Case BriefsHigh Courts

Punjab and Haryana High Court:  In a revision petition filed against the enhanced amount of alimony H.S. Madaan, J., upheld Family Court’s decision that,

If salary of the husband increases the wife would be entitled to increased maintenance as well.

The Petitioner, one Varun Jagotta had filed the instant revision petition against his wife Diksha Kapur, feeling aggrieved by the order of the Family Court whereby the Court had granted interim maintenance at Rs 20,000  per month till September, 2019 and thereafter at Rs 28,000 per month. The petitioner was basically aggrieved by the portion of the impugned order granting maintenance at Rs 28,000 w.e.f. October, 2019 onwards.

Taking note of the fact that there had been increase in the salary of the respondent from Rs 95,000 per month to Rs 1,14,000 per month in September, 2019 and there had been increase in rent being paid by the petitioner at the rate of Rs.1,500 per month, the Family Court opined that  if the petitioner is awarded a sum of Rs 20,000/- per month by way of interim maintenance from the date of filing the application (on 03.10.2018) till September, 2019 and henceforth, at the rate of Rs 28,000/- per month, it would suffice the purpose and ends of justice would be met.

The petitioner contended that as per pay slip of the petitioner for the month of December, 2019, his net carry home salary after all the deductions came out to Rs 92,175, therefore, grant of maintenance at Rs 28,000 per month was not justified.

Noticing that salary of the petitioner had increased from Rs 95,000 per month to Rs 1,14,000 per month, the Bench held that,

 “Increase in maintenance by Rs.8,000 when there was increase in salary of revision petitioner by 19,000, was justified.”

Hence, it was held that the impugned order did not suffer from any illegality or infirmity and was not perverse or passed in an arbitrary manner. The instant petition was dismissed. [Varun Jagotta v. Diksha Kapur, CRR(F)-28 of 2021, decided on 05-02-2021]


Kamini Sharma, Editorial Assistant has put this story together.

Case BriefsHigh Courts

In our series of 2020 wrap-ups, let’s revisit and take a dive at some of our stories on family laws and how different High Courts dealt with the same involving some very significant rulings.

We have listed down Case briefs under sub-categories, of our coverage under the Family Law and its allied provisions.


[Allahabad High Court]

Custody of Minor

In minor’s custody case, where child is below 5 years of age, mother is preferred, but is there any exception to it? All HC explains

[Meenakshi v. State of U.P., 2020 SCC OnLine All 1475, decided on 02-12-2020]

If a natural guardian faces criminal charges relating to death of spouse, can custody of children or visitation rights be granted? All HC discusses

[Shaurya Gautam v. State of U.P., 2020 SCC OnLine All 1372, decided on 10-11-2020]

Decree of Eviction against Son

Can daughter-in-law be evicted without seeking decree of eviction against the son under S. 2(s) of Domestic Violence Act? All HC answers

[Sujata Gandhi v. S.B. Gandhi, 2020 SCC OnLine All 763, decided on 12-06-2020]


 [Bombay High Court]

Alimony

If the wife is earning something for livelihood, can the same be a ground to refuse alimony under S. 24 of Hindu Marriage Act? Read Bom HC’s ruling reiterating SC’s decision

[Arpana Vijay Manore v. Dr Vijay TukaramManore, 2020 SCC OnLineBom 3925, decided on 09-12-2020]

Bigamy

Person committing offence under S. 494 IPC, must have married another woman or man during subsistence of his or her first marriage; Bom HC invokes power under S. 482 CrPC to meet ends of justice

[Rekha v. State of Maharashtra, 2020 SCC OnLineBom 291, decided on 13-02-2020]

 Cooling-off Period

Can “cooling-off period” under S. 13-B(2) of Hindu Marriage Act be waived? Legal position discussed in a case of pregnant woman

[Kovelamudi Kanika Dhillon v. Kovelamudi Surya Prakash Rao,  2020 SCC OnLineBom 2054, decided on 26-10-2020]

 Cruelty to Woman

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

[Shabnam Sheikh v. State of Maharashtra, 2020 SCC OnLineBom 1752, decided on 15-10-2020]

“Easy to accuse somebody of ill-treatment after someone dies, but not wise to convict somebody based on general statements”: Bom HC holds every cruelty is not an offence under S. 498-A IPC

[State of Maharashtra v. Shri Balu Ravji Abhang, 2020 SCC OnLineBom 307, decided on 20-02-2020]

Family members should not be dragged without specific evidence against them, otherwise, S. 498-A IPC is unfortunately misused as a weapon, says Bom HC

