Case BriefsHigh Courts

Calcutta High Court: A Single Judge Bench comprising of Rajasekhar Mantha, J. allowed an appeal filed by the appellant against of the order of the trial court whereby he was convicted under Section 376 IPC.

The prosecution case was that the appellant had committed rape on the prosecutrix on the false pretext of marrying her. It was alleged that after the first occasion of sexual intercourse, the appellant promised to marry the prosecutrix to which she consented. Thereafter, as admitted by the prosecutrix, they remained in a love affair for 1 and half years where they cohabitated regularly. The prosecutrix had intercourse with the appellant on various occasions of her own free will. 15 days prior the complaint, they also tried to fly away but were caught by the mother of the prosecutrix. It was proved that the prosecutrix became pregnant and gave birth to appellant’s child. It was alleged that the appellant finally refused to marry her. Thus, the complaint was filed and the appellant was convicted as aforementioned.

The High Court perused the record and found that after the mother of the prosecutrix came to know about the affair on the night when the appellant and prosecutrix attempted to flee, she talked to appellant’s father. His father, however, refused to give consent to their marriage. The Court observed that the trial court ignored the fact that the prosecutrix continued to have sexual intercourse with the appellant of her own free will. It was never proved that the appellant, on the first occasion, did not intend to marry her. It was only the father of appellant who refused to accept her as the daughter-in-law. Consent of the prosecutrix for voluntary sexual intercourse, in this case, was obtained neither by fraud nor on a misconception of facts. Holding thus, the High Court set aside the order of the trial court and acquitted the appellant. The appeal was, thus, allowed. [Kalam Sk. v. State of W.B.,2018 SCC OnLine Cal 6548, decided on 20-09-2018]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of Mangesh S. Patil, J., dismissed a criminal revision petition filed against the decision of the Additional Sessions Judge who reversed the judgment of the Judicial Magistrate allowing the application filed by the revisioner under Section 12 of Domestic Violence Act, 2005.

The revisioner belong to Jain Hindu community and was previously married to one Shantaram Mahadu. Subsequently, on separation, she had an affair with Respondent 2, a Muslim by religion. The revisioner converted to Islam and contracted marriage with him. However, dispute arose and the couple separated. The revisioner filed an application under Section 12 which was opposed by Respondent 2 mainly on the ground that marriage between the two was not legally possible as they had prior subsisting marriages. However, the Magistrate allowed the application, which decision was reversed by the Sessions Court in the impugned judgment.

The High Court interpreted the words “relationship in the nature of marriage” appearing in Section 2(f) which defines “domestic relationship”. Noting the interpretation of the words by the Supreme Court in Velusamy v. D. Patchiammal, (2010) 10 SCC 469, as well as Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755, the High Court observed that all live in relationships are not in the nature of marriage. Not all live in relationships are covered by Section 2(f). It is only those which qualify to be in the nature of marriage that are governed by the provision. In order to constitute such relationship, a legal marriage between the two must be possible. Since, in the instant case, first marriage of the revisioner was still subsisting, there could not have been a possibility of a legal marriage between her and Respondent 2. Further, a statute should be interpreted in a manner which would not promote illegality. Section 2(f) could not be interpreted in such a way so as to promote adulterous relationships. Thus, it was held that the instant relationship was not covered under “domestic relationship”, and the revisioner was not entitled to any relief under the Act. The revision was, accordingly, dismissed. [Reshma Begum v. State of Maharashtra,2018 SCC OnLine Bom 1827, dated 25-07-2018]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of B.R. Gavai and Sarang V. Kotwal, JJ. decided a criminal appeal wherein the sentence of the appellant (convict) was reduced from life imprisonment to eight years.

