Allahabad High Court
Case BriefsHigh Courts

   

Allahabad High Court: In an appeal filed under Section 19 of the Family Courts Act, 1984 for setting aside the judgment dated 04.08.2022 and the decree dated 12.08.2022 by the Family Court, whereby the appellant’s suit for restoration of conjugal rights, has been dismissed, the division bench of Surya Prakash Kesarwani and Rajendra Kumar-IV, JJ. has held that in the absence of any cogent explanation for the second marriage to the first wife, the action of the husband would amount to cruelty to his first wife. Therefore, it would be inequitable to compel the first wife against her wishes to live with such a husband and it would also amount to breach of her fundamental rights guaranteed under Article 21 of the Constitution of India.

The appellant/husband has contracted a second marriage and suppressed the fact from the respondent/wife. Further, the husband has admittedly told the wife neither about his intention to contract a second marriage nor explained to her that he shall give equal love, affection and treatment to both the wives.

The Court referred to the decision in Dilbar Habib Siddiqui v. State of U.P., 2010 SCC OnLine All 965, and observed that Sura 4 Ayat 3 of the Holy Quran provides for giving due care and provisions for a muslim woman, thus, bigamy is not sanctified unless a man can do justice to orphans, who in the present case are the wife and her children, and the Ayat mandates all muslim men to deal justly with orphans and then they can marry women of their choice two or three or four, but if they fear that they will not be able to deal justly with them, then in such circumstances a muslim man must prevent himself to perform second marriage, if he is not capable of fostering his wife and children.

It further referred to the decision in Itwari v. Asghari, 1959 SCC OnLine All 150 , wherein it was held that in a suit for restitution of conjugal rights by a Muslim husband against the first wife after he has been married to his second wife, if the Court after a review of the evidence feels that in taking a second wife, the husband has been guilty of such conduct as to make it inequitable for the Court to compel the first wife to live with him, it will refuse relief. Muslim law as enforced in India has considered polygamy as an institution to be tolerated but not encouraged and has not conferred upon the husband any fundamental right to compel the first wife to share his consortium with another woman in all circumstances.

The Court held that if the husband, after taking a second wife against the wishes of the first, also wants the assistance of the Civil Court to compel the first wife to live with him, the Court will respect the sanctity of the second marriage, but it will not compel the first wife, against her wishes, to live with the husband under the altered circumstances and share his consortium with another woman, if it concludes, on a review of the evidence, that it will be inequitable to compel her to do so; and even in the absence of satisfactory proof of the husband’s cruelty, the Court will not pass a decree for restitution in favour of the husband if, on the evidence, it feels that the circumstances are such that it will be unjust and inequitable to compel the wife to live with him

[Azizurrahman v. Hamidunnisha, First Appeal No. – 700 of 2022, decided on 19.09.2022]


Advocate who appeared in this case :

Mahendra Pratap Yadav, Advocate, Counsel for the Appellant.

High Court Round UpLegal RoundUp

The High Court Roundup brings a curated list of the top stories of the month to ensure readers do not miss any important updates. This month’s roundup covers the stories of Rights of LGBTQIA+, Bigamy & Talaq under Muslim Law, Non-payment of GST, Deceased’s right to dignity, WhatsApp’s Privacy Policy, Trademark Infringements, and many more:

Allahabad High Court

Top Story—Deceased’s Right to Dignity

The Court in Suo-Moto v. State of U.P., 2020 SCC OnLine All 1088 while dealing with the extremely sensitive matter of Hathras gangrape where dead body of the victim was taken to her native village but surprisingly and painfully enough it was not handed over to the family members so that the last rites of the deceased victim could be performed as per prevalent customs and religious inclinations in a decent and dignified manner but it was cremated with the help of some other persons at about 2- 2.30 a.m.

“The right of dignified life under Article 21 of the Constitution of India is not only available to a living person but also to the ‘dead’. These rights are not only for the deceased but, his family members also have a right to perform last rites as per religious traditions.” Read more…

On the trend of Compromise

Allahabad High Court points out the trend of compromise after receiving the compensation from the State; Suggests disbursement only after conviction. The Court opined,

“Taxpayers’ money is being misused in this process. It would be appropriate to disburse the compensation only on conviction of the accused and not filing of the FIR and submission of the charge-sheet.” Read more…

On Trade Tax

Allahabad High Court upholds order by Trade Tax Tribunal holding insulated glass as taxable unclassified commodity @ 10%. Read more…

On Sidhique Kappan Bail

Charge-sheet and documents adduced prima facie point towards guilt; Allahabad High Court denies bail to journalist Sidhique Kappan [Hathras gang-rape row]. Read more…

On Age Relaxation in Recruitment

Over-aged candidates can neither claim participation in selection process nor seek conduct of recruitment every year as a matter of right. Read more…

On PIL in Service Matters

“PIL in service-related matters ought not to be entertained”; Allahabad High Court dismisses PIL seeking increase in retirement age of PwD. Read more…

On Social, Moral Responsibility to Maintain Wife

Allahabad High Court | Social, Legal and Moral Responsibility of a man to maintain his wife; Appeal dismissed. Read more…

Andhra Pradesh High Court

On Abetment of Suicide

Subba Reddy Satti J. granted anticipatory bail to the Chief Executing Officer (applicant-accused) as on perusal of complaint there was no sign of instigation and abetment and mere allegation of harassment will not attract offence under Section 306 Penal Code, 1860 (‘IPC’) unless such actions compelled the victim to commit suicide. Read more…

Bombay High Court

Top Story—Environment Protection

While perusing the newly framed Policy for Environmentally Safe Making and Immersion of Idols/Tazia and its Enforcement (‘the Policy’), as drafted by Maharashtra Government’s Environment and Climate Change Ministry, the Division Bench of A.S. Chandurkar and Urmila Joshi-Phalke, JJ., observed that the presented Policy which will be operational for this year (2022), must be given adequate publicity so as to create awareness in the public. The Bench also expressed its hope that the local authorities will also take necessary steps to dutifully follow the Policy, so that it achieves its intended targets for this year. Read more…

On Unhygienic Sanitary Conditions of Schools

DLSA’s to conduct surprise inspections in Government schools over unclean and unhygienic sanitary conditions. Bombay High Court takes cognizance of a PIL alleging unclean and unhygienic state of affairs in the washrooms and toilets for the young girl students in Government aided schools. Read more…

On wrongful Arrest of Nigerian National

Bombay High Court grants bail to Nigerian national who spent 2 years in jail on NDPS charges due to a typing error in forensic report; asks State to come up with compensation proposal. Read more…

On Abetment to Suicide

Sudden reaction of a 19-year-old boy to the news of pregnancy, May fall short of the essential ingredients required to form the offence of abetment to suicide: Bombay High Court Read more…

On Rape

Once prosecution has proved the offence of rape, there is no reason for the Trial Court to award a lesser sentence than what the statute prescribes: Bombay High Court Read more…

On SARFAESI

S. 14 of SARFAESI Act empowers the Designated Authority only to assist secured creditors in taking possession of secured assets and nothing more: Bombay High Court Read more…

Calcutta High Court

Top Story—Non-payment of GST

Calcutta High Court stays any coercive action until final decision in matter of arbitrary action of State for non-payment of GST on contracts executed prior GST regime. Md. Nizamuddin, J. directed the respondents authority concerned to consider neutralizing the impact of unforeseen additional tax burden on Government contracts since the introduction of GST w.e.f. 01-07-2017 for ongoing contract awarded before the said date and to update the State SOR incorporating applicable GST in lieu of inapplicable West Bengal VAT henceforth. Read more…

