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.
Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of G.S. Sistani and C. Hari Shankar, JJ. dismissed an appeal filed by the appellant-husband against the order of the family court whereby it granted a decree of divorce in favour of the respondent-wife.

It was contended by appellant that he wasn’t given the opportunity to recall PW 1 for fresh cross-examination as the evidence recorded by the family court was self-destructive attributable to unprofessional approach of the earlier counsel for the appellant. The appellant had filed an application under Section 151 read with Order 18 Rule 17 CPC which was dismissed as withdrawn. The present appeal was filed under Section 19 of the Family Courts Act, 1984.

The High Court considered the submissions made by the parties. It referred to Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate, (2009) 4 SCC 410 and K.K. Velusamy v. N. Palanisamy(2011) 11 SCC 275. The Court observed that Order 18 Rule 17 CPC is to be exercised sparingly. The provision is not intended to enable the parties to recall any witness for further examination. It is primarily to enable the Court to clarify any issue or doubt by recalling any witness either suo motu or on application of any party so that the Court can itself put questions and elicit answers. Moreover, in the present case, the application filed by the appellant was withdrawn when it came up for hearing. Once the application was dismissed as withdrawn, the appellant could not complain that he wasn’t given the opportunity to re-examine the witness. In such circumstances, the appeal was dismissed. [Rajiv Mehta v. Savita Mehta,2018 SCC OnLine Del 10936, dated 20-08-2018]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of Mangesh S. Patil, J. dismissed a husband’s challenge to the award of compensation to his divorced wife granted by the Additional Sessions Judge.

The appellant-husband and respondent-wife were married in 2003. Subsequently, they developed discord and the wife left the husband alleging harassment. The husband filed petition for restitution of conjugal rights which was allowed. However, even after that, the parties couldn’t live together. Thereafter, the husband filed a divorce petition on grounds of desertion by the wife. The said petition was allowed and the marriage between the parties was dissolved, which decree had become final. Subsequent to that, the wife filed an application for maintenance under Section 125 CrPC. The application was rejected by the Judicial Magistrate; however, on appeal, the Additional Session Judge allowed the same. Aggrieved by the order of the Additional Sessions Judge, the husband had filed the present petition.

The High Court perused the record and found that the facts stated above were the admitted position of the parties. Marriage between the parties was indeed dissolved by a decree of dissolution which had become final. The question before the  Court was whether, under Section 125 CrPC, the Court could grant maintenance to a wife who was divorced on grounds of desertion. For adjudication, the Court relied on the Supreme Court decision in Rohatash Singh v. Ramendri, 2000 (3) SCC 180  wherein it was held that even such a wife can claim maintenance under the section; however, it would be available to her only from the date on which decree for dissolution of marriage had been passed. Accordingly, the husband’s challenge to award of maintenance granted to the wife was dismissed. However, it was held that the wife would be entitled to maintenance only from the date of divorce decree, and not from the date of filing of an application under Section 125 as held by the Additional Sessions Judge. The petition was disposed of in the terms above. [Dnyaneshwar Eknath Kachre v. Sunita,2018 SCC OnLine Bom 2243, dated 24-08-2018]

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]