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Interesting Stories of the Week


[Media Trial] Can media be given right to speculate on outcome of one going investigations or Court proceedings or criminal trials? Ker HC elucidates

While addressing the matter with regard to the media trial, Mohammed Nias C.P., J., expressed that, half-truths and misinformation cannot be the basis of publications or telecasts7.

Reports/telecast having the effect of prejudicing mankind against the parties and the court before the case is heard clearly interferes with the course of justice.

Read more here: https://bit.ly/37DrXKX


Whether denial of sex can qualify as “exceptional depravity” under S. 14 of the Hindu Marriage Act and allow waiver of one-year mandatory period? Del HC unfolds

Noting that, Section 14 of the Hindu Marriage Act intends to discourage the couples from breaking the sacred bond of marriage in haste, the Division Bench of Vipin Sanghi, ACJ and Jasmeet Singh, J., held that, a mandatory one year period granted under Section 14 of the Act, encourages couples to cool down, and give a rethink to preserve their marriage.

Read more here: https://bit.ly/3v5iYen


Can children claim any amount under the head of permanent alimony under S. 25 of Hindu Marriage Act? Ker HC explains

Observing that trauma in a marital discord is common to both parties, the Division Bench of A. Muhamed Mustaque and Sophy Thomas, JJ., expressed that as per Section 25 of the Hindu Marriage Act, while awarding permanent alimony and maintenance, the husband’s income and other property, if any, and the income and property of the wife, conduct of the parties and other circumstances are to be taken into account.

Read more here: https://bit.ly/3EAH18c


Child marriages will have to be stopped and no person can be allowed to take advantage of any such situation: Bom HC

Vibha Kankanwadi, J., expressed that Child marriages are hazardous to the social fabric of this Country.

Read more here: https://www.scconline.com/blog/post/2022/04/16/child-marriages/


Past pregnancy can be determined on account of permanent changes in the body of a woman: Bom HC

While addressing a matter, wherein the accused who was a doctor charged for raping a minor stated that there was not any proof that the girl ever conceived or had undergone any abortion, M.G. Sewlikar, J., expressed that, Medical science is so advanced that now a days past pregnancy also can be determined on the basis of changes in the body of a woman on account of pregnancy.

Read more here: https://bit.ly/3v4cuwb


Can minority members of a Society act against will of majority members and foist delay in commencement of redevelopment work of Society? Bom HC addresses

Observing that, a developer who has been appointed by the Society and who is eager to proceed with the redevelopment, was in some manner left baffled and dragged into litigationG.S. Kulkarni, J., held that, non-cooperating members cannot foist a delay on the builder and the society in the commencement of the redevelopment work resulting in the project costs being increased every passing day.

Read more here: https://bit.ly/3ED6cHa


Live-in relationships are engulfing ethos of Indian society, and promoting promiscuity and lascivious behavior, giving further rise to sexual offences: Madhya Pradesh HC

Subodh Abhyankar, J., expressed that, the bane of live-in-relationship is a by-product of the Constitutional guarantee as provided under Article 21 of the Constitution of India.

Read more here: https://bit.ly/3Os1ocf


Can filing of a maintenance proceeding, a criminal case for harassment be said to be sufficient to jump to a conclusion that wife intended to harass husband and his relations? Bom HC throws light

In a matter of matrimonial discord, Mangesh S. Patil, J., expressed that, when admittedly, for whatever reason, there was a marital discord and the wife had started residing with the infant child at her parental house barely within three years of her marriage, it cannot be expected of her not to prosecute whatever rights and remedies she has under the law.

Read more here: https://bit.ly/3ECAiuk


Only continuous and repeated acts of adultery and/or cohabitation in adultery would attract rigours of provision under S. 125(4) CrPC: Del HC

While addressing a matter with regard to a wife’s right to maintenance Chandra Dhari Singh, J., expressed that, only continuous and repeated acts of adultery and/or cohabitation in adultery would attract the rigours of the provision under Section 125(4) CrPC.