On Arbitration

Conduct of Parties — not a substitute for an arbitration agreement| Calcutta High Court holds the court cannot substitute arbitration agreement with conduct of parties while exercising powers under Section 11 of the Arbitration and Conciliation Act, 1996. Read more…

Illegal procedure for appointment of Arbitrator does not render Arbitration agreement illegal in toto; Guiding Principles for Appointment of Arbitrator reiterated Read more…

Chhattisgarh High Court

On Election

Chhattisgarh High Court declares election null and void for non-disclosure of criminal antecedents, including acquittal in criminal case. In a case where an election was declared null and void on the grounds of non-disclosure of criminal antecedents by the winning candidate, Deepak Kumari Tiwari J dismissed the revision petition being devoid of merit. The Court stated that non-disclosure of criminal antecedents amounts to undue influence and interferes with the free exercise of electoral right. Read more…

Delhi High Court

Top Story—Anti-competitive WhatsApp Terms

Delhi High Court upholds CCI’s direction to investigate alleged anti-competitive WhatsApp Terms of Service and Privacy Policy, 2021; Prima facie case established to investigate; FB a proper party. The appeals were filed by WhatsApp and its parent company Facebook challenging the jurisdiction of Competition Commission of India (CCI) to direct investigation into the 2021 Terms of Service and Privacy Policy of the Appellant on the ground that it violates the provisions of the Competition Act, 2002, when the matters arising from the same issue is pending before Supreme Court. Read more…

On Copyright Infringement

Delhi High Court denies injunction against News Laundry Media on allegations of copyright infringement, defamation and commercial disparagement by TV Today Network. Commenting on commercial disparagement, the Court said,

“Commercial Disparagement would occur when one player in the field derides a rival and belittles or discredits or detracts from the reputation of such a rival in respect of its products, services or business. While claiming to be the best, any statement about a competitor’s goods, which could be untrue or misleading and is made to influence or tend to influence the public, would amount to disparagement”. Read more…

On False Rape

Delhi High Court reprimands filing false FIR alleging rape charges; Directs woman to work at blind school; Directs man to plant 50 trees as punitive measure. Read more…

On Trademark Infringement

Theo recognizes Theobroma as owner and proprietor of mark “THEOBROMA”; Settlement terms agreed between parties. Read more…

Delhi High Court injuncts Royal Champ from using Royal Stag/ Seagram marks; Similar label also amounts to copyright infringement; Directs Rs 20 lakh as damages . Read more…

Delhi High Court grants ad-interim injunction against Bikaner’s Madhav Namkeens having deceptively similar logo as of Pepsico’s Lays. Read more…

Delhi High Court injuncts myshoeshop from violating trademark rights by selling first copy shoes of NB Device mark as well as Adidas, Nike, Louis Vuitton etc. Read more…

On Flipkart’s “Latching On” Feature

Delhi High Court restrains Flipkart from allowing third-party sellers to ‘latch on’ to mark ‘V Tradition’; Directs to ensure ‘Latching On’ feature is disabled. Read more…

On Chinese Manjha

Delhi High Court denies complete ban on kite flying but directs to comply directions already in place against use of Chinese Maanjha. Reade more…

On Non-compliance of Sports Code

Compliance with Sports Code non-negotiable; Delhi High Court warns IOA of derecognition if compliance with Sports Code is not made; Temporary CoA constituted. Read more…

On Criminal Liability of Intermediary

Intermediary entitled to claim protection u/s 79 IT Act for criminal liability unless ‘active role’ is disclosed; Delhi High Court quashes FIR against Flipkart. Read more…

On Legitimate Expectations of Students

Delhi High Court grants relief to a student seeking admission in BITS Pilani after CBSE violates ‘legitimate expectation of the students’. Read more…

On POCSO

Judicial scrutiny of date of birth for establishing consensual sexual relation not necessary; Delhi High Court grants bail in light of accused being honey trapped Read more…

Gujarat High Court

Top Story—On Right to Medical Claim

Gujarat High Court reiterates right to medical claim cannot be denied merely because the name of the hospital is not included in the Government Order; Reimbursement directed. The Court stated,

“The right to medical claim cannot be denied merely because the name of the hospital is not included in the Government Order. The real test must be the factum of treatment. Before any medical claim is honoured, the authorities are bound to ensure as to whether the claimant had actually taken treatment and the factum of treatment is supported by records duly certified by Doctors/Hospitals concerned. Once, it is established, the claim cannot be denied on technical grounds.” Read more…

On Electricity

‘Occupier’ of the land cannot be denied electricity connection only because land is in dispute. Read more…

On Pharmacy Diploma

Students of Diploma in Pharmacy Course can’t be denied registration as Pharmacists on Council’s failure to approve medical stores for training. Read more…

Himachal Pradesh High Court

Top Story—Family Pension to Second Wife

In a petition related to family pension, Jyotsna Rewal Dua, J has held that the second wife of a deceased employee is not entitled to family pension under the Central Civil Services (Pension) Rules, 1972 unless the personal law of the deceased employee allows more than one subsisting marriage. Read more…

On MV Compensation

Himachal Pradesh High Court | Inability to produce documentary evidence of deceased’s income may not justify adoption of lowest tier of minimum wage for computing Motor Vehicle Accident compensation. Read more…

Jammu & Kashmir and Ladakh High Court

Top Story—Right to Property

While deciding the instant petition wherein the issue was that whether misuse of a building from residential to commercial or vice versa in violation of the permitted land use as per the master plan would fall within the ambit of unauthorized ‘erection or re-erection’; the Division Bench of Wasim Sadiq Nargal and Tashi Rabstan, JJ., observed,

“In a democratic polity governed by the rule of law, the State by no stretch of imagination, can deprive a citizen of his/her property without the sanction of law, besides complying with the procedure envisaged in the statutory provision.” Read more…

On Matrimonial Crimes

Courts must carefully scrutinize the allegations of matrimonial crimes against a husband’s relatives. Read more…

On Compassionate Appointments

Compassionate Appointments are not for conferring status on a family; Jammu and Kashmir and Ladakh High Court holds an applicant has no right to claim a compassionate appointment in a particular class or group and it is not for conferring status on the family. Read more…

Jharkhand High Court

On Renewal of Competency Certificate

Past record of competent person for renewal of competency certificate held to be a relevant consideration for renewal; Petition dismissed. Read more…

On Income Tax

Liability cannot be fastened upon the company for delay in TDS when it had taken steps within time. Read more…

Karnataka High Court

Top Story—Eidgah Maidan Controversy

In a case where the State has filed an appeal to seek modification in an interim order passed by Single Judge giving permission for using Eidgah Maidan, the land under challenge for title, for celebrating Independence Day/Republic Day or as a public playground or for offering prayers by Muslim community only in Ramzan and Bakri Eid festivals, a Division Bench of Abhay Shreeniwas Oka CJ., and Vishwajith Shetty J. permitted the State Government to consider applications filed by organizations seeking use of the land in question for holding religious and cultural activities. Read more…

On Bhang under NDPS Act

In a case where the applicant-accused seeks bail on being apprehended by police, having possession of Ganja and Bhang together, K Natarajan, J. granted bail to the applicant as Bhang will not be considered along with Ganja to measure commercial quantity. The Court held that until forensic science lap report does not confirm that Bhang is prepared out of charas or ganja, it is not safe to conclude the same. Read more…

On Azan & Fundamental Right to Faith

A Division Bench of Alok Aradhe CJ., and S. Viswajith Shetty, J., held that azan or the contents of azan does not violate fundamental rights of petitioner of any person from a different faith. The use of loudspeakers, however, must be ensured to be within permissible limits from 10pm to 6 am in accordance with law. Read more…

On Wrongful Arrest

Karnataka High Court appalled to see a case of wrongful arrest as fathers’ name was similar; Directs DGP to issue SOP/Guidelines if not in place; Compensates aggrieved. Read more…

