Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of J.R. Midha, J. allowed a petition filed against the order of family court whereby opportunity of the petitioner to cross-examine the respondent was closed.

The family court, by its impugned judgment also dismissed the petitioner’s application for waiver of costs of Rs 10,000. Learned counsel for the petitioner sought an opportunity to cross-examine the respondent on payment of costs as imposed by the family court. Learned counsel for the respondent opposed the prayer.

The High Court relied on A. v. T., 2018 SCC OnLine Del 9395, wherein it was observed that it is very difficult to find the truth if the right of cross-examination of any witness is closed in undue haste. Further, cross-examination is a powerful weapon by which the defence can separate the truth from falsehood by piercing through the evidence given by a witness. In view of these categorical observations, the High Court held that one opportunity should be granted to the petitioner to cross-examine the respondent. The date for cross-examination before the family court was fixed, and orders made accordingly. [P. v. R.,2018 SCC OnLine Del 10052, dated 19-07-2018]


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

Karnataka High Court: A Single Judge Bench comprising of Raghvendra S. Chauhan, J. decided a writ petition filed under Articles 226 and 227 of the Constitution, wherein the Court upheld the order of the Family Court whereby the petitioner was to pay an amount of Rs. 32,114 as travelling expenses to the respondent.

The parties were husband and wife. The petitioner filed a divorce petition against the respondent on the ground of cruelty and desertion. The petition was filed in Bangalore, Karnataka, while the respondent was living in Meerut, U.P. The respondent filed a transfer petition before the Family Court which was dismissed while directing the petitioner to pay the above-mentioned amount as traveling expenditure to the respondent. This order was challenged by the petitioner contending that the respondent was only a housewife and she was free to travel via train and there was no need for her to travel via flight. He was ready to pay the fare for train tickets as against the ‘requisite travelling expenditure’.

The Court condemned, in strong words, the argument made on behalf of the petitioner as misplaced an untenable. Rejecting the contention of the petitioner that the housewife was free to travel by train, the Court said that, “…said plea terms the housewife as “free”. Such a contention merely shows the lack of understanding about the work being carried out by “the housewife.” It also reveals the lack of gender justice, where a large number of persons continue to carry a misnomer that a housewife is “free”. Needless to say, a housewife is as busy as a professional person. After all, she is responsible for looking after the members of the family, and for running the house.” Further, the term ‘requisite expenditure’ is not limited to merely train travel. It is not for the petitioner to decide as to what mode of transportation the respondent should take in order to attend the hearing. If the respondent decides to travel by air, and not by train, even then the petitioner cannot escape his liability to pay the requisite travelling expenditure. Therefore, the petition was dismissed, upholding the order impugned herein. [Gaurav Raj Jain v. Shweta Jain,2018 SCC OnLine Kar 639, order dated 26-04-2018]

Case BriefsHigh Courts

High Court of Kerala: The Division Bench comprising of V. Chitambaresh and Sathish Ninnan, JJ., recently dealt with a writ petition filed by the mother for presenting the child in question to the Court since he had allegedly been removed from her custody without any orders from a court of law.

The petitioner contended that following her separation from her husband, despite her having full custody of the child, he was taken away by his paternal grand parents from his maternal aunt’s house while she was away working and was never returned back. The paternal grand parents refuted the claims and instead alleged that he was found abandoned in a store nearby the school. They also contended that by virtue of their son, the father of the child, being the natural guardian and since he was living abroad, they would have custody of the child.

The Court referred to Section 352 of Mulla’s Principles of Mahomedan Law wherein it has been laid down that a mother is entitled to the custody of her male child until he has completed 7 years of age or her girl child until she has attained puberty. The only exception to the rule arises if the mother has remarried, in which case, the father gets custody of the child. In the present case, since the child has not completed 7 years, the mother gets the custody.

The Court also acknowledged that the question of guardianship is separate from that of custody as was held in Athar Hussain v. Syed Siraj Ahmed, (2010) 2 SCC 654. The Court also referred to Nithya Anand Raghavan v. State (NCT of Delhi),  (2017) 8 SCC 454 wherein it was held that at the threshold the High Court is only supposed to examine whether “the minor is in lawful custody” of the respondent or not and a natural guardian would constitute as one by default. The biological mother is one such natural guardian. Once such a factor has been ascertained, only in exceptional cases can writ petitions for removal of guardianship of the child from the mother be entertained by the High Courts.

