Case BriefsHigh Courts

Allahabad High Court: Yogendra Kumar Srivastava, J., dismissed the petition and rejected the issuance of writ of habeas corpus by a husband seeking production of his wife.

The facts of the case are such that petitioner 2, wife of petitioner 1, left her matrimonial home sometime in the month of June, 2019 on account of some serious differences with her husband (Petitioner 1) and an application for restitution of conjugal rights was filed by the Petitioner 1 which stands pending before the court of the Principal Judge, Family Court, Saharanpur.

Counsel for petitioners Mr Avinash Pandey submitted that sometime in the month of November, 2020 information was received by him suggesting that petitioner 2 was being detained at her parental home

Counsel for State submitted that petitioner 2 (wife) left her matrimonial home sometime in the month of June, 2019 on account of serious differences with her husband (petitioner 1), it is not a case of illegal and a writ of habeas corpus would not be entertainable.

The Court relied on Mohammad Ikram Hussain v. State of U.P., 1964 AIR 1625 and Kanu Sanyal v. District Magistrate Darjeeling (1973) 2 SCC 674 wherein it was observed that the writ of habeas corpus is a prerogative writ and an extraordinary remedy. It is writ of right and not a writ of course and may be granted only on reasonable ground or probable cause.

The Court further observed that the exercise of the extraordinary jurisdiction for issuance of a writ of habeas corpus would be dependent on the jurisdictional fact where the applicant establishes a prima facie case that the detention is unlawful. It is only where the aforementioned jurisdictional fact is established that the applicant becomes entitled to the writ as of right.

The Court held “the petitioner no. 2 having left her matrimonial home on her own on account of a matrimonial discord, the present petition seeking a writ of habeas corpus at the behest of the petitioner no. 1 (husband) would not be entertainable.”[Mohd Ahmad v. State of UP, 2021 SCC OnLine All 542, decided on 05-08-2021]

Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Madras High Court:  G.K. Ilanthiraiyan, J., quashed the proceedings filed under the Domestic Violence Act in light of being barred by limitation.

The instant petition was filed to quash the Domestic Violence proceedings under the Domestic Violence Act.

Petitioner and respondent are husband and wife, due to some misunderstanding between the two, the respondent left the matrimonial home and went to her parents home.

Thereafter, petitioner filed a petition for dissolution of marriage, whereas the respondent on the other hand also filed a petition for restitution of conjugal rights.

Petitioner’s Counsel contended that the Domestic Violence proceedings were filed only to harass the petitioner and escape from the legal proceedings.

Domestic Violence complaint was filed after the lapse of 1 year 10 months, therefore barred by limitation, and Magistrate ought not to have been taken cognizance under the DV Act.

In view of the above, the DV proceedings need to be quashed.

Bench relied on the decision in Inderjit Singh Grewal v. State of Punjab, (2011) 12 SCC 588 wherein it was held that, under Sections 28 and 32 of the DV Act, 2005 read with Rule 15(6)of the Protection of Women from Domestic Violence Rules, 2006 which make the provisions of the Code of Criminal Procedure applicable.

“…the issue of limitation, in view of the provisions of Section 468 Code of Criminal Procedure, that the complaint could be filed only within a period of one year from the date of the incident seem to be preponderous in view of the provisions of Sections 28 and 32 of the Act 2005 read with Rule 15(6) of The Protection of Women from Domestic Violence Rules, 2006 which make the provisions of Code of Criminal Procedure applicable and stand fortified.”

Therefore, the respondent ought to have lodged the complaint within a period of 1 year from the date of the incident.

Hence, the complaint lodged against the petitioner under the DV Act cannot be sustained. [N. Prasad v. Harithalakshmi, 2020 SCC OnLine Mad 1767, decided on 20-07-2020]

Case BriefsHigh Courts

Karnataka High Court: Alok Aradhe, J. admitted the petitions under Article 227 of the Constitution of India for quashment of the order of the Judge of the Principal Family Court, Bengaluru.

