Case BriefsHigh Courts

Bombay High Court: The Bench of M.G. Giratkar, J., partly allowed a criminal revision application by modifying the maintenance amount being provided to the wife in respect of the husband’s pension.

In accordance, the present case, the learned counsel of applicant/husband, P.K. Mishra, submitted that before retirement, the husband was getting the salary of Rs 1, 53,000 per month and after retirement, his pension was Rs 72,000 per month. Further, it was stated that the husband was not in a position to pay Rs 30,000 per month as maintenance to his wife, the reason being an exorbitant amount. He added that “As per Section 11 of the Pensions Act, 1871, the pension cannot be attached.”

Hence, the High Court on considering the facts and circumstances of the case stated that maintenance amount at Rs 30,000 per month granted by learned Magistrate appears to be exorbitant. Pending disposal of domestic violence proceedings before learned Magistrate, at this stage amount of Rs 20,000 per month towards interim maintenance appears to be proper. “Maintenance allowance granted to wife cannot be considered as debt – She is not a creditor hence exemption under Section 11 cannot be granted to husband.” Also, pensions can be attached to recover the amount of maintenance.  Therefore,

  • The criminal revision application is partly allowed.
  • Order of interim maintenance is maintained. However, the amount at Rs 30,000 per month is modified.
  • Instead of Rs 30,000 per month, the applicant shall pay Rs 20,000 per month towards interim maintenance to his wife during the pendency of D.V. Act proceedings.
  • The order of attachment of pension is hereby quashed and set aside subject to the applicant/husband clears all arrears of maintenance within a period of one month.

In view of the above, the criminal revision application stands disposed of. [Bhagwant v. Radhika, 2019 SCC OnLine Bom 607, Order dated 05-04-2019]

Case BriefsHigh Courts

Delhi High Court: A Bench of Jyoti Singh and G.S. Sistani, JJ. dismissed an appeal filed against the order of the family court rejecting the appellant-wife’s application for grant of maintenance pendente lite under Section 24 of the Hindu Marriage Act, 1951.

The parties married to each-other in June 2012 and had been living separately since September of that year. The wife was living in Gurgaon and the husband was in Singapore. The husband sought a decree of nullity of marriage under Section 12(1)(a) and (c), pending which the wife filed the application under Section 24 claiming pendente lite maintenance of Rs 2.50 lakhs per month along with litigation expenses. The same was rejected by the family court. Aggrieved thereby, the wife filed the present appeal.

The High Court noted that the wife was well educated and earning a monthly salary of around Rs 1.25 lakhs. On the other hand, the husband was also at a senior position in a reputed company in Singapore and was earning about Rs 13 lakhs per month. Noting all the facts and discussing the law on the subject, the Court was of the view that the impugned order does not need interference. Observing that the cost of living as per the standards of the country where the husband is employed is to be considered, the Court stated, “We cannot agree with the contention of the appellant that merely because the respondent is earning in ‘dollars’ she is entitled to the maintenance claimed by converting his salary in dollars into Indian rupees. We agree with the respondent that his expenditure being in dollars, the salary being in dollars is a fact which cannot be overemphasized.”

Being satisfied that wife’s earnings were sufficient to maintain herself, it was stated, “The provisions of this section (Section 24) are not meant to equalize the income of the wife with that of the husband but are only to see that when divorce or other matrimonial proceedings are filed, either of the party should not suffer because of paucity of source of income and the maintenance is then granted to tie over the litigation expenses and to provide a comfortable life to the spouse. Where, however, both the spouses are earning and have a good salary, merely because there is some salary difference cannot be a reason for seeing maintenance.”

In light of the above discussion, the wife’s appeal was dismissed as being devoid of merits.[KN v. RG, 2019 SCC OnLine Del 7704, dated 12-02-2019]

Case BriefsHigh Courts

Kerala High Court: The Division Bench of A.M. Shaffique and A.M.Babu, JJ. dismissed an appeal against the judgment of Family Court directing the husband to pay an amount of Rs 2,25,000 to his wife.

