Case BriefsHigh Courts

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

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

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

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

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

Analysis and Decision

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

Principle Issue:

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

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

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

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

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

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

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

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

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

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

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

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

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of Krishna S. Dixit and P. Krishna Bhat, JJ., held that,

“Though contracting a second marriage by a Muslim may be lawful, but it more often than not causes enormous cruelty to the first wife justifying her claim for divorce.”

The present appeal calls in question the Judgment and Decree whereby Family Court had dissolved the marriage between the husband and wife (respondent).

Brief Facts

Both the appellant and the respondent are Sunni Muslims. Respondent had filed a suit seeking a decree for dissolution of marriage on the grounds of cruelty and desertion alleging that she and her parents were manhandled by the appellant and his parents without any justification.

Further appellant contracted a second marriage with another lady when the respondent was carrying and that he had begotten a child from the said lady.

Appellant while defending the suit claim in addition to seeking a decree for the restitution of conjugal rights contending that he had always loved the respondent and contracted for the second marriage only because of the pressured mounted by his parents.

It was also added that Sheriat permits a Mohammaden to contract plural wives and such a conduct per se does not amount to cruelty, nor constitute a ground for opposing restitution of conjugal rights.

Analysis and Decision

Bench on perusal of the facts and submission declined to interfere in the matter.

The fact that the respondent-wife and her parents were manhandled by the husband’s parents has been supported by the evidentiary material and the very admission of the appellant himself.

It is a bounden duty of every husband to protect his wife in any circumstances.

In the present matter, what acts the appellant did, to protect his wife from the onslaught of his parents is neither pleaded nor proved; the contention that his parents are very influential & powerful is too feeble a justification for allowing the poor wife to be tortured.

“…institution of marriage is founded inter alia on the mutual support and security of spouses; if the husband fails to protect his wife from his own violent parents, the very trust of the wife is shaken and therefore she is entitled to oppose restitution of conjugal rights, lest she should undergo the same ill-treatment.”

Act of Second Marriage | Sheriat 

Further, the Court added that it is a matter of common knowledge that, women regardless of their religion and socio-economic conditions, detest their husbands contracting a second marriage; therefore, the proof of consent requires cogent evidence which is militantly lacking in this case.

Appellant’s plea that the Sheriat permits a Muslim to contract in marriage plural wives, may be legally true. Kerala High Court’s decision in Shahulameedu v. Subaida Beevi, 1970 K.L.T 4 has observed the right of a Muslim to practise polygamy under the Sheriat.

Section 2 of the Muslim Marriages Act, 1939 recognizes the ‘cruelty of conduct’ of the husband as a ground for the dissolution of marriage at the instance of aggrieved ‘woman married under Muslim law’.

Marital Cruelty

Courts have emphasised that in the backdrop of spousal relationship, words, acts or conduct constituting cruelty are infinitely variable with the increasing complexities of modern life; no attempt at defining cruelty is likely to succeed, fully; merely because an act is lawful, it does not per se become justifiable in married life.

Though contracting a second marriage by a Muslim may be lawful, but it more often than not causes enormous cruelty to the first wife justifying her claim for divorce.

Privy Council in Moonshee Bazloor Ruheem v. Shamsunnissa Begum, (11 MIA 551) observed with regard to marital cruelty that,

“Indian law does not recognize various types of cruelty such as ‘Muslim’ cruelty, ‘Christian’ cruelty, ‘Jewish’ cruelty, and so on, and the test of cruelty is based on the universal and humanitarian standards, that is to say, conduct of the husband which would cause such bodily or mental pain as to endanger the wife’s safety or health. The onus today would be on the husband who takes a second wife to explain his action and prove that his taking a second wife involved no insult or cruelty to the first, and in the absence of cogent explanation the Court will presume under modern conditions that the action of the husband in taking a second wife involved cruelty to the first, and it would be inequitable for the Court to compel her against her wishes to live with such a husband.”

Hence, in view of the above circumstances, the present appeal lacks merits and is liable to be rejected. [Yusufpatel v. Ramjanbi, MFA No. 201154 of 2018 (FC), decided on 17-08-2020]

Case BriefsHigh Courts

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

Cruelty & Desertion | Dissolution of Marriage

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

Family Court dissolved the marriage.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Case BriefsHigh Courts

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

Willful Disobedience

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

Facts 

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

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

Decree of Divorce

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

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

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

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

Bench considered the following questions:

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

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

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

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

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

Ejusdem Generis

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

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

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

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

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

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

No Civil Contempt

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

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

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Ravi Malimath and Narayan Singh Dhanik, JJ., dismissed and appeal which was filed aggrieved by the judgment and order of the Principal Judge, Family Court whereby the suit of the plaintiff-husband (respondent herein) for dissolution of marriage was decreed.