[State of Maharashtra v. Ashok, 2020 SCC OnLineBom 331, decided on 26-02-2020]

 Custody of Minor

Welfare of child as paramount consideration: Bom HC gives custody to father of minor for mother not being able to take care of the child

[Sashanka v. Prakash, 2020 SCC OnLineBom 3497, decided on 27-11-2020]

Domestic Violence & Jurisdiction of Courts

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

[Hitesh Prakashmalji Mehta v. Aashika Hitesh Mehta, 2020 SCC OnLineBom 983, decided on 28-09-2020]

Second Marriage

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

[Kanchan v. Prashant Manikrao Bagade, 2020 SCC OnLineBom 911, decided on 08-09-2020]

 Unmarried Daughter (Maintenance)

Whether unmarried daughter who is major by age, entitled to claim maintenance from father till her marriage? Bom HC explains law in light of Hindu Adoption & Maintenance Act

[Sanjay J. Phagnekar v. State of Maharashtra, 2020 SCC OnLineBom 3382, decided on 23-11-2020]

Widowed Daughter-in-Law (Maintenance)

Can a widowed daughter-in-law claim maintenance from the estate inherited by her father-in-law? Law explained

[Sardool Singh Sucha Singh Mathroo v. Harneet Kaur, 2020 SCC OnLineBom 927, decided on 07-09-2020]

 Wife having Independent Source of Income (Maintenance)

[S. 125 CrPC] Wife cannot be denied maintenance on ground of having a source of income: Restated by Bom HC

[Sanjay Damodar Kale v. Kalyani Sanjay Kale, 2020 SCC OnLineBom 694, decided on 26-05-2020]


[Calcutta High Court]

Child Marriages

Alarming rise of child marriages during lockdown has given a strong impression that they may be in garb of child trafficking; Police to investigate

[Contagion of COVID-19 Virus in Children, In Re., 2020 SCC OnLine Cal 1066, decided on 25-06-2020]

 Harassment over Complexion

Harassment by in-laws for woman’s black complexion is cruelty under S. 498-A IPC; Husband convicted for murdering wife over her black complexion

[Mazidul Miah v. State of W.B., 2020 SCC OnLine Cal 1077, decided on 25-06-2020]


[Chhattisgarh High Court]

Alienation of Property by Alleged Wife

Whether alienation of property by an alleged wife of a deceased is void? Chh HC analyses position in light of ‘Customs’ under Hindu Marriage Act

[Anirudh Prasad Kamal Sen v. Dashmat Bai Suryavanshi, Second Appeal No. 93 of 2009, decided on 28-08-2020]

Cause of Action

In a matrimonial dispute, cause of action can arise several times, even if the dispute is settled and case has been withdrawn

[Harsha Dewani v. Ashutosh Gupta, 2020 SCC OnLineChh 149, decided on 10-08-2020]


[Delhi High Court]

Adultery

Adultery can only be committed after marriage, allegation of having relationship before marriage cannot be a ground of adultery; Divorce petition dismissed

[Vishal Singh v. Priya, 2020 SCC OnLine Del 638, decided on 12-06-2020]

Affidavit of Assets, Income and Expenditure

Del HC updates Affidavit of Assets, Income & Expenditure to be filed at threshold of matrimonial disputes; Issues modified directions [Detailed Report: Read Directions]

[Kusum Sharma (5) v. Mahinder Kumar Sharma, 2020 SCC OnLine Del 931, decided on 6-8-2020]

Cruelty & Desertion

Del HC analyses “A typical case that showcases as to what would amount to cruel behaviour on part of one spouse to utter detriment of other”

[Venkatesh Narasimhan v. V. Sujatha, 2020 SCC OnLine Del 571, decided on 01-05-2020]

Divorce Proceedings

Husband citizen and domicile of USA, Can he raise objections on divorce proceedings filed by wife in India? Del HC decrypts the law in light of catena of SC decisions

[Karan Goel v. Kanika Goel, 2020 SCC OnLine Del 1319, decided on 12-10-2020]

 Impotency

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

[Kirti Nagpal v. Rohit Girdhar, 2020 SCC OnLine Del 1466, decided on 20-11-2020]

Maintenance

If interim maintenance by wife has already been secured under Domestic Violence Act, will application under S. 125 CrPC be maintainable? Del HC answers

[Rani v. Dinesh, Crl. Rev. P. 1091 of 2019 and Crl. M.A 13677 of 2020, decided on 02-12-2020]

Matrimonial Disputes

Del HC reiterates SC’s position on “duty of the Courts to encourage genuine settlements of matrimonial disputes”

