Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay S. Agrawal, J., reversed the judgment of the trial court and granted divorce in an application filed by the husband, while granting Rs 15 lakhs permanent alimony to the wife.

Applicant-Husband had preferred an appeal under Section 28 of the Hindu Marriage Act, 1955 questioning the legality and propriety of the trial Court’s decision whereby the application seeking a decree for dissolution of marriage on the ground of desertion and cruelty was dismissed.

Questions for determination:

(i) Whether the Non-applicant – wife has deserted her husband since 12.08.2009 without any rhyme and reasons being assigned entitling the Applicant for the decree of dissolution of marriage on the ground of desertion under Section 13 (1) (ib) of the Act, 1955?

(ii) Whether the Non-Applicant – Wife has levelled the false allegations against her husband pertaining to the demand of dowry by lodging a false complaint under Section 498-A of IPC read with Section 4 of Dowry Prohibition Act entitling the Applicant for the decree of dissolution of marriage on the ground enumerated under Section 13 (1) (ia) of the Act, 1955?

Analysis and Decision

High Court on noting that the applicant was living with another woman, therefore, there was a reason as to why the non-applicant had started living separately from her husband.

Therefore, the husband failed to establish the fact that his wife had deserted him without any justifiable reasons so as to obtain a decree for dissolution of marriage on the ground of desertion under Section 13(1) (ib) of the Act, 1955.

Further, on close scrutiny of the wife’s statement, it was revealed that the wife was never subjected to cruelty with regard to the demand of dowry as no evidence was led by her in this regard. Hence, the alleged complaint by the non-applicant was false.

Court added that the alleged marriage of the husband and wife had irretrievably broken down and was dead for all purposes.

The husband and wife were not only living separately for over more than 11 years, but a false criminal case was also found to be lodged by the non-applicant-wife against her husband, which caused mental cruelty to him.

Therefore, the husband would be entitled to get a decree for dissolution of marriage on the ground enumerated under Section 13 (1) (ia) of the Act, 1955 and, the finding of the trial Court declining to grant a decree for divorce on the ground of cruelty was accordingly set aside and the applicant was held to be entitled to a decree for divorce under Section 13 (1) (ia) of the Act, 1955.

With regard to the alimony, Court stated that, by considering the conditions prescribed under Section 25 of the Act, 1955 relating to claim of permanent alimony/maintenance and considering further the fact that the Non-applicant – wife has no independent source of income and that by taking note of the income of the Applicant – husband as reflected and observed from the details furnished coupled with the period of marriage, the ends of justice would be served by fixing amount of permanent alimony/maintenance at Rs 15,00,000 in lump sum payable to the non-applicant wife.

In the above direction, Court added that the applicant shall be entitled to deduct the maintenance amount from the permanent alimony.

In view of the above, the appeal was allowed. [Vasudev Prajapati v. Sunita Kumari, FA (M) No. 9 of 2015, decided on 28-4-2022]

Advocates before the Court:

For Appellant: Shri Manoj Paranjpe appears along with Shri Anurag Singh and Shri Subhank Tiwari, Advocate.

For Respondent: Shri H.B. Agrawal, Sr. Advocate along with Shri Amit Tirkey, Advocate.

Case BriefsHigh Courts

Delhi High Court: In a matter of dissolution of marriage, the Division Bench of Vipin Sanghi, ACJ and Jasmeet Singh, J., expressed that husband and wife together can deal with any situation, if one gets weak or breaks, the whole crashes down.

Husband preferred an appeal under Section 19 of the Family Courts Act, 1984 to quash and set aside the judgment passed by the Family Court.

On grounds of continuous acts of cruelty, the divorce petition was preferred by the wife and the family Court had allowed the said petition against the husband by the impugned judgment.

Husband stated that the issues which require adjudication in the present matter are as follows:

(i) Whether the Family Court was right in striking off the defence of the appellant?

(ii) Whether the respondent/wife was able to prove the charge of cruelty with cogent evidence against the appellant/husband before the Family Court?

Analysis and Discussion

High Court noted while rejecting the plea of the husband that fresh documents cannot be filed at the stage of evidence and are required to be filed along with a reply or written statement.

