OP. ED.

Let’s have a look at the Most-Viewed Blog Posts of the SCC Online Blog in the Year 2019:

“Over the years there have been many important changes in the way cheques are issued/bounced/dealt with. Commercial globalisation has resulted in giving a big boost to our country. With the rapid increase in commerce and trade, use of cheque also increased and so did the cheque bouncing disputes.[1] The object of Sections 138-142 of the Negotiable Instruments Act, 1881  is to promote the efficacy of banking operations and to ensure credibility in transacting business through cheques.[2]”

Section 498-A was introduced in the year 1983 to protect married women from being subjected to cruelty by the husband or his relatives. A punishment extending to 3 years and fine has been prescribed. The expression “cruelty” has been defined in wide terms so as to include inflicting physical or mental harm to the body or health of the woman and indulging in acts of harassment with a view to coerce her or her relations to meet any unlawful demand for any property or valuable security. Harassment for dowry falls within the sweep of latter limb of the section. Creating a situation driving the woman to commit suicide is also one of the ingredients of “cruelty”.

  • Economically Weaker Section (Ews) | Reservation For Ewss In Direct Recruitment in Civil Posts And Services In Government of India

  • Adultery [S. 497 IPC and S. 198(2) CrPC]

    The word “adultery” derives its origin from the French word “avoutre”, which has evolved from the Latin verb “adulterium” which means “to corrupt”[1]. The dictionary meaning of adultery is that a married man commits adultery if he has sex with a woman with whom he has not entered into wedlock.

    Under Indian law, Section 497 IPC  makes adultery a criminal offence, and prescribes a punishment of imprisonment upto five years and fine. The offence of adultery under Section 497 is very limited in scope as compared to the misconduct of adultery as understood in divorce proceedings. The offence is committed only by a man who had sexual intercourse with the wife of another man without the latter’s consent or connivance. The wife is not punishable for being an adulteress, or even as an abettor of the offence[2]. Section 198 CrPC deals with a “person aggrieved”. Sub-section (2) treats the husband of the woman as deemed to be aggrieved by an offence committed under Section 497 IPC and in the absence of husband, some person who had care of the woman on his behalf at the time when such offence was committed, with the permission of the court. It does not consider the wife of the adulterer as an aggrieved person.

    Section 497 IPC and Section 198(2) CrPC together constitute a legislative packet to deal with the offence of adultery[3]which have been held unconstitutional and struck down by the Supreme Court in Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

  • Maintenance – Wife

“Maintenance” is an amount payable by the husband to his wife who is unable to maintain herself either during the subsistence of marriage or upon separation or divorce. Various laws governing maintenance are as follows:

for Hindus – Hindu Marriage Act, 1955; Hindu Adoption and Maintenance Act, 1956

for Muslims – Muslim Women (Protection of Rights on Divorce) Act, 1986

for Parsis – Parsi Marriage and Divorce Act, 1936

for Christians – Divorce Act, 1869

secular laws – Criminal Procedure Code, 1973; Special Marriage Act,1954.

  • Live-In Relationship and Indian Judiciary

    It is being truly said that the only thing which is constant in this world is change. Indian society has observed a drastic change in its living pattern in the past few years. People are slowly and gradually opening their minds towards the idea of pre-marital sex and live-in relationships. However, this change has been continuously under criticism and highly discussed as such concepts lack legality and acceptance by society. Unlike marriage, in live-in relationships, couples are not married to each other but live together under the same roof that resembles a relation like marriage. In other words, we can say it is a cohabitation. In India, only those relations between a man and a woman is considered to be legitimate where marriage has taken place between the two based on existing marriage laws otherwise all other sort of relationships are deemed to be illegitimate.

    The reason behind people choosing to have a live-in relationship is to check the compatibility between couples before getting legally married. It also exempts partners from the chaos of family drama and lengthy court procedures in case the couple decides to break-up. Whatever the reason, it is very evident that in a conventional society like ours, where the institution of marriage is considered to be “sacred” an increasing number of couples choose to have a live-in relationship, even as a perpetual plan, over marriage. In such circumstances, many legal and social issues have arisen which have become the topic of debate. With time many incidents have been reported and seen where partners in live-in relationships or a child born out of such relationship have remained vulnerable for the very simple reason that such relationships have been kept outside the realm of law. There has been gross misuse by the partners in live-in relationships since they do not have any duties and responsibilities to perform. This article seeks to analyse the judicial response to the concept of live-in relationships so far. It also talks about the rights available to live-in partners in India and also, what is the status of children born out of such relationships.

  • Bom HC | Order of Maintenance under DV Act set aside in absence of any act of Domestic Violence committed by Husband

  • Maintenance – Children and Parents

In India, beneficial provisions for maintenance of children and parents are provided under various Acts. Objective of such provisions is to achieve a social purpose and to prevent vagrancy and destitution and to provide simple, inexpensive and speedy mechanism for providing support and maintenance to children and parents.

“the limited interest or Hindu Woman’s Estate [acquired under Section 3 of the Hindu Women’s Right Property Act] shall be held by the widow as full owner in terms of provisions of Section 14(1) of Hindu Succession Act, 1956?

