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Gau HC | “Nature of injury does not suggest that the appellant acted in cruelty”; HC converts conviction for murder into culpable homicide

Gauhati High Court: The Division Bench of Suman Shyam and Mir Alfaz Ali, JJ., heard the instant petition against the judgment and order dated 24-03-2011 rendered by Additional Sessions Judge, whereby, the appellant was convicted under Section 302 Penal Code, 1860 and sentenced to rigorous imprisonment for life.

The case of the prosecution was that on 07-11-2014, a fight took place between the deceased and the accused, both of whom were employees of one Shambu Shil. The appellant had inflicted injuries on the head of the deceased with an iron rod, which caused his death. An FIR was lodged by the employer of the deceased as well as the accused/appellant under Section 302 Penal Code, 1860. According to the doctor, the cause of death was shock and hemorrhage as a result of the injuries sustained. All the injuries were accessed to be ante mortem and homicidal in nature.

Moreover, the appellant had recorded a confession before the Judicial Magistrate, on the basis of which and testimony of the Trial Court had convicted the appellant under Section 302 IPC.

Counsel of the accused, B Bhagawati, Amicus Curiae argued that in the confessional statement, the appellant had stated that both were drunk at the time of the occurrence. Further, the confessional statement of the appellant, which was duly recorded by the Judicial Magistrate, and was corroborated by the eye witness’s accounts made it abundantly clear, that there was quarrel and fight between the appellant and the deceased and in course of the quarrel, the appellant hit the deceased with the iron rod at the heat of passion. Thus, the entirety of the evidence clearly demonstrates that there was no premeditation on the part of the appellant and the assault was made suddenly at the heat of passion in course of quarrel.

The Bench observed that, when the assault was made without premeditation, at the heat of passion in course of sudden quarrel and the appellant also did not take any undue advantage nor acted in cruelty, all the above factors had made the present case come squarely within the sweep of exception (4) to Section 300 IPC. However, said the Bench, having regard to the three injuries on the head and the weapon used, it could not be said that the appellant did not has intention to cause death or to cause such bodily injury as is likely to cause death.

Thus, taking note of the evidence in its entirety, the Bench opined that the conviction of the appellant under Section 302 IPC was not sustainable. Therefore, the impugned order was set aside and the appellant was convicted under Section 304 Part-I instead of 302 IPC. Further observing that the appellant had been in custody for more than 14 years, his sentence was reduced to the period already undergone. Accordingly, the appellant was directed to be released.[Debaru Majhi v. State of Assam, CRL.A(J)/54 of 2019, decided on 05-03-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Case Briefs High Courts

Bom HC | Husband alleged that wife hid her actual date of birth & since he intended to marry a ‘Mangalik Yog’ girl, fraud was played upon him. Here’s how HC solved the matter

Bombay High Court: The Division Bench of A.S. Chandurkar and N.B. Surawanshi, JJ., upheld the decision of the family court.

Present appeal was filed under Section 19 of the Family Courts Acts, 1984 by the appellant-husband, in view of his petition being dismissed by the Family Court for judicial separation and in the alternative for a decree of divorce on cruelty and desertion ground.

According to the husband, he was Mangalik as per his horoscope and hence was in search of a girl who was having a Mangalik horoscope. As per the girl’s biodata, she was depicted as Mangalik.

After her marriage with the appellant she started living in the joint family of her husband where she usually used to stay aloof. Further, it has been stated that she avoided giving her educational certificates on the pretext that they were lost.

On receiving her educational certificates from her father, the husband was shocked to know her actual date of birth therefore she was Non-Mangalik. She had even failed BA-II.

The wife left the matrimonial house at midnight without informing anyone and during the search, she was found with her brother and brother in law who were taking her to her maternal home.

The husband along with his family members went to bring the wife back, but her parents refused to send her and also threatened to involve them in a false case. According to the husband, the wife lodged false complaint on that day.

Husband alleged that the wife caused mental and physical harassment to the husband. He, therefore, contended that the wife deserted him on account of false complaint lodged by the wife and the husband from time to time.

Due to the continuous torture by the wife, the life of the husband had become miserable. He was not in a position to concentrate on his work due to continuous harassment by the wife. The husband, therefore, lost all the hopes that the smooth relations between him and wife were possible. Hence, he filed the petition seeking divorce on the ground of cruelty and desertion.

Wife while declining all the above allegations claimed that she was ready to cohabit with the husband and hence prayed for the dismissal of the petition filed by the husband.

Family Court dismissed the petition of the husband, hence the husband preferred the present appeal.

Analysis, Law and Decision

Points for determination:

Whether the appellant is entitled for decree of divorce?
Whether the learned Family Court dismissing the petition of husband is legally correct?

Bench noted in the cross-examination of the appellant that he admitted that prior to his marriage there were negotiations as well as internal talks and his sister had inquired about the education of the respondent as well as her family background. The appellant also admitted that he married the respondent as he liked her. He also stated that he did not take decision in his life on the basis of horoscope. The marriage was performed after verifying the background, houses and all the details of both the families. His father in his evidence admitted that the horoscopes of the appellant and the respondent were not tallied. Further, he deposed that he did not have any document to show that the appellant was a Mangalik. He even admitted that at the time of marriage the age of the appellant was beyond marriageable age.

Hence, all these admissions belie the case of the appellant that there was cheating on the part of the respondent and her parents at the time of settlement of marriage.

In view of the above, Bench observed that there was no fraud played by the wife or her family.

Appellant failed to make out a case of fraud and even if it is assumed that there was misrepresentation in respect of the date of birth, it does not affect the matrimonial relations between the appellant and the respondent, as the appellant failed to prove that he was Mangalik and he intended to marry the girl having Mangalik Yog.

Father of appellant, admitted that for initial two years of the marriage, there was no dispute between the appellant and the respondent in respect of age difference as well as the respondent being non-mangalik. According to the respondent, the ill-treatment started only after the appellant got government job.

Therefore, evidence laid by the respondent did not spell out cruelty caused by the respondent to him.

With regard to Desertion, Court noted that as per the evidence led by the respondent she was beaten and her sister and her husband saw the marks of beating on her person. After they left, she was again beaten and threatened with life. Apprehending danger to her life, she had to take shelter in the house of neighbour Shri Gordey. From there, she called her parents and her brother, sister Kiran, her husband and others took her from the house of Shri Gordey to her parent’s house

Further, there was no material that depicted that the appellant tried to bring the respondent back for cohabitation.

“…since the appellant attributed cheating and fraud to the respondent and her parents, it is not possible to believe that he tried to bring the respondent back for cohabitation.”

Therefore, family court rightly appreciated the evidence on record and appellant failed to prove cruelty and desertion on the part of respondent-wife.

In view of the above discussion. The appeal against the family court’s decision was dismissed. [Kartik Narayan Dhawle v. Vaishali Kartik Dhawle, 2021 SCC OnLine Bom 241, decided on 23-02-2021]

Advocates who appeared before the Court:

B.R. Hindustani, Advocate holding for A.N. Ansari, Advocate for the appellant,

S.N. Thengari, Advocate for the respondent.

Case Briefs Supreme Court

Malicious allegations against spouse costing him his job and reputation not an attempt to preserve the relationship but a definite case of mental cruelty: Supreme Court

Supreme Court: In a case where an Army Officer’s wife made numerous malicious complaints against him to his superiors and various authorities, the 3-judge bench of Sanjay Kishan Kaul, Dinesh Maheshwari and Hrishikesh Roy, JJ held that such conduct cannot be considered to be “squabbles of ordinary middle class married life” and that it amounted to mental cruelty.

Holding that the husband was entitled to dissolution of his marriage, the Court said,

“In circumstances like this, the wronged party cannot be expected to continue with the matrimonial relationship and there is enough justification for him to seek separation.”

Background

The appellant, an Army Officer with M.Tech qualification and the respondent, a faculty in the Government P G College, Tehri with Ph.d degree got married on 27.9.2006 and lived together for few months at Vishakhapatnam and at Ludhiana. But from the initial days of married life, differences cropped up and since 15.9.2007, the couple have lived apart.

In the divorce proceeding, the appellant pleaded that he was subjected to numerous malicious complaints by the respondent which have affected his career and loss of reputation, resulting in mental cruelty. On the other hand, the respondent in her case for restitution of conjugal rights contended that the husband without any reasonable cause had deserted her and accordingly she pleaded for direction to the appellant, for resumption of matrimonial life.

Family Court’s finding

The Family Court gave a finding that the respondent had failed to establish her allegation of adultery against the husband. Further, it was held that the respondent had subjected the appellant to mental cruelty with her complaints to the Army and other authorities. Consequently, the Court allowed the appellant’s suit for dissolution of marriage and simultaneously dismissed the respondent’s petition for restitution of conjugal rights.

High Court’s finding

In appeal, while the Uttarakhand High Court found that the wife did write to various authorities commenting on the appellant’s character and conduct, the Division Bench opined that those cannot be construed as cruelty since no court has concluded that those allegations were false or fabricated. According to the Court, the conduct of the parties against each other would at best be squabbles of ordinary middle class married life. Accordingly, the High Court set aside the decree for dissolution of marriage and allowed the respondent’s suit for restitution of conjugal rights, under the impugned judgment.