Order 8 Rule 1A (1) of Civil Procedure Code, 1908 (hereinafter referred to as CPC) mandates the defendant to file the documents in his possession at the time of filing the written statement. In case the defendant fails to file such documents at the time of presenting the written statement, then the same shall not be allowed to be received in evidence on behalf of the defendant.

Section 14 of the Family Courts Act, 1984 empowers the Family Court to receive any evidence, whether or not the same is relevant or admissible under the Indian Evidence Act if, in its opinion the same would assist it to deal effectually with the dispute before it. 

The Bench stated that, the appellant failed to comply with various orders of this Court, as well as of the Supreme Court, and the Family Court qua payment of the maintenance and preferred to indulge in frivolous litigations instead of paying the outstanding maintenance amount. The appellant was directed by this Court to deposit the maintenance amount.

In Court’s opinion, the Family Court was justified in striking off the defence of the appellant.

High Court cited the Supreme Court’s decision in V. Bhagat v. D. Bhagat, (1994) 1 SCC 337, wherein it was dealing with the divorce petition filed by the husband which he amended later from adultery to cruelty.

The Family Court in the present matter had granted divorce to the respondent under Section 13(1)(ia) of the HMA solely relying on the ground of “mental cruelty‟.

Remarking that “Husband and wife are two pillars of the family”, High Court held that, when one pillar gives up and puts all the burden on the other pillar, then it cannot be expected that one pillar will single-handedly hold the house together.

Hence, Court upheld the observation of the Family Court on noting that the husband had put the entire burden on the wife to manage the house, her job, and look after the children and he failed to discharge his duties as a husband and especially as a father.

Lastly, the High Court found that the bond between the parties has irretrievably broken down and wife was subjected to repeated harassment by the husband. Therefore, the wife had well established the ground of mental cruelty by the husband in light of Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511.

In view of the above, the present appeal was dismissed. [Sunil Kumar Sharma v. Preeti Sharma, 2022 SCC OnLine Del 1263, decided on 2-05-2022]

Advocates before the Court:

For the Appellant:

Md. Azam Ansari, Advocate with Mr Ashfaque Ansari, Advocate

For the Respondent:

Mr Gaurav Goswami with Mr Tarun Goomber and Mr Pankaj Mendiratta, Advocates

Case BriefsHigh Courts

Madhya Pradesh High Court: The Division Bench of Vivek Rusia and Amar Nath (Kesharwani), JJ. dismissed the first appeal filed by the appellant/husband which was filed against the judgment of the Family Court rejecting the decree for divorce.

The marriage of appellant/husband and respondent/ ‘ Wife’ was solemnized on 19-11-1999 under the Hindu ritual and customs. Out of the said wedlock, the respondent/wife gave birth to a son who currently is not residing with the wife. Differences arose between them during 5-6 months of marriage and she went to her parent’s house. Appellant/husband jumped to Family Court by filing a petition under Section 13 (1) (1-A) of Hindu Marriage Act on 13-10-2000 seeking divorce. The respondent/wife applied Section 125 of Cr.P.C. on 09-12-2000 and lodged an FIR for the offence punishable under Section 498-A of I.P.C. on 17-11-2000. She also filed an application under section 9 of the Hindu Marriage Act, 1955 seeking restitution of conjugal rights on 13-12-2000. Vide Judgment dated 30-11-2001, the appellant/husband had been acquitted for the offence punishable under Section 498-A of I.P.C. During the pendency of the aforesaid proceedings, several times compromises arrived between the parties and they lived together for some time. According to the husband, the behaviour of his wife towards his father-in-law and mother-in-law was not good, he had to take a rented house, he made all efforts to keep her happy but no improvement was shown which caused mental cruelty to him. Finally, on 05-04-2012, the respondent/wife called her father, mother and brother and went back to Ujjain along with her luggage and son. The husband again approached the Family Court filing the present petition under Section 13 of the Hindu Marriage Act on 14-07-2012.  Family Court had held that the matrimonial dispute between appellant/husband and respondent/wife was on petty issues, and cannot be termed as cruelty, hence, appellant/husband was not entitled to dissolution of marriage.

The respondent/wife was present with her son and had shown her willingness to live with the appellant/husband. The appellant/husband has shown his adamant attitude and straightway declined to take her back.