“Section 23 of the DV Act does not provide a substantive right to parties but is a provision which empowers the trial court to pass an order granting interim maintenance in a petition filed under Section 12 of the DV Act. Merely because the trial court has not exercised the power under Section 23 of the DV Act, when a substantive petition under Section 12 of DV Act was filed and chose to pass an order only when a separate application under Section 23 of the DV Act was filed, does not mean that a Magistrate does not have the power to pass an order with effect from the date of filing of the substantive petition under Section 12.”

Case BriefsHigh Courts

Bombay High Court: Nitin W. Sambre, J., dismissed the petitions filed by the petitioner questioning the order of denial of maintenance to her.

The petitioner was a divorced wife. The respondent (ex-husband of the petitioner) had attained a decree of divorce against her under Section 13 of the Hindu Marriage Act, 1956, on grounds of adultery. The said decree had attained finality.

Thereafter, the respondent (ex-husband) moved an application under the provisions of Section 125(4) of CrPC for cancellation of maintenance granted to the wife. The said application was rejected in the first instance by the trial court but was allowed on revision by the Additional Sessions Judge. Aggrieved thereby, the petitioner filed the instant petitions.

Mahendra B. Deshmukh, counsel for the petitioner, submitted that even if there is a decree of divorce passed on the allegation of adultery, still bar under sub-section (4) of Section 125 CrPC, will not be attracted. It was contended that even after divorce, the petitioner continued to be a woman under Explanation (b) of sub-section (1) of Section 125. Per contra, Kavyal P. Shah, counsel for the respondent, submitted that the statutory embargo under sub-section (4) applied to the instant case.

Notably, sub-section (4) Section 125 CrPC says:

“(4) No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.”

Considering the rival submissions, the High Court observed: “The fact remains that, there is an expressed embargo on the right of a woman to claim maintenance, pursuant to the provisions under sub-section (4) of Section 125 CrPC, If the allegation of adultery is proved against such a women or in spite of the husband being ready to maintain her and she refuses to cohabit the women/wife can be refused payment of maintenance.”

In such view of the matter, the Court found no merit in the instant petitions. Accordingly, the petitions were dismissed.[Sanjivani Ramchandra Kondalkar v. Ramchandra Bhimrao Kondalkar, 2019 SCC OnLine Bom 6581, decided on 18-12-2019]

Case BriefsHigh Courts

Delhi High Court: Manoj Kumar Ohri, J. dismissed a revision petition filed against the order of the Family Court whereby the petitioner-husband was directed to pay interim maintenance of Rs 33,005 per month to the respondent-wife and their minor child.

The above order was made by the Magistrate while deciding the application under Section 125 CrPC filed by the respondent wherein she alleged that she was thrown out of the matrimonial home and was living at her paternal home along with the minor child. She had stated that had no source of income and claimed Rs 80,000 per month as maintenance. The petitioner submitted that he was an Executive Chef in a hotel in Goa and his monthly salary was Rs 88,000. He stated that he was looking after his old-aged parents and had other liabilities towards loan and rent.

S.C. Vats, Advocate for the petitioner, referred to the bio data of the wife and submitted that she was professionally qualified, an LL.B graduate, and was earning well. Per contra, Rajesh Sharma, Advocate for the respondent, opposed the instant review petition.

The High Court noted that besides placing on record the bio data of the wife, which was disputed, the husband did not produce any document to prove that the wife was actually earning. Reliance was placed on Shailja v. Khobbana, (2018) 12 SCC 199, wherein the Supreme Court held that “capable earning” and “actual earning” are two different requirements. Merely because the wife is capable of earning was held not to be a sufficient reason to reduce the maintenance awarded by the Family Court.

It was noted that the petitioner’s contention, in absence of any supporting document, remains a disputed question to be tested in the trial. In the impugned order, the Family Court had recorded that any amount paid as maintenance in favour of the respondent would be liable to be adjusted.

In such view of the matter, the High Court found no illegality in the order passed by the Family Court. Resultantly, the instant revision petition was dismissed. [Arun Vats v. Pallavi Sharma, 2019 SCC OnLine Del 11817, decided on 06-12-2019]

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: Buwaneka Aluwihare, PC J., Vijith K. Malalgoda, PC J. and Murdu N. B. Fernando, PC J., dismissed an appeal filed which had arisen from an order relating to an application for the payment of maintenance to a spouse. 

The Applicant-Appellant Respondent had made an application to the Magistrate’s Court for maintenance for the child born out of her marriage to the Respondent-Respondent-Petitioner-Appellant and for herself and when the matter was taken up the parties had agreed on a settlement and subsequently the application was withdrawn by the applicant. After four months she had filed a fresh application for an increased amount of maintenance to which the magistrate had rejected the application stating that the applicant was in a condition to maintain herself. Aggrieved by which she had filed an appeal in the provincial high court and the high court had granted an order providing her maintenance for a sum of Rs 20,000. Aggrieved by which the respondent had filed the instant appeal for setting aside the decision of the provincial high court.