[Harish Kumar v. State, 2020 SCC OnLine Del 1635, decided on 04-12-2020]

 Remedy against Custody Orders

“No exception to remedy against orders of custody under Domestic Violence Act”: Del HC dismisses S. 482 CrPC petition in view of S. 29 DV Act

[Srisha Dinav Bansal v. Rajiv Bansal, 2020 SCC OnLine Del 764, decided on 20-07-2020]

Right to Privacy versus Right to Fair Trial

[S. 14 of Family Courts Act] In a contest between right to privacy and right to fair trial, both of which arise under expansive Art. 21, right to privacy may have to yield to right to fair trial

[Deepti Kapur v. Kunal Julka, 2020 SCC OnLine Del 672, decided on 30-06-2020]

Second Marriage & Custody of Children

Second marriage of a mother is by itself not sufficient to deprive her of custody of her biological child

[Faisal Khan v. Humera,  2020 SCC OnLine Del 572, decided on 1-5-2020]

Settlement Deed affecting Children’s Right to Maintenance

Is it lawful for a wife to agree to a settlement deed in the process of dissolution of marriage wherein she settles that her minor children will not claim maintenance in future? Court explains

[Vashno Jaishwal v. State (NCT of Delhi), 2020 SCC OnLine Del 1504, decided on 20-11-2020]


[Gauhati High Court]

 Conjugal Life

Refusal to wear “sakha and sindoor” is clear intention that a hindu wife is unwilling to continue conjugal life: Divorce decreed to husband

[Bhaskar Das v. Renu Das, 2020 SCC OnLineGau 2954, decided on 19-06-2020]

 Maintenance

If a woman is divorced, will her status as a wife entitling her to maintenance under S. 125 CrPC change? Read Gau HC’s position

[Bijoy Seal v. Sefali Seal, 2020 SCC OnLineGau 4024, decided on 30-09-2020]

Special Marriage Act

If a marriage is first solemnised under the Special Marriage Act and later upon conversion to Islam, marriage is again solemnised under Mohammedan Law: Which law will prevail for dissolution of marriage? Gau HC to consider

[Md Makfur Rahman v. Malina Deb Barman, 2020 SCC OnLineGau 4645, decided on 23-04-2020]


[Gujarat High Court]

Permanent Alimony to a Muslim Woman

Will permanent alimony granted to a Muslim woman be conditional to her remarriage? Detailed report untangling significance of ‘Permanent Alimony’ & ‘Periodical Maintenance’

[Tarif Rashidbhai Qureshi v. Asmabanu, 2020 SCC OnLineGuj 711, decided on 19-03-2020]

Special Marriage Act

If marriage is registered under Special Marriage Act, is it necessary for the couple to take recourse of same law to sever ties permanently? Guj HC elucidates in a custody matter

[Chavda Twinkle v. State of Gujarat, 2020 SCC OnLineGuj 1167, decided on 17-07-2020]


[Himachal Pradesh High Court]

Ancestral Property

Can wife claim maintenance under S. 12 of the Protection of Women from Domestic Violence Act, 2005 over ‘ancestral property’ of the husband? HP HC explains

[Kubja Devi v. Chhape Ram,  2020 SCC OnLine HP 1829, decided on 05-10-2020]


[Jharkhand High Court]

Desertion

‘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

[Sanjay Kumar v. Suman Kumari, 2020 SCC OnLineJhar 773, decided on 08-09-2020]


[Karnataka High Court]

Cruelty to First Wife

Though Shariat permits a Muslim man to practise polygamy, but would that amount to cruelty to first wife? Kar HC explains concept of Marital Cruelty

[Yusufpatel v. Ramjanbi, MFA No. 201154 of 2018 (FC), decided on 17-08-2020]


 [Kerala High Court]

Convenience & Welfare of Children over Wife

In matrimonial matters preference is to be given to convenience and welfare of children over wife: Ker HC dismisses application for transfer of case

[Nimi v. Ajith M.T., 2020 SCC OnLine Ker 4313, decided on 09-10-2020]

Cruelty

Wife’s persistent effort to separate husband from family amounts to cruelty: Divorce granted in favour of husband

[Ranjith P.C. v. Asha Nair. P, 2020 SCC OnLine Ker 1751 , decided on 20-05-2020]

 Dowry

Is there a limitation period for wife to claim property entrusted to in-laws given in form of dowry? Ker HC answers

[Sheela K.K. v. N.G. Suresh, 2020 SCC OnLine Ker 4240, decided on 24-09-2020]