Read more here: https://bit.ly/37DrUPh


When a Judge recuses without reasons, can a litigant or third party intervene, comment or enquire? Del HC answers

Asha Menon, J., held that, when a Judge recuses, no litigant or third party has any right to intervene, comment or enquire. The recusal has to be respected, whether a reason has been spelt out in detail or not.

Read more here: https://bit.ly/3v4AvDq


Sudden cancellation of rooms booked for daughter’s marriage 3 months prior on account of maintenance: Is it an acceptable reason? Can consumers claim compensation? NCDRC explains

“The memories of marriage ceremonies are lifetime events in the life of bride and bridegroom and their family members to make their moments memorable. In our country, certainly, it is not an easy task for the parents to arrange their daughter’s marriage in a five-star hotel in place like Jaipur or any big cities. All of sudden cancellation of booking about 3 months prior to the date of marriage on account of maintenance is not acceptable reason.”

Read more here: https://bit.ly/3K2xpnH

Case BriefsHigh Courts

Delhi High Court: While addressing a matter with regard to a wife’s right to maintenance Chandra Dhari Singh, J., expressed that, only continuous and repeated acts of adultery and/or cohabitation in adultery would attract the rigours of the provision under Section 125(4) CrPC.

Factual Matrix


A criminal petition was filed seeking to set aside the decision by Family Court.

Instant petition had been filed against the order of the Additional Principal Judge filed by the respondent under Section 125 of the CrPC, whereby the Additional Principal Judge granted maintenance.

Petitioner impugned the order dated 31-7-2020, which enhanced the maintenance amount.

Analysis, Law and Decision


In the present matter, the maintenance order was challenged on the grounds of cruelty, adultery, desertion without reason as well as the fact that the wife was capable enough of maintaining herself.

Various Supreme Court and High Court decisions have established the position of payment of maintenance holding that the ground of cruelty does not disentitle the wife of her right to maintenance. In fact, in cases where divorce is granted on the ground of cruelty, Courts have awarded permanent alimony to the wife.

Hence,

Ground of cruelty and harassment do no stand ground for non-payment of the maintenance amount.

The Bench expressed that the codified law and judgments of various High Courts settle the position with respect to the bar of adultery for grant of maintenance in favour of the wife.

Law mandates that in order to extract the provision under Section 125(4) CrPC the husband has to establish with definite evidence that the wife has been living in adultery, and one or occasion acts of adultery committed in isolation would not amount o ‘living in adultery’.

The Bombay High Court decision in Pandurang Bakru Nathe v. Leela Pandurang Nathe, 1997 SCC OnLine Bom 264 made an observation with regard to the provision under Section 125(4) CrPC was relied on by the Court.

Another decision of the Kerala High Court in Sandha v. Narayanan, 1999 SCC OnLine Ker 64 was also relied on.

High Court found that the law as interpreted by the High Courts, evinces that only continuous and repeated acts of adultery and/or cohabitation in adultery would attract the rigours of the provision under Section 125(4) CrPC.

The petitioner could not establish prima facie that the respondent was living in adultery, hence the respondent was not entitled to any maintenance.

Concluding the matter, Court declined to allow the instant petition, since the petitioner had failed to show any ground for challenging the order under the revisional jurisdiction of this Court.

Therefore, Bench did not find any cogent reason to interfere with the impugned order and judgment. [Pradeep Kumar Sharma v. Deepika Sharma, 2022 SCC OnLine Del 1035, decided on 13-4-2022]


Advocates before the Court:

For the Petitioner:

Annu Narula, Vishal Singh, Ravi Kumar and Shiva Chauhan, Advocates

For the Respondent:

Shamikh, Advocate

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: While dealing with a matter regarding protection to live-in relationship, Anoop Chitkara, J., held that, every person in the territory of India has an inherent and indefeasible fundamental right to life flowing from Article 21 of the Constitution of India and the State is duty-bound to protect life.