In the instant case, parties got married on 29.05.1998 as per Hindu rites. The petitioner – husband sought for dissolution of marriage under Section 13 of the Hindu Marriage Act, 1955 whereas respondent-wife for restitution of conjugal rights under Section 9.

These petitions are pending before the Principal Judge, Family Court.

In respect of the proceeding under Section 13 of the Act, the Family Court granted maintenance of Rs 8,000 per month and Rs 20,000 for litigation expenses by an order on 16.10.2017. Without taking note of the order already passed, the same Court passed an order on 05.12.2017 under Section 9 of the Act and again awarded a sum of Rs 8,000 towards maintenance and Rs 10,000 towards one-time litigation expenses.

The Court after hearing H. Ramachandra, Counsel for the petitioner and Adithya Kumar H.R. for the respondent observed that the Family Court did not take note of its earlier order before passing the order on 05.12.2017. Therefore, the order passed on 05.12.2017 cannot be sustained in the eyes of law.

The Court further directed the Family Court to decide the respondent’s application afresh.

Moreover, the Court observed that the provisions in Karnataka (Case Flow Management in Subordinate Court) Rules, 2005 provide that matrimonial disputes should be decided within one year. The proceeding under Section 13 of the Act was initiated in the year 2014. Therefore, the Court directed the Family Court to expeditiously conclude the proceedings within four months of the order of this Court. [Chandrashekar v. Shylaja, 2019 SCC OnLine Kar 1828, decided on 12-09-2019]

Case BriefsHigh Courts

Karnataka High Court: The Division Bench of S.N. Satyanarayana and P.G.M. Patil, JJ. allowed this appeal and remanded the matter back to the Principal Judge, Family Court.

In this instant case, the Respondent – wife in M.C. No. 268 of 2016 before the Family Court, Hubballi has appealed impugning the judgment of the Principal Judge. The petition of the aforesaid M.C. No. 268 of 2016 was filed by the husband of the Respondent (herein appellant). 

Their marriage took place on 11.05.2011 and they have a son. The appellant alleged that the husband/respondent threw her out of the matrimonial house on 01.07.2015. Thereafter, she went to her parental house in Rajasthan and filed a petition in F.C. No. 53 of 2018 under Section 9 of the Hindu Marriage Act, 1955 seeking restitution of conjugal rights. Meanwhile, the husband secured a decree of divorce in M.C. No. 268 of 2016. 

The wife came to know from the certified copy of the judgment of the Principal Judge that the husband filed the matrimonial case by giving wrong address of the wife and therefore the notice never reached the wife and thereby securing a decree of divorce ex parte.

After having heard both the counsels for appellant (H.R. Gundappa) and respondent (Gurudev Gachchinamath), the Court observed that there were instances where the respondent – husband could have informed the appellant – wife about the proceedings in the Court but did not. The Husband kept it from the wife. Therefore, it is clear from the very face of it that the decree was secured with malafide intentions so as to curtail the right of his wife and maintenance of minor son. The Court also gave light to how the decree was granted. The decree was granted without appreciating the material on record and also by not following the statutory provisions which are required to be seen by the Court below while considering granting the decree of divorce. Hence, the decree was set aside.[Renu v. Kamalesh, 2019 SCC OnLine Kar 1655, decided on 29-08-2019]

Case BriefsHigh Courts

Patna High Court: Rajeev Ranjan Prasad, J. dismissed a review application filed by the petitioner-husband for review of this Court’s order in a matrimonial case (pertaining to restitution of conjugal rights) whereby a direction was given to transfer records of the said case from this Court to the Family Court at Muzaffarpur (where the respondent-wife had filed a maintenance case against petitioner).

Counsel for the petitioner, Vivekanand Prasad Singh submitted that while passing the impugned order, this Court was not properly assisted by the appearing for petitioner earlier and that no contention was raised at the bar on behalf of the petitioner. It was submitted that the petitioner was presently posted at Mumbai and while it would be convenient for him to visit Patna on the date fixed in the matter, if he is required to go Muzaffarpur he would be required to take one additional leave.