The marriage of Rajesh Gaur (plaintiff-respondent) was solemnized with Anita Gaur (defendant-appellant) as per Hindu customs and ceremonies on 12-05-1999 after which they shifted to Mumbai where the plaintiff-respondent was running his business. Two children were also born out of wedlock. On 3-06-2014, husband (plaintiff-respondent) instituted a suit under Section 13 of the Hindu Marriage Act against the wife (defendant-appellant) seeking a decree of divorce on the ground of cruelty. He had alleged that about five years ago there was a sudden change in the behavior of his wife and the valuable articles, jewellery, cash, etc. started missing from the house. Further, he alleged that 2-3 years thereafter, he had started receiving telephone calls of crooked persons asking him either to return the money else he would be abducted. On being asked the plaintiff-respondent confessed to him that she had borrowed money on interest @ 10 percent per month and she also had purchased ornaments and clothes on credit. After getting continuous threats of abduction and capture of his flat the defendant-appellant fearing for his life and liberty decided to come back to Dehradun along with his wife; thereafter a Panchayat was held in the village in which the defendant-appellant admitted her mistakes in writing but even after that quarrels and scenes had become common on several occasions and it was impossible for the plaintiff-respondent to continue to live with the defendant-appellant. The defendant-appellant however in the written statement denied the allegations of the plaintiff-respondent but admitted borrowing money amounting to Rs. 10,00,000 for household expenses, payment of school fees, etc. She also submitted that she was being badly harassed by the plaintiff-respondent; and that she made a complaint in the Women Cell and also lodged a case under Section 494, Penal code, 1860 against him. After examining the evidence the court decreed the suit for divorce holding that the reasons stated for instituting the suit and the acts alleged by the plaintiff against his wife qualified to come under the category of cruelty.

The Court while dismissing the appeal affirmed the order of the Family Court explaining that the word “cruelty’ was not defined under the Act and it could be physical or mental. The Court relied on various judgments of the Supreme Court like in Praveen Mehta v. Inderjit Mehta, (2002) 5 SCC 706, where it was held that “Mental cruelty cannot be established by direct evidence and it is necessarily a matter of inference to be drawn from the facts and circumstances of the case.” In Raj Talreja v. Kavita Talreja, (2017) 14 SCC 194 the Court had held that “cruelty can never be defined with exactitude.’ The Court also stated that the plaintiff-respondent failed to substantiate the allegations which she had made against the plaintiff-respondent. The Court consequently held that:

“All these acts and conduct, in our considered view, constitute cruelty. Further, as is evident, it was not a solitary instance of cruelty on the part of the defendant-appellant. The defendant-appellant indulged in repeated acts of cruelty and misbehavior with her husband.”[Anita Gaur v. Rajesh Gaur, 2020 SCC OnLine Utt 503, decided on 24-08-2020]


Suchita Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Hima Kohli and Asha Menon, JJ., while addressing a matrimonial appeal filed on behalf of the husband, held that,

Adultery can only be committed after marriage, allegation of having relationship before marriage cannot be a ground of adultery.

Petitioner being aggrieved by the Family Court’s decision of dismissal of his petition wherein he sought dissolution of his marriage with respondent 1 under Section 13(1)(i) and (ia) of the Hindu Marriage Act, 1955, filed the present appeal.

It has been alleged that right after the marriage wife of the petitioner had started showing her disinterest in the marriage, he states that respondent 1/ wife had allegedly abused the appellant/husband and his family members and proclaimed that she had no interest in the marriage.

Further she even disclosed of having a love affair with respondent 2 and that she desired to marry him.

Late after a few months, she left with all the valuables and leaving a letter in which she stated that she will not return back and preferred to live her life with respondent 2.

However, respondent 1/wife was brought back by her brother but appellant/husband did not allow her to enter the house.

Thus, in view of the above facts, petition for divorce was filed.

Respondent’s Stand

Wife/Respondent 1 while opposing the divorce petition admitted that she had disclosed about her previous affair but claimed that it was only after long discussions with her husband and his family members.

Further she submitted that the husband’s family had started harassing and torturing her for dowry and pressurised her to bring a luxury car which she could not fulfill.

Withe regard to above letter mentioned, she submitted that her sister-in-law had compelled her to write whatever husband’s family members forced her to write and sign.

On one incident, an actual attempt was also made to kill her by pressing her neck and she was saved only because neighbours had gathered on hearing her cries.