The Court thus ordered for the custody of the child to be returned to the mother and the parties to move the Family Court for further remedies if needed. It quoted Cardinal Mermillod’s famous quote, “A mother is she who can take the place of all others, but whose place no one else can take”. [Ancy A. v. Station House Officer, WP(Crl). No. 42 of 2018, order dated 7-2-2018]

Case BriefsHigh Courts

Karnataka High Court: A Single Judge Bench comprising of A.S. Bopanna, J., decided a set of writ petitions filed under Articles 226 and 227 of the Constitution, wherein the petitioner husband; residing abroad, was granted permission to appear in the Court through Skype.

The matter related to a marriage dispute between the petitioner-husband and the respondent-wife. The matter was initially filed before the Family Court by the wife against the husband. The petitioner-husband in the instant petition prayed to quash the order of the Family Court whereby the petitioner was directed to appear in person before the Court in Bangalore. The petitioner submitted that he was residing in the USA and had difficulties in traveling to India and appearing before the Family Court. During the pendency of instant petition, a compromise petition was filed by both the parties before the Court whereby they had agreed to dissolve the marriage. The said petition was signed by father of the petitioner-husband as his power of attorney. Hence for reaching finality in the matter, petitioner’s appearance before the Court was necessary to ascertain that the joint petition was filed with his concurrence.

The High Court referred to an earlier decided writ petition, wherein a detailed consideration regarding leave to be granted to appear through Skype had already been adverted to. The Court observed that in appropriate circumstances where both the parties agreed on a compromise and when it is only for the purpose of satisfaction of the Family Court that the compromise has been entered, it is permissible that such appearance through Skype would be sufficient. The Court found that in the instant case, the respondent-wife had no objection to such prayer and hence considering that the petitioner-husband was in the USA, the Court thought it fit to grant permission to appear through Skype. Accordingly, the petition was allowed and the impugned order of the Family Court directing the petitioner to appear in person was set aside. [Rahul Chandra Kone v. Jahanvi, WP Nos. 24580 of 2015, order dated 30.01.2018]

Supreme Court

Supreme Court: Addressing the serious issue of delay in adjudication by the family courts for provision of maintenance to a wife in need, the Court, lashing out sternly on the laxity, observed that such delays defeat not only the legislative command but also creates unimaginable hardships for the wife and children whose only hope depends upon the maintenance they are rightfully entitled to. Referring many of its earlier decisions on the point of maintenance, the Court stated that Section 125 CrPC and Section 7 of Family Court Act, 1984 are social legislation aimed at providing speedy relief to the wife by way of maintenance to sustain herself and her children.

Expressing severe disappointment on the way the instant case for maintenance stretched for 9 yrs due to routine adjournments by the family court thereby presenting a picture of complete disdain of the principle embodied in Section 125 CrPC and Section 7 of Family Court Act, 1984 the Court directed that the family courts should remain alert and decide such matters expeditiously keeping in mind the objects and reasons of Section 125 CrPC and Section 7 of Family Court Act, 1984

The stern reaction of the Court resulted from the instant case where the case for maintenance was filed in 2002 and finally decided by the Family Court, Jaipur in 2011 ordering the maintenance to be given from the date of order which was reversed by the Rajasthan HC by ordering the maintenance to be paid from the date of the application The Appellant counsel Jay Kishor Singh termed the HC order as unjust which was refuted by Ruchi Kohli, the respondent counsel, who contended that due to repeated adjournments resulting in delay the wife sustained herself and her son with great difficulty. The Court, observing the laxity of the Family Court and the resultant delay of 9 years, upheld the decision of the High Court and ordered the payment of maintenance along with arrears. Bhuwan Mohan Singh v. Meena, Criminal Appeal No. 1331 of 2014, decided on 15.07.2014

To read the full judgment, refer SCCOnLine