The Court while dismissing the appeal explained that the High Court has not referred to the loss of employment of the Respondent-Appellant nor his income through computer repairs, upon considering the evidence adduced regarding the financial situation of the Respondent-Appellant, thus they see no reason to alter the orders of the high court thus there was no failure on the part of the High Court Judge to consider the Applicant’s capacity to earn an income or to be gainfully employed. [Chandana Thilaka Karunapala v. Dona Ahangama Anoma Kanthi Liyanage, SC Appeal 126 of 2014, decided on 15-11-2019]

Case BriefsHigh Courts

Sikkim High Court: Arup Kumar Goswami, CJ., dismissed the petition against the refusal to pay maintenance to the wife because she allegedly committed adultery.

The parties were married to each other but had three daughters out of wedlock. The husband with the help of the second daughter threw out the wife alleging that she had an extramarital affair. The wife alleged that she was mentally and physically tortured by the husband and had to live with her brother. The second daughter stated that she witnessed her mother commit adultery as she was in a room with another man. The petitioner moved the High Court when the Family Court allowed the wife’s claim of maintenance.

Advocate Gita Bista on behalf of the petitioner argued that the daughter saw her mother with another man inside a room and there is no reason as to why a daughter would depose falsely against her own mother, implying that wife left her husband on her own volition and hence is not entitled to any maintenance.

Legal Aid Counsel, Tashi Norbu Basi on behalf of the respondent contended that there is no conclusive proof that the wife committed adultery; they might be in the same room for some other purpose. He further submits maintenance can be denied if she is living in adultery, which is not the same thing as a single lapse from virtue.

The Court concluded that the wife hadn’t eloped but rather was forced out of her matrimonial home and that the allegations made by the husband of his wife having extramarital affairs were false as he did it with a number of people including her brother too. Further, the court stated that if the wife leaves the house of the husband because of torture and constant allegations, it cannot be said that there is no sufficient reason for the wife to leave her husband.

In the case of M.P. Subramaniyam v. T.T. Ponnakshiamal 1957 SCC Online Kar 18, Karnatka High Court considered the term “living in adultery” appearing in Section 488(4) of the Code of Criminal Procedure, 1898   which is also used in Section 125(4) of the CrPC. The Court concluded that it is not a stray act or two of Adultery that disentitles the wife from claiming maintenance from her husband, but it is a course of continuous conduct on her part it can be said that she is living an adulterous life that takes away her right to claim maintenance. There was no evidence of a continuous course of conduct demonstrating that the wife was living in adultery, hence, she can claim maintenance. [Suk Bir Chettri v. Jamuna Chettri, 2019 SCC OnLine Sikk 185, decided on 08-11-2019]

Case BriefsHigh Courts

Gauhati High Court: Hitesh Kumar Sarma, J., while disposing of a criminal revision petition filed against the order of the Additional Sessions Judge, modified the date from which the amount of maintenance was to be paid by the petitioner-husband to the respondent-wife on an application filed by her under Section 125 CrPC.

The parties were married to each other. After about 3-4 months of the marriage, the respondent left the matrimonial home on the pretext of visiting her ailing brother, and never returned. She has been living separately ever since. Subsequently, she filed an application under Section 125 CrPC, claiming maintenance from the petitioner. the case of the respondent was that starting from the very first night of marriage, she was subjected to torture by her husband and in-laws for not bringing a dowry of Rs 10,000 and other property.

The Sub-Divisional Judicial Magistrate held that the respondent was not able to prove her case and therefore, rejected her application. The Additional Sessions Judge, however, reversed that decision and directed the petitioner to pay Rs 1000 per month to the respondent. Aggrieved thereby, the petitioner filed the instant revision petition.

On perusal of the record, the High Court noted: “While there is an allegation of torture on the wife/respondent by the petitioner/husband, the fact remains that she was not driven out by her husband and she left on her own. This fact is not denied by the petitioner/husband and as such remained intact. This Court is also mindful of the fact that the respondent/wife left the company of the petitioner/husband within 2/3 months of their marriage and in the back of her mind, the fact that she was subjected to torture was always playing and the fact of torture evidently is not denied by the petitioner in his evidence.”

On such facts, the Court observed: “Although the respondent/wife left the house tangibly on her own yet the circumstances, as appears from the evidence, are such that the wife/respondent had to leave the house of the petitioner/husband under compelling reasons due to the torture meted out to her although such fact was not disclosed in so many words in her petition. No attempt by the petitioner/husband to take her back and also not providing maintenance during her separate stay for a long time is indicative of lack of persuasion on his part although an effort to persuade would have been the course usually adopted by any husband.”

In the circumstances aforesaid, the High Court was of the opinion that the finding in the impugned order that the respondent was entitled to maintenance was correct. It was, however, held that the petitioner would pay the amount of maintenance as directed, not from the date of application before the Sub-Divisional Judicial Magistrate; but only from the date of order passed by the Additional Sessions Judge. Order was made accordingly. [Pradip Das Sarkar v. Uma Sarkar, 2019 SCC OnLine Gau 5017, decided on 07-11-2019]

Case BriefsHigh Courts

Bombay High Court: In a civil application filed by an ex-wife for reimbursement of her child’s educational expenses in Australia amounting to Rs 1.2 crores among other things, a division bench comprising of Akil Kureshi and S.J. Kathawalla, JJ. observed that if a divorced husband is not consulted by his ex-wife on the decision concerning the education of their child, he is not liable to bear the entire cost for the educational expenses.