Husband’s case

It was argued that the respondent had filed a series of complaints against him before the superior officers in the Army upto the level of the Chief of Army Staff and to other authorities and these complaints have irreparably damaged his reputation and mental peace. He cannot therefore be compelled to resume matrimonial life with the respondent, in the face of such unfounded allegations and cruel treatment. Moreover, the couple have been separated since 15.9.2007 and after all these years, restitution would not be justified or feasible.

Wife’s case

It was argued that the wife wrote letters and filed complaints only to assert her legal right as the married wife of the appellant and those communications should therefore be understood as efforts made by the wife to preserve the marital relationship.

Supreme Court’s analysis and finding

What amounts to Mental Cruelty?

For considering dissolution of marriage at the instance of a spouse who allege mental cruelty, the result of such mental cruelty must be such that it is not possible to continue with the matrimonial relationship. In other words, the wronged party cannot be expected to condone such conduct and continue to live with his/her spouse.

“The degree of tolerance will vary from one couple to another and the Court will have to bear in mind the background, the level of education and also the status of the parties, in order to determine whether the cruelty alleged is sufficient to justify dissolution of marriage, at the instance of the wronged party.”

Whether wife’s conduct in the present case amounts to mental cruelty?

The respondent had made several defamatory complaints to the appellant’s superiors in the Army for which, a Court of inquiry was held by the Army authorities against the appellant. Primarily for those, the appellant’s career progress got affected. The Respondent was also making complaints to other authorities, such as, the State Commission for Women and has posted defamatory materials on other platforms. As a result, the appellant’s career and reputation had suffered.

“When the appellant has suffered adverse consequences in his life and career on account of the allegations made by the respondent, the legal consequences must follow and those cannot be prevented only because, no Court has determined that the allegations were false.”

The Court also found fault with the High Court’s approach in dealing with the issue. The High Court had, without any definite finding on the credibility of the wife’s allegation, held that the wronged spouse would be disentitled to relief.

The Court also noticed that the allegations are levelled by a highly educated spouse and they do have the propensity to irreparably damage the character and reputation of the appellant.

“When the reputation of the spouse is sullied amongst his colleagues, his superiors and the society at large, it would be difficult to expect condonation of such conduct by the affected party.”

Further, the explanation of the wife that she made those complaints in order to protect the matrimonial ties also would not justify the persistent effort made by her to undermine the dignity and reputation of the appellant.

The Court hence held that the High Court was in error in describing the broken relationship as normal wear and tear of middle class married life.

“It is a definite case of cruelty inflicted by the respondent against the appellant and as such enough justification is found to set aside the impugned judgment of the High Court and to restore the order passed by the Family Court.”

Hence, the appellant was held entitled to dissolution of his marriage and consequently the respondent’s application for restitution of conjugal rights was dismissed.

[Joydeep Majumdar v. Bharti Jaiswal Majumdar, 2021 SCC OnLine SC 146, decided on 26.02.2021]

*Judgment by: Justice Hrishikesh Roy

Know Thy Judge | Justice Hrishikesh Roy

Appearances before the Court by:

For Appellant – Senior Advocate Gopal Sankaranarayanan

For respondent – Advocate Ahmad Ibrahim

Case Briefs High Courts

Bom HC | Husband making wild allegations that wife, her relatives, secured false certificates to get employment. Does husband’s conduct amount to ‘Mental Cruelty’ to wife? HC explains while upholding Family Court’s decision

Bombay High Court: The Division bench of A.S. Chandurkar and Pushpa V. Ganediwala, JJ., upheld the family court’s finding that “the behaviour and the conduct of the husband of making wild and unsubstantiated allegations resulted in causing mental cruelty to the wife.”

Factual Matrix

Appellant and the respondent were married since 2008 and a child was born out of the said wedlock. Appellant and his family started ill-treating the respondent. Respondent was driven away from her matrimonial home, after all, her gold articles were taken away.

In view of the above, she proceeded to file a case under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights.

The above proceedings were however withdrawn and later, wife filed a petition seeking divorce on the grounds of cruelty and desertion. She alleged that the appellant and his family members were ill-treating the respondent physically and mentally. Respondent approached the Mahila Cell with her grievances and after understanding given to both the parties, they started residing together, but the same did not continue for long as the respondent found herself in an unsafe environment and proceeded to file the present proceedings.

Family Court held that the respondent had proved that the appellant was treating her with cruelty. Hence by the impugned judgment, the Family Court proceeded to pass a decree for divorce on the ground of cruelty. Being aggrieved the appellant has preferred this appeal.

Issue for Consideration:

Whether in the facts of the case the Family Court was justified in granting a divorce on the ground of cruelty?

Decision

Bench in view of the facts and circumstances found the Family Court’s decision to be justified.

“…making of unfounded allegations against the spouse or his/her relatives in the pleadings or making complaints with a view to affect the job of the spouse amounts to causing mental cruelty to the said spouse.”

Mental Cruelty: What led to it?

Court elaborated on the above point that the conduct of the husband of not pleading that the wife was suffering from epilepsy and stating the same for the first time in his deposition as well as making wild allegation that the wife and her relatives had secured false caste certificate without attempting to substantiate the said allegation resulted in causing mental cruelty to wife.

Bench also added regarding the husband’s conduct that, it appeared from his conduct in one or the other he intended to prejudice the service of the wife.

The impugned judgment was affirmed. [Thalraj v. Jyoti, 2021 SCC OnLine Bom 255, decided on 10-02-2021]

Advocates who appeared for the parties:

P.K. Mishra, Advocate for the appellant.

A.B. Bambal, Advocate for the respondent.

Case Briefs High Courts

All HC | Woman commits suicide after various cases against her, being subjected to harassment at matrimonial home. Can a case of abetment of suicide be established? HC discusses

Allahabad High Court: Dinesh Kumar Singh-I, J., while discussing abetment of suicide, stated that:

“…if some act either of omission or commission results in instigation to the victim to commit suicide, that act would also be treated to be an abetment.”

Factual Background of a Woman Subjected to Torture in demand of Dowry

Informant stated that his daughter was married with accused-applicant 1 in accordance with the Hindu rites and as per demands, dowry was provided. At the time of marriage, the applicant 1 (husband), applicant 2, Om Prakash Mishra (father-in-law), applicant 3, Rakesh Mishra, (brother-in-law) started demanding four-wheeler as additional dowry because of which ‘Bidai’ of his daughter could be done.

After a lot of persuasion, the Gauna was performed and when her daughter (deceased) went to her matrimonial home, all the accused-applicants started making taunts that marriage was performed for very cheap, further it was made clear to the deceased that unless the amount asked for is fulfilled, it would be difficult for her to live in matrimonial home peacefully.

Mental and Physical Harassment

Victim was harassed mentally and physically on various occasions, she was pressurized to give her jewellery to which she refused and was beaten up by banging her head against the wall and subjected to filthy language and threat of divorce.

Victim’s husband used to increase the volume of the T.V and close the door of the house so that screaming or weeping of the deceased would not go out, even the family members of the accused-applicant 1 used to call the victim and harass her on the phone.

Accused-Applicant 1 later, dropped the deceased near the house of the informant retaining the jewellery at his home and further filed for divorce.

Suicide

Later it was stated that, since the informant’s daughter used stay disturbed mentally because of the case having been filed against her and having received notices from the Court, she used to say that despite having been tortured, she could not get any case registered against the persons of her sasural and was passing time with her child in her parents’ home and even then, she was not being allowed to remain peacefully and in these circumstances after getting fed-up, on 23-10-2017 she committed suicide by hanging herself by a stole from the ceiling fan, for which the accused- applicants are responsible.

Analysis of the Bench

The above-stated circumstances could be treated to have been driven the deceased to commit suicide which could have taken to fall in the category of abetting the commission of suicide by the deceased.

Court expressed that:

Merely because the deceased died at the parent’s house, is being hammered as the main argument on the part of the applicant, to be the reason why abetment to commit suicide should not be taken to be established in this case even prima-facie.

Bench relied upon the Supreme Court’s decision in Guru Charan Singh v. State of Punjab, (2020) 10 SCC 200, wherein it was held that in order to give finding of abetment under Section 107, which is necessary to sustain the conviction of abetment of suicide under Section 306 IPC, it must be established that the accused instigated a person either by an act of omission or commission or by persistent cruelty or harassment.

Circumstances or atmosphere in the matrimonial home without the instigation of suicide being established in someway are not enough to sustain the conviction on abetment of suicide.

Conclusion

In the instant case, Court noted that it came on record that various litigations had been thrust upon the deceased from the side of the accused-applicants which might have generated a situation in which deceased found no way out but to commit suicide.

Bench stated that it may tour out to be not finally proved that the applicants were involved in the commission of this offence but in proceedings under Section 482 CrPC:

this Court cannot give finding in this regard as the evidence, which is likely to be recorded before the trial court, the said evidence would be appreciated by the said court then only finding can be returned on this point.