The Court was of the opinion that appellant/husband being a husband and father cannot run away from the responsibility towards his son by simply taking divorce on the ground that he wants to serve his mother and father for remaining his life. His son must be the same feeling to serve his father. The appellant has a responsibility toward his son and wife also, he cannot leave them alone at this stage of life. The Court was of the affirm view that the appellant has failed to establish his case to get the decree of divorce. The decree of divorce cannot be granted merely on the ground that husband and wife are living separately since last so many years. The appellant has failed to establish the allegation levelled in the petition by leading evidence.

“Based on Hindu law, marriage is a sacred tie and the last of ten sacraments that can never be broken. Also, it is a relationship that is established by birth to birth. Also, it is not only considered as sacred but it is also a holy union. The main objective of marriage is to enable a woman and a man to perform their religious duties. Along with this, they also have to beget progeny. Based on ancient writings, a woman is considered half of her husband and thus completes him. While a man is also considered incomplete without a woman.”

[Parag Pandit v. Sadhana, First Appeal No. 905 of 2014, decided on 12-04-2022]

For the appellant: Mr Vinay Puranik

For the respondent: Mr Vibhash Khedekar

Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Bombay High Court: In a matter of matrimonial discord, Mangesh S. Patil, J., expressed that, when admittedly, for whatever reason, there was a marital discord and the wife had started residing with the infant child at her parental house barely within three years of her marriage, it cannot be expected of her not to prosecute whatever rights and remedies she has under the law.

Husband has preferred the second appeal who had filed a petition for divorce under Sections 13 (1) (i-a) and 13 (1) (i-b) of the Hindu Marriage Act, 1955. The wife sought enhancement of maintenance in another second appeal.

Factual Background

It was stated that the wife never cohabited with the husband peacefully. The wife later started insulting his relations and never used to discharge the daily chores and started going to the parental home clandestinely.

The wife filed various proceedings against the husband and his relatives, after which the husband filed a proceeding for restitution of conjugal rights, but she opposed it and the same was dismissed. She even caused him to be arrested in a maintenance proceeding and after which he prayed for the dissolution of marriage on the ground of cruelty and desertion.

Trial Court decided that the wife had subjected him to cruelty and even deserted him without sufficient cause, hence dissolved the marriage. In fact, the proceeding of enhancement of maintenance was dismissed to the extent of the wife.

Aggrieved with the above, appeals were before the District Court, wherein the Court disagreed with Trial Court’s decision. Though the District Court granted some enhanced maintenance to the daughter but confirmed the trial Court’s decision with regard to refusing maintenance to the wife.

Analysis, Law and Decision

High Court noted that except for the highly interested testimonies of the husband and his brother there was no corroboration about any behaviour of the wife while she was cohabiting with them in the matrimonial home much less to demonstrate that she had treated the husband and his relations with cruelty.

Though the Bench observed that,

“…no strict proof of all these facts and circumstances can be insisted for since it is a matrimonial dispute happening in the four walls of the matrimonial home.”

High Court added to the above analysis that,

Filing of a maintenance proceeding, a criminal case for harassment cannot per se be said to be sufficient to jump to a conclusion that by filing such proceedings she was intending to harass the husband and his relations.

Elaborating further, the Bench also stated that merely because the complaint filed by the wife was dismissed, no inference is deducible of it being false and fictitious.

In spite of allowing all the applications for production of additional evidence under Order XLI Rule 27 the husband has been unable to demonstrate and justify the ground of cruelty, a conclusion drawn by the trial court which apparently was not founded on sufficient and cogent evidence.

Lastly, the Bench held that the decision of the trial court and the lower appellate court refusing to enhance maintenance to the wife are quashed and set aside. That suit be remanded to the trial court for decision afresh to the extent of the wife.[Vasant Punju Chavan v. Sarala Vasant Chavan, 2022 SCC OnLine Bom 804, decided on 13-4-2022]

Advocates before the Court:

Advocate for Appellant : Mr. Chandrakant P. Patil h/f. Mr. Paresh B. Patil

Advocate for Respondent: Mr. Girish S. Rane

Case BriefsHigh Courts

Bombay High Court: The Division Bench of V.K. Jadhav and Sandipkumar C. More, JJ., addressed whether Family Court under Muslim Personal Law (Shariat) Application Act, 1937 read with Section 7(1)(b) Explanation (b) of the Family Courts Act, 1984 declare the matrimonial status of a wife and husband.