The appellant, who threw acid on the victim, was convicted for the offences punishable under Sections 326 and 341 IPC. According to the High Court, the incident appeared to be an outcome of a love affair between the appellant and the victim. It appeared that both were in love with each other for a long time. However, when the appellant asked the victim for marriage, she refused. On such refusal, the appellant became angry and threatened the victim. On the date of the incident, when the victim was proceeding towards her college, the appellant threw acid on her face and shoulder. The appellant was convicted as stated above and sentenced to life imprisonment. In the High Court, the appellant confined his challenge to the quantum of punishment.

The High Court, considered the factual matrix as mentioned hereinabove. It was further noted that during the pendency of the appeal, the matter had been amicably settled between the appellant and the victim. They had solemnized marriage with each other. Further, the victim was undergoing plastic surgery for which the expenses were being paid by the appellant. Not only this, but the appellant had also undertaken to donate skin for the surgical procedure. It was noted that the appellant had already undergone the sentence of more than eight years, which, considering the nature of the factual background, was found to be more than sufficient. The Court held it to be just and necessary that the appellant and the victim be permitted to lead a peaceful life. Accordingly, while upholding his conviction, the sentence awarded to the appellant was reduced to the period already undergone by him. The appeals were disposed of in above terms. [Anil Shivaji Patil v. State of Maharashtra,  2018 SCC OnLine Bom 1408, decided on 27-06-2018]

Case BriefsHigh Courts

Patna High Court: A Single Judge Bench comprising of Rajendra Menon, J., allowed an application filed under Section 482 CrPC seeking to quash the criminal proceedings pending against the applicants.

The applicants were the sister-in-law of the complainant and her husband. It was alleged by the complainant that soon after their marriage, her husband and his family started to demand dowry from the complainant and harass her. There were allegations not only against the husband but also against his father, mother, including current applicants.

The High Court found that the allegations against the applicants appeared to be very general in nature, no specific allegations were made. A perusal of the complaint shows that specific acts were attributed to the husband and his parents. However, against the applicants, there was a general omnibus allegation that they also harassed the complainant. The Court was of the view that to make a person liable under Section 498A CrPC, specific allegations of overt acts against such person are necessary. General omnibus allegations, as is the case here, do not suffice to make a person liable under the said section. Therefore, the application was allowed and the prosecution initiated against the applicants was quashed holding it to be unsustainable. [Guddi Kumari v. State of Bihar,2018 SCC OnLine Pat 1074, decided on 22-06-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: A Single Judge Bench comprising of Gurvinder Singh Gill, J., dismissed a petition for grant of parole, however, allowing the petitioner to be taken out in custody for solemnizing the marriage.

The petitioner was a convict in as many as 14 other cases and a case under provisions of IPC and Arms Act was still pending against him. The petitioner sought emergency parole of 6 weeks to solemnize his 3rd marriage. The petition was opposed by the learned State counsel submitting that there was an apprehension of breach of peace in the village, and on an earlier occasion, the petitioner had absconded while on parole.

The High Court noted the aforestated position and observed that the petitioner was a seasoned criminal and earlier, he had committed offences even on parole. As such, the Court did not find any sufficient ground to grant 6 weeks parole to the petitioner. However, since the fact of his marriage was verified by the State, the petitioner was allowed to be taken out in custody for one day so as to enable him to solemnize marriage, after which, the petitioner was to be consigned back in jail on the same day. It was directed that the expenditure of the entire exercise was to be borne out by the petitioner. [Vijay v. State of Haryana, 2018 SCC OnLine P&H 856, dated 27-06-2018]

Case BriefsHigh Courts

Kerala High Court: A Single Judge Bench comprising of A. Muhamed Mustaque, J. decided a writ petition, wherein the Revenue Authorities were directed to issue ‘Single Status Certificate’ to the petitioner subject to necessary inquiries.

The petitioner was an Indian national working in Bahrain. He wanted to marry a Filipina in accordance with the marriage law applicable in Philippines which required that a certificate of Capacity to Contract Marriage was to be obtained by the petitioner. The petitioner approached the Revenue Authorities for obtaining Single Status Certificate, which was declined on the grounds that he was not residing within the area of jurisdiction of the Authorities for the past 12 years. Aggrieved by the same, the instant petition was filed.