 Suppressing Material Facts & Marriage

If a wife obtains husband’s consent for marriage by suppressing material facts like cardiac ailments, would that amount to fraud? Ker HC explains whether marriage can be declared null & void

[Ajitha v. Harshan, Mat. Appeal No. 734 of 2012, decided on 25-09-2020]

 Transfer Petitions related to Matrimonial Disputes

While considering transfer petitions related to matrimonial disputes, the convenience of wife is to be preferred over the convenience of husband; Ker HC reiterates

[Kavitha v. Gopakumar, 2020 SCC OnLine Ker 6098, decided on 30-11-2020]


[Madras High Court]

Customary Divorce

Can plea of customary divorce be considered as a valid defence while departmental proceeding for bigamy is initiated? Madras HC considers scope of defence under Service Rules

[Sudalaimai v. Deputy Inspector General of Police, WP (MD) No. 17504 of 2014, decided on 09-09-2020]

 Illegitimate Child [Maintenance]

Is an illegitimate child entitled to maintenance under S. 125 CrPC? Madras HC reiterates legal position

[Pachaimuthu v. Minor Vishanthini, 2020 SCC OnLine Mad 2677, decided on 01-10-2020]

Limitation Period for Domestic Violence Complaints

Limitation provided under CrPC is applicable to complaints under Domestic Violence Act: Madras HC rejects complaint filed after lapse of 1 yr 10 months

[N. Prasad v. Harithalakshmi, 2020 SCC OnLine Mad 1767, decided on 20-07-2020]

 Void Marriage

What is the essential condition for validity of any marriage? Detailed Report highlighting legality of marriage of a girl below 18 years of age

[Prakash v. State, Crl. A. No. 334 of 2014, decided on 30-11-2020]


[Orissa High Court]

Rights of a “lady” in Same-sex Couple Relationship

Same-sex couple have a right to live together outside wedlock; Rights of a woman enshrined in Protection of Women from Domestic Violence Act, 2005 to apply on the “lady” in the relationship

[Chinmayee Jena v. State of Odisha, 2020 SCC OnLine Ori 602, decided on 24-08-2020]


[Punjab & Haryana High Court]

Sapinda Prohibition

Whether partners falling in sapinda prohibition under HMA can stay in a live-in relationship? Parties argue while hearing in anticipatory bail

[Akhilesh v. State of Punjab,  2020 SCC OnLine P&H 2058, decided on 19-11-2020]

Section 498-A IPC, a weapon?

Disgruntled wives use provisions of S. 498-A IPC as a weapon rather than shield: P&H HC

[Amarjit Kaur v. Jaswinder Kaur, 2020 SCC OnLine P&H 577, decided on 15-05-2020]

 Voidable Marriage

In case a marriage is solemnized in violation of age restriction, marriage is only voidable

[Deepak Kumar v. State of Haryana, 2020 SCC OnLine P&H 759 , decided on 15-06-2020]


[Rajasthan High Court]

Theory of Homicidal Death

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

[Gopal v. State of Rajasthan, DB Criminal Appeal No. 799 of 2014, decided on 06-08-2020]


 [Telangana High Court]

Harassment or Cruelty

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

[Surender Singh v. State of A.P., 2020 SCC OnLine TS 874, decided on 06-07-2020]


[Tripura High Court]

Dissolution of Marriage of ST Couple

Will Hindu Marriage Act have application on a couple belonging to Scheduled Tribe notified under the Constitution for purpose of dissolution of marriage? Tripura HC explains

[Rupa Debbarma v. Tapash Debbarma, 2020 SCC OnLine Tri 425, decided on 09-09-2020]

Irretrievable Breakdown of Marriage

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

[Aparna Dey v. Alok Dey, 2020 SCC OnLine Tri 411, decided on 09-09-2020]

Lived like a Wife [Maintenance]

“Woman who lived like wife, cannot be deprived of maintenance”: Tripura HC grants maintenance to woman who “lived like wife” for 10 yrs

[Sri Bibhuti Ranjan Das v. Gouri Das, 2020 SCC OnLine Tri 280, decided on 07-07-2020]


[Uttaranchal High Court]

Medical Examination of Wife in Divorce Proceedings

Wife not eligible for medical examination of whether she can conceive or not during Divorce proceedings; Utt HC allows appeal

[Rashmi Gupta v. YogeshBabu, 2020 SCC OnLineUtt 339, decided on 01-07-2020]

 Mental Cruelty

Mental cruelty is no less than physical cruelty, wife causing mental cruelty to husband valid ground for dissolution of marriage; Utt HC dismisses appeal

[Anita Gaur v. Rajesh Gaur, 2020 SCC OnLineUtt 503, decided on 24-08-2020]


Also Read:

2020 Wrap Up — Flashback of Stories on Consumer Cases

Case BriefsHigh Courts

Bombay High Court: Mangesh S. Patil, J., in the present application directed the husband to pay an amount of Rs 10,000 towards alimony pendente lite under Section 24 of the Hindu Marriage Act.