The applicant/accused sought to quash an FIR for the offences punishable under Sections 498(A), 323, 504, 506 of the Penal Code, 1860 on the ground that the parties arrived at an amicable settlement.

Applicant’s counsel submitted that applicant-husband and respondent 2-wife got separated by mutual consent and hence approached the Family Court for declaration of their matrimonial status in terms of provisions of Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 read with Section 7(1)(b) Explanation (b) of the Family Courts Act, 1984.

Family Court had allowed the petition and declared their status as they were no more husband and wife in terms of the mutual agreement between them. Further, it was agreed between the parties that the applicant-husband shall pay an amount of Rs 5 lakhs to respondent 2 as the amount for future maintenance in total.

Respondent 2 submitted that she was not interested in prosecuting the applicant.

Analysis, Law and Decision

In the present matter, in terms of provisions of Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, all the questions about the property, marriage, dissolution of marriage including talaq, illa, zihar, lian, khula and mubaraat, maintenance, dower, guardianship gifts, trusts and trust properties and wakfs the rule of decision in cases where the parties are Muslims shall be considered as per the provisions of Muslim Personal law (Shariat).

Section 7 of the Family Courts Act, 1984, prescribes jurisdiction, in terms of Section 7(1), Explanation (a) and (b), suit for a declaration as to the validity of a marriage or as to the matrimonial status of any person can also be a subject matter before the Family Court.

Therefore, Family Court had rightly applied the provisions of the Muslim Personal Law (Shariat) Application Act, 1937 to the parties before this Court and hence declared the status of marriage as no more in existence by mutual consent.

While concluding the matter, the Bench allowed the criminal application. [Shaikh Taslim Shaikh Hakim v. State of Maharashtra,  2022 SCC OnLine Bom 757, decided on 29-3-2022]

Advocates before the Court:

Mr. Shaikh Wajeed Ahmed, Advocate for the applicant. Mr.S.S. Dande, APP for the respondent/State. Mr. Samir Shaikh, Advocate for respondent No.2.

Case BriefsHigh Courts

Tripura High Court: The Division Bench of S. Talapatra and S.G. Chattopadhyay, JJ. dismissed an appeal which was filed under Section 28 of the Hindu Marriage Act, 1955 from the judgment by the Additional District Judge declining to grant the divorce and consequently dismissing the suit. It was observed that case did not reflect any such situation which can demand the dissolution of marriage between the petitioner [the appellant and the respondent].

Mr B. Debbarma, counsel appearing for the appellant contended that while returning the said finding, the Additional District Judge had appreciated the evidence perversely as he did not read the evidence properly. If the evidence was read properly, it would have been apparent that the appellant had established the incidence of cruelty that she suffered during her stay with the respondent. It was also submitted that appellant and the respondent were living separately since 14-04-2016 and as such, that constituted desertion as the marital tie had been irretrievably shattered.

Respondent resisting the plea had made categorical statement in his written statement that he intended to take back the appellant for reconstruction of the matrimonial life and had refused on the ground that she was tortured in the matrimonial home.

Mr S. Lodh, counsel appearing for the respondent had pointedly argued that even if the entire story of the appellant was believed, the suit was wholly based on one incidence of 14-04-2016. Even, that incident had been disbelieved by the Additional District Judge for the reason that there was no evidence relating to the attending circumstances.

The Court scrutinized the evidence and was of the view that there was no reliable evidence either for proving the cruelty or desertion. It was found by the Court that it was the appellant who was not ready to continue the marital life and she had left the matrimonial home by advancing a pretext. The Court believed that they were unable to approve this kind of matrimonial conduct or filing a suit for divorce on such coloured narrative.

The appeal was dismissed holding that if the parties were unable to live together, they have other remedies but as the grounds of cruelty and desertion have been left unproved plea of divorce cannot lie.[Smrita Singha v. Sankar Chakraborty, 2022 SCC OnLine Tri 154, decided on 24-03-2022]

Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: The Division Bench of L. Nageswara Rao and B.R. Gavai, JJ., dissolved a marriage while exercising its jurisdiction under Article 142 of the Constitution of India as the marriage was emotionally dead.