In the present case, the appellant and respondent were a married couple. The grievance of the respondent-wife was that at the time of her marriage she was given 25 sovereigns of gold ornaments which was appropriated by the appellant for his business purpose. But, appellant-husband denied the allegation of having appropriated any of her gold ornaments. The Family Court decreed return of respondent’s ornaments. Aggrieved thereby, the instant appeal was filed.

The appellant submitted that being from a poor family, respondent did not have the capacity to purchase any gold ornaments. Therefore his family had purchased the ornaments from a gold merchant. But the same was returned to merchant later since they did not have enough money to pay for it. However, later he vacillated from his statement and contended that the ornaments were imitation gold. Respondent argued that if the ornaments were imitation gold, then, in that case, the appellant’s contention that the ornaments were returned to the seller, itself was wrong.

The Court noted that though specific details regarding appropriation of gold ornaments had not been given by the respondent-wife; but she had specifically stated in her petition that her gold ornaments were taken and invested for appellant’s business purpose. It was opined that as far as a wife is concerned when her husband demands gold ornaments for his business it may not be possible for her to refuse. Therefore, there was every reason to believe the version of the respondent in view of contradictory contentions taken by appellant. In view thereof, no infirmity was found in the impugned order.[Muraleedharan Pillai v. Ambili Chellappan, 2019 SCC OnLine Ker 688, Order dated 22-02-2019]

Case BriefsHigh Courts

Bombay High Court at Goa: C.V. Bhadang, J., allowed a petition filed by the husband and quashed trial court’s order whereby it had partly allowed the wifes’ application filed under Section 20 of the Protection of Women from Domestic Violence Act, 2005.

The wife, along with her minor son, filed a domestic violence petition against the husband. By its order, the trial court partly granted the application in terms of Section 20 directing the husband to pay a monthly maintenance of Rs 5,000. Subsequently, the wife appealed to the additional sessions judge who partly allowed the appeal by enhancing the maintenance to Rs 7,000. Aggrieved, thereby the husband filed the revision petition.

Agha Iftikhar, Advocate for the husband submitted that there was no finding of any act of domestic violence being committed by the petitioner against the wife. It was further submitted that such a finding was a sine qua non for the trial court to grant any relief under the Act. On the other hand, A.D. Bhobe, Advocate appearing for the wife fairly did not dispute the above-said submission.

The High Court took note of the submissions made by the husband that he shall continue to pay Rs 5,000 per month for a limited period for the wife and minor son. Resultantly, the Court allowed the petition and quashed the impugned order. However, it was left open for the wife to take recourse to any other remedy as may be available under law. The husband was directed to pay a monthly sum of Rs 5,000 for a period of six months. [Vijayanand Dattaram Naik v. Vishranti Vijayanand Naik, 2019 SCC OnLine Bom 314, dated 13-02-2019]

Case BriefsHigh Courts

Delhi High Court: Sunil Gaur, J. allowed a petition filed by petitioner (wife) for striking off respondent’s (husband) defence in proceedings pending under the Protection of Women from Domestic Violence Act, 2005.

Earlier, the trial court vide its order dated 2-3-2017 had dismissed the wife’s application for striking off husband’s defence observing that non-payment of maintenance/arrears of maintenance cannot be a ground to do so. Aggrieved thereby, the wife preferred the present petition.

Jatin Sehgal, Adhirath Singh and Raymon Singh, Advocates appeared for the wife. On the other hand, the husband was represented by Laksh Khanna, Advocate who supported the trial court’s order.

The High Court noted that the respondent was in arrears of Rs 9,00,000 towards payment of maintenance to the wife. Furthermore, the Appellate Court vide its order dated 14-7-2017 evolved an equitable solution whereby husband’s employer was to deduct Rs 50,000 from his salary every month and pay that sum directly to the wife. Out of this, Rs 25,000 was to be the current monthly maintenance amount, and remaining Rs 25,000 were to be adjusted against the arrears. However, this order was not complied with by the husband.