While dismissing the application, Court held that if the applicants appear and surrender before the Court below within 30 days and apply for bail, then the bail application would be considered and decided in view of the law laid down by this Court in Amrawati v. State of U.P.,2004 (57) ALR 290, as well as a judgment passed by Supreme Court in Lal Kamlendra Pratap Singh v State of U.P., (2009) 4 SCC 437.

In case, the applicants do not appear before the Court below within 30 days period, coercive action shall be taken against them. [Kranti Mishra v. State of U.P., 2021 SCC OnLine All 81, decided on 22-01-2021]

Advocates for the parties:

Counsel for Applicant: Shailesh Kumar Shukla, Rajiv Lochan Shukla

Counsel for Opposite Party: G.A., Akhilesh Kumar

Case Briefs High Courts

[Flashback] Ker HC | If a husband imputes infidelity and immorality on the part of his wife, would that amount to cruelty? Read How HC discusses applicability of S. 27 of Special Marriage Act

To marry or not to marry and if so whom, may well be a private affair. But, the freedom to break a matrimonial tie is not.

(N.G. Dastane v. S. Dastane: (1975) 2 SCC 326).

Kerala High Court: The Division Bench of C.K. Abdul Rehim and R. Narayana Pisharadi, JJ., while addressing the instant petition highlighted the observation that:

a petition for divorce under Section 27 of the Special Marriage Act, 1954 can be filed only when the marriage is solemnised or deemed to be solemnised under the provisions of that Act.

Husband in the instant case has challenged the divorce decree passed by the Family Court filed by the wife.

Section 27(1)(d) of the Special Marriage Act, 1954 provides that, subject to the provisions of that Act and the Rules made thereunder, a petition for divorce may be presented to the District Court either by the husband or the wife on the ground that the respondent has treated the petitioner with cruelty.

Petitioner and respondent had solemnised their marriage under the provisions of the Special Marriage Act, 1954.

Primary allegation against the respondent was that he was always suspicious of the moral character of the petitioner and that he always used to make accusations of infidelity and immorality against her.

Highlight in the petition

Imputations made by the respondent on the character of the petitioner, especially the accusation of illicit relationship by her with her colleagues in the profession.

Whether the conduct of the respondent imputing infidelity and immorality on the petitioner amounts to inflicting mental cruelty?

Mental cruelty is that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other (See V. Bhagat v. D. Bhagat : (1994) 1 SCC 337)

Bench stated that to constitute cruelty, the conduct complained of must be something more serious that ‘ordinary wear and tear of married life’.

In the instant case, it was submitted that the respondent had publicly humiliated the petitioner by telling two strangers that his wife was sleeping with another man on the previous night.

Court noted that it was proved that the respondent had informed the colleagues of the petitioner in the hospital that she was having an affair with another doctor. Thus the respondent made the petitioner a subject of scandal in the hospital where she was working.

Due to the above-stated petitioner had to resign from the hospital on account of shame.

The above-discussed incidents proved that the respondent was in the habit of imputing infidelity and immorality on the part of his wife.

Injury to reputation is an important consideration in dealing with the question of cruelty.

In Raj v. Kavita : (2017) 14 SCC 194, Supreme Court held that, the conduct of a spouse levelling false accusations against the other spouse which would have the effect of lowering his/her reputation in the eyes of his/her peers, would be an act of cruelty.

In Narendra v. Meena: (2016) 9 SC 455, Supreme Court held that, levelling of absolutely false allegations and that too with regard to an extra-marital life, is quite serious and that can surely be a cause for mental cruelty.

With regard to the above discussions, it was observed that

Unending accusations and imputations can cause more pain and misery than physical beating.

Legal Cruelty

Bench expressed that, in a delicate human relationship like matrimony, one has to see the probabilities of the case. One has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse due to the acts or omissions of the other.

Court further in line with the above discussions also stated that

Any woman with reasonable self-respect and power of endurance would find it difficult to live with such a suspicious and taunting husband.

Hence, the lower Court’s conclusion that the petitioner was treated with cruelty by the respondent and she was entitled to get divorce decree in light of the same was correct.

Special Marriage Act, 1954

Appellant’s Counsel submitted that since the marriage was solemnised in a church, the marriage solemnised under the provisions of Special Marriage Act, 1954 would not prevail and the petition for divorce filed under Section 27 of the said Act would not be maintainable.

Hence, the petition for divorce should have been filed under Section 10 of the Divorce Act, 1869.

The Indian Christian Marriage Act, 1872 is not applicable to territories which were comprised in the erstwhile State of Travancore – Cochin existed before the 1st November 1956.

The marriage between the parties in the instant case had taken place in an area comprised in the erstwhile Travancore State.

Therefore, the marriage between the parties in the instant case was not governed by the provisions of the above-mentioned statute.

High Court observed that when the marriage is not governed by any statutory law, the validity of the marriage has to be decided in accordance with the personal law applicable.

Further, it followed that there was no valid marriage solemnised between the parties in the church. If that be so, the marriage solemnised as per the provisions of the Special Marriage Act, 1954 is the valid marriage that existed between the parties.

Adding to the above, bench stated that had the marriage between the parties conducted in the church been valid, it was not necessary for the parties to solemnise the marriage under Chapter II of the Special Marriage Act, 1954.

The very fact that the marriage between the parties was solemnised by them under the provisions of Chapter II of the Special Marriage Act, 1954 would indicate that the parties were also aware and conscious of the fact that the marriage between them conducted in the church was not valid.

In Stephen Joshus v. J.D. Kapoor: 58 (1995) DLT 57,

the parties were Christians who had been married to each other under the provisions of the Indian Christian Marriage Act, 1872. A joint petition was preferred by them under Section 28 of the Special Marriage Act, 1954 seeking the dissolution of marriage by a decree of divorce by mutual consent.

The trial court dismissed the petition on the ground that the marriage was solemnised under the Christian Marriage Act whereas divorce had been sought under the Special Marriage Act and therefore, the petition was not maintainable.

The Delhi High Court held that sub-section (2) of Section 28 of the Special Marriage Act confers jurisdiction upon the District Court to grant a decree, declaring the marriage to be dissolved only on the satisfaction that the marriage has been solemnised under that Act and therefore, upheld the dismissal of the petition by the lower court.

In Aulvin v. Chandrawati: 1974 SCC OnLine All 285,

the husband filed a petition for divorce against the wife on the ground of desertion under Section 27 of the Special Marriage Act. The parties were admittedly Christians and they were married in a Christian church according to Christian rites.

The wife contended that since the parties were Christians and had been married under the provisions of the Indian Christian Marriage Act, 1872, the petition for divorce should have been filed under Section 10 of the Divorce Act, 1869 and the petition filed under Section 27 of the Special Marriage Act was not maintainable.

The Allahabad High Court held that the petition for divorce presented under Section 27 of the Special Marriage Act, 1954 was not maintainable since the marriage between the parties was neither solemnised nor registered under that Act.

Hence, the Court held that the marriage between the petitioner and respondent in the church was not valid and marriage solemnised under the provisions of the Special Marriage Act, 1954 would prevail over it. If only the marriage conducted between the parties in church was valid, the solemnisation of marriage under Chapter II of the Special Marriage Act, 1954 would have been an exercise in futility.

Therefore, the divorce petition under Section 27 of the Special Marriage Act, 1954 would not be maintainable.[Kiran Kumar v. Bini Marim Chandi, 2018 SCC OnLine Ker 13579, decided on 11-10-2018]

Advocates who appeared before the Court:

For Appellant:

SRI.S.V.PREMAKUMARAN NAIR
SMT.M.BINDUDAS
SMT.P.S.ANJU
SRI.P.K.JANARDHANAN
SRI.R.T.PRADEEP

For Respondent:

SMT.MAJIDA.S
SMT.MAJIDA.S CAVEATOR
DR. SEBASTIAN CHAMPAPPILLY AMICUS CURIAE

Case Briefs High Courts

Bom HC | Can Family Court entertain application for reliefs under Ss. 18 to 22 of the Protection of Women from Domestic Violence Act, 2005? HC answers

Bombay High Court: C.V. Bhadang, J., addressed whether the Family Court can application for reliefs under Section 18 to 22 of the Protection of Women from Domestic Violence Act, 2005.

The instant application was filed in regard to the transfer of Criminal Miscellaneous Application pending before the Judicial Magistrate for dissolution of marriage on the ground of cruelty.

Bench noted that the applicant was seeking reliefs against the respondent with regard to the dissolution of marriage and permanent custody of the children.

Respondent had filed Criminal Miscellaneous Application under Sections 12, 17, 18, 19, 20, 22 and 23(2) of the D.V. Act, seeking a residence order a protection order and monetary reliefs.

Principle Issue

Whether the Family Court can entertain the application, as framed and filed by the respondent before the Magistrate?