Her in-laws hatched a conspiracy to kill her by suffocating her with a pillow. During the said incident, she had received injuries on various parts of her body. The appellant/husband and his family members thought that she might die and so, she was thrown near her parental village.

A complaint against the appellant/husband and his family members under Section 498-A, 307, 504 and 506 of Penal Code, 1860 had been filed.

Analysis and Decision

Bench while analysing the the matter noted that the appellant failed to prove his entitlement to divorce in the grounds of adultery under Section 13(1)(i) of the Act.

Further the Court observed that,

Cruelty is no doubt, not measurable as a tangible commodity, but the standard for determining as to whether a particular conduct amounts to cruelty or only to normal wear and tear of marriage, has been the subject matter of several decisions of the Supreme Court.

Cruelty

Court also relied on the Supreme Court case: V. Bhagat v. D. Bhagat, AIR 1994 SC 710, wherein the following was held:

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

As per the incidents stated by the appellant none of them, if at all committed, amount to “cruel” conduct.

To the above, bench stated that, a new bride would be hesitant in her new surroundings in the matrimonial home.

It is always for the husband’s family to make the new bride feel at home and accepted as a family member. Therefore, such conduct of the respondent 1/wife of being interested in remaining in her room or not showing initiative in doing household work can by no stretch of imagination be described as cruel behaviour.

Thus, in Court’s opinion, Family Court’s conclusion including the observation of accusation of adultery being heaped by the appellant/husband on respondent 1/wife are without any proof.

Thus the present appeal of the husband was dismissed in the above view. [Vishal Singh v. Priya, 2020 SCC OnLine Del 638 , decided on 12-06-2020]

Case BriefsHigh Courts

Kerala High Court: A Division Bench of A.M. Shaffique and Mary Joseph, JJ., granted a decree of divorce in favour of husband on the ground of cruelty by the wife.

Decree for dissolution of marriage was sought by the petitioner but declined by Family Court and the same is in challenge.

Background

Marital relationship of petitioner and respondent  did not last long due to the quarrelsome nature of respondent who found pleasure in quarelling with petitioner and his mother.

Later she started declaring that she would commit suicide. She used to call the petitioner ‘dog’ and ‘shameless creature’. She used to undermine his person stating that he is not a fit person to be her husband and insult him by beating him in front of his relatives.

Thus transpiring from the above, Original petition seeking for a decree for dissolution for marriage was filed wherein, allegations of cruelty were denied by the respondent. It was further urged that petitioner was a drunkard, who is in the habit of coming home late in the house in intoxicated state, he used to assault her and the child and also destroyed the tea – poy.

On perusal of the circumstances, in family court’s opinion there was no basis for the petitioner to contend that reunion was impracticable due to irrecoverable break down of the marriage.

Thus, the present appeal was filed and dissolution of marriage was sought on ground of cruelty.

Petitioner’s counsel submitted that dislike of respondent towards his mother often resulted in quarrels, which impacted loss of peace and tranquility in their life.

Decision

Court found that respondent has no case that petitioner was a drunkard when he married her. Evidence indicates that the respondent and the petitioner’s mother were not cordial and clashes were frequent.

It is natural for a wife in that scenario to make persistent effort to constrain her husband to be separated from the family life and that would undoubtedly be tortuous for him.

In the case on hand the petitioner’s turning to be a drunkard can only be taken as the natural outcome of the pressure exerted on him by the respondent to have a separate residence to the exclusion of petitioner’s mother.

No family is totally devoid of clashes among members constituting it. It is common for elders to scold and sometimes abuse youngsters. Making a daughter in law to do the house hold/domestic work is also not something unusual.

Thus in Court’s opinion, Family Court’s decision was highly unjustified it took role of a councilor rather than an adjudicator.

Hence in the opinion of the present bench, evidence as discussed above is satisfactory to take a view that the respondent has treated the petitioner with cruelty sufficient enough to grant a decree for dissolution of marriage in his favour.

Judgment of the Family Court under challenge deserves to be reversed. [Ranjith P.C. v. Asha Nair. P, 2020 SCC OnLine Ker 1751 , decided on 20-05-2020]

Case BriefsHigh Courts

Karnataka High Court: K.S. Mudagal, J. while allowing this petition, directed the withdrawal and transferring of the petition for dissolution of marriage to the Family Court, Devanagere.

In the instant case, the petitioner and respondent got married on 7-2-2013 at Ranebennur. They have a daughter who was born on 2-11-2013. The marriage could not sail well and the petitioner started living in her parental house with her daughter in Basapur, Davanagere Taluk.

Thereafter, the respondent filed for dissolution of marriage on the ground of cruelty before Principal Senior Civil Judge, Ranebennur.