Learned counsel appearing on behalf of the respondent, Arvind Kumar Pandey and  Jitendra Prasad Singh, objected stating that the impugned order had been passed in the interest of both parties for the restoration of their conjugal rights.

The Court noted that the respondent had a one-year-old daughter and had no male member in the family to accompany her to visit this Court for hearings in the matrimonial case. Petitioner had himself filed a case for restitution of conjugal rights and during the course of arguments, it was understood that the respondent was ready to receive him at her place with an intention to restore conjugal rights. Thus, this Court had considered it just and proper to transfer the records of the matrimonial case to the Court at Muzaffarpur with the view that if the petitioner visits Muzaffarpur where respondent-wife was residing with her parents, there was every possibility of restitution of conjugal rights. No opposition was recorded on behalf of the petitioner in the impugned order.

It was observed that if it was the petitioner’s intention to restore his relationship, the plea regarding requirement one additional leave for visiting Muzaffarpur could not be said to be a bona fide plea, especially in view of the hardships being faced by the wife.

The Court noted that the present review application had been filed by a change of lawyer, but no affidavit was filed showing the reason which necessitated a change of lawyer. It was observed that while considering a review application, it is important to see if an error has occurred because of mistake of the Court or for any other reason which is likely to cause injustice to a party, and correct the same. But a review filed merely because of change of lawyer must not be generally allowed. Reliance in this regard was placed on Rotary Club, Begusarai v. State of Bihar, 2000 SCC OnLine Pat 892 where the practice of filing review petition due to change of was deprecated.

In view of the above, it was held that no injustice had been caused to the petitioner by the impugned order.[Rishi Kesh Kumar v. Minakshi Kumari, 2019 SCC OnLine Pat 587, decided on 30-04-2019]

Case BriefsHigh Courts

Tripura High Court: A Bench of Sanjay Karol, CJ and Arindam Lodh, J. allowed an appeal filed by the appellant-wife against the judgment passed by the Family Judge whereby she was directed to return to her matrimonial home.

The respondent-husband had filed a suit for restitution of conjugal rights under Section 281 of the Mohammedan Law. He stated that the parties got married according to Islamic rites and customs. It was alleged that after a few days, the wife started quarrelling with him and always preferred to live with her parents. It was alleged that she left the matrimonial home in 15-9-2017 without any reason and information and also took away her articles. Efforts were made to bring her back, but she did not return. Hence, he instituted the suit for restitution of conjugal rights. The family court passed the ex-parte impugned order whereby the wife was directed to return to the house of her husband.

R. Purakayastha, Advocate appeared for the wife. According to the memo of appeal, the wife was a very poor lady. After filing her written statement, she prayed for appointing a legal aid counsel. But unfortunately, she prayed for appointing a legal aid counsel. But unfortunately, the Family Judge neither allowed nor rejected her prayer. It was submitted that since she was a lady of little learning she could not take any step with the case.

The High Court observed it as well settled that “justice is not only to be done, but it is manifest to be done.” The wife being a poor woman sought for a legal aid counsel. According to the Court, the Family Judge ought to have afforded all opportunities to he so she could take part in the proceedings before the family court. The Court held it to be a fit case to remand the matter back to the family court for the fair trial of the case. Accordingly, the appeal. was allowed and the impugned judgment was set aside. [Salma Begam v. Saiful Ali, 2019 SCC OnLine Tri 77, decided on 05-03-2019]

Case BriefsHigh Courts

Bombay High Court: The Bench comprising of V.K. Jadhav, J., while pronouncing an order stated that, “if the wife is not comfortable because of the approach and attitude of the parents of her husband and the treatment given to her by them, and if she resides with her parents because of the said reason, in my considered opinion, the wife has just cause to live separate and demand maintenance.”

As per the facts of the case, the applicant husband stated that the respondent-wife lived with him for 5 to 6 months since the time of marriage and left his house thereafter. She used to quarrel with the parents, the brother and the sister of the applicant-husband. Lastly, respondent-wife left his house and started residing with her parents. It has been further stated that applicant is young and needs her company and accordingly, he filed the application for restitution of conjugal rights.