Court referred to the three decisions of Single Judges of this Court which have already covered the above issue:

Minoti Subhash Anand v. Subhash Manoharlal Anand (R.D. Dhanuka, J.),2015 SCC OnLine Bom 6113
Sandip Mrinmoy Chakraborty v. Reshita Sandip Chakraboarty ( Bharati H. Dangre, J.), 2018 SCC Online Bom 2709
Santosh Machindra Mulik v. Mohini Mithu Choudhari (S.C. Gupte, J.), Misc. C.A. No. 64 of 2019 decided on 15-11-2019

This Court has consistently held that in view of Section 7(2)(b) of the Family Courts Act, read with Section 26 of the Protection of Women from Domestic Violence Act, 2005, Family Court would get jurisdiction to entertain the application for reliefs under Section 18 to 22 of the D.V. Act.

“…if the Family Court can entertain an application under Sections 18 to 22, if filed under Section 26 merely because the application is styled as one under Section 12, would hardly make any difference.”

Hence, the present application was allowed and the Criminal Miscellaneous Application was transferred to the Family Court.[Hitesh Prakashmalji Mehta v. Aashika Hitesh Mehta, 2020 SCC OnLine Bom 983, decided on 28-09-2020]

Advocates who appeared before the Court:

Abhijit D. Sarwate for the Applicant.

Arvind Chavan for the Respondent.

Case Briefs Supreme Court

Man roped in in the dowry death of his brother’s wife freed after 2 decades as SC finds allegations against him vague

Supreme Court: The bench of NV Ramana* and Surya Kant, JJ has acquitted a man convicted under Section 498A read with Section 34 IPC for the death of his brother’s wife after it was found that the case against him was not proved beyond doubt.

Allegedly, after several instances of abuse at her matrimonial home, the deceased went to live with her parents. On the fateful day, her husband came to visit her and took her for a walk but came back alone and hurriedly packed his belongings to leave. When confronted about the whereabouts of the deceased, he said that the deceased was attending the call of nature and would be back soon. He left thereafter. When the deceased did not return after an hour, the complainant started searching for her and she was ultimately found dead, near a canal with strangulation marks on her neck.

Deceased’s husband, Brother-in-law (the appellant herein) and Father-in-law were convicted under Section 498-A read with Section 34 IPC.

In the present appeal, the deceased’s brother-in-law contended that the prosecution story comprises of vague allegations, unsubstantiated by evidence and that the entire family has been roped in this case. Thus, the conviction of the appellant cannot be sustained.

The prosecution had alleged that the appellant in the present case, had, along with his brother and father, demanded dowry of Rs. 10,000 from the family of the deceased at the time of the vidai ceremony and had continued to harass her for the non-payment of the same.

On perusal of the testimonies of the witnesses, the Court noticed that deceased’s father had named the appellant-accused in the same breath along with other accused persons and their family members accusing them of troubling the deceased for demand of dowry of Rs. 10,000/-.

However, apart from the vague allegations, no specific instance of hostile attitude or persistent demands of dowry have been pointed out by any of the witnesses. All other independent witnesses have turned hostile and have not supported the prosecution story. Also, the paternal uncle of the deceased and a witness named in the FIR, has not supported the prosecution story.

The Court, hence, concluded that on consideration of the oral testimonies of the witnesses, the ingredients of Section 498-A IPC have not been proved against the appellant by the prosecution at the standard of beyond reasonable doubt and, hence, acquitted the appellant.

The Court also discharged the bail bonds of the appellant who is out on bail since September, 2010.

[Nimay Sah v. State of Jharkhand, 2020 SCC OnLine SC 982, 02.12.2020]

*Justice NV Ramana has penned this judgment. Read more about him here.

Case Briefs High Courts

Del HC | Is making false allegation of impotency by wife against husband a ground for decree of divorce? Court determines

Delhi High Court: The Division Bench of Manmohan and Sanjeev Narula, JJ., refused to set aside the order of the trial court granting divorce to the respondent-husband.

In the instant appeal, Appellant-wife impugned the Judgment passed by Principal Judge, Family Courts whereby the Court while rejecting the relief sought under Section 12(1)(a) and (c) has allowed the petition of the respondent by granting divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955.

CRUELTY

Trial Court dissolved the marriage between the parties on the ground of cruelty within the meaning of Section 13(1)(ia) of the HMA.

IMPOTENCY

The nature and the extent of allegations made by the appellant are beyond any controversy. Appellant laid down the allegations under two different compartments:

(i) allegations pertaining to the impotency of the Respondent, and

(ii) allegations with respect to mistreatment, torture and dowry demand against the Respondent and his parents.

The above-stated allegations laid the foundation for the ground of cruelty.

Further, the respondent had brought in evidence to establish before the Court that he was not impotent and the false and untrue allegations were causing him mental stress and amounted to cruelty.

On physical examination by the doctor, the respondent was found to be a normal male adult with fully developed secondary sexual character and organs, normal endocrine and sexual function, and had no problem of impotence.

Trial Court concluded that the credibility of the witness could not be impeached, and since respondent suffered no medical infirmity that could render him incapable of consummating the marriage, the allegation of impotence made by the respondents was not proved.

DECISION

Bench stated that, since the witness was a very highly qualified medical expert with immaculate credentials, his testimony was rightly relied upon by the Trial Court, hence no interference by this Court is required.

Court agreed with the observations of the trial court and stated that the accusations were levelled by the appellant and the onus lay on her to establish the veracity of the same.

Appellant entirely failed to produce any medical or corroborated evidence that could remotely suggest that the respondent was medically unfit to consummate the marriage.

Next Question:

Whether a false allegation of impotence amounted to cruelty within the meaning of Section 13(1)(ia) of the HMA?

Cruelty can be physical or mental. High Court stated that it is primarily contextual, pertaining to human behaviour or conduct with respect to matrimonial duties and obligations.

Bench observed that it is essential to see whether the conduct of the party is of such nature, that a reasonable person would neither tolerate the same, nor be reasonably expected to live with the other party.

Decision of the Supreme Court in V. Bhagat v. D. Bhagat, (1994) 1 SCC 337 was relied upon, wherein it was held that:

“Mental cruelty in Section 13(1)(ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together.”

“…What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.”

ALLEGATIONS MADE IN PLEADINGS

Bench stated that it is no longer res Integra that false, baseless, scandalous, malicious and unproven allegations in the written statement may amount to cruelty.

“If it is established from the evidence that the allegations were evidently false, then such baseless allegations made in the written statement can amount to cruelty and the Court can pass a decree of dissolution of the marriage.”

In view of the above, Court found no infirmity in the trial court’s observations that the allegation of the Appellant in the Written Statement with respect to the impotency clearly falls within the concept of cruelty as defined under the law.

Bench also observed that,

There can be no justification for any party to retaliate by making untrue and false allegations regardless of how provocative the allegations may be. If the Appellant was hurt by the allegations made by the Respondent, she had her legal remedies against the same. It did not certainly give her a carte blanche to make counter-allegations which were untrue and cause deep humiliation to the Respondent.

Adding to the above, Court stated that the imputations and allegations made by the Appellant in the Written Statement were repeatedly reinforced during the trial by giving suggestions to the Respondent and also to his expert witness during the course of their cross-examinations.

Bench held that,

The cruelty in the instant case is of enduring and profound nature.

Concluding the instant matter, Cout held that the appellant and the respondent have been separated for more than eight years and since the separation continued for a sufficient length at time, it can be presumed that the marriage has irretrievably broken down.

It was found that a prolonged and continuous separation and the matrimonial bond was beyond repair. Therefore, refusing to severe the matrimonial ties would cause further mental cruelty to the Respondent.

Hence, the trial court’s conclusion could not be faulted with. [Kirti Nagpal v. Rohit Girdhar, 2020 SCC OnLine Del 1466, decided on 20-11-2020]

Advocates for the parties:

Appellant: Manish Sharma, Ninad Dogra and Jigyasa Sharma

Respondent: Prabhjit Jauhar

Case Briefs High Courts

HP HC | Remedy under S. 125 CrPC and S. 12 of DV Act, 2005 are distinct and different; Law does not prohibit wife to proceed under both of the said statutory provisions simultaneously or otherwise; Petition dismissed

Himachal Pradesh High Court: Ajay Mohan Goel J., while rejecting the present criminal revision sought against the compensation and maintenance allowed by the lower court, clarified the legal position on simultaneous remedy under the Domestic Violence Act and the Criminal Procedure Code.