The Bench opined that when a ward is being sent abroad for education which entails considerable expenditure, the concurrence of both parents, particularly one who is expected to bear the expenditure, is necessary. The Court further stated that the husband certainly has a right to inquire about the university where the child is admitted, the course being pursued, the aptitude of the child in the particular branch of education etc and therefore it would not be fair if the applicant-wife took a unilateral decision of such magnitude and simply sent the bill for the expenditure to the father.

The Court refused to let husband bear full expenses of his ward’s foreign education but looking at his financial capacity and since his daughter was performing well at her course in Australia, found it appropriate to direct him to bear a part of his daughter’s expenses amounting to Rs 25 Lakhs towards the said cause. [Sheetal v. Deepak Govindram Bhatija, 2019 SCC OnLine Bom 3822, decided on 17-10-2019]

Case BriefsHigh Courts

Patna High Court: Ahsanuddin Amanullah, J. set aside the maintenance awarded to the respondent under Section 125 CrPC as the respondent is able to maintain herself.

In the pertinent case, the petitioner moved to this Court against the impugned order wherein Rs 3,000 per month maintenance was awarded in favour of the respondent, the ex-wife of the petitioner and Rs 2,000 per month each in favour of their children. The counsel for the petitioner submitted that the respondent has already been divorced by him and she herself is a teacher earning sufficiently to maintain herself. He also contended that the application was under Section 125 of the CrPC, is invoked by the Court only when the wife is unable to maintain herself, and in the present case, the wife herself earning sufficient amount is able to maintain herself, and, thus, the application under Section 125 of the Code was not fit to be allowed in her favour. 

The counsel for the respondent submitted that the respondent is a contractual teacher and payments are not made on a regular basis and, thus, she also requires financial support.

High Court held that the maintenance allowed in the favour of the respondent under Section 125 of the Code requires to be interfered with as the same is to be awarded to a wife, which includes a woman who has been divorced, only if she is unable to maintain herself and in the present case, the respondent is able to maintain herself hence, the same not being fulfilled, the Court set aside the order awarding Rs 3,000 per month as maintenance to the respondent.

The Court did not interfere with the award of maintenance of Rs 2000 per month to the children. [Masud Ahmed v. State of Bihar, 2019 SCC OnLine Pat 1880, decided on 14-10-2019]

Case BriefsHigh Courts

Karnataka High Court: Alok Aradhe, J. admitted the petitions under Article 227 of the Constitution of India for quashment of the order of the Judge of the Principal Family Court, Bengaluru.

In the instant case, parties got married on 29.05.1998 as per Hindu rites. The petitioner – husband sought for dissolution of marriage under Section 13 of the Hindu Marriage Act, 1955 whereas respondent-wife for restitution of conjugal rights under Section 9.

These petitions are pending before the Principal Judge, Family Court.

In respect of the proceeding under Section 13 of the Act, the Family Court granted maintenance of Rs 8,000 per month and Rs 20,000 for litigation expenses by an order on 16.10.2017. Without taking note of the order already passed, the same Court passed an order on 05.12.2017 under Section 9 of the Act and again awarded a sum of Rs 8,000 towards maintenance and Rs 10,000 towards one-time litigation expenses.

The Court after hearing H. Ramachandra, Counsel for the petitioner and Adithya Kumar H.R. for the respondent observed that the Family Court did not take note of its earlier order before passing the order on 05.12.2017. Therefore, the order passed on 05.12.2017 cannot be sustained in the eyes of law.

The Court further directed the Family Court to decide the respondent’s application afresh.

Moreover, the Court observed that the provisions in Karnataka (Case Flow Management in Subordinate Court) Rules, 2005 provide that matrimonial disputes should be decided within one year. The proceeding under Section 13 of the Act was initiated in the year 2014. Therefore, the Court directed the Family Court to expeditiously conclude the proceedings within four months of the order of this Court. [Chandrashekar v. Shylaja, 2019 SCC OnLine Kar 1828, decided on 12-09-2019]

Case BriefsHigh Courts

Patna High Court: Ahsanuddin Amanullah, J. allowed the application of the petitioner to set aside the order granting maintenance to his wife when the divorce was granted on account of adultery on the wife’s part.

The petitioner filed an application under Section 19(4) of the Family Courts Act, 1984, against the order dated passed by the Principal Judge, Family Court, Vaishali at Hajipur which directed the petitioner to pay Rs 8,000 per month as maintenance to his wife. The order was delivered ex parte and there was no valid service of notice on the petitioner during the proceeding and, thus, he was unaware of the same. The revision petition was filed within the limitation period.

The impugned order was passed under Section 125 of the Code of Criminal Procedure, 1973 which excludes a wife living in adultery from being entitled to receive any maintenance. It was submitted that in Divorce Case filed by the petitioner against the opposite party and one Sunny

Rajak, the Principal Judge, Family Court, Samastipur by judgment dated 11-10-2017, had dissolved the marriage between the petitioner and the opposite party on the ground that she was living in adultery with Sunny Rajak. It was submitted that in the said case, Sunny Rajak had contested the suit whereas the opposite party had chosen not to contest. The learned counsel submitted that once a competent Court had held the opposite party to be living in adultery with Sunny Rajak, Section 125(4) of the Code disentitles her to any maintenance from the petitioner.