Fearing for their lives and liberty at the hands of the private respondents, petitioners who are in live-in relationship approached this Court seeking protection through the State by invoking fundamental rights of life guaranteed under Article 21 of the Constitution of India.

Petitioner’s counsel submitted that petitioner 2 was a married woman and had voluntarily gone to the company of petitioner 1. Petitioners were facing grave danger from the private respondents and their lives be protected even though petitioner 2 was married to respondent 4.

High Court remarked that,

“…times are changing fast, even in those lands that were left behind and stuck with the old ethos and conservative social milieu.”

Bench added that,

“We are governed by the rule of law and follow the Constitutional dharma. In the ever-evolving society, evolving the law with it, the time is to shift perspective from didactics of the orthodox society, shackled with the strong strings of morality supported by religions to one that values an individual’s life above all.”

Further, the Court stated that if the allegations of apprehension of threat to their lives turn out to be true, it might lead to an irreversible loss.

Stating that this Court will not adjudicate on the validity of petitioner’s marriage or her decision of cohabiting with petitioner 1 but adhering to its fundamental duty of guarding their lives, Bench held that it shall be appropriate that the Superintendent of Police, SHO concerned or any officer to whom such powers have been delegated or have been authorized in this regard, provide appropriate protection to the petitioners.

With regard to the protection, High Court held that it is subject to the stringent condition that from the time such protection is given, the petitioners shall not go outside the boundaries of the place of their residence, except for medical necessities, to buy household necessities, and for bereavements in the families of the persons who are close to them, as it would save them from apprehended risk.

Lastly, the Bench clarified that the present order is not a blanket bail in any FIR.

In view of the above, petition was allowed. [Jai Narain v. State of Punjab, 2022 SCC OnLine P&H 584, decided on 18-2-2022]


Advocates before the Court:

Mr. Vishneet Singh Kathpal, Advocate for the petitioners.

Mr. Rehatbir Singh Mann, DAG, Punjab.

Case BriefsHigh Courts

Calcutta High Court: While addressing a matter under Section 376 of Penal Code, 1860 Division Bench of Joymalya Bagchi and Bivas Pattanayak, JJ., observed that, it cannot be said that appellant had no intention to marry from the inception of the relationship, infact the relationship did not fructify due to obstruction from the elders of the family.

The instant appeal was directed against the decision passed by the lower court arising out of Sessions Case under Section 376 of the Penal Code, 1860.

Background

Prosecution alleged that the appellant cohabited with the victim girl who was a minor, on the false promise of marriage, due to which the girl became pregnant.

When the girl asked the appellant to marry, he evaded the issue. The said matter came to the knowledge of the family members, after which a salish was held, wherein the appellant refused to marry the victim girl due to the strong objection of his family members.

In view of the above, first information report was filed and charges were filed against the appellant under Sections 376/493 of IPC.

Analysis, Law and Decision

Bench noted that the evidence on record clearly established that the appellant had cohabited with her on the promise of marriage.

However, Court found it was difficult to accept that the initial cohabitation was forceful as such allegation was significantly absent in the FIR by PW1. It was argued that the appellant had agreed to marry her, but the marriage could not fructify due to the resistance of his parents. Hence, it could not be said that the appellant did not intend to marry her at the time when they cohabited.

Court found substance in the above contention.

Mere failure to keep a promise without anything more cannot lead to the irresistible conclusion that the promise had been dishonestly made from the inception.

Bench observed the evidence that the appellant and the victim girl wanted to marry each other and cohabited and as a result, she became pregnant but due to the resistance of the parents of the appellant marriage was not held.

It appeared that the date of birth of the victim was 18-3-1993 and she was above 16 years at the time of occurrence. Thus, victim had crossed the age of consent.

Therefore, Court opined that it cannot be said that the appellant did not have the intention to marry the victim, in fact the marriage could not fructify due to obstruction from elders in the family.

The materials on record also indicated that the cohabitation was consensual.