Brief Facts

Facts of the case are enumerated herewith;

That a petition filed by the respondent herein, under Section 12 of the Protection of Women from Domestic Violence Act, 2005, stood allowed by the Court of Judicial Magistrate, titled as Palbi Sharma v. Sachin Sharma, vide order dated 23-12-2016, directing the present petitioner to pay monthly maintenance to the tune of Rs 3000 per month to the present respondent/wife from the date of the order.
That, in addition Rs 20000 was also ordered by way of compensation by the Court against the proven acts of cruelty committed by the present petitioner.
That the petitioner was also directed to provide accommodation to the wife, on rent comprising of one room, kitchen bathroom and toilet or in the alternative to provide said accommodation in his own house if he was in a position to do so.
That the petitioner filed an appeal against the abovementioned decision which was dismissed by the Court of Sessions Judge vide judgment dated 29-09-2018.
That the wife also filed an appeal against the order passed by the Court of Judicial Magistrate, which was also dismissed by the Appellate Court vide the same order.
That the wife has not preferred any further petition against the adjudication made in her appeal by the Appellate Court, therefore, this Court is not making any observation qua rejection of the said appeal but, feeling aggrieved by the dismissal of the appeal preferred by the petitioner, the present Court herein addresses this case as filed under Section 397 read with Section 401 of the Criminal Procedure Code.

Issue

Whether the present criminal revision filed by the petitioner maintainable?

Decision

While rejecting the present criminal revision, the Court concurred with the findings of the lower court and said that both, the amount granted under Section 125 CrPC, amounting Rs 3500 and an amount of Rs 3000, ordered under Section 12 of the Domestic Violence Act, in addition to the compensation of Rs 20000, awarded against the proven charges of cruelty, stand justified and “by no stretch of imagination, can be said to be on the higher side”. The Court further clarified that, “The provisions of Section 125 of the Criminal Procedure Code and Section 12 of the Protection of Women from Domestic Violence Act, 2005 are distinct and different. Law does not prohibit the wife to proceed under both of the said statutory provisions simultaneously or otherwise.”[Sachin Sharma v. Palvi Sharma, 2020 SCC OnLine HP 2109, decided on 26-10-2020]

Sakshi Shukla, Editorial Assistant has put this story together

Hot Off The Press News

Allegations made by women for being subjected to gang-rape in lockup: NHRC takes suo motu cognizance

The National Human Rights Commission issued notice to the Chief Secretary, Director General of Police and the Director-General of Prisons, Madhya Pradesh after taking suo motu cognizance about the allegations made by women on five cops for gang rape in lockup.

It is mentioned in the news report that a 20-year-old woman has levelled allegations that she was kept in lock-up for 10 days in the month of May this year and was subjected to rape by 5 police personnel including the Police Station Incharge and SDPO of Mangawan area of Rewa district of Madhya Pradesh. The woman, as mentioned in the news report, was an accused in a case of murder and presently she is lodged in judicial custody. The incident occurred in the month of May and it came to the knowledge of the District Judge after a period of five months. Even the prison warden did not have the courage to report the matter to the higher authorities.

It is further added that as alleged by the victim woman, she was subjected to rape between 09-05-2020 to 21-05-2020 while the police contradict, to be arrested on 21-05-2020. The female constable had protested at that time but she was rebuked by her seniors.

The Commission considered the vulnerable position of the victim. She was in police custody when she was allegedly subjected to utmost cruelty and sexual assault by the 5 police personnel. Even a protest made by a female police official went in vain. Very serious allegations have been levelled by the victim woman. Public servants from the law enforcement agencies, who are supposed to safeguard the citizens especially the women and the people from the vulnerable classes of the society have allegedly committed the heinous crime against a woman in their custody.

The Commission directs that the matter may be investigated by a senior police officer, not below the rank of the Deputy Inspector General of Police.

National Human Rights Commission

[Press Release dt. 19-10-2020]

Case Briefs High Courts

Bom HC | Abuse of S. 498-A IPC by making vague allegations and roping in family members of husband: Courts to carefully scrutinize allegations

Bombay High Court: A Division Bench of Z.A. Haq and Amit B. Borkar, JJ., while allowing the present criminal application filed under Section 482 of Criminal Procedure Code, 1973 observed the tendency in the society wherein the relatives of husband are also roped in with vague allegations under Section 498-A of Penal Code, 1860.

In the instant matter, both husband and wife started living separately from sister-in-law and brother-in-law of the husband after their marriage.

Due to quarrels between the non-applicant 2 and her husband, non-applicant 2 filed an FIR with Police Station, which was compromised. On a later date, non-applicant 2 again lodged a complaint with the Women Cell.

Further, the husband of non-applicant 2 filed a complained alleging harassment caused by parents and brother of non-applicant 2.

Non-applicant 2 approached the Judicial Magistrate and filed an application under Section 156(3) of Criminal Procedure Code, 1973 and, then the non-applicant 1 lodged FIR against the applicants. The said FIR has been challenged in the present application.

Women Cell i.e. non-applicant 1 submitted that the investigation was complete and there is a prima facie case against the applicants.

Wife i.e. non-applicant 2 contended that the applicants along with her husband harassed her for dowry and there were several complaints filed by her with the Police Station as and when harassment was caused.

Senior Advocate, Anil S. Mardikar along with S.G. Joshi, Advocate, represented the applicants; M.K. Pathan Additional Public Prosecutor for the non-applicant 1 –State and M.N. Ali, Advocate for the non-applicant 2.

Analysis & Decision

In light of adjudicating the present issue, bench considered it necessary to refer Section 498-A of Penal Code, 1860:

“498-A. Husband or relative of husband of a woman subjecting her to cruelty – whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation – For the purpose of this section, “cruelty” means-

(a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) Harassment of the women where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

Cruelty perpetuated to the woman may be physical or mental.

Bench stated that saying, “we are also serving in the police and we have connections with the higher Authorities, or the husband of the non-applicant 2 got no benefit of the education of the non-applicant 2” cannot be stated to be cruelty to the woman.

Nowadays, it has become a tendency to make vague and omnibus allegations, against every member of the family of the husband, implicating everybody under Section 498-A of the Penal Code.

It is necessary for the Courts to carefully scrutinize the allegations and to find out if the allegations made really constitute an offence and meet the requirements of the law at least prima facie.

Bench further cited the following decision of the Supreme Court:

G. Sagar Suri v. State of U.P., (2000) 2 SCC 636, wherein it was observed that the criminal proceedings should not be allowed to be resorted to as shortcut to settle the score.

Indian Oil Corpn. v. NEPC India Ltd., (2006) 6 SCC 736, in this case, Supreme Court deprecated the tendency of using the criminal justice system as a tool of arm twisting and to settle the score, and laid down that the High Court can intervene where the criminal justice system is used as a tool.

Kailash Chandra Agrawal v. State of U.P., (2014) 16 SCC 551, an observation was made that tendency, which has been developed for roping in all relations of the in-laws by the wife in the matter of dowry deaths or such type of similar offences in an over-enthusiasm and anxiety to seek conviction needs to be deprecated.

In the present case, sisters-in-law and brother-in-law were arraigned as accused without there being specific allegation as regards the nature of cruelty, as contemplated by Section 498-A IPC against them.

In view of the impugned FIR and charge-sheet, Court opined that no allegations against the applicants constitute offences alleged.

Therefore, the criminal application was allowed in view of the above-stated.[Shabnam Sheikh v. State of Maharashtra, 2020 SCC OnLine Bom 1752, decided on 15-10-2020]

Case Briefs Supreme Court

23 years after his wife’s death, a man walks free as SC sets aside his conviction for abetting her suicide based on ‘speculations’ and ‘inferences’

Supreme Court: In a case where the appellant had challenged his conviction under Section 306 IPC for driving his wife to suicide, the 3-judge bench of NV Ramana, Surya Kant and Hrishikesh Roy, JJ set aside the verdict of the Trial Court and the Punjab and Haryana High Court and held that the conclusion that the deceased was driven to commit suicide, by the circumstances or atmosphere in the matrimonial home was nothing more than an inference, without any material support and the same cannot be the basis for sustaining conviction of the appellant, under section 306 of the IPC.

KEY FACTS CONSIDERED BY COURTS

The appellant was married to the deceased and they had a son (21/4 years) and a daughter (8/9 months), when the mother committed suicide on 12.8.1997. According to the prosecution case, the deceased was harassed after marriage, for insufficient dowry. The appellant along with his parents was charged under sections 304B and 498A read with section 34 of the IPC.
The father of the deceased submitted that “cash loan” of 20,000/- was asked from him by the family of the appellant.
appellant is the only son of his parents and they are the owner of a big house with a vegetable garden. The appellant and his father were drivers with Punjab police.
during delivery time, the deceased was admitted in the hospital for 10/12 days in November 1996 and her medical treatment was arranged by the husband and the father-in-law.
No evidence of any dispute relating to dowry demand or maltreatment of the deceased, during three years of marriage was seen.

TRIAL COURT AND HIGH COURT’s VERDICT

Even while declaring that there is insufficient material to convict anyone under section 304B & 498A IPC, the trial Court opined that although no charge of abetment was framed against the husband Gurcharan Singh, he can be convicted for abetting suicide of his wife, under section 306 IPC.

The Trial Court also concluded even if Rs. 20,000/- was asked for purchase of plot three years after marriage and few days later the unnatural death takes place, the death cannot be related to demand of dowry.

However, posing a question to itself as to why a young lady with two small children would commit suicide unless she has been pushed to do so, by the circumstances in the matrimonial home, the Trial Court observed that the expectation of a married woman will be love and affection and financial security at the hands of her husband and if her hopes are frustrated by the act or by wilful negligence of the husband, it would constitute abetment within the meaning of section 107 IPC, warranting conviction under section 306 IPC.