On POCSO

Pulling down pants of kid forcefully as a punishment measure; Karnataka High Court denies relief u/s 482 CrPC to the female teacher. Read more…

On Minimum Wage

Whether Head cooks and cooks employed under Mid-Day Meal Scheme covered under Minimum Wages Act, 1948? Karnataka High Court analyses Read more…

Kerala High Court

Top Story—Mental Cruelty

In a divorce case, Anil K. Narendran and C. S. Sudha, JJ., held that constant and repeated taunts by the husband towards his wife that she is not a wife of his expectations; the comparisons with other women, etc. would certainly be mental cruelty which a wife cannot be expected to put up with. Read more…

On Transgenders Right to Participation in Sports

In a case where a transgender person was declined participation in District Judo Competition, V.G. Arun, J., held that if the organisers have not made arrangements for participating transgenders, they have to allow the petitioner to participate in her chosen category. Read more…

On Talaq and Bigamy under Muslim Law

In a case relating to talaq as per Muslim personal law and bigamy, A. Muhamed Mustaque, J. held that the Family Courts have no jurisdiction to restrain a person from pronouncing talaq or conducting a second marriage as per personal law. The Court remarked,

“The Court has no role in restraining the parties invoking their personal law remedies. The Court should not forget the mandate of Article 25 of the Constitution, which not only allows one to profess religion but also to practice.” Read more…

On Road Safety

Can’t let the roads of Kerala be a killing field; Kerala HC issues directions to NHAI and District Collectors to ensure the roads are craters & potholes free. Read more…

On Medical Termination of Pregnancy

Kerala HC allows a 14-year-old girl to get medical termination of her 28-week pregnancy. Read more…

On Offence of Insulting National Flag

Kerala HC grants anticipatory bail to BJP State General Secretary accused of insulting National Flag by holding it upside down. Read more…

On Rights of PWD

Kerala HC issues notice to Centre & State in a PIL seeking extension of facilities to every person with disability in need of special assistance irrespective of percentage of disability. Read more…

Madhya Pradesh High Court

Top Story—Order XLVII Rule 9

The Division Bench of Ravi Malimath, CJ. and Vishal Mishra, J. dismissed a second review petition holding that pursuant to the provision under Order XLVII Rule 9 Civil Procedure Code, 1908 (CPC), a review of an order passed in a review petition is not maintainable. Read more…

On Illegal Detention

Madhya Pradesh High Court directs State to pay 3 lacs as compensation for illegal detention; Registrar to conduct an inquiry Read more…

On Modification of Criminal Charges

Madhya Pradesh High Court| Charge of Murder added at the time of framing of charge based on Hospital’s MLC can be altered only after further examination. Read more…

Madras High Court

Top Story—Medical Examination for Impotency

In a case where husband filed for annulment of marriage alleging suppression by wife regarding her hormonal imbalance and irregular periods resulting in non-consummation of marriage, R N Manjula J. quashed Family Court’s ruling that directed the wife ‘revision petitioner’ to undergo medical examination of the same and even went ahead to direct medical examination of her genitals which was beyond the scope of the original petition. Read more…

On Removal of Husband from Matrimonial Home

n a case of marital discord and petitioner-wife, a practicing advocate was seeking removal of respondent-husband from the matrimonial home, R N Manjula, J. granted protection order and directed the husband to move out of the matrimonial home in the best interest and welfare of the children and to ensure peaceful possession and enjoyment of the petitioner wife in the home in any manner. The Court said,

“Allowing the respondent to be at the same home but directing him that he should not disturb the other inmates of the home is something impractical. A relief for a person who fears about an impending atom bomb, would be just to remove the bomb from his/her vicinity.” Read more…

On Virtual Wedding

Virtual wedding would meet the requirements of law under S. 12 of Special Marriage Act, 1954. Read more…

On Doctrine of Substantial Compliance

Madras High Court applies doctrine of ‘substantial compliance’ to determine implications of limitation period in the Customs Act, 1962. Read more…

On Nalla Thangal Syndrome

Madras High Court condemns a scornful society that sees misfortune with the birth of a girl child and reduces punishment in the instance of ‘Nalla Thangal Syndrome’. Read more…

On Colonial Slavery

Extracting household work by trained uniformed Police personnel in the residences of the higher Police officials; Madras High Court calls it ‘colonial’ and slap on Constitution and democracy. Read more…

On Orderly System

‘Orderly system’ unconstitutional: Madras High Court directs Tamil Nadu government to eradicate it completely in four months. Read more…

On Appointment of Archaka

Madras High Court holds the temple or group of temples which were constructed as per the Agamas would be governed by the custom and practice, not only in respect of the worship of the deity, but in all respects, which includes even the appointment of Archakas, and not by the Tamil Nadu Hindu Religious Institutions Employees (Conditions of Service) Rules, 2020. Read more…

On Rights of LGBTQIA+

Madras High Court| LGBTQIA+ community sidelined from society’s mainstream for too long; Time for Tamil Nadu Government to frame guidelines to protect their rights. Read more…

On Criminal Procedure

PT warrant can never be converted into regular warrant in a case where the accused person is already on bail; opportunity should be given to the accused to explain his non-appearance Read more…

Meghalaya High Court

On Consensual Sex with Minor Wife

W. Diengdoh, J. allowed a petition where a man was arrested under the provisions of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’) for allegedly having ‘consensual sex’ with his minor wife. The Court opined that it would be an injustice to separate or to divide a well knitted family unit. Read more…

Manipur High Court

On Accused’s Right to Dignity

In a case where the criminal appeal was pending and the applicant convicted under Section 6 of the Protection of children from sexual offences Act, 2012 (POCSO Act) filed an application for the suspension of sentence, on the ground of ill-health, M.V. Muralidaran, J. observed,

“Under-trial prisoner’s right to life does not diminish even a wee bit when in jail as an accused/convict for an offence and such person’s health concerns have to be taken care by the State and if not done so, by the judiciary. The right to dignity of an accused does not dry out with the Judges. Rather, it subsists beyond the prison gates and operates until his last breath”. Read more…

Orissa High Court

On Tortious Liability of State

Unfortunate death of 7-year-old girl by collapse of newly constructed kitchen wall in school; Orissa High Court directs compensation to the family of the deceased. The Court noted,

“The negligence of the State authorities in using defective materials to construct a kitchen on the school premises has already been established during the enquiry. The death of the young child was totally avoidable. The responsibility for death definitely rests with the State. The death would not have occurred if all the safety measures, that were instructed to be put in place by the State, had been strictly followed.” Read more…

Punjab and Haryana High Court

Top Story—Downgrading of VIP security Cover

Withdrawal/Downgrading of VIP security cover: Punjab and Haryana High Court directs State to make fresh assessment of security threats; Provide one security personnel until then. The Court said,

“Security issue is not a static phenomenon, rather it is a dynamic process. The security reviews have to be done on a periodical basis by assessing the security threat of the protectees with the passage of time on the basis of official inputs provided by the different agencies including State and Central agencies”. Read more…

On Arbitration

Merely showing existence of another reasonable interpretation not sufficient to allow for interference; Punjab and Haryana HC refuses to interfere with arbitration award. Read more…

On Co-ownership

Possession of joint land by one co-owner valid in absence of proof showing disagreement between other co-owners. Read more…

Rajasthan High Court

On Arms License

Vijay Bishnoi, J. held the appeal filed by District Magistrate before Divisional Commissioner under Section 18 of Arms Act, 1959 challenging the issuance of arms license in favour of the petitioner who was the holder of license, as non — maintainable. The Court noted that a bare perusal of Section 18 Arms Act, 1959 clearly reveals that there is no provision where appeal can be entertained under Section 18 of the Arms Act against the order of issuance of arms license. Read more…

Tripura High Court

On Allotment of Land

In suit for recovery of possession of land, the Tripura High Court observed that,

“It is not for this Court to decide the validity of the allotment of land by the Government in favour of the respondents in this second appeal. If there is any violation of conditions or attraction of disqualifications, it is for the appropriate authorities to look into the matter.” Read more…

On Conviction

Mere presence of the accused person and last seen of the offence cannot draw an inference to committing of the crime ; Conviction reversed Read more…

On Employees’ Dues

Tripura High Court directs TSECL to pay all the cumulative dues to employee who suffered accident while discharging duty. Read more…

Uttaranchal High Court

On Service Rules

Uttaranchal High Court holds non-communication of all the Service Rules does not indicate that there are no Rules. The Division bench of Vipin Sanghi, C.J., and R.C. Khulbe, J., had held that merely because the communication sanctioning a post does not indicate the promotion rules, does not mean that there are no Rules framed or applicable for promotion, requiring minimum service in the feeder cadre. Read more…


*Kamini Sharma, Editorial Assistant has put this report together.