Petitioner-wife has impugned the order passed by the Family Court, Judge wherein her application was rejected in which she sought interim alimony under Section 24 of the Hindu Marriage Act, 1955 in a divorce proceeding filed by the respondent-husband under Section 13(i–a) of that Act.

Petitioner submitted that she was unable to maintain herself since the time she and her husband separated. She was even unable to work due to the psychological pressure and harassment meted out to her by the respondent.

As against this, the respondent is a Medical Officer earning around Rs 60,000 to Rs 65,000 salary. No-one is dependent on him and therefore, she claimed interim maintenance at the rate of Rs 15,000 per month and also claimed Rs 200 for rickshaw fare for attending the Court for each date and Rs 25,000 for engaging Advocate.

Analysis and Decision

Bench stated that as far as the right of a wife, who is capable of earning, to claim alimony is concerned, Supreme Court in the decision of Rajnesh v. Neha,2020 SCC OnLine SC 903, considered it in clause (c) of Part III under the head of ‘Criteria for determining the quantum of maintenance’.

Court in view of the above concluded that even if the petitioner in the matter in hand is a medical practitioner and was earning something for her livelihood, the same cannot be a ground to refuse alimony to her under Section 24 of the Hindu Marriage Act.

Quantum of Maintenance

Bench observed that though the petitioner had produced her Income tax Returns, respondent did not reciprocate the gesture. Supreme Court’s decision in Rajnesh v. Neha, 2020 SCC OnLine SC 903, laid down several guidelines requiring both the parties to make several disclosures in the form of affidavits inter alia touching the income aspect as well. Conspicuously, in that matter, the Supreme Court had directed the husband to produce Income Tax returns before passing the order for granting interim maintenance.

Consequently, without indulging into further discussion, Court held that the failure of the respondent to come with disclosure as to his own income and taking into consideration all the aforementioned facts and circumstances and bearing in mind the guidelines laid down by the Supreme Court in the case of Rajnesh v. Neha, 2020 SCC OnLine SC 903 and resorting to inevitable guesswork, it would be just and proper to award interim maintenance to the petitioner at the rate of Rs 10,000 per month.

Along with the above direction of interim maintenance respondent shall pay all the arrears up to date to her within 12 weeks from the date of this judgment.

In view of the above discussion, the petition was partly allowed. [Arpana Vijay Manore v. Dr Vijay Tukaram Manore, 2020 SCC OnLine Bom 3925, decided on 09-12-2020]


Advocates who appeared for the matter:

B.R. Warma, Advocate holding for Shrirang B. Varma, Advocate for the petitioner

A.M. Gholap, Advocate for the respondent

Case BriefsHigh Courts

Madras High Court: A Division Bench of M. Sathyanarayanan and P. Rajamanickam, JJ., addressed an appeal with regard to seeking interim maintenance when permanent maintenance was already granted.

Petitioners have filed the present appeal challenging the Family Court’s Order.

Husband sought divorce against the first appellant(wife) on the ground of cruelty.

During the pendency of the above petition, appellants filed an application under Section 7(1) of the Family Courts Act read with Section 25 of the Hindu Marriage Act, 1955 and Sections 20 and 26 of the Protection of Women from Domestic Violence Act, 2005 to direct the husband to pay a sum of Rs 10,000 to appellant 1 and Rs 5,000 to appellant 2 towards monthly maintenance.

Another application under Section 24 of the Hindu Marriage Act, 1055 read with Sections 20 and 26 of the Protection of Women from Domestic Violence Act, 2005 to direct the respondent to pay a sum of Rs 7,500 to appellant 1 and Rs 5, 000, was also filed.

Counsel for the appellants, M.P. Senthil and Counsel S. Jeyavel, for the respondent.

Issues to be considered:

  • Whether the petitioners are precluded from seeking interim maintenance by invoking the provisions of Section 24 of the Hindu Marriage Act r/w Sections 20 and 26 of the Protection of Women from Domestic Violence Act on the ground that they already got an order for payment of maintenance in D.V proceedings?

Analysis & Decision

Bench referred to Section 25 of the Hindu Marriage Act, 1955, which is in regard to the permanent Alimony and Maintenance.