The High Court also endorsed the Trial Court’s view that deceased was pushed to commit suicide by the circumstances and the atmosphere in the matrimonial home.

SUPREME COURT’s OBSERVATION

On ingredients to establish offence of abetment under Section 107

As in all crimes, mens rea has to be established. To prove the offence of abetment, as specified under Sec 107 of the IPC, the state of mind to commit a particular crime must be visible, to determine the culpability. In order to prove mens rea, there has to be something on record to establish or show that the appellant herein had a guilty mind and in furtherance of that state of mind, abetted the suicide of the deceased. The ingredient of mens rea cannot be assumed to be ostensibly present but has to be visible and conspicuous.

“In order to give the finding of abetment under section 107 IPC, the accused should instigate a person either by act of omission or commission and only then, a case of abetment is made out.”

On facts and circumstances of the case

Cruelty

In the present case there is no direct evidence of cruelty against the husband or the in-laws. There is nothing on record to show which particular hope or expectation of the deceased was frustrated by the husband. Evidence is also lacking on wilful neglect of the appellant, which led to the suicidal death.

“Whereas contrary evidence is available to suggest that care and treatment was given to the deceased in the matrimonial home and in the hospital, and during the three years of marriage, there was no instance of maltreatment, attributable to dowry demand.”

Dowry

The demand of Rs. 20,000/- for purchase of a plot (in front of the residence which might have incidentally become available for sale just at that time), after three years of marriage, was ruled out by the trial Court as the possible cause for the suicidal death.

“Thus, a loan may have been sought by the accused which could not be given. But there is nothing to show that the deceased was harassed on this count, in the matrimonial home.”

Expectations from husband and in-laws

Insofar as the possible reason for a young married lady with two minor children committing suicide, in the absence of evidence, conjectures cannot be drawn that she was pushed to take her life, by the circumstances and atmosphere in the matrimonial home.

“What might have been the level of expectation of the deceased from her husband and in-laws and the degree of her frustration, if any, is not found through any evidence on record. More significantly, wilful negligence by the husband could not be shown by the prosecution.”

It must also be noted that both children born to deceased are being brought up by the appellant’s family ever since the death of the mother on 12.8.1997. The maternal grandparents, even while pointing fingers against the accused, never raised any issue on their grandchildren being brought up in the home where their daughter died an unnatural death.

Conclusion

The Court noticed that in the present matter both the Trial Court as well as the High Court never examined whether appellant had the mens rea for the crime, he is held to have committed.

“The conviction of Appellant by the Trial Court as well as the High Court on the theory that the woman with two young kids might have committed suicide, possibly because of the harassment faced by her in the matrimonial house, is not at all borne out by the evidence in the case.”

On the other hand, it is apparent that no overt act or illegal omission is seen from the appellant’s side, in taking due care of his deceased wife. The evidence also does not indicate that the deceased faced persistent harassment from her husband.

“The Trial Court and the High Court speculated on the unnatural death and without any evidence concluded only through conjectures, that the appellant is guilty of abetting the suicide of his wife.”

Hence, the conviction of the appellant, under section 306 of the IPC cannot be sustained.

[Gurcharan Singh v. State of Punjab, CRIMINAL APPEAL NO.40 OF 2011, decided on 02.10.2020]

Case Briefs High Courts

Bom HC | Does Family Court has jurisdiction to entertain an application for relief under Ss. 18 to 22 of the D.V. Act? Read what Court held

Bombay High Court: C.V. Bhadang, J., addressed an application regarding the transfer of Criminal Miscellaneous Application regarding the dissolution of marriage on the ground of cruelty.

Facts pertinent to the matter are that the marriage of husband and wife ran into rough weather and led to the applicant/husband to file for divorce on the ground of cruelty, pending before the Family Court.

Whereas, the respondent/wife filed a case against the applicant for various reliefs under the Protection of Women from Domestic Violence Act, 2005 which also pending before the Magistrate.

Applicant has prayed for the transfer of the said case to Family Court.

Counsels in the present matter: Abhijit D. Sarwate for the Applicant and Arvind Chavan for the Respondent.

Analysis and Decision

Bench noted that the applicant sought relief of the dissolution of marriage and permanent custody of the children. Along with said reliefs, he was also seeking partition of the property situated in Pune. Whereas, the respondent filed a Criminal M.A. under Sections 12, 17, 18, 19, 20, 22 and 23(2) of the D.V. Act seeking a residence order in the above-stated property, protection order and monetary reliefs in the form of monthly maintenance of Rs 1,50, 000 and compensation in the form of one-time lump sum payment of Rs 50 lakhs along with Rs 5 lakhs as costs.

Principle Issue:

Whether the Family Court can entertain the application, as framed and filed by the respondent, before the Magistrate?

To the said issue, Court responded that it has been covered by at least three decisions of the Single Judges :

Minoti Subhash Anand v. Subhash Manoharlal Anand, 2015 SCC OnLine Bom 6113

Sandip Mrinmoy Chakraborty v. Reshita Sandip Chakrabarty, 2018 SCC Online Bom 2709

Santosh Machindra Mulik v. Mohini Mithu Choudhari, Misc. C.A. No. 64 of 2019 decided on 15-11-2019

Bench added that this Court has consistently observed that in view of Section 7(2)(b) of the Family Courts Act read with Section 26 of the D.V. Act that the Family Court would get jurisdiction to entertain an application for relief under Sections 18 to 22 of the D.V. Act.

Respondent’s Counsel pointed that Section 26 of the D.V. Act speaks of the reliefs available under Section 18 to 22 and does not cover Section 17. To which the Court stated that the said contention is misconceived.

Section 17 of D.V. Act declares the right of the aggrieved person to reside in the shared household. The remedy to enforce any such right, is to be found in Section 19, which is included in Section 26 of the said Act.

Further, the Counsel for the respondent submitted that under Section 28(2) of the D.V. Act, the Magistrate is competent to follow his own procedure, which latitude is not available to the family court. Court negatived the said argument in the case of Santosh Machindra Mulik v. Mohini Mithu Choudhari, Misc. C.A. No. 64 of 2019 decided on 15-11-2019 in view of Section 10(3) of the Family Courts.

The decision of Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel is also misplaced in the present context as in the said decision, Supreme Court held that, under the provisions of the Domestic Violence Act the wife not only acquires a right to be maintained but also acquires a right of residence, which is a higher right. It has been held that such a right of residence extends only to joint properties, in which the husband has a share.

The above-said judgment cannot come to the aid of the respondent.

Hence the Court allowed the application in view of the above.[Hitesh Prakashmalji Mehta v. Aashika Hitesh Mehta, 2020 SCC OnLine Bom 983, decided on 28-09-2020]

Case Briefs High Courts

Tripura HC | What amounts to irretrievable breakdown of marriage? HC discusses in a case where the couple lived apart for 13 continuous years

Tripura High Court: A Division Bench of S. Talapatra and S.G. Chattopadhyay, JJ., upheld the decision of the trial court and stated that the present matter is a case of an irretrievable breakdown of the marriage in light of cruelty and desertion.

Cruelty & Desertion | Dissolution of Marriage

Allegations of cruelty and desertion were placed against the wife by the husband in light of which the husband approached the Family Court under Section 13 of the Hindu Marriage Act, 1955 for dissolution of marriage by a decree of divorce.

Family Court dissolved the marriage.

Aggrieved wife preferred the present appeal under Section 28 of the Hindu Marriage Act, 1955 read with Section 19 of the Family Courts Act, 1984 challenging the legality of the impugned Judgment of the Family Court.

Court considers in the present case whether the grounds of cruelty and desertion against the respondent-wife, the appellant herein, existed on the date of filing of the divorce petition or not.

From the pleadings of the parties and their evidence, it would appear that the respondent-wife left her matrimonial home along with her daughter and she did not live with her husband at any point of time till the petition was filed by her husband on seeking a divorce and even thereafter.

The witnesses of the petitioner including two of his neighbours had categorically asserted that they did not notice any untoward incidents preceding to the departure of the respondent-wife from her matrimonial home.

Further, the bench stated that on perusal of the parties and their evidence discussed, no material was found to show that the respondent-wife was ever forced by her husband to leave his company or that she was thrown away from her matrimonial home.

Wife prosecuted her husband and his relatives under Section 498A IPC which was proved to be unfounded in the Sessions Court as well as in the High Court.

Institution of a complaint under Section 498-A IPC against the husband does not ipso facto constitute mental cruelty unless the court having assessed the totality of the facts and circumstances and also having taken note of the nature of the allegations come to the conclusion that amongst other things the wife also brought unfounded and scandalous allegations with a clear intention to humiliate the husband and his relatives and such conduct of the spouse caused disappointment and frustration in the other spouse.

Whether such conduct of the respondent-wife amounted to the desertion of her husband and caused mental cruelty to him and entitled him to a decree of divorce.