The petitioner filed this civil petition under Section 24 of the Civil Procedure Code for transferring the petition for dissolution of marriage from the Court of Principal Senior Civil Judge, Ranebennur to Family Court, Davanagere because of financial difficulty and traveling with a child causes hardship and it is detrimental to the child.

Counsel for the respondent, Sridhar R. conceded for the transfer with a condition that the petitioner shall cooperate for the early disposal of the case.

In view of the above, the Court observed that it is just and expedient to transfer the case as prayed for.[Kalpana B.K. v. Raghavendra, 2019 SCC OnLine Kar 2466, decided on 28-11-2019]

Case BriefsHigh Courts

Karnataka High Court: Mohammad Nawaz, J., while allowing the petition quashed the entire proceedings.

This instant petition was filed under Section 482 CrPC for quashing the proceedings under Sections 143, 147, 498-A, 323, 504, 506 read with Section 149 of the Penal Code and Sections 3, 4 and 6 of Dowry Prohibition Act, 1961.

Respondent 2 is the complainant and she is the wife of the petitioner 1.

Counsel for the petitioner, Arunkumar Amargundappa, submitted that complainant and petitioner had settled the matter by resolving their differences. Hence, the complainant did not want to prosecute the petitioners.

Respondent 2 and petitioner 1 had amicably settled their disputes. Therefore, the Family Court-dissolved their marriage by a decree. Hence, the proceedings which were then pending before JMFC-II were supposed to be quashed.

By analysing the facts and circumstances of the case, the Court observed that entire allegations in the complaint revolve around family issues, which after the settlement is resolved and both the parties after the dissolution of marriage had re-married. Respondent 2 had also received permanent alimony.

The Supreme Court in Gian Singh v. State of Punjab, (2012) 10 SCC 303 held that ‘power to quash a criminal proceeding may be exercised where the parties have settled particularly their matrimonial disputes’.

Hence, a continuation of criminal proceedings against the petitioners would tantamount to abuse of the process of law. [Girish v. State of Karnataka, 2019 SCC OnLine Kar 2094, decided on 10-10-2019]

Case BriefsHigh Courts

Kerala High Court: A Division Bench of A.M. Shaffique and T.V. Anilkumar, JJ., while dismissing the petition filed in respect to challenging the family court’s order for dissolution of marriage, stated that,

“..Since 2005 both wife and husband have not been able to unite and lead a normal matrimonial life all these years. There is every reason to assume that their matrimonial relationship is emotionally dead.”

In the present case, the wife challenged the order passed by the family court with respect to the dissolution of marriage with her husband.

The contention as submitted by the husband was that immediately after the marriage he had noticed that the wife was suffering from some sort of mental disease and behaving in an abnormal manner and for that reason was treated in Mental Hospital. Later he learned that she was suffering from Paranoid Schizophrenia which had started even before marriage for which she was treated earlier i.e. before marriage as well. Hoping for the wife to be better he continued with the marriage.

Adding to the above contentions, he submitted that she failed to discharge her duties as a wife and take care of her own child. In view of the said, he made his intention very clear in the year 2005 to her father that he could no longer continue with the matrimonial life with her and therefore he needed to dissolve the marriage. Her father agreed to the same and since then the wife has been staying with her father.

In respect to all the stated allegations of cruelty and mental disorder, the husband filed the original petition under Section 10(1)(iii) & (x) of the Divorce Act, 1869. Along with the stated he also sought a declaration that the marriage was null and void since the wife was suffering from the mental disease at the time of marriage.

Wife’s denial

All the stated contentions were denied by the wife, wherein she stated that the child was removed from her custody under the false pretext that she was suffering from some mental illness.

She further added that her negligible behavioural problems were exaggerated and presented before the doctors as acts amounting to mental illness and accordingly all the medical records were manipulated.

Lower Court’s stand

Court below held that the marriage was not null and void and rejected the claim for a declaration. It, however, held that the medical records sufficiently proved the wife to be a Paranoid Schizophrenia patient and she was suffering from the same even prior to the date of her marriage.

The lower court also found that her conduct and behaviour in matrimonial life amounted to acts of cruelty and accepting both the grounds urged under Section 10(1)(iii) & (x) of the Act, the respondent was granted an order dissolving the marriage between spouses.

High Court’s Observation and Analysis

The sole challenge raised in the present petition was with respect to the correctness of the order of the court below granting dissolution of marriage accepting grounds of cruelty and incurable mental illness urged by the respondent.

Court found that there was nothing on record to prove that the wife had been incurablY of unsound mind as required to be proved by Section 10(1)(iii) of the Act.