Concluding the matter, the conviction and sentence of the appellant was set aside and the appellant was acquitted. [Saddam Hussain v. State of West Bengal, 2021 SCC OnLine Cal 3012, decided on 7-12-2021]


Advocates before the Court:

For the appellant: Debarshi Brahma, Adv.
Ms. Ankita Das Chakraborty, Adv. Mr. Sagnik Mukherjee, Adv.

For the State: Mr. S. G. Mukherjee, P.P. Ms. Amita Gour, Adv.
Mr. N. P. Agarwal, Adv.

Case BriefsHigh Courts

Allahabad High Court: Vikas Kunvar Srivastav, J., addresses whether a minor girl on attaining majority can ratify the agreement of marriage that she had entered into when she was a minor? The legality of such an agreement tested.

Instant petition was moved on behalf of ‘Sadhna Kumari’ aged about 18 years through her next friend. Next friend allegedly the husband aged about 19 years.

OPs 4 and 5 (Parents of Petitioner Sadhna Kumari) with whom petitioner’s unlawful detention was complained.

Next Friend pleaded that the detenue petitioner Sadhna Kumari and next friend Shekhar were legally wedded and living as husband and wife since after an agreement purported to be of marriage.

Analysis and Decision

Bench noted that the petitioner’s counsel failed to show material averment as to the ‘solemnization of marriage’. Its date, place and time so as to establish the wedding of the petitioner and her next friend the alleged husband.

‘Agreement’ dated 31-07-2020 was pleaded as the basis of legal authority of the next friend to seek habeas corpus of petitioner Sadhna Kumari.

Purpose of Writ

It is to facilitate the next friend to cohabit with petitioner without interruption of anyone else, even the parents of Sadhna Kumari (OPs 4 and 5) with whom she is presently residing.

Legality of Agreement dated 31-07-2020

As per the High School Examination certificate, Sadhna Kumari’s date of birth was 17-03-2003. In view of the stated material fact, the ‘agreement’ purported to be of marriage when allegedly executed by the petitioner Sadhna Kumari on 31-7-2020 she was a minor aged about 17 years and 4 months, therefore, at the relevant date of agreement despite the alleged agreement of her consent to cohabit with Shekhar Pandey, the next friend as husband and wife, she could not be supposed to give valid consent in law.

A criminal case has been registered against the next friend on the complaint of the petitioner’s mother.

Agreement of which either party to it is a minor- Legal Status 

Agreements which are made enforceable in law are provided under the Indian Contract Act, 1872. Section 11 of the Indian Contract Act states that:

“every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind and is not disqualified from contracting by any law to which he is subject.”

 It is pertinent to keep in mind the age of the majority which capacitates a person to contract.

Since petitioner’s date of birth was 17-03-2003, she was undoubtedly on the date of ‘agreement’ dated 31-07-2020 a minor.

As per the definitions given in Child Marriage Restraint Act, 1929 and Juvenile Justice (Care and Protection of Children) Act, 2015 such a person has termed a child.

Court stated that the petitioner was a minor as well as a child also when she allegedly entered into the agreement to marry on 31-7-2020. Further, she was party to an agreement of marriage.

An agreement must not be opposed to law. The law applicable to petitioner being a Hindu, is “The Hindu Marriage Act, 1955”.

Section 5 (iii) of the said Act provides the marriageable age, according to which the marriage may be solemnized between any two Hindus, if the following conditions are fulfilled: –

“(iii) the bride groom has completed the age of twenty one years and the bride, the age of eighteen years at the time of the marriage.”

High Court held that The Hindu Marriage Act, 1955 and The Indian Contract Act, 1872 the petitioner had no legal capacity and competence to enter into the agreement to marry with Shekhar. Court added that even Shekhar was not of marriageable age under the law.

India Law states that in marriage where either the woman is below the age of 18 years or the man is below the age of 21 years, such marriage, if solemnized by the guardians becomes voidable under Section 5 of the Hindu Marriage Act at the instance of minor. He has option to ratify the marriage also.