Respondent-wife stated that applicant-husband’s mother used to ill-treat her and beat her, applicant also used to beat her on the say of his mother. She further stated that she was ready to join his company if he keeps her separate and executes an undertaking for giving good treatment to her as she apprehends danger to her life. Respondent-wife also filed an application for grant of maintenance under Section 125 CrPC.

Thus, the High Court on observing the given contentions by the parties and noting the situation prevailing in the present case stated that, “In the changing scenario of the lifestyle and considering the developing concept of nuclear family, importance is required to be given to the wishes of the wife.”

As in regard to the husband’s contention that wife had no just cause to live with her parents as the relationship between them was cordial, for the stated contention the Court stated that, If wife is not comfortable because of the parents of her husband and the treatment given to her by them, and if she resides with her parents because of the said reason, wife has just cause to live separate and demand maintenance.”

Therefore, the Court found no mistake in the judgment and order passed by the judge of the family court rejecting application filed by applicant-husband seeking restitution of conjugal rights and the maintenance of Rs 700 per month as decided by the learned Judge of the Family Court is rightly stated and there is no interference required. [Shaikh Basid v. State of Maharashtra, 2019 SCC OnLine Bom 220, Order dated 06-02-2019]

Case BriefsHigh Courts

Madras High Court: A Division Bench comprising of C.T. Selvam and S. Ramathilagam, JJ. ordered parole of two weeks to a life-convict in light of exercising his conjugal rights.

In the present case, the petitioner is the wife of the life convict, who sought leave for her husband for the purpose of the exercise of conjugal rights. Petitioner’s husband is an undertrial prisoner and is a convict under two cases, on the file of Principal District and Sessions Court, Pudukottai, jail authorities are said to be precluded from granting leave to detenu under Section 35 of Tamil Nadu Suspension of Sentence Rules, 1982.

While placing reliance on the decision of Madras High Court, Madurai Bench in Meharaj v. State, 2018 1 HCC (Mad) 150 in which it was stated that:

“Conjugal visit leads to strong family bonds and keep the family functional rather than the family becoming dysfunctional due to prolonged isolation and lack of sexual contact.”;

the High Court considered the above-stated decision to be appropriate and concluded to grant leave to the petitioner’s husband for the purpose of conjugal visit for a period of two weeks subject to certain conditions. [P. Muthumari v. Home Secretary,2018 SCC OnLine Mad 3304, dated 26-11-2018]

Case BriefsHigh Courts

Madras High Court: The Single Judge Bench comprising of M.V. Muralidaran J., held that “If the husband is healthy, able-bodied and in a position to support himself, he is under the obligation to support his wife under Section 125 CrPC, for wife’s right to receive maintenance under the Section, unless disqualified, is an absolute right.”

The petition for divorce was first filed by the husband/petitioner subsequently followed by a petition by the wife seeking restitution of conjugal rights and while these petitions were still pending, the wife of the petitioner filed another petition seeking interim maintenance for which the petitioner was asked to pay Rs. 16,000/- per month to the respondent/wife.

The petitioner in his submission stated that he was unemployed and was living under the shadow of his father which makes him incapable of providing such huge amount of interim maintenance. But for the same stated issue the respondent/wife contended that it was the husband’s duty to maintain his wife/child with the provision of all the basic needs, and also the contention of the petitioner is incorrect as he runs his own business.

The Hon’ble High Court, on noting all the facts and circumstances stated that it is the obligation of the husband to maintain his wife and he cannot be permitted to plead that he is unable to maintain his wife due to financial constraints as long as he is capable of earning. Therefore, the Criminal Revision was partly allowed by reducing the sum of interim maintenance to Rs. 10,000/- per month by directing the Family Court judge to dispose of the petition without giving any further adjournment. [Vishnuprasad v. Vishnupriya,  2018 SCC OnLine Mad 1306, dated 11-04-2018]