, 406 and 34 IPC.

Petition was filed seeking quashing of the FIR on the basis of mediated settlement between the parties. Jitender Gupta and Deepak Rohilla, Advocates representing the petitioners submitted that the dispute between the parties was matrimonial in nature which was amicably resolved in terms of mediated settlement dated 15-12-2018. It was also brought to notice of the Court that the parties had been divorced by mutual consent.

The High Court relied on Gian Singh v. State of Punjab, (2012) 10 SCC 303 where the Supreme Court had recognised the need of amicable resolution of disputes in cases like the present one. Inclined to allow the petition, the High Court observed, “Since the subject matter of this FIR is essentially matrimonial, which stands mutually and amicably settled between parties, therefore, the continuance of proceedings arising out of the FIR is question would be an exercise in futility.” Taking note of the mediated settlement between the parties and the fact that they have taken divorce by mutual consent, the Court quashed the FIR and proceedings emanating therefrom. [Rohit Bhargava v. State, 2018 SCC OnLine Del 13177, Order dated 20-12-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench of R.K. Gauba, J. allowed a petition for quashing of criminal proceedings pending against in light of the settlement between the parties.

Disputes arose between the petitioner and his wife which led to FIRs being lodged against each other. Subsequently, the parties entered into a settlement. They approached the matrimonial court for divorce by mutual consent. Recording the joint statement by the parties, the matrimonial court decreed the divorce by mutual consent. On the basis of the resolution between the parties, the petitioner and his relatives approached the High Court under Section 482 CrPC for quashing criminal cases against them. However, owing to such framing of the petition, the case under one of the FIRs only was quashed. Notably, the wife submitted no objection thereto. Now, the petitioner was before the Court praying the quashing of the case under the second FIR but the wife raised an objection that there being no fresh settlement, the present petition could not be entertained.

The High Court perused the record and did not agree with the objection. It noted that the settlement leading to divorce and quashing of criminal case was comprehensive, the parties specifically referred to all litigations including the second FIR. The intent of parties was to bring an end to all litigations. As such, the continuation of proceedings would be an abuse of process of the Court. Therefore, the petition was allowed and the proceedings under the second FIR were quashed. [Sandeep Dutta v. State (NCT of Delhi), 2018 SCC OnLine Del 13029, dated 11-12-2018]

 

Case BriefsHigh Courts

Madras High Court: A Bench comprising of V.M. Vellumani, J. has held in the case of matrimonial dispute regarding the irretrievable breakdown of marriage as a ground for divorce valid.

In the present case, the appellant has averred various incidents, by which, the respondent has repeatedly caused mental agony and cruelty to the appellant. The learned counsel for the appellant stated that the respondent has admitted in his evidence that he put up 10 locks, not 22 locks to lock the home. Any normal prudent man would not put 10 locks to lock the home. This fact coupled with the fact that the respondent was friendly with the parents of the appellant in their presence and talked about them shows mental illness of the respondent.

Thus, the appeal has been filed by the wife claiming for divorce on the grounds of mental cruelty and the fact that both the appellant and respondents have been living separately for more than ten years. The respondent is alleged to be mentally ill as well.

“Marriages are made in heaven. Both parties have crossed the point of no return.”

-Durga Prasanna Tripathy v. Arundhati Tripathy; (2005) 7 SCC 353

According to Hindu Law, irretrievable breakdown of marriage is not considered as a valid ground for divorce but this court, following the precedents, has held irretrievable breakdown of marriage a valid ground for divorce. To prevent the appellant from more cruelty, the appeal of divorce has been allowed. Furthermore, this Court has also dismissed the claim filed by the respondent for the restitution of conjugal rights. [Salome v. Prince D. Immanuel, 2017 SCC OnLine Mad 1651, decided on 06-04-2017]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of G.S. Sistani and Jyoti Singh, JJ. dismissed an appeal against the judgment of Family Court whereby it had decreed a divorce petition filed by the husband on grounds of cruelty by the wife.

The parties got married in 2006. A divorce petition was filed by the husband in 2009 alleging various instances of cruelty by the wife along with allegations that she was ill-tempered, stubborn, quarrelsome and insensitive towards the husband and his parents. On the basis of the evidence adduced by the parties, the Family Court granted a decree of divorce in favour of the husband on grounds of cruelty by the wife. Aggrieved thereby, the wife preferred the instant appeal.