Kerala High Court
Case BriefsHigh Courts

   

Kerala High Court: In a case relating to talaq as per Muslim personal law and bigamy, A. Muhamed Mustaque, J. held that the Family Courts have no jurisdiction to restrain a person from pronouncing talaq or conducting a second marriage as per personal law. The Court remarked,

“The Court has no role in restraining the parties invoking their personal law remedies. The Court should not forget the mandate of Article 25 of the Constitution, which not only allows one to profess religion but also to practice.”

The petitioner-husband, a Muslim by faith, had married the respondent in accordance with the Muslim religious rites and ceremonies. Later on, when the marital relationship became strained, he initiated steps to pronounce Talaq and pronounced first and second Talaq. However, before he could pronounce irrevocable Talaq, he had been restrained by an order of temporary injunction by the Family Court.

The said order had been passed at the instance of the wife. The wife had also filed an application restraining her husband to conduct a second marriage which was also allowed by the Family Court. Aggrieved thereby, the petitioner-husband had assailed the impugned order of the Family Court.

Observing that restraining someone from acting in accordance with personal belief and practice would amount to encroaching his constitutionally protected rights, the Court stated that no doubt, any aggrieved can challenge an action emanating out of the exercise of faith and practice, but that stage would arise only after the performance of the act. Holding that the jurisdiction of the Court is limited in these kinds of processes, the Court expressed,

“Family Court cannot restrain a person performing his act in accordance with personal law.”

The Court noted that the act complained—invoking irrevocable invocation of Talaq—was yet to come into existence; and it was only after the completion of the process and the procedure act qua the Talaq, that it could be said whether the said act was in accordance with the procedure as prescribed under the personal law or not. Displeased by the manner the Family Court had dealt with the matter, the Court said that it is unfortunate that before the act could be done, the petitioner had been restrained from acting in accordance with his personal belief and practice.

On the order restraining the petitioner from conducting second marriage, the Court expressed,

“Right to marry more than one person at a time is prescribed under the personal law. If the law ensures such protection, it is not for the Court to decide that one person should not act in accordance with the personal conscious and belief in accordance with his religious practices.”

Reminding the Family Court of the limited jurisdiction, the Court stated that the courts have no role to restrain or regulate one’s behavior or decision in accordance with the personal law guaranteed.

In the light of the above, the Court held that the impugned orders were without any justification and jurisdiction. Accordingly, the Court set aside both the orders. At the same time, the Court clarified that if Talaq is not exercised in accordance with the law, the respondent-wife can approach the competent Court to redress her grievances.

[Anvarudeen v. Sabina, OP (FC) No. 394 of 2022, decided on 17-08-2022]


Advocates who appeared in this case :

Majida S and Ajikahn M, Advocates, for the Petitioner;

Suresh Kumar M.T., R. Ranjith, Smitha Philipose, Manjusha K, and Sreelakshmi Sabu, Advocates, for the Respondent.


*Kamini Sharma, Editorial Assistant has put this report together.

Himachal Pradesh High Court
Case BriefsHigh Courts

   

Himachal Pradesh High Court: In a petition related to family pension, Jyotsna Rewal Dua, J has held that the second wife of a deceased employee is not entitled to family pension under the Central Civil Services (Pension) Rules, 1972 unless the personal law of the deceased employee allows more than one subsisting marriage.

Petitioner's claim was that since the deceased employee's wife has died, who was recipient of the family pension and no other claimant qua family pension survives, therefore, now she the second wife of deceased Bhola Ram is entitled to family pension.

The petitioner relied on Rule 54 of CCS Pension Rules which deals with situation where pension is payable to more than one wife and judgement of Madras High Court in C. Sarojini Devi v. Director of Local Fund Audits, WP No.34592 of 2019, dated 23.01.2020, where the Court held that the second wife was held entitled to the family pension.

The Court discussed Rule 54 of Central Civil Services (Pension) Rules Pension Rules, 1972 (CCS Pension Rules) and Government of India decision No. (13) below Rule 54 of CCS Pension Rules in great detail and observed that generally, second wife will not be entitled for family pension as legally wedded wife but one and only condition in which she will be allowed is when more than one marriage is allowed under the deceased employee's personal laws.

The Court also relied on the judgement of the Hon'ble Supreme Court in Raj Kumari v. Krishna, (2015) 14 SCC 511  where it was held that the pension is given to the legally wedded wife of a deceased employee.

The Court held that the petitioner being the second wife of the deceased employee, who was a Hindu, cannot be held entitled to family pension. 

The Court also discussed the entitlement of the family pension by the children born from void and voidable marriages. The Court observed that as per Section 16 of the Hindu Marriage Act, 1955, children of born out of null and void marriage shall be legitimate and under Rule 54(7) (c) of CCS (Pension) Rules, the pensionary benefits will be granted to the children alongwith the legally wedded wife.

[Durga Devi v. State of H.P., Civil Writ Petition No. 1657 of 2016, dated 05-08-2022]

*Ritu Singh, Editorial Assistant has put this report together.

Karnataka High Court
Case BriefsHigh Courts

Karnataka High Court: M. Nagaprasanna, J. allowed the petition in part and remarked the protagonists in the quadrangle to resolve the issue amongst them and not drag other persons into the proceedings.

The facts of the case are such that Petitioner 1 aged 76 years is the husband of the complainant/wife/respondent who is aged 69 years, entered into wedlock in 1968. Later in the year 1972-73, the 1st petitioner with the consent of the respondent married her sister  Savitramma. The 1st petitioner again gets married in the year 1993 with the 2nd petitioner/ Varalakshmi with the permission and consent of the 1st and 2nd wives. It is also stated that the properties of the 1st petitioner were equally divided amongst all of them. Therefore, it is the contention that the 1st wife – Chandramma/respondent was aware of the marriage of the 1st petitioner with  Savitramma, the second marriage and both Savitramma and the respondent was aware of the marriage of the 1st petitioner with the 2nd petitioner i.e., the third marriage. It is also stated that all of them lived together peacefully. Due to certain disputes, the respondent filed a private complaint invoking Section 200 of the Criminal Procedure Code, CrPC against the petitioners herein alleging offences punishable under Section 494 of the Penal Code, 1860 IPC for bigamy, Section 109 of the IPC for abatement and Section 34 of the IPC. The respondent also filed an application under Section 12 of the Domestic Violence Act, 2015.

Counsel for the petitioners  Ravindranath K submitted that the allegation of polygamy against the 1st petitioner is unfounded as the complainant/respondent was very well aware of the relationships of the 1st petitioner as with her consent the 1st petitioner married one Smt. Savitramma, sister of the complainant and with the consent of both the sisters married the 2nd petitioner.