 In the present matter, marriage was being claimed as an agreement to cohabit as husband and wife by virtue of an agreement dated 31-07-2021. Hence, the question was – whether on attaining the majority age a minor was competent to ratify his/her agreement executed in the age of minority?

Legal Position to address the above question:

(i) contract with minor is void and no legal obligation can ever arise on him/her therein,

(ii) the minor party cannot ratify the contract upon attaining majority unless the law specifically allows this, and

(iii) no court can allow specific permission of a contract with minor because it is void altogether.

When a contract is entered on behalf of lawful authority of a minor then only the option is available attaining majority to minor either to ratify or to rescind the contract entered by the person having lawful authority on his behalf.

Therefore, in view of the above discussion, the agreement dated 31-7-2020 of which one of the parties namely petitioner Sadhna Kumari a minor, is void, as the same is in violation of Sections 11 and 23 of the Indian Contract Act, 1872.

Elaborating its conclusion, High Court added that agreement dated 31-7-2020 purporting to be of marriage and consent to cohabit together, cannot be given effect so as to issue notice to opposite parties for the production of the petitioner in court for the purpose of recording her desire to ratify her alleged agreement to marry/consent deed, for the reason of the same being a void agreement.

Bench while dismissing the petition stated that this decision shall not impede the petitioner to enter into marital relations with a person of her choice on attaining marriageable age through a lawfully solemnized marriage or otherwise. [Sadhna Kumari v. State of U.P., 2021 SCC OnLine All 276, decided on 15-04-2021]


Advocates before the Court:

Counsel for the Petitioner: Janardan Singh

Counsel for the Respondent: G.A.

Case BriefsHigh Courts

Madras High Court: V. Bhavani Subbaroyan, J., while addressing a very significant issue with respect to a divorce being sought, expressed that:

“…concept of marriage in the present generation has been taken very lightly and even for trivial issues, divorce is filed, and marriage is broken.”

Wife filed the present petition against the petition filed by the Husband before the Family Court. The husband’s petition was filed on the ground that the wife was suffering from Polycystic Ovarian Syndrome (PCOS) and was not fit for cohabitation or to give birth to a child.

Husband also filed an interlocutory application seeking for an amendment to include the provision of law from 12(1)(a) and 12(1)(a) and (c). The said petition seeking for amendment was pending before the Family Court for decision.

Petitioners Counsel, S.P. Arthi submitted that PCOS disorder is an endocrine system disorder that affects the capacity of reproduction in women, and which is totally distinct and different from claiming to be impotence.

As per the contention of counsel for the petitioner, the said claim made by the husband was absolutely incorrect and the said usage of terminology of impotency against the wife could not be sustained and on the said ground striking off the petition was sought.

Analysis, Law and Decision

Bench noted the categorical allegation placed by the husband with regard to the issue of PCOS in the wife due to which the husband sought a divorce.

High Court expressed that:

The term ‘PSOS’ by itself cannot be termed as ‘impotency’. Impotency is different and unable to give birth to a child is different, owing to various physical and mental reasons.

 On careful consideration of the contentions placed on record, it was clear that the husband did not plead the wife’s inability to give birth to a child as ‘Impotency’, but he sought annulment of marriage on the reason that there was no cohabitation and wife could not bear a child. He also submitted that the wife did not cooperate for cohabitation owing to her medical condition, as she was almost 25 days on her menstrual cycle.

Marriage being a bondage between men and women as husband and wife, it not only limits to a biological needs and desires, but also as a companion in life caring forward to the next generation through their children.

Elaborating more in respect to the present set of facts and circumstances, Bench added that Family Courts have increased in numbers to cater to the demand of intolerant couple, who are unmindful of the institution of marriage, break the relationship on unimaginable trivial reasons.

As per the pleadings placed, nowhere the husband used the word connoting impotency towards his wife. He mainly approached with the complaint that the wife could not bear a child for two reasons:

  • No Cohabitation
  • Suffering from ‘PCOS’ due to which wife suffers from improper menstrual cycle.

Legitimate Expectation?