Section 25(1) of HMA empowers the Court, while passing any decree to consider the status of the parties and whether any arrangement needs to be made in favour of the wife or the husband and by way of permanent alimony, an order granting maintenance can also be passed by the Court.

“…at any time, subsequent to the passing of decree also, the Court can order for granting maintenance on application made to it by either wife or the husband.”

Bench noted that the appellants cannot ask for interim relief, when permanent relief has already been granted to them.

In view of the above, court relied on the decision of Rakesh Malhotra v. Krishna Malhotra, 2020 SCC OnLine SC 239 wherein the following was dealt with:

After grant of permanent alimony under Section 25 of the 1955 Act, prayer made by wife before Magistrate under Section 125 of Code for maintenance over and above what has been granted by Court under Section 25 of Act. Impugned order allowing prayer was set aside with direction that application preferred under Section 125 of Code shall be treated and considered as one preferred under Section 25(2) of Act.

What the appellants should have done in the present matter?

Since, the appellants had already received maintenance in the DV proceedings under Section 20 of the DV Act which is permanent in nature, yet if due to a change in the circumstances the said order required modification or alteration, they can approach the same Court seeking the relief by invoking Section 25(2) of the DV Act or the Family Court can also be approached to exercise the power under Section 25(1) of the HMA.

But the resort of filing another application before another forum that too in the nature of interim relief should not be adopted.

Section 26 of the DV Act shows that the aggrieved person may seek any relief under Sections 18 to 22 of DV Act in any legal proceedings before a Civil Court/Family Court or Criminal Court as additional reliefs.

In the present case, the petitioner had already received an order in the petition properly filed under Section 12 of the DV Act before the Additional Mahila Court, Tiruchirappalli and that being so, they were not entitled to file a petition before the Family Court by invoking the provision under Section 26(1) of the DV Act, seeking interim relief.

Therefore, in the High Court’s opinion, the  Family Court Judge had rightly dismissed the application. [Gomathi v. Sacraties,  2020 SCC OnLine Mad 2754, decided on 15-09-2020]

Case BriefsHigh Courts

Jharkhand High Court: Shree Chandrashekhar, J., addressed an issue with regard to maintenance under Section 125 of the Code of Criminal Procedure Code.

In the present revision petition, maintenance order under Section 125 of the Code of Criminal Procedure has been challenged.

Petitioner-Husband’s wife stated that her husband was irresponsible towards the conjugal relationship and neglected to maintain her. The matrimonial suit which was instituted by the husband seeking a divorce decree was disposed of on a compromise between the parties.

Petitioner’s counsel, Sanjay Prasad contended that the above-stated matrimonial suit was decreed “as per terms of the compromise” under which the wife had relinquished all her claims against the petitioner, hence petitioner’s wife was not entitled to maintenance under Section 125 of CrPC.

In the Supreme Court decision of Nagendrappa Natikar v. Neelamma, (2014) 14 SCC 452, Court dealt with the issue of whether a wife who has agreed for permanent alimony and given up future claim for maintenance is entitled to maintenance under Section 18 of the Hindu Adoption and Maintenance Act, 1956 after the divorce?

To the above, the Supreme Court responded that

“The proceeding under Section 125 CrPC is summary in nature and intended to provide a speedy remedy to the wife and any order passed under Section 125 CrPC by compromise or otherwise cannot foreclose the remedy available to a wife under Section 18(2) of the Act.”

In the present matter, Family Court Judge had observed that permanent alimony or maintenance was not given by the petitioner and the wife was unable to maintain herself. Hence, the Court awarded Rs 5000 monthly maintenance to the wife.

Object of Section 125 CrPC is to ensure that a wife, minor children or helpless parents do not suffer in penury.

High Court declined to interfere in the present matter keeping in mind the limitation under revisional jurisdiction and therefore dismissed the criminal revision.[Umesh Prasad Mahto v. Puspa Devi, 2020 SCC OnLine Jhar 645, decided on 06-07-2020]

Case BriefsHigh Courts

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

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

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

Case BriefsHigh Courts

Gauhati High Court: A Bench of A.S. Bopanna, CJ and Sanjay Kumar Medhi, J. dismissed an appeal filed by the appellant-husband against family court’s order granting alimony of Rs 2.5 lakhs to the respondent-wife.