It was not disputed that petitioner’s permanent address was within the jurisdiction of Revenue Authorities. The High Court categorically observed that the law applicable to marriage is distinct from the law applicable to capacity to marry. In Private International Law, the capacity to contract marriage is to be determined in accordance with the law applicable to the country in which such marriage is to be solemnized. If that country’s Private International Law insists that the national law will have to be followed to determine the capacity of marriage, there may not be a difficulty. In India, there is no codified Private International Law. Comity of Nations insists that each country should respect the laws of the other country. In light of the above, the Court held that Private International Law of Philippines insists that the legal capacity to contract marriage has to be determined in accordance with the national law of the parties. That being the legal position, the Revenue Authorities were directed to issue Single Status Certificate to the petitioner subject to necessary inquiry. [Anand Ramakri v. Revenue Divisional Officer, WP (C) No. 9779 of 2018, dated 13-04-2018]

Case BriefsSupreme Court

Supreme Court: In a unique case where a 19-year-old girl Thushara, who had married a 19-year-old boy Nandakumar on 12.04.2017, was sent to the custody of her father by the Kerala High Court on the ground that Thushara was not lawfully wedded to Nadakumar as Nandakumar was not of a marriageable age, the bench of Dr. AK Sikri and Ashok Bhushan, JJ removed Thushara from the custody of her father & held that the freedom of choice would be of Thushara as to with whom she wants to live.

The present case holds strong similarities to the Hadiya case, where a father had sought the custody of his major daughter as she had married a man of her choice. In the present case as well, Thushara’s father had alleged that she was in illegal custody of Nandakumar and hence, her custody should be entrusted to her. The High Court noticed the fact that Nandakumar will be attaining the marriageable age of 21 years on 30.05.2018 & hence, Thushara was not lawfully wedded wife. The High Court also remarked that apart from the photographs of marriage which were produced in the High Court, there was no evidence to show that a valid marriage was solemnised between the parties. Hence, the custody of Thushara, who was already a major when she married Nandakumar, was entrusted to her father.

When Nandakumar approached the Supreme Court against the order of the High Court, the Court noticed that merely because Nandakumar was less than 21 years of age, it cannot be said that marriage between the parties is null and void. The Court said that both the parties are Hindus and such a marriage is not a void marriage under the Hindu Marriage Act, 1955, and as per the provisions of section 12, which can be attracted in such a case, at the most, the marriage would be a voidable marriage.

Noticing that both the parties were major at the time of marriage, the Court said:

“Even if they were not competent to enter into wedlock (which position itself is disputed), they have right to live together even outside wedlock. It would not be out of place to mention that ‘live-in relationship’ is now recognized by the Legislature itself which has found its place under the provisions of the Protection of Women from Domestic Violence Act, 2005.”

The Court also took note of the 3-judge bench verdict in Shafin Jahan v. Asokan K.M. & Ors.’ [2018 SCC Online SC 343, wherein it was held:

“It needs no special emphasis to state that attaining the age of majority in an individual’s life has its own significance. She/He is entitled to make her/his choice. The courts cannot, as long as the choice remains, assume the role of parens patriae. The daughter is entitled to enjoy her freedom as the law permits and the court should not assume the role of a super guardian being moved by any kind of sentiment of the mother or the egotism of the father. We say so without any reservation.”

[Nandakumar v. State of Kerala, 2018 SCC OnLine SC 492, decided on 20.04.2018]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Single Judge Bench comprising of Chander Bhusan Barowalia, J. decided a criminal petition filed under Section 438 CrPC, wherein the petitioner was granted anticipatory bail considering the facts and circumstances of the case.