The opposite party submitted that they have challenged the decree of divorce which was still pending.

The Court held that the order passed in the Maintenance Case No. 84 of 2016, could not be sustained. Section 125(4) of the Code clearly debars a wife living in adultery from receiving any maintenance from her husband. In the present case, the marriage between the parties was dissolved on the grounds that the opposite party was found to be living in adultery with one Sunny Rajak.  Further, the Court also that mere pendency of an appeal against the order dissolving the marriage, inter alia on the ground of adultery, which till date was neither disposed of nor any interim stay of such order was granted, cannot be a ground to uphold the order impugned.

In view of the above-noted facts, the instant application was allowed and the order in the Maintenance Case was set aside.[Rajesh Rajak v. Rinku Devi, 2019 SCC OnLine Pat 1521, decided on 30-08-2019]

Case BriefsHigh Courts

Rajasthan High Court: The Division Bench comprising of Mohammad Rafiq and Narendra Singh Dhaddha, JJ. dismissed an appeal filed by an aggrieved husband stating that,

“Even if the wife earns a certain amount, that does not absolve the husband of his liability to maintain her in the meaning of Section 24 of the Hindu Marriage Act, 1955.”

The present appeal was filed by the appellant-husband aggrieved by the order of the Family Court, which had allowed the application of the respondent-wife filed under Section 24 of the Hindu Marriage Act, 1955 granting Rs 7000 as monthly maintenance pendente lite.

Learned Counsel, Raunak Dixit on behalf of appellant-husband, submitted that family court mechanically granted the amount of monthly maintenance and the order passed is against the settled principle of law.

Adding to the above, Counsel for the appellant-husband submitted that, the fact that respondent-wife is a graduate and also has attained a degree of B.Ed. She earns a monthly Rs 20,000 by her teaching work, whereas the appellant earns only Rs 6,000 per month.

Further, the Counsel for the appellant relied on the case of Nisha Jain v. Amit Jain, 2016 SCC OnLine Del 4866, wherein it was held that,

“Provision of Section 24 of the Hindu Marriage Act, 1955 has been enacted to enable the husband or the wife, as the case may be, who has no independent source of income for his or her support and to incur necessary expenses to contest the litigation, can claim maintenance pendente lite so that proceedings may be continued without any hardship on his/her part.”

The High Court keeping in view the above-stated submissions and circumstances of the case, noted that, the respondent-wife alleged that the appellant-husband’s income is approximately Rs 80,000 per month along with that he runs a catering business and maintains a car, on the basis of which respondent-wife demanded Rs 40,000 as monthly maintenance.

But the appellant-husband maintained his stand of earning a very minimal amount in comparison to respondent-wife as stated above.

In Supreme Court’s case of Sunita Kachwaha v. Anil Kachwaha, (2014) 16 SCC 715, it was held that,

“Merely because the wife was earning something, would not be a ground to reject her claim for maintenance particularly when her earnings were not placed on record.”

Therefore, in view of the above, the Court found no merit in the appeal and dismissed it stating that, wife earning a certain amount will not absolve husband’s liability to maintain her under Section 24 of the Hindu Marriage Act, 1955.[Ajay Mittal v. Sonu Goyal, 2019 SCC OnLine Raj 2403, decided on 22-08-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: S.K. Awasthi, J., dismissed the petition filed by the petitioner under Section 482 CrPC for quashing the maintenance order passed by the Additional Principal Judge.

The respondent filed an application under Section 125 CrPC to claim maintenance from the petitioner as she was forced to live in her parental house on account of cruelty by the husband. She had claimed that the petitioner was harassing her for the demand of dowry. She registered a criminal case against her husband and his family members for offences punishable under Sections 498-A, 294, 323 and 506 IPC. She also pleaded that she was unable to maintain herself as she does not have any source of income. The Family Court had allowed the application of the respondent and had directed the petitioner to pay interim maintenance taking into account the income of the petitioner’s father and brother.

The petitioner contended the respondent was living separately on her own will, as she did not want to live with his in-laws. He stated that this was the only reason why she left his house and lodged a complaint against him and his family members regarding the demand of dowry and harassment. He further claimed that he was still a student studying in B.Ed. and is dependent on the income of his parents, whereas the respondent was well educated and had obtained a Post Graduate Degree of M.Com., and had an independent source of income through tuition and was capable of maintaining herself. The respondent argued that the petitioner was living in a joint family and his father had agricultural land and was engaged in the business of seed and fertilizer. The petitioner was also involved in the said business and therefore had sufficient source of income to pay for the maintenance.

The Court held that a husband is duty-bound to make arrangement for maintenance of the wife. The respondent was legally wedded wife of the petitioner and she was residing separately from him and his family members as they used to harass her for the demand of dowry. The petitioner did not deny the criminal cases pending against him. Therefore, prima facie the respondent was living separately with a reasonable cause.

Therefore the respondent was duty-bound to make arrangement for the maintenance of his wife. He has not denied the fact that he lived in a joint family with his father and brother and was also involved in the family business of seed and fertilizer, which indicated that he had sufficient source of income.[Dhruv v. Sapna, 2019 SCC OnLine MP 2079, decided on 20-08-2019]

Case BriefsHigh Courts

Jharkhand High Court: Deepak Roshan, J. disposed of an application made by the petitioner for maintenance under Section 125 CrPC.