Undisputed facts of the case are that the parties were formerly married to each other. Some marital disputes arose and the husband filed a petition seeking divorce which was granted by the family court. Subsequent to the divorce decree, the wife filed a petition under Section 25 of the Hindu Marriage Act, 1955 seeking permanent alimony of Rs 15 lakhs. Partly allowing the wife’s application, the family court awarded her alimony of Rs 2.5 lakhs. Aggrieved thereby, the husband filed the present appeal.

Dipika Kalita and Rumi Kalita, Advocates for the husband told the Court that during the pendency of the husband’s divorce petition, the parties entered into an agreement whereby the wife conceded to the prayer for divorce. Further, she also agreed that there would be no claim between the parties against each other. It was contended that the family court’s order was not justified.

Regarding the alleged agreement, the family court observed and the High Court noted that what was submitted in the divorce proceedings was a photocopy of the said agreement. The family court took note of the same and concluded that it was not enforceable. The High Court observed, “the law is well settled that the maintenance or the alimony to be granted is to enable the party who seeks the same subsequent to the dissolution of the marriage to maintain herself. At that stage, what would be relevant is as to whether the party seeking for such maintenance or alimony is able to maintain herself.” As such, the High Court was of the opinion that the family court rightly held that the wife was entitled to receive alimony. Also, no error was found with the quantum of alimony so granted. Holding it to be devoid of merits, the Court dismissed the appeal. [Utpal Das v. Rinki Sarkar, 2019 SCC OnLine Gau 1048, dated 08-03-2019]

Case BriefsHigh Courts

Gauhati High Court: Rumi Kumari Phukan, J., dismissed a revision petition filed by a husband against the order of the family court whereby the monthly amount payable by him towards the maintenance of his son was increased from Rs 2,000 to Rs 5,000.

A petition between the parties was disposed of by the family court whereby the husband was directed to pay monthly maintenance of Rs 2,500 to his wife and Rs 2,000 to their minor son. Subsequently, the parties got divorced under Section 13 of the Hindu Marriage Act, 1955. The husband paid a permanent alimony of Rs 5 lakhs to the wife. After the divorce, the wife filed a petition under Section 127 CrPC for enhancement of maintenance allowance to the minor son which was allowed by the family court in the terms mentioned above. Aggrieved thereby, the husband filed the present petition.

K.M. Haloi, B. Das and R. Sarkar, Advocates for the husband submitted that the enhancement of 300% was on a higher side and he had other liabilities to discharge. Per contra, K. Bhattacharjee, S. Das, J.C. Barman, D. Banerjee and S. Dey, Advocates appearing for the wife contended that the objection raised by the husband was not maintainable.

After taking the husband’s salary into consideration, the High Court was of the view that the enhancement of the maintenance by the court below did not require interference. The observed, “in the context of liability, the maintenance always carries the meaning that it should be adequate to the needs of a person and according to the status and income of the person concerned. The child of the petitioner who was enrolled in an English Medium School cannot be stopped to carry on such education by showing inability by his parents. It is bounded duty of a father to upbringing the child in a befitting manner without hindering his mental health as well as physical one. If the father denies such required amount, it will be nothing but denial of such mandatory requirement of a child for proper upbringing.” In such view of the matter, the revision petition was dismissed and the husband was directed to pay Rs 5,000 per month maintenance for the minor son. [Rupak Chowdhury v. State of Assam, 2019 SCC OnLine Gau 933, dated 22-01-2019]

Case BriefsHigh Courts

Calcutta High Court: A Single Judge Bench comprising of Sabyasachi Bhattacharya, J. allowed a challenge to the order of Additional District Judge for execution of an order passed under Section 24 of the Hindu Marriage Act, 1955.

The facts of the case are such that the Additional District Judge, while taking up an execution case in connection with an alimony order passed under the Hindu Marriage Act, suffered an identity crisis and acted as a Magistrate to invoke provisions of Section 125(3) CrPC and allied provisions to issue a distress warrant against the husband. The Collector was directed to realise the maintenance allowance as arrears of land revenue. The husband assailed the order as sans jurisdiction.

The High Court, at the outset, observed that it is unheard of that an order passed under Section 24 HMA would be executed by taking resort to the provisions of CrPC. In view of the Court, this was a case the execution application was filed under the correct provisions of law, but the Additional District Judge consciously resorted to powers which have no nexus with the proceedings under consideration; the powers that are conferred on a Magistrate and not on an Additional District Judge. As such, it was held that the order impugned was devoid of inherent jurisdiction and could not stand a moment’s scrutiny. Accordingly, the order impugned was set aside. The Additional District Judge was directed to dispose of the matter in accordance with appropriate provisions of law. [Taraknath Mukherjee v. Sandhya Mukherjee, 2018 SCC OnLine Cal 6154, dated 07-09-2018]

Case BriefsHigh Courts

Calcutta High Court: A Division Bench comprising of I.P. Mukerji and Amrita Sinha, JJ., allowed an appeal filed by the husband against the order of District Judge who directed him to pay permanent alimony of Rs 14 lakhs to the respondent wife.