The petitioner was accused of committing offence punishable under Section 376 IPC. It was alleged that on the pretext of marrying the prosecutrix, the petitioner harassed her physically and mentally. Learned counsel for the petitioner submitted that the FIR was a result of some confusion that the petitioner was marrying another lady, however, such fact was denied by the petitioner. In fact, subsequently, the petitioner had married the prosecutrix. Counsel prayed that petitioner’s bail application may be allowed and he may be granted anticipatory bail.

The High Court perused the record and found that the fact of marriage between the petitioner and the prosecutrix was evident from the marriage certificate produced before the Court. Further it was observed that the petitioner was employed in the Indian Army; he was joining and cooperating in the investigation; and was neither in a position to flee from justice, nor in a position to tamper with evidence. Considering all these facts and circumstances, the Court held that this was a fit case to exercise judicial discretion in favour of the petitioner. Accordingly, the petition was allowed and the petitioner was granted anticipatory bail, subject to the conditions imposed. [Rajender Kumar v. State of H.P., 2018 SCC OnLine HP 357, dated 2.4.2018]

 

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Supreme Court: The Bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ refused to interfere with the provisions of the Hindu Marriage Act, 1955 when a 26-year-old Karnataka woman sought direction to make prior consent of a boy or a girl mandatory before marriage under the Hindu Marriage Act. The Court said that the concept of consent is already present in the Act and it does not warrant the interference of the Court. The bench observed that the Section 12C of the Hindu Marriage Act provides for annulment of marriage if there is forced or fraudulent consent.

The woman, who is the daughter of a Karnataka politician had fled to Delhi from her wedding ceremony as she did not approve of the marriage. The Court said that it would treat this petition as a habeas corpus plea and would not deal with the constitutionality of certain provisions of the Act as sought by senior advocate Indira Jaising, who was representing the aggrieved woman.

Though the Court refused pass the directions sought by the woman, it asked the Police to provide security to her. The court directed the superintendent of police concerned to serve notice on the respondents and fixed the matter for further hearing on 5 May.

Source: ANI

Case BriefsSupreme Court

Supreme Court: Terming the Hadiya case as the perfect example of “patriarchal autocracy and possibly self ­obsession with the feeling that a female is a chattel”, the 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ set aside the Kerala High Court verdict and held that the High Court has completely erred by taking upon itself the burden of annulling the marriage between two consenting adults, namely, Hadiya and Shafin Jahan.

Below are the important facts of the case:

  • 24-year-old Akhila alias Hadiya, had converted to Islam after staying with 2 of her friends, Jaseena and Faseena, while completing her Bachelor of Homeopathic Medicine and Surgery (BHMS) degree.
  • Hadiya refused to return to her father Asokan’s place after he filed a writ of habeas corpus before Kerala High Court in January, 2016 on the apprehension that his daughter was likely to be transported out of the country.
  • Hadiya continued to stay at the house of her aforementioned friends. She expressed her desire to complete her House   Surgeoncy   at  the  Shivaraj Homeopathic   Medical   College, Salem which has a hostel for women   where   she   was   willing   to   reside   for   the   purpose   of completing her House Surgeoncy.
  • On 21.12.2016, Hadiya appeared before the High Court and a statement was made that she had entered into marriage with Shafin Jahan. High Court noted that the marriage was totally unexpected.
  • High Court in the impugned judgment held that a girl aged 24 years is weak and vulnerable and capable   of   being   exploited   in   many ways and thereafter, the Court, exercising the parens patriae jurisdiction, observed that it was concerned with the welfare of the girl of her age and hence, the custody of Akhila alias Hadiya should be given to her parents.

The Kerala High Court allowed her to complete her studies but held:

“Her marriage being the most important decision in her life, can also be taken only with the active involvement of her parents. The marriage which is alleged to have been performed is a sham and is of no consequence in the eye of law.”

CJI, writing for himself and Khanwilkar, J, held that non­-acceptance of Hadiya’s choice would simply mean creating discomfort to the constitutional right by a Constitutional Court which is meant to be the protector of fundamental rights. Such a situation cannot remotely be conceived.