The essential ingredient to be proved for securing an order of dissolution of marriage under the above clause is that the mental illness shall be of such a nature that it is incurable.

Thus, disagreeing with the view of the Court below, Court held that the husband failed to establish ground under Section 10(1) (iii) of the Act for passing an order of dissolution and impugned order by the family court required interference in this respect.

High Court further noted that the husband had stated that right from the marriage, he had been trying to adjust with the wife and due to her mental ailment, he always had to care of her due to whom he was confined to home and prevented from mingling with associates and participating in social functions. This all resulted in a doomed and secluded life for him. He never received any love or affection from the wife and the same was the case with the minor child.

Court added that it remains to be a fact the child was taken care of by her father since the time of her birth and to the present time the child is with her father. Wife’s inability to take care of the child needs to be taken serious note of.

Continuation of the husband’s matrimonial life would only deprive him of mental peace as apprehended by the husband himself. In view of the stated, the lower Court agreed to it and even the High Court found no reason to disagree with the said view.

For all the above reasons together, the High Court found no reason to interfere with the finding of the Court below and the consequential order of granting the dissolution of marriage. [Dona T. George v. Mathews Purackal, 2019 SCC OnLine Ker 4265, decided on 12-11-2019]

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

Punjab and Haryana High Court:  Deepak Sibal, J. dismissed the present petition as the impugned order was not defective on the ground that framing of the issue was not challenged by the petitioner and evidence were led only on the same ground. 

A petition was filed against the dismissal order in which application filed by the petitioner was prayed for withdrawal of divorce petition with permission to file afresh.

The brief facts of the case were that petitioner filed a petition under Section 13 of the Hindu Marriage Act, 1955 for dissolution of the marriage between the parties on the ground of cruelty.  During the course of the trial, at the final argument stage, petitioner filed an application under Order 23 Rule 1 of the Code of Civil procedure, 1908 seeking withdrawal of his divorce petition with permission to file a fresh petition on the same cause which through the order impugned in the present proceedings has been dismissed.

Manish Kumar Singla, counsel for the petitioner submitted that there was a formal defect in the petition as averments had been made in the petition with regard to the respondent-wife having deserted the petitioner but since between the alleged date when the respondent-wife had deserted him and the filing of his petition the statutory period of 2 years had not elapsed, the Trial Court erred in not permitting the petitioner to withdraw his divorce petition with permission to file a fresh one on the same cause.

Karan Bhardwaj, counsel for the respondent submits that with regard to the issue of desertion, there was no formal defect in the petitioner’s petition and therefore, the petitioner cannot be allowed to withdraw his petition with permission to file fresh one on the same cause.

The Court opined that the respondent-wife had refused to join the company of the petitioner would not give a cause to the petitioner to seek divorce on the ground of desertion and there was no formal defect in the petitioner’s defect. It was further submitted that the ground of desertion was neither available to the petitioner nor taken by him. During the pendency of the petition, even if such ground has become available, the same would not make the petitioner’s petition as defective. Thus the matter was dismissed. [Kulwinder Singh v. Manmohan Kaur, 2019 SCC OnLine P&H 1337, decided on 25-07-2019]

Case BriefsHigh Courts

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

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

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

Case BriefsHigh Courts

Jharkhand High Court: Anil Kumar Choudhary, J. dismissed an interlocutory application praying for grant of special leave under Section 378 (4) of the Code of Criminal Procedure, 1973 against a judgment passed by Judicial Magistrate, Deoghar on the grounds of discrepancy in evidence and absence of perversity in the judgment.  

The appellant-complainant alleged that her husband (private respondent 2), after the birth of their daughter, physically and mentally tortured her to extract a sum of Rs 2,00,000 as dowry despite receiving Rs 7,50,000 at the time of their marriage. It was further alleged that he threw hot water at the appellant-complainant, after which she was treated at a hospital. The assault allegedly extended to the forceful acquirement of pieces of jewellery worth Rs 85,000. Witnesses were examined from both sides.  The complainant witnesses (hereinafter, CW) claimed that matrimonial disputes arose after two years of marriage. However, none could provide any specific date, day or year with regard to claims of assault nor could they provide medical records for treatment at the hospitals after the assault. Furthermore, there were contradictions in the testimony of CW 4. The defence witnesses, however, unanimously claimed that the appellant-complainant was rude and disliked staying in her paternal house.  Taking into account the testimonies, evidence and noting the contradiction in complainant’s testimony and the complaint, the trial court acquitted private respondent 2. Wife filed an appeal against this order of acquittal.