Counsel for the respondent SG Rajendra Reddy submitted that the complainant was not even aware of the marriage of the 1st petitioner with the 2nd petitioner. Suppressing the fact that the 1st petitioner is already married, he married the 2nd petitioner which would definitely amount to bigamy and there can be no delay in cases of bigamy is his emphatic submission.

The Court relied on State of Bihar v. Deokaran Nenshi, (1972) 2 SCC 890, and observed that a continuing offence is one which is susceptible to continuance and is distinguishable from the one

which is committed once and for all. The Court further relied on Jafar Abbas Rasool Mohammad Merchant v. State of Gujarat 2015 SCC Online Guj 5552  and observed that bigamy is a continuing offence.

The Court noted that the proceedings against the 1st and 2nd petitioners cannot be quashed as the offence is admitted by the 1st petitioner in the petition. It being with the consent of the 1st wife or with the consent of the 1st and 2nd wives for the third time would become immaterial for consideration of offence of bigamy. In the teeth of the admitted facts of the petitioner marrying thrice and its subsistence even as on day, the plea of delay in registration of the crime would pale into insignificance, as bigamy in the case at hand is a continuing offence. The 1st petitioner, the 2nd petitioner and the other two wives of the 1st petitioner have all married the 1st petitioner during the subsistence of each other’s marriage and being fully aware of the preceding marriage. Therefore, the proceedings will have to be continued against them.

The Court held criminal proceedings against petitioners 3, 4, 5 and 6 require to be obliterated and the charge sheet against petitioners1 and 2 is required to be sustained only for the offence under Section 494 of the IPC and not under Section 109 of IPC.[Anand v. Chandramma, Criminal Petition 9849 of 2021, decided on 25-05-2022]


Arunima Bose, Editorial Assistant has reported this brief.

Telangana High Court
Case BriefsHigh Courts

Telangana High Court: K. Lakshman, J., refused to quash a subsequent complaint filed by the wife against her husband (and others), where a prior complaint alleging offence under Section 498-A Penal Code, 1860 was already pending.

Instant criminal petition was filed under Section 482 of the Criminal Procedure Code.

Petitioners were accused of offences under Sections 498-A, 494 and 506 of Penal Code, 1860 and Section 3 and 4 of the Dowry Prohibition Act.

Respondent 2 had registered a crime against petitioner 1/husband of respondent 2 for the offence under Section 498-A IPC.

Allegations against the petitioners were that during the subsistence of the marriage with petitioner 1 and respondent 2, petitioner 1 married petitioner 6 with the help of petitioner 2 to 5 and therefore, they committed the offence punishable under Section 494 IPC.

Petitioner submitted that during the pendency of the first complaint, registration of the second complaint with regard to the very same allegations between the very same parties is not maintainable. He has also placed reliance on the principle laid down by the Supreme Court in Arnab Ranjan Goswami v. Union of India, (2020) 14 SCC 12

Analysis, Law and Decision

Bench noted that in the first complaint, the allegation of respondent 2 was with regard to the harassment by petitioner 1 demanding additional dowry.

Whereas in the second complaint, allegation against the petitioners was that during the subsistence of marriage, petitioner 1 married petitioner 6 and petitioners 2 to 5 assisted them in getting the said marriage. Hence, they committed “bigamy” punishable under Section 494 IPC.

Considering the fact that there are matrimonial disputes pending between petitioner 1 and respondent 2, and also considering the punishment prescribed for the offences alleged against the petitioners, the criminal petition was disposed of directing the Investigating Officer to follow the procedure contemplated under Section 41-A CrPC and also the guidelines issued by the Supreme Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.

[B. Vikram Singh v. State of Telangana, Criminal Petition No. 4130 of 2021, decided on 3-06-2021]

Armed Forces Tribunal
Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal (AFT): The Division Bench of Justice Devi Prasad Singh (Chairperson) and Air Marshal BBP Sinha, Member (A) heard the instant application wherein the allegation was levelled against the authority concerned of non-observance of Tribunal’s order.

The applicant was enrolled in the Army as Sepoy on 23-01-1980. On account of certain family dispute, coupled with the fact applicant was charged with bigamy, his services were dispensed after serving a show-cause notice on 25-01-1996 i.e. after rendering service for the period of 14 years and 6 months.

The applicant had requested the authorities that the six months’ period required to complete 15 years of service for payment of pensionary benefits be condoned. In the application, the Tribunal had directed the respondents to decide the statutory appeal of the applicant by passing a speaking and reasoned order with regard to condonation of six months’ period so that the applicant may be paid pensionary benefits. However, the same had been decided by a non-speaking order.

The Bench observed that the authorities concerned had the right to condone a period of one year for the purpose of payment of pensionary benefits yet they had not applied mind while complying with the direction Tribunal. The Bench stated,

In case he (the applicant) was entitled to pensionary benefits after the order of discharge, which was not punitive one, it was incumbent upon the respondents to consider the impugned order of discharge without going back to the cause for passing the order of discharge.

If the applicant’s conduct had been bad then it would be open to the respondents to pass an order of dismissal, so that the applicant might not get any retiral benefits even if he had completed the qualifying minimum period of service. Considering that the respondents themselves had taken a lenient view, it was not open for them to look into the backgrounds or reason.

“The order of discharge might have been passed for bigamy but in any case right to avail pensionary benefits and law over the point is one and same and it may not be correct to discriminate any person in the matter in the Armed Forces.”

The Bench opined that once a person is entitled to payment of pensionary benefits after discharge then provision must be considered judiciously for payment of pensionary benefits, more so when no punitive order had been passed. Hence, the respondents were directed to reconsider the application of the applicant expeditiously, keeping in view the prayer made by him for condonation of the period of six months to complete 15 years of service for payment of pensionary benefits. Further, the cost of Rs.50,000 was imposed upon the respondents which were ordered to be released in favour of the applicant.[Ram Bahadur Singh, v. Union of India,  2018 SCC OnLine AFT 9435, decided on 18-01-2018]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Tribunal:

For the applicant: Adv.  Parijaat Belaura

For the respondents: Adv. Shailendra Sharma Atal, and Adv. A.K. Sahu

Case BriefsHigh Courts

Allahabad High Court: Sudhir Agarwal, J., found a government servant to be guilty of the offence of bigamy.

The instant petition was filed against the decision passed by the Senior Superintendent of Police, Agra dismissing the petitioner from the post of Fireman and therefore mandamus was sought to direct respondent not to interfere in working of the petitioner as a fireman and to pay his full salary for the period of suspension.

Another challenged placed by the petitioner was with regard to the validity of Rule 29 of the U.P. Government Servants Conduct Rules, 1956, claiming the same to be unconstitutional.

Factual matrix

Petitioners wife i.e. respondent 5 had alleged him of bigamy since he had married another woman.

Petitioner submitted that respondent 5 was married to his maternal uncle and after his death, she started living with an elder maternal uncle from whom she conceived a child also. She has also been receiving the pension of his maternal uncle. Further, he added that there is no relationship between husband and wife with respondent 5 and on the other hand he married Anita Yadav in the presence of all relatives and friends.

Further, the petitioner added that respondent 5’s motive and the intent was only to extract some monetary benefits from him.

In view of respondent 5’s complaint, petitioner was suspended.

Chief Fire Officer, Agra in his report submitted that there was no evidence of respondent 5’s marriage with the petitioner. However, both were living together and their relationship resulted in the birth of a child.

S.P. City Agra in his report submitted that respondent 5 and the petitioner were married. In 1994, petitioner without respondent 5’s knowledge solemnised the second marriage. Respondent 5 on knowing the said fact took various legal steps and also filed maintenance applications, wherein she was awarded the same by Additional Chief Judicial Magistrate.