He wrote:

“The exposé of facts in the present case depicts that story giving it a colour of different narrative. It is different since the State that is expected to facilitate the enjoyment of legal rights of a citizen has also supported the cause of a father, an obstinate one, who has endeavoured immensely in not allowing his daughter to make her own choice in adhering to a faith and further making Everestine effort to garrotte her desire to live with the man with whom she has entered into wedlock.”

Chandrachud, J also came down heavily upon the Kerala High Court for following an erroneous approach and writing down a separate but concurring judgment, said:

“The schism between Hadiya and her father may be unfortunate. But it was no part of the jurisdiction of the High Court to decide what it considered to be a ‘just’ way of life or ‘correct’ course of living for Hadiya. She has absolute autonomy over her person. Hadiya appeared before the High Court and stated that she was not under illegal confinement. There was no warrant for the High Court to proceed further in the exercise of its jurisdiction under Article 226.”

The Court, however, permitted the National Investigation Agency (NIA) to continue the investigation in respect of any matter of criminality. However, the validity of the marriage between Shafin Jahan and Hadiya shall not form the subject matter of the investigation. The Court made it clear that “nothing contained in the interim order of this Court will be construed as empowering the investigating agency to interfere in the lives which the young couple seeks to lead as law abiding citizens.”

The Court had passed the operative order in the present matter on 08.03.2018.

[Shafin Jahan v. Asokan K.M.,  2018 SCC OnLine SC 343, decided on 09.04.2018]

Case BriefsSupreme Court

Supreme Court:  Setting aside the judgment of Kerala High Court that had annulled the marriage of Hadiya and Shafin Jahan, the 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ asked the National Investigation Agency (NIA) to continue its probe in the Kerala ‘love jihad’ case without interfering in the marriage of Hadiya and Shafin Jahan.

Though the detailed reasoned order of the Court is yet to be released, writing down the operative part of the order in the matter, the Bench said:

“the High Court should not have annulled the marriage between appellant No.1, Shafin Jahan and Hadiya alias Akhila Asokan, in a Habeas Corpus petition under Article 226 of the Constitution of India. We say so because in the present appeal, by special leave, we had directed the personal presence of Hadiya alias Akhila Asokan; she appeared before this Court on 27th November, 2017, and admitted her marriage with appellant No.1.”

The Court also said:

“Hadiya alias Akhila Asokan is at liberty to pursue her future endeavours according to law.”

It was, however, made clear that the investigations by the NIA in respect of any matter of criminality will continue in accordance with law.

Earlier, the Court had said that the NIA cannot go into the legality of the marriage of Hadiya and Shafin Jahan as Hadiya is a 24-year-old adult and has the right to marry any adult man of her choice. The Court noticed that NIA probe will have no bearing in deciding the aspects of her legitimacy of marriage of Hadiya and Shafin Jahan which was annulled by Kerala High Court. The bench had removed Hadiya from the custody of her father and had sent her to college after she expressed her wish to continue her studies. [Shafin Jahan v. Asokan K.M., 2018 SCC OnLine SC 201, order dated 08.03.2018]

 

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Supreme Court: The 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ observed that the National Investigation Agency (NIA) cannot go into the legality of the marriage of Hadiya and Shafin Jahan as Hadiya is a 24-year-old adult and has the right to marry any adult man of her choice. The Court noticed that NIA probe will have no bearing in deciding the aspects of her legitimacy of marriage of Hadiya and Shafin Jahan which was annulled by Kerala High Court.

Earlier, the bench had removed Hadiya from the custody of her father and had sent her to college after she expressed her wish to continue her studies. NIA had submitted a 100-page report on the cases where Muslim boys have converted Hindu girls by marrying them and that the case of Shafin Jahan marrying Hadiya was also that of Love Jihad.

The Court will now hear the matter on February 22, 2018.