Bench expressed that it is the husband’s legitimate expectation to live with his wife and have cohabitation and bear children and if the same is not achieved owing to some physical or mental problems, it is quite logical that either of the parties will approach the Court for seeking a divorce.

Except for some case wherein the couple are understanding and come forward with the life issue-less or even go for adoption, however, the same has to be proved by the person claiming that his or her partner is incapacitated to give or bear the child.

Petitioner/Wife could not show the husbands averments to be illusive.

Hence, High Court did not find any grounds seeking for the intervention of this Court under Article 227 of the Constitution of India with regard to striking off the petition.[ Annapoorani v. S. Ritesh,  2021 SCC OnLine Mad 1079, decided on 16-03-2021]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of A.A. Sayed and S.C. Gupte, JJ. allowed an appeal filed against the judgment of the Family Court whereby it had dismissed the appellant-husband’s divorce petition filed under Section 13(1)(ib) of the Hindu Marriage Act, 1955.

The husband’s case was that his wife had deserted him for more than 20 years when she left the home and they have been living separately since. The family court dismissed the divorce petition filed by the husband holding that the separation was at the instance of the husband. Moreover, it was held that there was no animus deserendi or the intention to bring cohabitation permanently to an end on the part of the wife. Aggrieved thereby, the husband filed the present appeal.

The High Court perused the record and noted that the parties were living separately for 20 years. Though there was a dispute as to the reason why the wife left the home, the wife’s conduct thereafter suggested that there was absolutely no intention on her part to resume cohabitation at any time. The Court was of the view that there was animus deserendi on her part at least with reference to subsequent events. As explained by the High Court, “Animus deserendi or intention to bring cohabitation permanently to an end is nothing but the opposite of intention to resume cohabitation. If there is no intention at all to resume cohabitation for a reasonably long period, there could be said to be intention to bring cohabitation on an end. How much long a reasonably long period would be is a matter of inference to be drawn from the facts and circumstances of each case. But surely twenty years is, in any event, a reasonably long period. If there is no attempt on the part of the deserting spouse to resume cohabitation for twenty years after the initial separation, even if one were to grant that the original separation did not have the element of animus deserendi, there could be said to be presence of such animus afterwards.” Observing that there was no hope for any revival of marriage, the Court allowed the appeal and granted a decree of divorce on grounds of separation. [Shailendra Madhukar Bhalerao v. Suruchi Shailendra Bhalerao,2018 SCC OnLine Bom 5331, decided on 26-11-2018]

Case BriefsHigh Courts

Rajasthan High Court: The petitioners preferred a miscellaneous petition under Section 482 of CrPC for quashing of FIR No. 98/2013 registered at P.S. Kotwali, District Chittorgarh for the offence under Sections 406, 420, 376 IPC.

Since the  counsel for the petitioner was able to establish a lawful marriage between  Petitioner 1 and Respondent 2, he strongly urged that the ingredients of Section 493 shall not be attracted as on the bare perusal of Section 493 IPC, an offence under Section 439 relates to deceitfully inducing a belief of lawful marriage. Learned counsel for the petitioner further averred that the place of residence of the in-laws and the couple being different, a case under Sections 498-A and 406 of the IPC could not be made out against the in-laws. The Public Prosecutor opposed the submission and submitted a status report wherein an offence under Section 376 of IPC has not been made out on account of the lawfully valid marriage between  Petitioner 1 and Respondent 2.

After hearing counsel for the parties and perusing the record of the case, the High Court opined that the prosecution case under Section 493 of IPC was not made out as on the basis of the investigation report, it was clearly concluded that Petitioner 1 and Respondent 2 were residing together due to a lawful wedlock. The High Court partly allowing the miscellaneous appeal, held, “The cohabitation caused by a man deceitfully inducing a belief of lawful marriage is very specific ingredient and once the lawful marriage has been established between the parties then such offence cannot be sustained in the eye of law.” [Mukesh v. State of Rajasthan,  2017 SCC OnLine Raj 2665, decided on 3.10.2017]