In view of such facts and circumstances, the Court found that the husband’s failure to clear arrears of maintenance in terms of the Appellate Court’s order justified striking off his defence. Consequently, the wife’s application was allowed. [Swati Kaushik v. Ashwani Sharma, 2019 SCC OnLine Del 7133, dated 11-2-2019]

Case BriefsHigh Courts

Bombay High Court: The Bench of Mangesh S. Patil, J. dismissed a revision petition filed against the order of Additional Sessions Judge rejecting petitioner’s application under Section 319 CrPC for adding husband and in-laws of the deceased co-accused.

Petitioner was the father of the deceased– Sumitra. Sumitra was found murdered with a bullet injury on her head. An FIR was lodged and criminal law was set into motion. It was alleged that Sumitra came to know about the illicit relationship between her sister-in-law and brother-in-law Vilas as a consequence of which he murdered Sumitra. At the conclusion of the investigation, Vilas was chargesheeted in the crime. The petitioner was examined as the first witness. It was thereafter, that he submitted an application under Section 319 CrPC to array Sumitra’s husband and in-laws as co-accused. The application was rejected by the trial Judge. Aggrieved thereby, the petitioner was before the High Court.

K.H. Surve, Advocate for the husband and in-laws submitted that petitioner moved the application without any basis relying on whatever material was collected by the Investigating Officer.

The High Court stated, “power under Section 319 is to be invoked under special circumstances where during the course of trial some additional evidence comes on record which reveals involvement of some more persons in commission of the crime.” Referring to Hardeep Singh v. State of Punjab, (2014) 3 SCC 92, the Court observed that power under Section 319 can be exercised by trial court at any stage of the trial provided there is some “evidence” which is interpreted to mean material brought before the court during the trial. Material collected by IO during inquiry can be utilised to corroborate such evidence. In the present case, no such additional material or evidence came on record during the trial so as to reveal complicity of husband and in-laws in the crime. Resultantly, the petition was dismissed. [Vishwambhar v. State, 2019 SCC OnLine Bom 9, dated 03-01-2019]

Case BriefsHigh Courts

Patna High Court: A Division Bench comprising of Ravi Ranjan and Madhuresh Prasad, JJ. while hearing a criminal writ petition filed by husband seeking habeas corpus for his wife, ruled that the writ could not be issued if the wife did not want to go back to her matrimonial home.

In the instant case, the petitioner-husband filed a writ seeking habeas corpus for his wife who had left him. On the date of hearing, the petitioner’s wife entered an appearance before the court along with her parents and submitted that the petitioner had assaulted due to which she had left her matrimonial home. She further submitted that she did not wish to go back to her matrimonial house along with the petitioner.

The Court noted the submissions of petitioner’s wife and held that since petitioner’s wife had already been produced before the Court, a writ of habeas corpus could not be issued to the petitioner. On that holding, the writ petition was dismissed.[Virat Arya v. State of Bihar,2018 SCC OnLine Pat 1987, decided on 01-11-2018] 

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

Uttaranchal High Court: A Division Judge Bench comprising of Sharad Kumar Sharma and Sudhanshu Dhulia, JJ. declared that denial of cruelty by the lower court was erred on illogical interpretations.

The appellant has appealed against the orders of the family court on the denial for the grant of divorce and permanent alimony under Section 25 of the of Hindu Marriage Act. She has claimed that respondent under the influence of alcohol misbehaved with her by inflicting mental cruelty along with his absence both as a husband and father with the appellant and her child. She also pleaded an attempt to force sodomy upon her by the respondent.