Thereafter, a regular disciplinary proceeding was initiated against the petitioner under the U.P. Subordinate Police Officers (Punishment and Appeal) Rule, 1991, after the enquiry was completed, petitioner was held guilty of bigamy and, therefore, guilty of misconduct under Rule 29 of Conduct Rules, 1956.

Disciplinary Authority in light of the above-stated passed the impugned order of dismissal.

Analysis and Decision

Judicial Review

Bench observed that in the cases pertaining to the disciplinary enquiry, the scope of judicial review is very limited and is confined to the extent of decision-making process and not to appreciate the decision itself unless it is found to be vitiated in law on account of malafide, bias or in violation of natural justice, or in case it can be shown that the findings recorded in the disciplinary proceedings are based on no evidence at all.

With regard to the contention that the charge of bigamy is false and there is no proof or evidence showing the valid marriage of the petitioner with respondent 5 i.e. Munni Devi, counsel for the petitioner submitted that there was no evidence of solemnization of marriage between the petitioner and Munni Devi who claimed to be his legally wedded first wife. It is also submitted that assuming that the petitioner and Munni Devi were living together and maintaining a relationship of husband and wife, yet in the absence of any proof of solemnization of marriage it cannot be held that the petitioner was guilty of bigamy and therefore violated Rule 29 of the Conduct Rules.

A very significant observation made by the Court was that,

Admittedly there was no evidence showing solemnization of marriage with Hindu rituals but there was evidence that petitioner and Munni Devi married in Court, blessed with a daughter out of their relationship of living together as husband and wife and in various documents Munni Devi was shown as the wife of the petitioner.

In these circumstances, Bench stated that it cannot be stated that the findings recorded by the Enquiry Officer and accepted by the Disciplinary enquiry that the petitioner was guilty of bigamy are based on no evidence at all. The evidence of a marriage between the petitioner and Munni Devi does exist and the sufficiency or adequacy thereof is not within the realm of judicial review of this Court.

Court cited the decision of Supreme Court, R.S. Saini v. State of Punjab, (1999) 8 SCC 90, wherein it was held that the standard of proof required in disciplinary proceedings is that of the preponderance of probability and where there is some relevant material which the competent authority has accepted and such material if can reasonably support the conclusion drawn by the disciplinary authority regarding the guilt of the employee, the court will not reappreciate such evidence to arrive at a different conclusion since the question of adequacy or reliability of evidence can not be canvassed before the court.

In Bombay High Court’s decision of Bombay v. Shashikant S. Patil, (2000) 1 SCC 416, it was held that the disciplinary authority, is the sole judge of the facts if the enquiry has been properly conducted. If there is some evidence on which the findings can be based then adequacy or even reliability of that evidence is not a matter to be canvassed before the Court

Hence, in view of the above discussion, petitioners contention that he was not guilty of bigamy was not accepted.

The validity of Rule 29 of the Conduct Rules

Petitioner contended that Rule 29 is arbitrary, unjust and illegal, no guidelines have been given as to when the permission will be granted for the purpose of second marriage under the proviso to the said rule and therefore, it is ultra vires.

Bench found the above-stated submission to be wholly baseless and misconceived.

No law, custom or practice has been brought to the notice of the Court showing that solemnizing more than one marriage is necessary religious or otherwise activity.

Decades ago people used to marry more than once inspite of having spouse living. It is said that in Muslim Personal Law, marriage with four women is permissible.

However, to the knowledge of the court, no personal law maintains or dictates it as a duty to perform more than one marriage.

No religious or other authority has been brought to Court’s notice providing that marrying more than one woman is a necessary religious sanction and any law providing otherwise or prohibiting bigamy or polygamy would be irreligious or offence the dictates of the religion.

Polygamy cannot be said to be an integral part of any religious activity, may be Hindu, Muslim or any other religion.

A distinction has to be drawn between religious faith, belief and religious practices. Even Article 25 of the Constitution guarantees only the religious faith and belief and not the religious practices which if run counter to public order or health or policy of social welfare which the state has embarked, then the religious practices must give way before the good of the people of the state as a whole.

Bench also observed that various statutes have prohibited both bigamy and polygamy.

A Division Bench of this Court also considered the validity of Rule 27 of the U.P. Government Servant (Conduct) Rules (old) prohibiting bigamy in the case of Ram Prasad Seth v. State of Uttar Pradesh, 1960 SCC OnLine All 128 and the  Court observed that there is no law, making it necessary to solemnize a second marriage. It was held that even under the Hindu religious belief marrying a second wife in order to obtain a son when the first wife can not provide one was only a practice followed by the people and not a sanction or mandate of law.

In view of the above discussion, the Court held that Rule 29 cannot be said to be non-arbitrary or illegal and ultra vires.

Concluding with its decision, Bench held that

In any country where bigamy is an offence, a government servant guilty of committing an offence cannot ask to continue in service after award of the minor or lesser punishment.

In view of the above, petition was dismissed. [Veerpal Singh v. SSP, Agra, 2006 SCC OnLine All 1628, decided on 18-05-2006]


Read more:

Bigamy [S. 494 IPC, S. 17 Hindu Marriage Act]

Case BriefsHigh Courts

Gujarat High Court: The Division Bench of J.B. Pardiwala and Vireshkumar B. Mayani, JJ., while addressing the issue of grant of permanent alimony to a Muslim Woman noted the significant difference between permanent alimony and periodical maintenance.

An instant appeal under Section 19 of the Family Courts Act, 1984 was filed at the instance of the original defendant (husband) and was directed against the judgment and decree passed by Principal Judge, Ahemdabad for a decree of divorce under the provisions of Dissolution of Muslim Marriages Act, 1939.

Analysis, Law and Decision

Question for consideration:

Whether the Family Court committed any error in passing the order of permanent alimony in favour of the wife while granting the decree of divorce to the wife?

There are two types of alimony:

1. Given at the time of court proceedings- This is usually the maintenance amount.

2. Given at the time of legal separation- This can be given either in a lump sum or as a fixed monthly or quarterly payment or as per the requirements of the spouse.

Supreme Court on a creative and meaningful interpretation of the MWPRDA, 1986, upheld its constitutionality. It held that a Muslim husband is liable to make reasonable and fair provision for the future of his divorced wife extending beyond the Iddat period.

In the Supreme Court decision of Shabana Bano v. Imran Khan, (2010) 1 SCC 666, the question that fell for consideration was whether a Muslim Divorced wife would be entitled to receive the amount of maintenance from her divorced husband under Section 125 CrPC, and if yes, then through which forum.

In the above decision of the Supreme Court, it was held that petition under Section 125 CrPC would be maintainable before the family court as long as the wife does not remarry. The amount of maintenance to be awarded under Section 125 of the CrPC cannot be restricted for the Iddat period only.

Main Argument

The most significant submission on behalf of the appellant was that no provision exists in the Dissolution of Muslim Marriage Act, 1939 for the maintenance or permanent alimony. Further, it was stated that Family Court had no jurisdiction to pass any order with respect to maintenance or permanent alimony once the suit is allowed and the marriage is dissolved at the instance of the wife.

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

The Muslim Women Act is “to protect the rights of Muslim women who have been divorced by or have obtained a divorce from their husbands and to provide for matters connected therewith or incidental thereto.

Hence the Muslim Women Act professes to deal with Muslim divorced women and their rights against their former husbands.

Family Court

Bench observed that, where a Family Court has been established, the power and the jurisdiction of the Family Court under Section 7(2) of the Family Courts Act, 1984 to entertain an application for maintenance, even by a divorced Muslim wife, under Chapter IX of the Code of Criminal Procedure has not been taken away, either expressly or even by implication by the Muslim Women Act of 1986.