Marriage between the parties to the appeal was dissolved by a decree passed by a District Judge in a suit filed by the husband under Section 13 of the Hindu Marriage Act, 1955. The suit was allowed against the wife on grounds of adultery and desertion. It was proved that the wife was in an adulterous relationship with a junior colleague of the husband. The wife filed an application for permanent alimony under Section 25, which was allowed by the District Judge and the order was passed as mentioned above. Aggrieved by the said order, the husband filed the present appeal.

The High Court perused Section 25 and found that grant of permanent alimony is subject to conditions. If at the time of deciding an application under the section, the wife is unchaste or has remarried, then the court may deny to grant the application. In the present case, the Court found that the wife was living in adultery which is unchaste conduct. Such conduct of the wife disentitled her from receiving any amount A permanent alimony and maintenance under Section 25. However, the husband was directed to pay 5 lakhs against maintenance of their son. The appeal was, thus, disposed of in above terms. [Ashutosh Bandhopadhyay v. Mukta Bandhopadhyay,2018 SCC OnLine Cal 5100, dated 31-07-2018]

Case BriefsSupreme Court

Supreme Court: A bench of N.V. Ramana and S. Abdul Nazeer JJ., modified the order of the High Court of Bombay in a divorce petition filed seeking for the modification of the maintenance and alimony amount.

The facts of the case state that the appellant (wife) had filed a petition under Section 27(1)(d) of the Special Marriage Act, 1954 before the Family Court in Mumbai seeking permanent alimony of Rs 30,00,00,000/- and interim maintenance of Rs 3,50,000/- for herself along with Rs 2,50,000/- for her minor daughter. Though, the Family Court had partly allowed the appellant’s application for interim maintenance. On obtaining the final order of divorce from the family Court and being dissatisfied with the same, the parties preferred an appeal to the High Court. Further, the appellant being aggrieved of the order of the High Court approached the Supreme Court seeking relief.

Therefore, the Supreme Court on considering the facts and orders passed by the High Court and Family court observed that considering the merits of the order of the High Court it did not require interference. In order to balance the interests of the parties, the Supreme Court modified the High Court’s order by allowing the withdrawal of Rs 2 Crores by the wife during intra-appeal as an interim measure. [Udita Nabha v. Ranjeet Nabha,2018 SCC OnLine SC 695, dated 16-07-2018]

Case BriefsSupreme Court

Supreme Court: In the case where the wife made reckless, defamatory and false accusations against her husband, his family members and colleagues, thereby lowering his reputation in the eyes of his peers, the Court held that mere filing of complaints is not cruelty, if there are justifiable reasons to file the complaints. Merely because no action is taken on the complaint or after trial the accused is acquitted may not be a ground to treat such accusations of the wife as cruelty within the meaning of the Hindu Marriage Act 1955. However, if it is found that the allegations are patently false, then there can be no manner of doubt that the said conduct of a spouse levelling false accusations against the other spouse would be an act of cruelty.

Considering the fact that later, the wife had filed another complaint alleging that her husband along with some other persons had trespassed into her house and assaulted her and that the police found, on investigation, that not only was the complaint false but also the injuries were self-inflicted by the wife, the Court held that though the acts of the wife in filing false complaints against the husband amounts to cruelty, the Court is, however, not oblivious to the requirements of the wife to have a decent house where she can live and since, her son and daughter-in-law may not continue to live with her forever, therefore, some permanent arrangement has to be made for her alimony and residence. As per the facts of the case, the wife continues to live in the house which belongs to the mother of the husband whereas the husband lives along with his parents in a separate house and the son and daughter-in-law of the parties live with the wife. The son is working with the husband.

The Bench of A.K. Goel and Deepak Gupta, JJ, hence, directed the husband to pay to the wife a sum of Rs. 50,00,000 as one time permanent alimony within 3 months and she will not claim any further amount at any later stage. The Court also directed that the wife shall continue to live in the house which belongs to the mother of the husband till the husband provides her a flat of similar size in a similar locality. For this purpose, the husband is directed to ensure that a flat of the value up to Rs. 1,00,00,000 be transferred in the name of his wife. [Raj Talreja v. Kavita Talreja, 2017 SCC OnLine SC 462, decided on 24.04.2017]