The Court stated that inferences were drawn from facts which in itself cannot be taken as a proof against the statements of the appellant and thus was not an analogical and judicial inference rendered by the lower court. Also in the written statement the respondent had not specifically denied his act of misbehaving in an intoxicated condition. The most important point for consideration was that sodomy was something a wife would never plead against the husband to allege cruelty and therefore shall be weighed substantially. Accordingly, the act of cruelty stood established plus the appellant was also granted the permanent alimony.[Suman Lata Panwar v. Ajay Singh, F.A. No. 77 of 2013, order dated 15-11-2018]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of G.S. Sistani and Jyoti Singh, JJ. dismissed an appeal filed against the order of the Family Judge whereby the appellant-husband was directed to pay a sum of Rs 15, 000 per month as maintenance to his wife.

The respondent-wife had filed an application under Section 24 of the Hindu Marriage Act, 1955 seeking maintenance from her husband. The Family Judge decided the quantum of maintenance as above to be paid by the husband to the wife. Aggrieved thereby, the husband filed the instant appeal. It was contended by the appellant that the Family Court did not properly appraise the facts and documents as submitted by him. It was averred that he was barely earning Rs 10,000 per month and therefore the Family Judge was not right in awarding the abovementioned amount as maintenance.

The High Court perused the record and was of the view that the pleas taken by the appellant about his income were not believable. Similarly, for his plea regarding the salary earned by the respondent was not supported by evidence. The Court referred to Jasbir Kaur v. District Judge, Dehradun, (1997) 7 SCC 7 wherein it was held that “considering the diverse claims made by the parties one inflating the income and the other suppressing, an element of conjecture and guess work does enter for arriving at the income of the husband. It cannot be done by any mathematical precision.” It was observed that in family matters, there is a tendency of spouses no to disclose their correct and true income; the present case was no different. In such view of the matter, it was held that the quantum of maintenance as calculated by the Family Judge suffered from no infirmity. Therefore, the appeal was dismissed. [Bhuvneneshwar Sachdeva v. Kavita Sachdeva,2018 SCC OnLine Del 12415,dated 29-10-2018]

Case BriefsHigh Courts

Karnataka High Court: A Single Judge Bench comprising of Ravi Malimath, J. allowed a writ petition filed under Article 227 of the Constitution of India against an interim maintenance order on account of it being arbitrary against the husband.

The respondent filed an application under Section 24 of the Hindu Marriage Act in order to seek interim maintenance for which the petitioner was directed to pay Rs 5000 per month against which this writ petition was filed.

The petitioner contended that his only source of earning was a photostat machine shop and thus the amount awarded was too excessive for him. He brought into consideration the financial position of the respondent which comprises of her owning various landed properties in the State as well as she had a four-wheeler to her possession along with the fact that she was a practicing advocate.

The Court agreed with the petitioner that taking into account the low income of the petitioner against a considerably higher income of the respondent, the maintenance awarded was far too excessive. Accordingly, the amount was reduced to Rs 3000 per month.[Rachayya v. Bhagyalaxmi,2018 SCC OnLine Kar 1821, order dated 05-06-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of R.K. Gauba, J. dismissed a criminal petition filed under Section 482 CrPC for quashing of criminal proceedings against the petitioners under the Protection of Women from Domestic Violence Act, 2005.

The respondents had invoked the provision contained in Section 12 of the Act against one Lalit Mohan Joshi, husband of Respondent 1, since deceased. The provision was also invoked against family members (present petitioners) of the husband. The petitioners approached the Court seeking quashing of the said proceedings on the grounds, inter alia, that they were senior citizens, the allegations against them were small and bald, no case of domestic violence was properly brought out, intention of the respondent was to cause harassment and to gain wrongful possession of their property.