Source: ANI

Case BriefsHigh Courts

High Court of Himachal Pradesh: A Single Judge Bench comprising of Chander Bhusan Barowalia, J., decided a criminal miscellaneous petition, wherein the petitioner-accused was granted anticipatory bail in a criminal case registered under Sections 328 and 376 of IPC, giving due consideration to the fact of marriage between the petitioner and the prosecutrix.

The case against the petitioner was that he and the prosecutrix worked in the same company. The petitioner invited the prosecutrix to her house on the pretext that he wanted her to meet his parents. However, when the prosecutrix reached his house, the petitioner gave her drink and sexually assaulted her, made MMS and subsequently blackmailed the prosecutrix on various occasions. It was also alleged that the petitioner promised to marry the prosecutrix and even on that pretext, sexually assaulted her many times. The petitioner submitted that he was innocent and prayed to be released on bail.

The High Court perused the record and found that in her statement under Sections 161 and 164 of CrPC, the prosecutrix stated that in subsequent events, the petitioner had married her, which fact was found to be true in the police investigation. She also stated that the petitioner had not prepared any MMS or clicked her obscene photos. Considering the statement of the prosecutrix and in light of the fact that the petitioner and the prosecutrix have been married; the Court thought it to be a fit case to exercise its judicial discretion in favor of the petitioner. Accordingly, the petitioner was granted anticipatory bail, subject to the conditions imposed. [Amarjit Singh v. State of H.P., 2018 SCC OnLine HP 2, order dated 1.1.2018]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ referred the question as to whether a Parsi woman automatically gets converted to Hinduism after marrying a Hindu man under the Special Marriage Act, 1954 to a 5-judge Constitution bench. The Court directed the matter to be added in the list of matters which are already listed before the Constitution Bench on 10.10.2017.

The Court said that the larger bench will have to consider whether the five-judge bench judgement in the triple talaq matter can also have some bearing in the present case, apart from examining he applicability of ‘doctrine of culture’ which provides that a woman assumes the religion of her husband after marriage.

The bench was hearing a plea filed by Goolrokh Gupta challenging the Bombay High Court judgement that had held that a Parsi woman is deemed to be converted to Hinduism after marrying a Hindu man under the Special Marriage Act. [Goolrokh M. Gupta v.  Burjor Pardiwala,  Special Leave to Appeal (C) No(s).18889/2012, order dated 09.10.2017]

With inputs from The Hindu

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

Madras High Court: Expressing dismay upon the suffering of the petitioner due to her marriage being conducted without a proper enquiry as to the physical health of the groom, the Bench of N. Kirubakaran, J., observed that it would be prudent for the Central and State Governments to enlighten and sensitize people to go for pre-marital counselling and the same should be promoted by way of short films, advertisements and seminars.

In the present case, the petitioner had moved to the Family Court for annulment of her marriage within 6 months from the date of her marriage. According to the petitioner, the respondent had fraudulently obtained her consent for marriage by hiding that he had a cancerous growth on his left thigh which finally prevented the consummation of their marriage. Further medical investigations revealed that the respondent had a hole in his heart.

Invoking Article 227 of the Constitution and Section 151 of the CPC which bestows the Court with the power to pass appropriate order to meet the ends of justice, the Court was determined to decide the petition on merits, as the parties were very young and in the lengthy court proceedings resulting from transferring the petition to the trial court, the parties would not only lose their precious youth, but will also be rendered with an uncertain future. Perusing the contentions of the parties and the medical records of the respondent, the Court took to task the respondent for suppressing his medical condition from the petitioner. The Court further observed that the shock, pain and agony that the petitioner might have faced upon knowing the medical condition of the respondent, is nothing short of cruelty and her fundamental right to a decent and meaningful life under Article 21 had been grossly violated. The Court also observed that how the society commits crime against women in the name of marriages, thereby maligning the sacred rite of matrimony. The Court stated that the only way the petitioner can be comforted and compensated for her mental agony, is by annulling her marriage with the respondent under Section 13(1)( i-a) of the Hindu Marriage Act. However adding a word of comfort for the respondent, the Court said that the respondent’s only fault was to hide his medical condition from his wife, and that he should not be demoralized as scientists have discovered that several types of cancers are curable.  [A v. B,  2016 SCC OnLine Mad 8908, decided on 05.08.2016]