The complainant-appellant was represented by  Khalida Haya Rashmi who submitted a three-fold argument. Firstly, the court failed to study evidence, facts, and circumstances in its entirety such as that of dismissal of private respondent 2’s petition to dissolve the marriage by a family court. Secondly, the judgment by the trial court was perverse inasmuch as it failed to recognize appellant-complainant’s attempts to restitute her family life which caused a delay in filing of the case. Lastly, the discrepancy in evidence was a minor one, hence, cannot be solely relied upon to rule. The defense represented by the Public Prosecutor concurred with the observation of the trial court on the discrepancy in evidence and inordinate delay in lodging of FIR. Further, it was submitted that the lack of evidence for the offence in the present case was the right ground for acquittal.                                               

The Court concurred with the defense’s contentions holding that discrepancy in testimony and evidences do not clearly demarcate any specificity with regard to the duration or manner of cruelty. Further, relying on Rupali Devi v. State of U.P, 2019 SCC OnLine SC 493 where it was held that “Even if the acts of physical cruelty committed in the matrimonial house may have ceased and such acts do not occur at the parental home, there can be no doubt that the mental trauma and the psychological distress caused by the acts of the husband including verbal exchanges, if any, that had compelled that wife to leave the matrimonial home and take shelter with her parents would continue to persist at the parental home’. 

Thus, the Court dismissed the contention of ignoring discrepancy in evidence. Also, the Court holds that since no proceedings under Section 13 of the Hindu Marriage Act were brought about, therefore, no such proceedings can be referred to as precedents. The Court found no illegality or perversity as claimed against the trial court Judgment; rather, termed it as reasonable and plausible. Hence, the appeal was dismissed. [Meena Devi v. State of Jharkhand, 2019 SCC OnLine Jhar 769, decided on 13-06-2019] 

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Sudhanshu Dhulia and Ramesh Chandra Khulbe, JJ. entertained an appeal by the appellant-wife under Section 19 of Family Courts Act, 1984 against the impugned judgment granting divorce passed by Principal Judge of Family Court.

Facts giving rise to this appeal were, the respondent had filed a suit earlier under Section 13 of Hindu Marriage Act, 1955 which was decreed already. When the marriage was solemnized between the parties, the respondent was working as a Sepoy in the Indian Army and it was a smooth sail for both of them. Subsequently, respondent-husband filed for divorce and for dissolution of marriage on the grounds that appellant was suffering from epilepsy prior to marriage and such essential fact was not disclosed to him, the appellant also suffered from different ailments which served as a hindrance, physically and mentally in their prosperous marriage. But the actual ground on which suit was filed for divorce was cruelty and desertion.

The Court observed that parties are living separately for a long time, the issues framed by the Family Court were sufficient to grant a divorce in this particular case. It was also observed that the Family Court found that appellant suffered from epilepsy and was treated for the same in addition to it she also suffered from tuberculosis, and such physical suffering of the appellant served as mental cruelty upon the husband. The expert opinion stated that due to such ailments the appellant was not in a fit state to conceive a child. The Court appreciated that such ailments were not relevant grounds to prove cruelty and to dissolve the marriage prime facie but non-disclosure of such important facts before marriage led to cruelty which is a proper ground for divorce.

The Court stated that there was enough evidence before the court below to establish that there was cruelty on the part of the appellant/wife, such as threatening the husband to falsely implicate in criminal cases and making a complaint to the superior officers of the husband. The wife had also made unnecessary allegations against the respondent before the Commanding Officer, which lowered his esteem in the eyes of his superior officer.

Hence, the Court awarded permanent alimony and disposed the application of maintenance under Section 125 CrPC, it also found that there was no need to interfere with the Order of Family Court and setting aside the divorce decree.[Himani v. Rohit Bisht, 2019 SCC OnLine Utt 448, decided on 13-05-2019]

Case BriefsHigh Courts

Allahabad High Court: A Division Bench of Shashi Kant Gupta and Pradeep Kumar Srivastava, JJ. affirmed the Judgment of lower court granting a divorce to a lady under Section 13(1) of the Hindu Marriage Act, 1955, on the ground that her husband committed forcible unnatural sex with her.

The issue, in this case, was as to whether a marriage can be dissolved on the basis of allegations of forcible unnatural sex with wife. Facts in the case were that a lady (respondent herein) lodged an FIR against her husband (appellant herein) for offences under Sections 498A, 323, 504 and 377 the Penal Code, 1860 and Sections 3 and 4 of Dowry Prohibition Act, 1961. She filed a petition seeking divorce on the grounds that her husband committed forcible unnatural sex with her several times after marriage. On her refusal to comply with his demands, he beat her up and threatened to not spare her 5-year old daughter and make sexual relations with her as well. He also demanded Rs 40 lakhs and a car in dowry after marriage. She was granted divorce on the basis of her allegations. Husband challenged the judgment of the lower court by way of the present appeal, on the ground that there was no evidence of dowry demand, harassment or unnatural sex. Further, it was argued that medical report had been ignored and the lower court had relied upon the unsupported solitary statement of his wife by ignoring contradictions in her own testimony.