The High Court, at the outset, observed that to say the least, the petition was wholly misconceived. Questions of facts cannot ordinarily, and in absence of evidence of unimpeachable character to the contrary, be properly inquired into or adjudicated upon in jurisdiction under Section 482 CrPC. Reference in this connection was made to Rajiv Thapar v. Madan Lal Kapoor, (2013) 3 SCC 330. Furthermore, it was observed that the fact of death of the husband cannot result in the criminal proceedings coming to an end. After all, allegations were also made against the petitioners who were related to the respondents by marriage or birth. The Court held that the claim of the respondents for compensation for the injuries suffered as a result of alleged acts of domestic violence could not be brushed aside; it would need to inquired into and adjudicated upon in accordance with law. The petition was, thus, dismissed. [Vijay Laxmi v. Madhu Joshi, Crl. MC No. 4352 of 2015, dated 06-09-2018]

Case BriefsHigh Courts

Gauhati High Court: A Division Bench comprising of Suman Shyam and Achintya Malla Bujor Barua, JJ., decided a criminal appeal wherein the conviction of the appellant-wife under Section 302 IPC for the murder of her husband was altered to culpable homicide not amounting to murder under Section 304(II).

The appellant was alleged to have committed murder by attacking her husband with an axe. Before the trial court, the appellant took a defence that her husband mistakenly fell on the axe which resulted in his death. However, considering all the evidence available, the trial court held her guilty. Further, under Section 106 Evidence Act it was the duty of the accused to prove any fact which was exclusively within her knowledge. The appellant herein did not discharge the onus, and accordingly, she was convicted under Section 302. The appellant challenged the order in appeal.

The High Court perused the record and found that the fact-finding by the trial court did not suffer from any infirmity. The appellant, who was alone with the deceased at the time of the incident, was not able to discharge the burden of proving the fact exclusively within her knowledge. Moreover, nature of injuries suffered by the deceased, as shown in the post-mortem report, made the theory of the deceased falling on the axe, improbable. However, as per appellant’s statement and also statements of prosecution witnesses, the deceased was a drunkard who took up fights with the appellant. On the day of the incident also there was a fight between the appellant wife and her husband. The Court held that the incident was an outcome of the fight which gave grave and sudden provocation to the appellant that resulted in commision of the act. Considering the facts, the Court held that the appellant was a victim of circumstances and deserved the benefit of Exception 1 to Section 300. Accordingly, her conviction was altered from that under Section 302 to Section 304(II) IPC. Appeal was disposed of accordingly. [Suljina Dhan v. State of Assam, 2018 SCC OnLine Gau 645, dated 25-6-2018]

 

Case BriefsHigh Courts

Jharkhand High Court: With the intent to protect the sanctity of marriage, the Court said that sometimes clash of ego between the couple turns out to be a cause of marital discord, therefore, while dealing with such type of cases, a sincere attempt is required to be made by the concerned Presiding Judge of the Family Court dealing with the case to settle the disputes amicably, if possible, in the very start of the matter.

The Court showed it’s concern on the marital discords resulting in divorce in the matter where the wife had sought reversal of the order of restitution of conjugal rights by taking the plea  that after even giving birth to a son out of this wedlock, the marriage being of 2008, she had completely withdrawn herself from the society of the husband without any reasonable excuse whereas the wife contended that at the time of marriage, she was hardly  20 years old and eager to build up her career, but her husband and his family members, who had initially agreed that they would permit her to go ahead with her further studies, refused and assigned her domestic work. Considering the facts of the case, the Court said that “if an attempt is made, perhaps this young couple can reunite.”

The division bench of Virender Singh J. and  Shree Chandrashekhar CJ., hence, directed the parties to appear in person and then persuaded them to stay together to which the appellant-wife willingly agreed. After 6 weeks the matter was called up again, where the couple made a joint statement that they are staying together very happily and if there was any misunderstanding between them, they have resolved it themselves. The couple also volunteered to work as Para Legal Volunteers (PLVs) Mediators/ Conciliators on behalf of the Jharkhand State Legal Service (JHALSA).