The petitioners filed an application to challenge the order passed by a Family Court, where her petition under Section 125 was dismissed. The petitioner, Patun Bibi, was legally married to respondent 2, Hanif Mian, as per Muslim Law and a female child was born out of their wedlock. She divorced him and claimed that her marriage with respondent 2 took place at the instigation of his first wife, Zaitun Bibi who was suffering from Psytica pain. It was claimed that after one year of conjugal life and birth of her daughter, respondent 2 started torturing her at the instigation of the Zaitun Bibi and that both the mother and daughter were subjected to cruelty. Respondent 2 challenged the very maintainability of the proceeding mainly on the ground that the petitioner is already a married person and he is living with his wife-Zaitun Bibi. He asserted that he has never married the petitioner. He further stated that he had a very healthy conjugal life with his own wife-Zaitun Bibi and she is not suffering from ‘psytica pain’ as alleged.

The trial court considered the issues presented before them and based upon the evidences produced concluded that the petitioner failed to establish her status as the legally wedded wife of Hanif Mian and if the daughter is actually their legitimate child. Respondent 2 denied being ever married to the petitioner. On the other hand, the petitioner admitted that she married Yusuf (her ex-husband) about 11 years ago and divorced him about 1 ½ years ago. She was admittedly married to Yusuf and after she divorced him, she married another man, Harmuz. The Court stated that the petitioner also failed to reproduce the ‘Nikahnama’ on the grounds that it was not prepared. This was considered suspicious by the Court because, under Muslim Law, every ‘Nikah’ is reproduced in “Nikahnama” and therefore, the marriage itself cannot be proved.

The petitioner vehemently argued that even in the case of live-in relationship, maintenance can be awarded under Section 125 as decided by the Supreme Court in Badshah v. Urmila Badshah Godse, (2014) 1 SCC 188. This present Court held that a long conjugal life/live in relation has never been proved by either of the prosecutions. On the other hand, there is evidence to prove that she was first married to Harmuz and then later to Yusuf.

The Court finally held that the petitioner has failed to point out any error in the order passed by the trial court and thus they cannot interfere. It was held that the petitioner is at liberty to take remedy of approaching the appropriate forum for Domestic Violence Act, 2005. In case the petitioner takes any step under the provision of Domestic Violence Act, 2005, the concerned forum must decide the matter in accordance with the law and without being prejudiced by the observation made by this Court.[Patun Bibi v. State of Jharkhand, 2019 SCC OnLine Jhar 997, decided on 02-08-2019]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of G.S. Sistani and Jyoti Singh, JJ. allowed an appeal filed by the appellant-wife against the order of the Family Court whereby two applications filed by her against the respondent-husband were dismissed.

The appellant had filed two applications — one under Section 24 of the Hindu Marriage Act, 1955 seeking maintenance for herself, and the other under Section 26 seeking custody of the two minor children. Both the applications were dismissed by the Family Court. The application under Section 24 was rejected on the sole ground that maintenance of Rs 2000 per month already stood fixed in proceedings arising under Protection of Women from Domestic Violence Act, 2005.

Susmita Mahal, Advocate representing the appellant challenged the order of the Family Court. Per contra, Trilok Chand, Advocate appearing for the respondent supported the same.

The High Court, on a conjoint reading of Sections 20, 26 and 36 of the Domestic Violence Act, was of the opinion: “the provisions of DV Act dealing with maintenance are supplementary in the provisions of other laws and therefore maintenance can be granted to the aggrieved person(s) under the DV Act which would also be in addition to any order of maintenance arising out of Section 125 of CrPC.” Furthermore, “On the converse, if any order is passed by the Family Court under Section 24 HMA, the same would not debar the Court in the proceedings arising out of DV Act or proceedings under Section 125 CrPC instituted by the wife/aggrieved person claiming maintenance.”

The Court also clarified: “However, it cannot be laid down as a proposition of law that once an order of maintenance has been passed by any Court then the same cannot be re-adjudicated upon by any other Court. The legislative mandate envisages grant of maintenance to the wife under various statutes such as HMA, Hindu Adoption and Maintenance Act, 1956, Section 125 CrPC as well as Section 20 of DV Act. As such various statutes have been enacted to provide for the maintenance to the wife and it is nowhere the intention of the legislature that once any order is passed in either of the proceedings the intention of the legislature that once any order is passed in either of the proceedings, the said order would debar re-adjudication of the issue of maintenance in any other Court.”

In such view of the matter, the impugned order rejecting maintenance to the appellant under Section 24 HMA was set aside. The second part where custody of children was rejected, was also quashed. The Family Court was directed to reconsider the applicants in terms with the law. The appeal was disposed of in terms above.[RD v. BD, 2019 SCC OnLine Del 9526, decided on 31-07-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: Vivek Rusia, J. dismissed the revision petition and directed the applicant to pay Rs 3000 as maintenance to the respondents.

In the pertinent case, the applicant filed the present revision being aggrieved by the order passed by Family Court, Dhar whereby maintenance of Rs 3000 per month has been assessed with a direction to the applicant to pay it to the respondents.