While adjudicating, the High Court referred to a Supreme Court decision in Narendra v. K. Meena, (2016) 9 SCC 455. It was noted that the Family Court reached a conclusion that wife tied a dupatta around her neck and threatened him to commit suicide as the husband refused to seek separation from his parents. She also wrote a suicide note which was proved. In view of the Court, repeated attempts to commit suicide by the wife amounted to extreme cruelty especially when she tried to implicate the husband guilty of abatement. Finding no infirmity in the judgment passed by the Family Court, the High Court dismissed the appeal. [Kusum v. Gurcharan  Singh,2018 SCC OnLine Del 12576, decided on 15-11-2018]

Case BriefsHigh Courts

Kerala High Court: A Division bench comprising of C.K. Abdul Rehim and R. Narayana Pisharadi, JJ. affirmed the order of Family Court striking off defence of the erring husband but set aside the part of order staying proceedings in a divorce petition instituted by the wife, holding the same to be counter-productive in achieving real and substantial justice.

Facts of the case were that the respondent-wife filed a petition for divorce in the Family Court inter alia claiming interim maintenance from the petitioner-husband. The court granted her decree for interim maintenance but the petitioner deliberately disobeyed the court’s order and did not pay maintenance. The Family Court directed petitioner’s defence in the divorce petition to be struck off and to withhold trial till payment of arrears of maintenance. The said order was challenged by the petitioner in the present appeal.

At the outset, the Bench noted that the petitioner had not offered any explanation whatsoever for non-payment of the interim monthly maintenance. Having gone through judgments of various High Courts on the said issue, it was observed that when a party flouts a court order directing payment of interim alimony, thereby putting the other party at a disadvantage, the court is not helpless and it can exercise its power under Section 151 of the Code of Civil Procedure, 1908 to do real and substantial justice. On the said reasoning, it was opined that the Family Court was right in its approach of striking off the defence of petitioner and in staying of the proceedings. However, the court noted that in the instant case, divorce petition had been filed by the wife and as such, staying of proceedings in that case on the ground of non-payment of maintenance by the petitioner-husband would only cause delay in the disposal of the case thereby further adding to the wife’s grievances.

The High Court held that staying of proceedings only in a divorce case instituted by the defaulting party would achieve the object and staying of proceedings in a case instituted by the party to whom the amount is due, would be counter-productive. On the aforesaid reasoning, the order of Family Court striking off defence of petitioner was upheld and the part of order staying the proceedings was set aside. [Maximus Fernandez v. Olga Fernandez, 2018 SCC OnLine Ker 3479, decided on 24-09-2018]

Legislation UpdatesStatutes/Bills/Ordinances

The Muslim Women (Protection of Rights on Marriage) Ordinance, 2018 has been passed by the Parliament and notified on 19-09-2018, as signed by the President for promulgation. The ordinance is directed towards protection of married Muslim women and prohibition of pronouncement of talaq by their husbands and any other matter incidental thereto. This ordinance has been promulgated with a view that despite the holding in the matter of Shayara Bano v. UOI, (2017) 9 SCC 1 where triple talaq was declared unconstitutional the practice still continued.

 

Highlights of the Ordinance:

  • Definition of talaqSection 2(b) of the ordinance definestalaqas talaq-e-biddat or talaq of similar form, pronounced by a Muslim husband having effect of instantaneous and irrevocable divorce.
  • Talaq to be void and illegal — This ordinance declares pronouncement of talaq by Muslim husband to be void and illegal and penalizes the commission of same with imprisonment which may extend to 3 years and fine under Section 3 and Section 4 respectively.
  • Allowance — According to the ordinance under Section 5 a Muslim husband who pronounces triple talaq to his wife will be liable to pay to her and dependent children subsistence allowance as may be determined by Magistrate.
  • Custody of Minor Children — In case a Muslim husband pronounces triple talaq to his Muslim wife the custody of their minor children will be with the married Muslim women i.e. his wife provided under Section 6.
  • Cognizable Offence — The offence under this ordinance has been declared as cognizable under Section 7(a).
  • Who can report? — Any commission of offence under this act can be informed to the officer in charge of a police station directly by the married Muslim woman on whom the talaq was pronounced and by any other person related to her by blood or marriage.
  • Compoundable Offence — According to Section 7(b) offence of pronouncing talaq is stated to be compoundable at the instance of married Muslim woman on whom talaq was pronounced but only with the permission of Magistrate.
  • Grant of Bail— Under Section 7(c) bail can be granted only when the Magistrate is satisfied after perusing the application of the accused and hearing married Muslim women upon whom the talaq was pronounced that reasonable ground for granting bail exists.