The Court was hence, of the view that this couple would be in abetter position to give effective counseling which would be in the larger interest of the Society. [Priyanka Sarkhel v. Baban Sarkhel, 2016 SCC OnLine Jhar 1620, decided on 17.06.2016]

Case BriefsHigh Courts

Rajasthan High Court: While deciding a writ petition the Court has stated that Section 65 B of Evidence Act is not applicable to the evidence in the form of Pin Hole camera with a hard disk memory on which a recording was done, as it was submitted as Primary evidence, since Section 65 B it deals only with Secondary evidence.  The present writ petition was filed by the wife challenging the admissibility of the electronic record (Pin hole Camera, memory and recordings) filed by the husband in a family court, along with the affidavit in evidence in support of the divorce petition. The Court and also held that the privilege in respect of the husband and the wife’s communication under Section 122 of Evidence Act would not attract in Family court proceedings.

The Court observed while rejecting the contention of the wife that, “Section 65B of the Act of 1872 only deals with the secondary evidence qua electronic records. It does not at all deal with the original electronic records, as in the instant case, where the pinhole camera, with a hard disk memory on which the recording was done has been submitted before the Family Court. The Supreme Court in the case of Anvar P.V. v. P.K. Basheer (2014) 10 SCC 473 has held that if an electronic record is produced as a primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence without compliance with the conditions of Section 65B of the Act of 1872. That evidence would take the colour of primary evidence, subject no doubt to its credibility based on forensic examination and cross examination.”

The single judge Bench comprising of Alok Sharma, J. observed that “Section 14 of the Family Court Act, 1984 provides that a family court may receive any evidence, report, statement, documents, information or matter which in its opinion will facilitate the effective adjudication of the disputes before it, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872. The aforesaid section therefore makes it pellucid that the issues of relevance and admissibility of evidence which regulate a regular trial do not burden proceedings before the family courts. It is the discretion of the family court to receive or not to receive the evidence, report, statement, documents, information etc. placed before it on the test whether it does or does not facilitate an effective adjudication of the disputes before it.”  The bench further observed “the privilege in respect of the husband and the wife’s communication under Section 122 of the Act of 1872 would also not attract, as Section 14 of the Family Court Act eclipses Section 122 of the Evidence Act in proceedings before the Family Court. Section 14 aforesaid is a special law, so to say, as against the general law, which Section 122 of the Act of 1872 encapsulates vis-a-vis privileged communications between husband and wife.” [Preeti Jain v. Kunal Jain 2016 SCC OnLine Raj 2838 Decided on 27.05. 2016]

Supreme Court

Supreme Court: Taking into consideration the tendency of naming all the members of the family as accused in case of a dowry death, the bench of T.S. Thakur and A.K. Goel, JJ noted that while deciding such matter the Court has to adopt pragmatic view and when a girl dies an unnatural death, allegation of demand of dowry or harassment which follows cannot be weighed in golden scales. However, at the same time, omnibus allegation against all family members particularly against brothers and sisters and other relatives do not stand on same footing as husband and parents. It was further said that in such case, apart from general allegation of demand of dowry court has to be satisfied that harassment was also caused by all the named members.

Giving benefit of doubt to the relatives named in the present case where a pregnant woman committed suicide as a consequence of harassment at the hands of her in-laws for the demand of dowry, the Court was of the opinion that normally, it is the husband or parents of the husband who may be benefitted by the dowry and may be in a position to harass and not all other relatives, though no hard and fast rule can be laid down in that regard. 

Considering the nature of relationship of the appellants i.e. being sisters and brother of the husband of the deceased, the court held that the possibility of the appellants’ having been named by way of exaggeration cannot be ruled out and futher said that it is true that till such an unfortunate event takes place, the family members may not disclose the demand of dowry being a private matter and under the hope that the relationship of the couple may improve. Monju Roy v. State of West Bengal, 2015 SCC OnLine SC 358, decided on 17.04.2015