The Court pointed out that no cross-examination had been done by the husband on the point of unnatural sex because of which it was assumed that those facts had been proved against him. Regarding the contention that wife’s statements were not supported by any witnesses, it was concluded that all the matrimonial wrongs were done inside the wedlock which meant that these were private affairs of the parties. Hence, gathering independent witnesses was not possible. Regarding medical examination, it was concluded that the petition for divorce was filed much after the date of the incident of unnatural sex and sodomy so the medical report could not be obtained.

The Court agreed with the view taken by the Kerala High Court in Bini T. John v. Saji Kuruvila, 1997 SCC OnLine Ker 27 and Karnataka High Court in Grace Jayamani v. E.P. Peter, 1981 SCC OnLine Kar 208 that unnatural sex, sodomy, oral sex and sex against the order of the nature, against the wishes of a woman or wife was a criminal offence and a marital wrong amounting to cruelty which was a good ground for dissolution of marriage. It was observed that the standard of proof required in a matrimonial case is preponderance of probability.

The Court also noted that appellant’s first wife had divorced him for similar reasons, which fact supported the wife as far as unnatural sex was concerned. It was held that since the wife was not a consenting party, she would not be in the position of an accomplice; and her testimony could be accepted without corroboration if it inspired confidence. Thus, the impugned judgment was affirmed and the appeal was dismissed.[Sanjeev Gupta v. Ritu Gupta, 2019 SCC OnLine All 2255, decided on 24-05-2019]

Case BriefsForeign Courts

Supreme Court of Pakistan: The Three-Judge Bench of Mian Saqib Nisar, CJ and SH. Azmat Saeed and Ijaz-Ul-Ahsan, JJ. dismissed the appeal filed by a husband challenging the amount awarded to his wife after the dissolution of their marriage.

Appellant (husband) and Respondent 3 (wife) filed a suit for dissolution of marriage vide which their marriage was dissolved. A suit for return of dowry articles was also filed which was decreed by the learned Family Court for an amount of Rs 25,000. The decretal amount was enhanced to Rs 4 lakhs by the First Appellate Court in an appeal filed by Respondent 3. Appellant filed a writ petition in Lahore High Court assailing the order of appellate authority. The petition was partly accepted and amount in lieu of dowry articles was reduced to Rs 3 lakhs. Being still aggrieved, the appellant preferred the instant appeal before this Court.

Learned counsel for the appellant Mr Sarfraz Khan Gondal submitted that the Family Court had granted a decree for a sum of Rs 25,000 with regards to claim for dowry. Hence, in view of Section 14(2) of the Family Courts Act, 1964, no appeal was maintainable against the said Judgment. Therefore, the Judgment and decree of the First Appellate Court were wholly without jurisdiction. Consequently, the impugned order of Lahore High Court partly affirming the same was also liable to be set aside.

Learned counsel for Respondent 3 Mr Mian Shah Abbas contended that the embargo placed on the right of appeal applied only to the husband and not to a wife dissatisfied with the quantum or denial of relief.

The Court noted that Family Courts are a special forum for adjudication of family disputes in accordance with the special procedure set forth in the 1964 Act, purpose whereof is expeditious settlement and disposal of disputes relating to marriage and family affairs.

It was opined that the purpose of curtailing the Right of Appeal under Section 14 of the Act was to avoid the benefits of the decree being tied up in an appeal before a higher forum. However, the said provision could not be interpreted so as to exclude a right of appeal to a wife whose claim of dower or dowry has been partially or entirely declined as it would defeat the purpose and object of the Act and frustrate its beneficial nature. In view thereof, the appeal was dismissed for being devoid of merit.[Saif-ur-Rehman v. Addl. District Judge, Toba Tek Singh, 2018 SCC OnLine Pak SC 19, decided on 17-04- 2018]

Case BriefsHigh Courts

Calcutta High Court: A Single Judge Bench comprising of Ashis Kumar Chakraborty, J. allowed a challenge to the order passed by Additional District Judge whereby he allowed an amendment application filed by the husband in a matrimonial suit.

The husband filed the application for amending the plaint on the basis of two hand written declarations alleged to be written by the wife. The wife contended that no such declaration was executed by her. However, the Additional District Judge allowed the application holding that the suit for dissolution of marriage was filed by the husband on grounds of mental cruelty and the amendment sought to be made was only an elaboration of facts of mental cruelty perpetrated upon the plaintiff by his wife. Aggrieved thus, the wife challenged the said order.