The facts, in brief, are that the applicant and respondent are husband and wife. 7-8 years back the dispute arose between them due to the consumption of liquor and petty issues. Thereafter the respondent/wife has started living with her son, who is also married and working as labourer. The respondent/wife is also doing the work of maid in the houses of others and earning for herself. The applicant and respondent have a joint account in the State Bank with an amount of Rs 6 lakhs. Wife filed an application under Section 125 CrPC seeking maintenance from the applicant. The applicant submitted that he is not having any source of income and he is residing in the old aged home. The Family Judge after examining the record came to the conclusion that the applicant is earning and can maintain his wife.

High Court dismissed the revision petition and held that the respondent is surviving by doing the work of maid in the houses of other and she cannot be permanently dependent on her son who is also married and not having a permanent job. Further, the applicant has received the lump sum amount by selling the house and is lying in the bank and the wife is also a joint account holder but she is deprived of to use the said amount. Being her husband the applicant is liable to maintain his wife. Also, the amount of Rs 3000 per month cannot be said to be on the higher side.[Ashok v. Meenabai, 2019 SCC OnLine MP 1893, decided on 05-08-2019]

Case BriefsHigh Courts

Kerala High Court: Alexander Thomas, J. while hearing a revision petition, remitted a matrimonial case to the Family Court, Kalpetta for consideration and disposal afresh, after hearing both the parties.

Revision petitioner herein sought maintenance in Family Court, Kalpetta, from the respondent-husband. She was aggrieved by the judgment that dismissed her plea to seek maintenance on the ground that she had engaged in adultery, and also because she was employed and getting enough income to maintain herself. Hence, she filed the instant revision petition.

The petitioner contended that there was no visual or documentary evidence produced by the respondent to prove an act of adultery. The decision was passed on the basis of the respondent submitting one instance of lapse of virtue on the part of the petitioner. 

It was submitted before the Court that it is a common fact as held by the same court in Sandha v. Narayanan, 1999 SCC OnLine Ker 64 that to constitute an act of adultery, there should be a continuous course of conduct or living in the state of quasi-permanent union with the adulterer, and in the case of unchastity or a few lapses of virtue, it will not prevent a wife from claiming maintenance from her husband. As there was no evidence to prove the continuation of adultery, the revision petitioner had stated the judgment of the Family Court to be legally unsustainable.

It was further contended that the Family Court Judge failed to consider the status of her employment in light of Chaturbhuj v. Sitabhai, (2008) 2 SCC 316 that the term “unable to maintain herself” means the inability of the wife to maintain herself in the same manner in which she used to live with her husband, and will not take into consideration the efforts of the wife to maintain herself after desertion. The petitioner provided a certificate as evidence that she was not employed as staff but was kept as a data entry operator apprentice and was only given money to manage the expenses for bus charges, etc.

Owing to the aforementioned contentions, this Court directed the Family Court to reconsider the case in detail by hearing both the sides, and pass an order disposing of the case, without any delay within a period of three months from the date of production of a certified copy of this judgment. [Faseela v. Shafeek, RP (FC) No. 115 of 2019, decided on 23-05-2019]

Case BriefsHigh Courts

Calcutta High Court: Biswajit Basu, J. dismissed a revision application of the filed by a lady seeking alimony pendente lite.

The husband/respondent and the wife herein had filed a matrimonial suit seeking dissolution of their marriage by a decree of divorce, inter alia, on the grounds of cruelty. In the said suit, the wife had filed an application before the learned trial judge under Section 36 of the Special Marriage Act, 1954 praying alimony pendente lite at the rate of Rs 50,000 per month. The wife alleged that the husband is working in a reputed organization in the USA and was earning around Rs 75,00,000 per annum. Thus, she was entitled to maintenance proportionate to the income of the husband. However, after assessing her salary certificates for December 2018, January 2019 and March 2019, the learned judge opined that the present income of the wife is not less than Rs 74000 being sufficient for her support particularly when she herself assessed her requirement at Rs 50,000 in the application for alimony pendente lite.  And as Section 36 provides for temporary financial support pending any action under Chapter V or VI of the said Act “to the wife who has no independent income sufficient to maintain herself”, refused the prayer of the wife for alimony pendente lite.

The High Court dismissed the case, holding the decision of the learned trial Judge as absolutely justified.[Somdatta Chatterjee nee Raychaudhari v. Anindya Chatterjee, 2019 SCC OnLine Cal 1627, decided on 11-06-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: S.K. Awasthi, J. contemplated a revision application under Section 19(4) of Family Courts Act, 1984 read with Sections 397 and 401 CrPC. In the instant application, the applicant was directed to pay Rs 3000 per month as maintenance under Section 125 CrPC.

Facts leading to the filing of this revision application were that respondent-wife moved an application under Section 125 CrPC against the applicant for grant of a maintenance amount, she alleged that after some time of the marriage, the applicant persistently made a demand of dowry from the respondent; and he used to harass her. Since then, she was residing in the house of her mother. She does not had any source of income thus, she found it difficult to maintain herself, whereas the applicant had 10 bighas of agricultural land and he was also engaged in the business of selling cattle, thereby earning Rs 1,00,000 per annum. Therefore, a prayer was made by the respondent/wife for grant of maintenance of Rs 10,000 per month before the Family Court. The said application was partly allowed vide the impugned order and the Family Court had directed the applicant to pay Rs 3,000 per month towards the maintenance of the respondent. Feeling aggrieved by the fixation of a maintenance amount, the applicant had preferred this revision application.