Case BriefsHigh Courts

Madras High Court: While deciding upon an appeal against the order and decree passed by the Family Court, Tirunelveli, the Division Bench of K.K. Sasidharan and B. Gokuldas, JJ., set aside the decision of the Family Court dismissing the joint petition for dissolution of marriage of the appellants for want of reasons for separation. The Court further observed that the Family Courts are not allowed to enlarge the scope of enquiry under Section 13B (2) of the Hindu Marriage Act, 1955, and once it is satisfied that the essential requirements under Section 13B (2) has been fulfilled and substantiated then the Family Court must venture to grant the decree of divorce to the parties. It is not for the Family Court to decide as to whether parties were justified in living separately as it is not the scope of a petition filed under Section 13-B of the 1955 Act.

In the present case, the appellants had filed a joint petition under Section 13B (2) of the 1955 Act with mutual consent seeking for dissolution of marriage as the appellants were living separately and there was no chance of any re-union. However their petition was dismissed as the Family Judge noted that the parties have not mentioned the reasons for their separation.

Perusing the facts of the case, the Court observed that the parties have been living separately form 18.04.2014 and as per the affidavit presented by the appellants there has been no cohabitation between them since the stated date of separation. The Court observed that the only requisite of Section 13B (2) is that the parties applying for dissolution of marriage must be living separately for a period of one year or more, irrespective of any reason for doing so, and when the ingredient was satisfied by the appellants in the present case, it was unnecessary for the Family Court to enquire about the reasons behind their separation. As per the provision the only duty of the Family Court was to ensure that whether the marriage has been solemnised and that the averments in the petition are true. The Court also observed that when the parties were willing to part ways as their marriage had turned out to be a failure, the Family Court should have respected the sentiments of the parties and should have granted the divorce. With these observations, the Bench set aside the order of the Family Court and granted the decree for dissolution of the marriage of the appellants. [A.C. Mathivanan  v B. Sathyabama, 2016 SCC OnLine Mad 8884, decided on 03.08.2016]

 

Case BriefsHigh Courts

Punjab and Haryana High Court: While deciding upon the issue that whether a complaint under the Domestic Violence Act is maintainable even after a decree of divorce has been passed, the bench of Anita Chaudhry, J., held that the provisions of the Domestic Violence Act can only be invoked if the marital relationship is in existence, therefore once a marital relationship is ended by a decree of divorce, a complaint under Domestic Violence Act cannot be filed at all.

The present case was filed seeking the quashment of complaint filed under the Domestic Violence Act. It is to be noted that the marital relationship between the petitioner and his wife had ended by an exparte divorce decree. The counsel for the petitioner, Sukhbir Singh contended that, since the marriage of the petitioner and his wife has ended therefore the complaint under the Domestic Violence Act is not maintainable.

The Court perused the relevant provision of the Domestic Violence Act, namely Section 2(a) and 2(f) while answering the accompanying question that whether a divorced woman is included in the definition of an ‘aggrieved person’. It was observed by the Court that the language of the concerned provision uses ‘who is’ and ‘has been’, both of which have been used in the present tense, clearly establishing that there has to be a marital relationship in existence. Similarly, Section 2(f) stresses about the existence of a relationship by marriage or a relationship in the nature of marriage at the time. The expression used is ‘are related’ by marriage, which again is in present tense. The relevant provisions indicate the legislative intent to protect women who are living in a domestic relationship. Therefore for a complaint under the Domestic Violence Act to sustain, it is necessary that the marriage between the aggrieved person and the respondent is in existence. [Amit Agarwal v. Sanjay Aggarwal, 2016 SCC OnLine P&H 4200, decided on 31.05.2016]

Case BriefsHigh Courts

Allahabad High Court: Deciding a petition where a woman police constable was dismissed from service and deprived of all consequential benefits for marrying her co-constable, who was already married and for solemnising the marriage without seeking the prior permission of the department, the Bench of Mahesh Chandra Tripathi, J. held that the punishment of dismissal from service is too harsh and disproportionate to the conduct of the petitioner and the directed the respondents to reinstate her in service forthwith with all consequential benefits.