There cannot be a straight-jacket formula for determining cruelty in matrimonial relationships. Whether the alleged conduct of the spouse constitutes cruelty has to be judged in the particular context of the case keeping in view all the attending facts and circumstances of the case.

In the present matter, the petitioner proved that his wife abandoned him along with her daughter when he lost his vision and was in dire need of their company and the support of his wife.

Such conduct of the wife must have hurt the sentiment of the petitioner husband and affected their relationship. After abandoning her husband, she labeled allegations of harassment for dowry against her husband in a proceeding under Section 498A IPC followed by a proceeding under the Protection of Women from Domestic Violence Act.

The unprovoked humiliating treatment by the wife to her husband caused cruelty to the husband.

Apex Court, while laying down the broad parameters for determination of mental cruelty for the purpose of granting divorce in Samar Ghose v. Jaya Ghose, (2007) 4 SCC 511 reiterated the same principle and held as follows as one of the parameters:

“101…(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.”

Hence, in the present matter, both the grounds of cruelty and desertion existed on the date of filing of the divorce petition. Moreover, there is no denial of the fact that the husband and the wife are staying apart for more than 13 years and during this period they never lived together at any point of time.

Therefore, the present matter is a case of an irretrievable breakdown of marriage and it is quite impossible to save the marriage.

Trial Court’s decision is upheld and the husband is directed to pay a monthly maintenance allowance for his wife and daughter.[Aparna Dey v. Alok Dey, 2020 SCC OnLine Tri 411, decided on 09-09-2020]

Case Briefs High Courts

Bom HC | Performing second marriage during pendency of an appeal is a breach under S. 15 of HMA, but would it amount to civil contempt? HC analyses

Bombay High Court: A.S. Kilor, J., held that contravention of the provision of Section 15 of the Hindu Marriage Act, 1955 does not amount to willful disobedience of ‘other process of a Court’ under the provisions of the Contempt of Court Act, 1971.

Willful Disobedience

The petitioner sought action under Section 12(3) of the Contempt of Court Act, 1971 against the respondent for alleged willful disobedience of ‘other process of a Court’ by performing marriage in contravention of the provision of Section 15 of the Hindu Marriage Act, 1955.

Facts

Respondent preferred a petition under Section 13 of the Act, 1955 against the petitioner for dissolution of marriage on the ground of cruelty and desertion.

Civil Judge had dismissed the petition holding that the respondent failed to prove cruelty and desertion.

Decree of Divorce

The respondent questioned the Judgment and decree which was allowed and thereby declared the marriage between the petitioner and respondent stands dissolved by a decree of divorce.

Petitioner filed the second appeal which is pending before the Court.

While the appeal was in pendency, the contempt petition had been filed alleging that the respondent had performed second marriage in contravention of the mandate of the provision of Section 15 of the Act, 1995 which is willful disobedience of ‘other process of a Court’ as provided by Section 1(b) of the Act, 1971.

Counsel for the petitioner, T.G. Bansod and S.S. Jagtap Counsel for the respondent.

Bench considered the following questions:

“(i) Whether the performance of second marriage by the respondent on 20-03-2016 during the pendency of appeal is unlawful in view of prohibition stipulated under Section 15 of the Act, 1955, and if yes ?

(ii) Whether contravention of Section 15 of the Act, 1955 amounts to willful disobedience of ‘other process of a Court’ as provided in Section 2(b) of the Act of 1971 ?”

Court referred to Section 15 of the Hindu Marriage Act, 1955, which reads as follows:

“Divorced persons when may marry again — When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.”

High Court noted that the respondent ignored the prohibition and performed the second marriage under an incapacity to marry, stipulated under Section 15 of the Act, 1955.

Ejusdem Generis

Further, to find out the import of the expression ‘other process of a court’ which is a general term, the principle of Ejusdem Generis would be helpful to apply, in the present matter.

Civil Contempt — Section 2(b) of the Contempt Act, 1971

“Civil contempt means willful disobedience to any judgments, decree, direction, order, writ or other process of a Court or willful breach of an undertaking given to a Court.”

The expression ‘willful disobedience of process of a Court’ used under Section 2 (b) of the Act, 1971, must also be related to the disobedience of some command issued by the Court during the process of a Court which includes various stages between the filing of any proceeding to a final decision by the Court.

Bench stated that at any stretch of imagination it cannot be said that contravention of the provision of Section 15, amounts to willful disobedience of ‘other process of a Court’ under the provisions of the Act, 1971.

High Court in view of the above held that during the pendency of the appeal, the performance of second marriage would be a breach of prohibition stipulated under Section 15 of the Act, 1955, but in any case, it would not amount to disobedience of any command of the Court consequently such act would not fall within the ambit of the expression ‘willful disobedience of other process of a Court’ under Clause (b) of Section 2 of the Act, 1971.

No Civil Contempt

In view of the observations laid above, Court stated that the second marriage performed by the respondent in contravention of Section 15 of the Act, 1955 would not fall within the purview of clause (b) of Section 2 of the Act, 1971 and hence no civil contempt has been committed.

Accordingly, the contempt petition was dismissed. [Kanchan v. Prashant Manikrao Bagade, 2020 SCC OnLine Bom 911, decided on 08-09-2020]

Case Briefs High Courts

Jhar HC |‘Desertion’ has to be wilful and voluntary for a valid ground for divorce under S. 13 of Hindu Marriage Act, 1955; Legal principle “No one can take a benefit of his own fault” applied

Jharkhand High Court: A Division Bench of H.C. Mishra and Rajesh Kumar JJ., rejected the prayer and dismissed the appeal being devoid of merit.

The facts of the case are such that marriage of the appellant and his wife was solemnized in the year 2007 as per Hindu rites and rituals in the presence of all family friends and relatives and two children are born out of the wedlock. The appellant alleged that wife has been living separately and on numerous incidents caused mental agony to the appellant. He has further alleged in the appeal that the acts of the wife amount to cruelty and desertion of the wife. A suit was filed by the husband for divorce under Section 13 of the Hindu Marriage Act, 1955 on grounds of cruelty, desertion and mental incapacity of the respondent-wife. The Trial Court decided the matter in favour of the wife and aggrieved by the same, the instant appeal was filed challenging the same order.

The appellant represented himself in person and submitted that the wife behaved psychic and rudely and treated him and his parents with utmost cruelty. He cited various incidents to support his argument along with two witnesses, one himself and his mother, namely, Kaushalya Devi but did not produce any documentary evidence.

Counsel Sujeet Neepulam representing the respondent-wife denied allegations of cruelty, desertion and mental illness and submitted further that her actions of leaving home and staying with parents are not willful as the appellant and his family were demanding dowry, refusing which she was ousted from the marital home and brought back and ousted again on many occasions. Four witnesses, namely, Ashok Saw, Naresh Saw, Praveen Kumar and herself were examined to support her argument alongwith documentary evidence i.e. a mutual divorce application dated 13-07-2009 sent by the husband to wife after signing, a letter dated 30-07-2010 to her father giving threat, copy of an FIR instituted by the respondent-wife under Section 498 A of Penal Code, 1860 and Section 3/4 of the Dowry Prohibition Act, 1961 compromise copy after the appellant was arrested subsequent to the filing of FIR and other pertinent documents to support her plea. It was further submitted that the respondent is still willing to lead a respectable conjugal life with her husband, but the husband is not willing to keep her.

The Court observed that appellant was unable to present any substantial evidence except oral evidence of his and his mother whereas the respondent-wife presented various documentary proofs which demolish the case of cruelty from her side instead makes it clear by looking at the mutual divorce application and a written letter of threat to her father or the fact that she compromised to secure bail for the petitioner is enough to indicate the willingness of the respondent-wife to resume the respectable conjugal life with the appellant.

The court relied on judgments titled Jorden Diengdeh v. S.S. Chopra, (1985) 3 SCC 62 and Kaslefsky v. Kaslefsky [1951] P. 38 and held that any husband desirous to get rid of his wife may get desired result by driving out his wife from matrimonial home by force or creating a situation and thereafter taking plea of desertion for more than two years. The law is clear that if one of the parties to the matrimonial home, voluntary and without any plausible explanation has left the matrimonial home giving no option to the other party, then it amounts to desertion. Desertion is a willful and voluntary act by the party to leave something without any rational reason. In the present case, the husband is at fault and this is the reason for separate living of both the parties. Hence, the argument that living separately itself is sufficient in the eyes of law for granting the divorce is not acceptable.

In view of the above, decree for divorce rejected and appeal dismissed.[Sanjay Kumar v. Suman Kumari, 2020 SCC OnLine Jhar 773, decided on 08-09-2020]

Arunima Bose, Editorial Assistant has put this story together

Case Briefs High Courts

Telangana HC | For invoking S. 304-B IPC, harassment or cruelty caused to a woman should have happened “soon before her death”

Telangana High Court: K. Lakshman, J., while addressing an issue, observed that,

there should be a perceptible nexus between the death of a woman and the dowry-related harassment or cruelty inflicted on her.