The applicant-husband contended that the marriage was solemnized in 2015 as per Muslim Rituals and Customs. It was further submitted that the respondent had earlier registered a case under Section 498-A of Penal Code, 1860 under Section 3 read with Section 4 of the Dowry Prohibition Act, 1961, but the matter was amicably settled between them but subsequently, the respondent again deserted him.

The counsel for the applicant, M.K. Sharma, submitted that the respondent was not entitled to receive any maintenance as she had deserted the applicant without any reason. It was highlighted that the respondent did not want to live in a joint family and if the applicant arranged for a separate residence she was willing to return.

Court on such contention by the applicant observed that, the Family Court had committed an error of law in allowing the application for grant of maintenance, as the case was not in favor of the respondent. The Court stated that, the respondent had accepted in her statement that earlier she lodged FIR against the applicant and his parents for the commission of the said offence. However, later on, she compromised the matter and returned back to her matrimonial house. Thereafter, she again left her matrimonial house, in her cross-examination in which she categorically stated that she was ready to live with the applicant if the applicant makes arrangement for their separate residence. The actions of the respondents were found contradictory. Hence the revision was allowed and the order was cancelled.[Aarif v. Shajida, 2019 SCC OnLine MP 1379, decided on 04-07-2019]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J. allowed a petition filed by the petitioner-wife against the order of the appellate court whereby it had dismissed her appeal for enhancement of the amount of maintenance for her and her daughter.

The petitioner filed a petition under the Protection of Women from Domestic Violence Act, 2005 against her husband alleging that she was turned out of the matrimonial home on account of the failure of bringing enough dowry. The trial court, prima facie assessed the husband’s income at Rs 30,000 per month and awarded interim maintenance of Rs 10,000 per month to the petitioner and her daughter. The petitioner sought enhancement of the amount but the appellate court dismissed her appeal.

The petitioner, who was represented by Lal Singh Thakur and Sudhir Tewatia, Advocates, contended that the court below erred in not appreciating that the husband had several businesses and he misled the court by not disclosing his correct income. In support thereof, the petitioner placed on record several website listings showing the businesses that the husband was engaged in. Per contra, the husband, who was represented by Kunal Rawat, Advocate, submitted that his income was only between Rs 10,000 to Rs 15,000.

The High Court, after perusing the record, held that the appellate court erred in placing the burden of proof on the petitioner and erred in holding that she has not placed the details of the contract with regard to the business of the husband. The listings placed on various websites, prima facie showed a turn over of Rs 50 lakhs to Rs 1 crore per annum. It was reiterated that at the stage of assessment of interim maintenance, the court has to only form a prima facie opinion.

Furthermore, placing reliance on Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353, it was held: “The rationale for grant of maintenance under Section 125 CrPC as expounded by the Supreme Court in Bhuwan Mohan Singh applies on all fours to the grant of maintenance under the DV Act.”

 In view of the matter, the Court enhanced the amount of interim maintenance from Rs 10,000 to Rs 30,000 per month.[Manju Sharma v. Vipin, 2019 SCC OnLine Del 8960, decided on 01-07-2019]

Case BriefsHigh Courts

Calcutta High Court: Madhumati Mitra, J. dismissed an application filed by the petitioner to quash the order of the Additional Sessions Judge whereby he refused to stay the petition filed by his former wife for the execution of the maintenance order granted in her favour by the Magistrate.

By the order passed under Section 12 of the Protection of Women from Domestic Violence Act, 2005, the Magistrate had directed the petitioner to pay Rs 3000 + Rs 800 per month to his former wife. Subsequent to that order, the petitioner obtained an ex-parte divorce decree against his former wife. After the said decree, the petitioner filed an application under Section 25, praying for alteration/modification or revocation of the maintenance order on the ground that he is not liable to pay to his former wife as no domestic relationship between them subsist.

Before the High Court, the petitioner was represented by Siva Prosad Ghose, Chandra Bhanu Sinha and Rohit Kumar Shaw, Advocates. Per contra, the former wife was represented by Anand Kesari and Sekhar Mukherjee, Advocates.

After referring to the relevant provisions of the DV Act along with Section 125 CrPC, and a conspectus of cases on the subject, the High Court observed: “Decree of divorce does not deprive the wife of the relief granted in her favour under the provisions of the Act of 2005. After decree of divorce, the Opposite Party 2 has become a divorced wife.”

The Court was of the opinion that our law recognises the right of a divorced wife to get maintenance till her remarriage, under Section 125 CrPC. The DV Act provides additional rights and remedies to the aggrieved person.

Finally, it was noted: “Existence of domestic relationship is not needed to execute the order granted under Section 12 of the Act of 2005 and the divorced wife who got an order of maintenance and other relief under the Act of 2005 prior to the decree of divorce is entitled to execute the same if she is unable to maintain herself and she has not remarried and for other reasons.”

In such view of the matter, the Court decided the application against the petitioner, and accordingly dismissed the same.[Krishnendu Das Thakur v. State of W.B., 2019 SCC OnLine Cal 969, decided on 28-06-2019]