The husband was merely awarded censure entry, whereas the petitioner was found guilty by way of a departmental enquiry under Rule 29(2) of the U.P. Government Servant Conduct Rules, 1956 and awarded a harsh punishment of dismissal from service. The petitioner contended that she had no knowledge about the first marriage of  her husband and that he had a living wife and hence, had not committed any misconduct. The petitioner cited the case of Shravan Kumar Panday v. State of UP, (2010) 8 ADJ 243 wherein it was held that whoever violates the provisions of Rules 29(1) and (2) shall be awarded with minor penalty and awarding a punishment of dismissal is a major punishment which is against the spirit of Rule 29.

The respondent vehemently opposed the petition on the ground that as per the provisions of Rule 29 of the 1956 Rules, second marriage is impermissible and once it has been accepted by the petitioner, that her husband was already married and he has living wife and four children, no leniency is required in the matter.

The Court agreed with the petitioner’s contention that according to Section 17 of the Hindu Marriage Act, no marriage between two Hindus could be solemnised, if one of them has a husband or wife living and if such marriage is solemnised after the commencement of this Act, it would be null and void. The provisions of Sections 494 and 495 of the Penal Code, 1860 shall apply in such cases. Applying this law, the marriage of the petitioner was null and void under law and no punishment could be awarded against her under Rule 29 of the 1956 Rules. As per Section 11 read with Section 5 of the Hindu Marriage Act, 1955, the marriage may be held as void. The petitioner’s case cannot be dealt with under Rule 29 of the 1956 Rules.

The Court held that it will be open to the respondents to award any minor punishment against the petitioner,if they think proper in the facts and circumstances of the case, after affording her full opportunity of hearing. [Aneeta Yadav v. State of  U.P,  2016 SCC OnLine All 294, decided on 2 May 2016]

Case BriefsHigh Courts

Madras High Court: While dismissing the petition challenging the validity of Section 7-A of the Hindu Marriage Act, 1955, the Division Bench of S.K. Kaul, C.J. and T.S. Sivagananam, J. relying on the decision of S.Nagalingam v. Sivagami, (2001) 7 SCC 487, upheld the validity of Section 7-A [as inserted by the Hindu Marriage (Tamil Nadu Amendment) Act, 1967] as the provision applies to any marriage between two Hindus solemnized in the presence of relatives, friends or other persons and that the presence of a Priest is not mandatory for the performance of a valid marriage.

In the present petition it was contended that Section 7-A is ultra vires the Section 7 (which mandates the Saptapadi) read with Section 3(a) of the Hindu Marriage Act and contrary to the tenets of Hinduism. The petitioner appearing for himself, also contended that the impugned provision violates Article 14 of the Constitution.

The Court however refused to entertain the arguments raised by the petitioner and observed that Section 7-A mainly provides for a particular type of marriage i.e. the Suyamariyathai marriages which has been in prevalence for over half a century and thus the impugned provision cannot be declared invalid on the ground of discrimination as it is the prerogative of the parties to enter into matrimony as according to the requisites of Section 7 or Section 7-A of the Hindu Marriage Act. The Court further stated that there is a presumption in favour of the constitutionality of an enactment and unless the petitioner proves that the enactment has transgressed any of the Constitutional principles. [A. Asuvathaman v. Union of India, 2015 SCC OnLine Mad 9765decided on 30.10.2015]