Deceased and accused 1 were married, wherein at the time of marriage parents of the deceased gave 15 tolas of gold, furniture and clothes.

Harassment

After 5 months of the marriage, appellants-accused started harassing the deceased physically and mentally by demanding additional dowry and motorcycle.

Accused had also threatened to perform a second marriage if the demands were not fulfilled.

Deceased parents informed the accused that they cannot fulfill the said demand and asked not to harass the deceased.

But the accused warned the parents and maternal uncles of the deceased that they would perform the marriage of accused 1 with another girl if they fail to accede to their demand.

Suicide

On the intervening night of 25/26-06-2003 parents of the deceased were informed that the deceased committed suicide hanging.

The mother of the deceased reported the event with instances of harassment that her daughter was subjected to the police.

Police registered a case under Section 304-B of Penal Code, 1860 and trial court framed the charge against the appellants and accused 4 under Section 304-B IPC.

Being aggrieved with the said conviction and imposition, the present appeal was filed.

Decision

Dowry death

Court observed that the post-mortem examination found the cause of the death of the deceased to be due to hanging.

Ingredients required for offence under Section 304-B IPC:

within 7 years of the marriage, there must happen the death of a woman (the wife)
the death must be caused by any burns or bodily injury, or the death must occur otherwise than under normal circumstances
it must be established that soon before her death, she was subjected to cruelty or harassment
the cruelty or harassment may be by her husband or any relative of her husband; and
the cruelty or harassment by the husband or relative of the husband must be for, or in connection with, any demand for dowry.

Section 113-B of the Indian Evidence Act, 1872 provides for presumption as to dowry death. When the question is whether the dowry death, namely, the death contemplated under Section 304-B of IPC has been committed by a person, if it is shown that soon before her death, the woman was subjected by such person to cruelty or harassment, for in connection with, any demand for dowry, the Court shall “presume” that such person had caused the dowry death.

It is, no doubt, a rebuttable presumption and it is open to the husband and his relatives to show the absence of the ingredients of Section 304-B of IPC.

Court observed that it is relevant to note that it is not enough that harassment or cruelty was caused to the woman with a demand for dowry at some time if Section 304-B of IPC is to be invoked but it should have happened “soon before her death”.

Bench held that the prosecution had proved the guilt of the accused’s and established the above-stated 5 ingredients of Section 304-B IPC.

To bring home charge under Section 304-B of IPC, the prosecution is required to establish that the death of the woman has been caused by burns or bodily injury or otherwise than under normal circumstances within seven years of her marriage and soon before her death, the woman is subjected to cruelty or harassment by her husband or his relative.

In the present matter, the fact that the incident had occurred 17 years ago and accused 1 got remarried and has to look after his children including the child born through the deceased and his old aged parents, hence Court took a lenient view with regard to the reduction of punishment.

Accordingly, the present criminal appeal was allowed.[Surender Singh v. State of A.P., 2020 SCC OnLine TS 874, decided on 06-07-2020]

Case Briefs High Courts

Kar HC | When can Court presume under S. 113-A Evidence Act, that dowry death has been caused? HC explains

Karnataka High Court: A Division Bench of B.A. Patil and Hanchate Sanjeevkumar, JJ., upheld the decision of the trial court with regard to dowry death.

By the instant criminal appeal, the decision of the Additional Sessions Judge, Gulbarga has been challenged.

Counsel for the appellant-accused: Iswaraj S. Chowdapur and Additional State Public Prosecutor for respondent – State: Prakash Yeli.

Dowry | Cruelty

Parents of Dattamma at the time of the marriage had given one tola of gold as dowry. After one year of when the dowry was given, the accused started subjecting Dattamma to cruelty contending that she doesn’t know how to cook and used to ask her to bring cash and gold from her parent’s house.

The said fact of cruelty was conveyed by Dattamma to her parents who along with some elderly persons visited the accused and paid a sum of Rs 5000, but he continued to subject Dattamma to mental and physical cruelty.

Later the accused poured kerosene and lit fire on Dattamma with the intention to commit murder. Afterwhich, she was taken to the hospital and sustained burn injuries.

In view of the above-stated offence, the trial court had convicted the accused.

Analysis and Decision

Bench while analysing the set of circumstances and submission placed stated that,

When the prosecution establishes its case with regard to ill-treatment and harassment said to have been caused by the accused and admittedly the death of the decased has also taken place within 7 years after the marriage, under such circumsatnces, a duty cast upon the Court to draw a presumption under Section 113 A of the Evidence Act that is dowry death.

Demand of Dowry

In the present matter, Court relying on the proposition laid down in the decision of C.M. Girish Babu v. CBI, (2009) 3 SCC 779, held that the prosecution has established that there was ill-treatment and harassment caused by the accused for the demand of dowry.

Trial Court has rightly convicted the accused for the offences punishable under Section 498-A and 302 IPC and also under Section 3 of the Dowry Prohibition Act.

Accused’s Counsel contended that the imprisonment itself is harsh and severe punishment under such circumstances the imposition of a heavy fine to a poor agriculturist is not justifiable and it is excessive fine which ought not to have been imposed.

In view of the above stated, Court modified the fine imposed on the accused.

The sentence imposed by the trial court for the offences punishable under Sections 498A and 302 of IPC and under Section 3 of the Dowry Prohibition Act was confirmed. [Baswaraj v. State of Karnataka, Criminal Appeal No. 354 of 2013, decided on 10-08-2020]

Also Read:

Cruelty to Women [S. 498-A IPC and allied sections]

Case Briefs High Courts

Raj HC | Allegation of woman set ablaze in view of dowry demand dismissed; Prosecution theory of homicidal death sheer exaggeration

Rajasthan High Court: A Division Bench of Sandeep Mehta and Kumari Prabha Sharma, JJ., dismissed the allegations of dowry demand, cruelty against the father-in-law and husband of the deceased in view of the prosecution theory regarding homicidal death being nothing short of sheer exaggeration.

An appeal was preferred by the accused-appellants under Section 374(2) CrPC against the decision of Additional Sessions Judge (Women Atrocities Cases), Bikaner.

Deceased was married to appellant 1 for 10 years. On one fateful day she was found dead in the kitchen with burn injuries, whereupon her brother, PW.1 lodged.

Humiliated and Harassed

Allegations were placed that the deceased was harassed from the date of her marriage till death on account of dowry demand.

Both the father-in-law and husband of the deceased under the influence of liquor used to maltreat her owing to the demand for money.

The unjust demands of the above-stated persons used to be somehow met but the greed would never end.

PW1 also stated that when he saw his sister dead, both the husband and deceased’s father-in-law kept uttering the words that they had killed the woman and he could do whatever he liked.

In view of the above, offences under Section 302, 498A and 34 of Penal Code, 1860 were filed.

Later, both the husband and father-in-law were arrested.

Analysis and Decision

Bench on perusal of the facts and circumstances of the matter stated that, if at all there was a semblance of truth in the allegation that the maltreatment of the deceased was continuing for almost 10 years, then her maternal relatives were expected to raise this issue by filing a complaint either to the police and if not, then at least intervention of the community elders would definitely have been sought.

Adding to the above, maternal neer reprimanded the cruel behaviour of the accused.

Hence, the allegations levelled by the prosecution witnesses that the accused were indulged in meting out continuous maltreatment to the deceased on account of demand of dowry is nothing short of sheer exaggeration and needs to be discarded.

Further, it was duly established that the father-in-law of the deceased had invested significant amounts from the sale proceeds of his agricultural land in the names of his granddaughters before the incident, which makes it clear that the allegation of humiliation and harassment is unsubstantiated.

On perusal of the medical report of the deceased, Court noted that the injuries were on the front, but the prosecution theory states that the deceased was set ablaze, if the said theory was true then the kerosene would have dribbled on the front as well as back, hence the defence theory of deceased falling down on the burning place in probablised.

In view of the above-stated background, the reverse burden of proof under Section 106 of the Evidence Act would also not come to the aid of the otherwise fragile and fragmented prosecution case.

Therefore, the accused-appellants were acquitted of all the charges.[Gopal v. State of Rajasthan, DB Criminal Appeal No. 799 of 2014, decided on 06-08-2020]

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Background

Family Court’s finding

High Court’s finding

Husband’s case

Wife’s case

Supreme Court’s analysis and finding

What amounts to Mental Cruelty?

Whether wife’s conduct in the present case amounts to mental cruelty?

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Highlight in the petition

Legal Cruelty

Special Marriage Act, 1954

Advocates who appeared before the Court:

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Principle Issue

Advocates who appeared before the Court:

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CRUELTY

IMPOTENCY

DECISION

ALLEGATIONS MADE IN PLEADINGS

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Analysis & Decision

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KEY FACTS CONSIDERED BY COURTS

TRIAL COURT AND HIGH COURT’s VERDICT

SUPREME COURT’s OBSERVATION

On ingredients to establish offence of abetment under Section 107

On facts and circumstances of the case

Conclusion

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Harassment

Suicide

Decision

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Dowry | Cruelty

Analysis and Decision

Demand of Dowry

Also Read:

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