And once such an application is made to a Family Court under Section 7(2) of the Family Courts Act, and not to a Magistrate, the same has got to be disposed of by the Family Court in accordance with the provisions of Chapter IX of the Code of Criminal Procedure, and the Muslim Women Act of 1986, including its Section 5, would have no manner of application.

Matrimonial Property

Further, it was stated that the right to maintenance and right in the matrimonial property are the consequences of the marriage or its dissolution. Those reliefs are incidental to the main relief of ‘dissolution of marriage’ and therefore, these reliefs are very much an integral part of the decree of ‘dissolution of marriage’.

Section 4 of the Act, 1986

It was also sought to be argued on behalf of the appellant that in view of Section 4 of the Act, 1986, the former husband had no liability to make any provision for the Post-Iddat period.

Bench observed that the right of maintenance given to the wife and the minor children under the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, is in addition to the right, which the minor children are having under Muslim Law to get maintenance from the father. The law expects that the parties should not be driven to approach the different forums but in one forum itself, they should be granted whatever reliefs to which they are entitled.

Supreme Court in the decision of K.A. Abdul Jaleel v. Shahida, (2003) 4 SCC 166 was concerned with the provisions of Section 7 of the Family Courts Act, 1984 as to whether the Family Court had the jurisdiction to adjudicate upon any question relating to the properties of the parties not only of the subsisting marriage but also divorced parties and the Supreme Court was pleased to hold that the reason for the enactment of the Family Courts Act, 1984, was to set up a Court to deal with all the disputes concerning with the Family and it is now a well-settled principle of law that the jurisdiction of a Court created specifically for the resolution of disputes of certain kinds should be construed liberally.

Wife has remarried

Counsel submitted that the wife was remarried and in view of there was no question of any lump sum permanent alimony.

Bench observed that

A divorced Muslim woman is entitled to receive, from her husband, inter alia, “maintenance”, “reasonable and fair provision”, “Mahr” etc. under Section 3 of the Act, 1986.

Permanent Alimony

Bench stated that what is significant to note is that the relief of permanent alimony is a relief incidental to the granting of the substantive relief by the Court in the main proceeding. It is an incidental relief claimed in the main proceeding, though an application is necessary for claiming it.

The Supreme Court had the occasion to consider the question whether a Muslim woman obtaining a divorce under the provisions of the Act, 1939 is entitled to maintenance under Section 125 CrPC, and it was held in Zohara Khatoon v. Mohd. Ibrahim, (1981) 2 SCC 509 that there are three distinct modes in which a dissolution of marriage can be brought about and Clause(b) of the Explanation to Section 125(1) envisages all the three modes, whether a wife is divorced unilaterally by the husband or where she obtains divorce under the other two modes, she continues to be a wife for the purpose of getting maintenance under Section 125 of the Code.

The Supreme Court held that divorce resulting from the dissolution of marriage under the provision of Dissolution of Muslim Marriage Act, 1939 is also a legal divorce under the Mohammedan law by virtue of the Statute (1939 Act).

Conclusion

Bench observed that when the Court would make an award of permanent alimony or for one-time payment, it is not founded on any stipulation that any part of the sum would be either actually refunded in whole or in part. Such sum is not granted on the condition against remarriage for all times to or for any particular period.

The permanent alimony in a way is an estimated sum in a lump sum to discharge the judgment debtor from his future liabilities unconditionally.

The grant of periodical payment by way of maintenance to a divorced wife is in recognition/obligation to the spouse to maintain her so long as she enjoys the continued status of a divorcee.

On remarriage status of divorcee comes to an end and she acquires another marital status as someone’s spouse. Under the Act, 1986 as under Section 125 CrPC, the wife includes a divorcee.

In view of the above discussion, it can be said that:

when the wife remarries, her claim of maintenance primarily comes to stand against her new husband coming into existence in a new relationship.

The proposition of law laid down by the Court should be looked into keeping in mind Section 3(1)(a) of the Act, 1986.

A divorced woman is entitled to ‘a reasonable and fair provision” and “maintenance” to be made and paid to her within and post the Iddat period by her former husband.

Point-wise Conclusion of the decision:

  • After the Act of 1939, a wife had a statutory right to obtain a divorce from her husband through the Court on proof of the grounds mentioned in the Act.
  • The ex-wife, having obtained a divorce from her erstwhile husband under the provisions of the Act, 1939 is entitled to the reasonable and fair provision under Section 3 of the Act, 1986.
  • The Family Courts Act has in its comprehension all community including the Muslims. All disputes between the Muslim community within the purview of the Family Courts Act are to be settled by the Family Courts.
  • Dispute contemplated by Section 3 of the Act, 1986 is within the purview and four corners of the Family Courts Act as the dispute under Section 3 of the Act, 1986 also relates to matrimonial relations between the parties.
  • Right of maintenance and right in the matrimonial property are the consequences of the marriage or its dissolution.
  • The Law contemplates that the husband has two separate and distinct obligations; (I) to make “reasonable and fair provision” for his divorcee wife and (ii) to provide “maintenance” for her. The obligation to make a reasonable and fair provision for the divorced wife is not restricted until the divorced wife remarries. It is within the jurisdiction of the Family Court to pass an order for a lump sum amount to be paid to the wife in the discharge of the obligation of the husband under Section 3(1)(a) of the Act, 1986 and such order cannot be modified upon remarriage of the divorced Muslim wife.
  • Provision for permanent alimony is incidental to the granting of a decree or judicial separation, divorce or annulment of marriage.
  • The permanent alimony in a way is an estimated sum in a lump sum to discharge the husband from her future liabilities unconditionally.
  • If the wife gets remarried, her status of divorcee comes to an end and the liability of the husband to pay periodical maintenance would also come to an end.

Another significant observation of the High Court was which was placed by the counsel for the parties was that the appellant had remarried way back in the year 2014. Before the respondent herein instituted the proceedings in the Family Court for divorce, the husband had already remarried and raised a family. The appellant could do so because polygamy is permissible amongst the Muslim Community. It does not constitute an offence of bigamy punishable under Section 494 of the Penal Code.

The materials on record indicated that the husband hardly paid anything towards maintenance. The respondent had to leave her matrimonial home soon after the marriage, i.e., sometime in 2010. Ultimately, she was constrained to institute the proceedings of divorce in the Family Court. Even during the pendency of such proceedings, nothing was paid to the wife. The wife, ultimately, succeeded before the Family Court in getting the marriage dissolved and was also successful in getting an order of permanent alimony. The husband now cannot turn around and say that he is not liable to pay the lump sum amount because the respondent is remarried.

Hence, in Court opinion, the Family Court’s line of reasoning ad the ultimate conclusion that was drawn by the family court was just and proper.

Therefore the appeal was dismissed.[Tarif Rashidbhai Qureshi v. Asmabanu, 2020 SCC OnLine Guj 711, decided on 19-03-2020]


Advocates who appeared for the parties:

Nishant Lalakita for Appellant 1

Javed S Qureshi for Appellant 1

SP Majmudar for Defendant 1

Shashvata U Shukla for Defendant 1

Op EdsOP. ED.

India is truly a strange country of diversity. A popular cliché remains in our society that only among the Muslim community polygamous marriage exists. One ignores the fact that before enactment of the Hindu Marriage Act, 1955[1]; there used to exist polygamy among the Hindu community. Section 17 of the said Act provides that Sections 494 and 495[2] of the Penal Code, 1860 shall be attracted if any Hindu commits bigamy.