The High Court was of the view that the order impugned could not be sustained. It was observed that the amendment application of the husband did not disclose the said self-written declarations allegedly executed by the wife. Furthermore, it was not even the case of the husband that the facts sought to be incorporated by him in the plaint were necessary for elaboration of the ground for divorce. The Court held that the Additional District Judge committed an patent illegality in passing the order impugned, and hence it was set aside. [Dyutimala Chatterjee nee Bagchi v. Subhrajit Chatterjee,  2018 SCC OnLine Cal 6152, dated 07-09-2018]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of S.A. Bobde and L. Nageswara Rao, JJ. allowed an appeal filed against the judgment of Delhi High Court whereby the marriage between the appellant and the respondent was held void.

The interesting factual matrix of the case is that, earlier, the appellant was married to one Rachna Agarwal. In August 2009, she had filed a divorce petition under Section 13(1)(ia) of the Hindu Marriage Act, 1955 which was allowed by the Additional District Judge and thus their marriage was dissolved. The appellant filed an appeal against the decree in the High Court. During pendency of the appeal, the appellant and the said Rachna Agarwal reached a settlement. Pursuant to the settlement, the appellant filed an application for withdrawing the appeal. It is pertinent to note that the settlement was reached on 15-10-2011; the application for withdrawal was filed on 28-11-2011, and the High Court dismissed the appeal as withdrawn on 20-12-2011. In the meanwhile, on 6-12-2011, the appellant married the respondent. Subsequently, consequent to matrimonial discord, the respondent filed a petition for declaring the marriage void under Section 5(i) read with Section 11. The main ground being that the appellant married the respondent during pendency of appeal against the decree of divorce from his first wife. The family court dismissed the respondent’s petition. However, on appeal, the High Court declared the marriage between the appellant and the respondent as null and void. Aggrieved by the same, the appellant filed the instant appeal.

To adjudicate the issue, the Supreme Court, inter alia, perused Section 15 of the Act. The Court observed that the section provides that it shall be lawful for either party to marry again after dissolution of marriage if there is no right to appeal against the decree. A second marriage by either party is lawful only after dismissal of an appeal against the decree of divorce is filed. The object of the provision was observed to provide protection to the appellant party and ensure that the said appeal is not frustrated. The purpose of the section is to avert complications that would arise due to a second marriage during pendency of the appeal, in case the decree of dissolution of marriage is reversed. The protection that is afforded is primarily to a person who is contesting a decree of divorce. In the instant case, after entering into the settlement as mentioned hereinabove, the appellant did not want to contend the decree of divorce. His intention was made clear by filing the application for withdrawal of appeal. The Court was of the view that it could not be said that he had to wait till a formal order was passed in the appeal, or otherwise his marriage dated 6-12-2011 was unlawful. Following the principles of purposive construction, the Court held that the restriction placed on second marriage under Section 15 till dismissal of an appeal would not apply to a case where parties have settled the matter and decided not to pursue the appeal. The judgment of the High Court annulling the marriage between appellant and respondent was held to be erroneous. Accordingly, the judgment impugned was set aside and the appeal was allowed. [Anurag Mittal v. Shaily Mishra Mittal, 2018 SCC OnLine SC 1136, dated 24-08-2018]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench at Goa comprising of C.V. Bhadang, J., confirmed the decree of dissolution of marriage between the parties passed by Court of Queen’s Bench of Alberta, Calgary, Canada.

An application under Article 1102 of the  Portuguese Civil Code was filed seeking the confirmation of the abovesaid decree of the abovementioned Court. A perusal of the Certificate of Divorce issued by the competent court showed that the marriage between the parties was dissolved. It was evident from the Separation Agreement that the dissolution was by consent of parties.

The High Court reiterated the requirements for confirmation  of such a decree, which included:

  • Authenticity of the judgment as well as the correctness of the reasoning;
  • Judgment of foreign court having become res judicata according to the law of the country;
  • Judgment being delivered by a court of competent jurisdiction;
  • Dispute between the parties not being subject to defences of lis pendens or res judicata.
  • Defendant having been duly summoned;
  • Judgment not going against the Portuguese public order; and
  • Judgment having been delivered not in violation of any of the Portuguese Private Law.

The Court held that the requirements as listed above were satisfied in the instant case. The application was, thus, allowed. [Joaquim Cardozo v. Fanny Margaret Mascarenhas E. Cardozo, 2018 SCC OnLine Bom 1830, dated 26-07-2018]