Muslims are allowed by their personal law to marry four times provided that the husband loves the four wives equally. One can assume that it is possible for a Muslim wife to petition for divorce if this condition is not strictly followed. The Parsi Marriage and Divorce Act[3] provides for a similar penal provision in Section 5 of the Act. Section 44 of the Special Marriage Act[4] mentions that bigamous marriage shall attract penalty under Sections 494 and 495 of the Penal Code. However, one cannot find a similar penal provision in the  Christian Marriage Act[5].

Further Section 18 of the  Divorce Act, 1869[6] provides that “Any husband or wife may present a petition in the District Court or the High Court, praying that, his or her marriage may be declared null and void”. Section 19(4) of the said Act provides that such decree of nullity may be made on the ground that former husband or wife of either party was living at the time of marriage and the marriage with such former husband or wife was then in force. Thus it is amply clear that if neither party (husband or wife) sues for decree of nullity of marriage there is a chance of continuing a number of polygamous marriages.

One can argue that law allows absolute liberty to a subject if there is no express prohibition in it. One can cite Article 21 of the Indian Constitution for the justification.

Conclusion

From practical experience one can gather that marrying more than once even if permissible in personal laws, attracts a disability in Government jobs or for standing as a candidate in election of legislative bodies[7]. Even a  modern Muslim country like Turkey discourages polygamous marriage. In Bai Fatima v. Ali Mahomed[8], the defendant wanted to have a second wife, executed a document in favour of the plaintiff, that is, his first wife, contemplating future separation and also payment of maintenance allowance to the plaintiff. After the execution of the document they lived together for some time. And then they separated. The plaintiff brought an action to recover the arrears of maintenance as mentioned in the document. It was held that such an agreement between Mohammadan husband and wife to live separately in future because the husband wanted to marry again was opposed to public policy as mentioned in Section 23 of the Contract Act and thus, void.

The bane of polygamous marriage is having constant discord among the spouses, hindrance of the welfare of the children and further; stretching the economic resources of the family. There is a threat of population explosion due to polygamous marriage. Further, the earlier social backdrop for polygamous marriages in different religions does not exist anymore. Marriage is, one presumes a “secular institution” and thus law can provide reasonable restrictions.

Section 2(f) of the Domestic Violence Act, 2005[9] provides protection to women who are having a relationship in the nature of marriage with the partner. In Indra Sarma v. N.K.V. Sarma [10] the Court laid down that the women in defacto[11]marriage are protected from the abuse of the partner.

Although the Constitution directs for a Uniform Civil Code,  however, it remains as a far cry and distant reality.


* Assistant Professor, Symbiosis Law School, Pune

[1] The Hindu Marriage Act, 1955

[2] Section 494  IPC punishes the offence of marrying again during the lifetime of husband and wife. Section 495  IPC punishes for the same offence with concealment of former marriage from person with whom subsequent marriage is contracted.

[3] The Parsi Marriage and Divorce Act, 1936

[4] Special Marriage Act, 1954

[5] Christian Marriage Act, 1872

[6] Divorce Act, 1869

[7] See Article 25(1) of the Indian Constitution which provides; Subject to public order, morality and health and to the other provisions of this part, all persons are equally entitled to freedom of conscience and the right freely to profess,  practice and propagate religion.

[8] ILR (1912) Bom 280

[9] The Protection of Women from Domestic Violence Act, 2005

[10] (2013) 15 SCC 755

[11] (i) A reference in a written law to a defacto relationship shall be construed as a reference to a relationship(other than legal marriage) between two persons who live together in marriage-like relationship

(ii)The following factors are indicators of whether or not  a de facto relationship exists between two persons but are not essential,

(a) The length of relationship between them,

(b) Whether two persons have resided together,

(c) The nature and extent of common residence,

(d) Whether there is or has been a sexual relationship between them,

(e) The degree of financial dependence and interdependence and arrangements for financial support between them,

(f) The ownership, use and acquisition of their property (including property they own individually),

(g) The degree of mutual commitment by them to a shared life,

(h) Whether they care for and support children,

(i) The reputation and public aspects, of the relation between them.

Case BriefsHigh Courts

Madras High Court: RMT. Teeka Raman, J., while addressing a petition observed that,

“A plea of customary divorce is a valid defence in departmental proceedings initiated for the misconduct of bigamy under Service Rules/Conduct Rules.”

The instant petition was sought to set aside the punishment order imposed in proceedings under Rule 3(b) Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955.

Petitioner, during his service, married a staff nurse and has two children. Later, in 2007, the petitioner during his service married a Woman Sub Inspector of Police and had two children with her as well.

Grave Misconduct

Petitioner’s grave misconduct was having married Woman Sub Inspector of Police while his first wife was living with two children and thereby violating Rule 23(1)(b) of the Tamil Nadu Subordinate Police Officer’s Conduct Rules, 1964.

Charge Memo

In view of the above-stated act, a charge memo was issued under Rule 3(b) of the Tamil Nadu Police Subordinate Service (D&A) Rules, 1955.

The Oral Enquiry Officer held the charge against the petitioner.

Deputy Inspector General of Police also arrived at the conclusion that the petitioner violated Rule 23(1)(b) of the Tamil Nadu Subordinate Police Officers’ Conduct Rules, 1964 and awarded the petitioner a punishment of “Reduction in rank by the stage from the post of Head Constable to Gr.I PC for a period of two years to be spent on duty from the date of receipt of the order”.

Senior Counsel, Veera Kathiravan submitted that there was a customary divorce between the petitioner and his first wife and subsequently the petitioner married the widow Woman Sub-Inspector of Police and hence he did not violate any rules.

Analysis & Decision

Crux of the charge framed against the petitioner was that the delinquent was reprehensible conduct in having married the Woman Sub-Inspector of Police when his first wife was living and thereby violating the Rule 23(1)(b) of the Tamil Nadu Subordinate Police Officers’ Conduct Rules 1964 and tarnished the image of Police Force.

Hindu Marriage Act

Bench stated that after the coming into force of the Hindu Marriage Act, 1955, an end to marriage can be sought by either obtaining a declaration that the marriage between them was a nullity on the grounds specified in Section II or to dissolve the marriage between them on any of the grounds mentioned in Section 13 of the Act. While, Section 29 of the Act saves the rights recognized by custom or conferred by special enactment to obtain the dissolution of marriage, whether solemnized before or after the commencement of the Act.

Authorities have established that the prevalence of customary divorce in the community to which parties belong, contrary to the general law of divorce must be specifically pleaded and established by the person propounding such custom.

Core question to be decided in the present matter was whether the plea of customary divorce is a valid defence in the departmental proceedings initiated for action of bigamy as defined in Section 3(b) of the Tamil Nadu Police Rules?

Bench noted the statement of the first wife that due to misunderstandings between the couple, as per the custom prevailing in the community, there was a customary divorce.

Customary Divorce

Hence, the plea raised by the delinquent about the prevalence of customary divorce in their community which was pleaded by the petitioner and the same was accepted by none other than the first wife herself only after the dissolution of the first marriage, he contracted the second marriage.

Court concluded its decision as follows:

  • Disciplinary Proceedings can be initiated even if the second marriage is contracted with the knowledge of the first wife so also even if the first wife does not prosecute the husband for the same and hence the complaint given by the third party alleging contract of the second marriage, departmental proceedings can still be maintainable.
  • A plea of customary divorce is a valid defence in departmental proceedings initiated for the misconduct of bigamy under Service Rules/Conduct Rules.
  • To substantiate plea of customary divorce a specific plea has to be raised in the statement of defence by the delinquent officer and has to be proved on up to the decree of the preponderance of probability and execution of the customary divorce as projected by the delinquent.

Hence, in view of the above, the petition was allowed and the punishment was set aside. [Sudalaimai v. Deputy Inspector General of Police, WP (MD) No. 17504 of 2014, decided on 09-09-2020]