Appellant had married respondent and registered the same under the Special Marriage Act, 1954. Thereafter the marriage was solemnized under Hindu rites and customs.

Appellant filed a suit for dissolution of marriage alleging cruelty and desertion by the respondent, but the suit was dismissed by the District Judge and further the Calcutta High Court upheld the Trial Court’s decision.

Respondent accused the appellant of adultery and excessive consumption of alcohol.

Senior Counsel, Nikhil Nayyar for the appellant submitted that appellant and respondent have been living separately for more than 16 years and for all practical purposes the marriage is dead.

Supreme Court requested Mr Ranjan Mukherjee to assist this Court as Amicus Curiae on behalf of the respondent as she did not engage an Advocate.

Amicus informed the Court that the respondent intended to continue to live with the appellant. Mr Mukherjee also brought to Court’s notice that the respondent has to take care of her son who is suffering from serious ailments.

This Court in Munish Kakkar v. Nidhi Kakkar, (2020) 14 SCC 657, had put an end to the bitter matrimonial dispute which lingered on for two decades between the parties.

In Court’s opinion, the marriage between the parties was emotionally dead and there was no point in persuading them to live together anymore.

Hence, the present matter was found fit for exercise of jurisdiction under Article 142 of the Constitution of India and the marriage was dissolved.

In light of the submission of Mr Mukherjee, Court directed the appellant to pay Rs 25 lakhs to the respondent and the maintenance petition filed by respondent shall be withdrawn once the payment of the said amount is made.

In view of the above appeal was disposed of.[Subhranshu Sarkar v. Indrani Sarkar (Nee Das), 2021 SCC OnLine SC 720, decided on 14-09-2021]

Case BriefsHigh Courts

Punjab and Haryana High Court: The Bench of Arun Monga, J., allowed waiver statutory period of 6 months for dissolution of marriage and granted divorce to the couple entrapped in an irretrievably broken marriage.

The petitioners had approached the Court under Article 227 of Constitution for setting aside the impugned order of the Family Court whereby application for waiver of the statutory period of 6 months filed in a joint petition under Section 13-B of the Hindu Marriage Act, had been dismissed, being not in consonance with the guidelines laid down by Supreme Court in case of  Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746. The marriage of the parties was solemnized in 2001 according to Hindu Rites and Ceremonies. The parties had two children, one son who unfortunately died. While the daughter was married and was living in a matrimonial home. Due to temperamental differences, the parties had been living separately since December, 2015.

Since there were no chances of reconciliation, therefore, the parties filed a joint petition for the dissolution of their marriage by way of mutual consent, under Section 13-B of HMA. All the disputes regarding permanent alimony etc. were settled and a sum of Rs. 2 lakhs (out of the settled amount of Rs.5 lakhs) was paid by petitioner 2 to petitioner 1. Hence, both the parties had moved an application for waiver of statutory period of six months, which had been dismissed by the Family Court.

The petitioners argued that the Court below had not rightly appreciated the facts and circumstances of the case while not waiving the period of 6 months. It was contended that they had consented to part their ways and were being unnecessarily asked to wait for another six months.

In the light of the above, the Bench opined that the marriage of the petitioners had broken down irretrievably and there was no possibility of any reconciliation between them. Therefore, the order of the Court below in insisting the parties to wait for another six months for the second motion hearing, was totally uncalled for. Holding that the marriage between the parties had irretrievably broken and now they had decided to part their ways, so that they both have an opportunity to live their lives in the manner they like, hence, insistence of the Court below to wait to another six months would result in adding to their woes. Consequently, the revision petition was allowed and the impugned order was set-aside. The Family Court was directed to entertain the petition filed by the petitioners by waiving off six months period and proceed with the petition in accordance with law.[Sunita v. Yogesh Kumar, 2021 SCC OnLine P&H 1057, decided on 19-04-2021]

Kamini Sharma, Editorial Assistant ahs reported this brief.

Appearance before the Courts by:

For the Petitioner: Adv. Amit Choudhary

Case BriefsHigh Courts

Madras High Court: The Division Bench of T. Raja and G. Chandrasekharan, JJ., while upholding the decision of Court below stated that for 12 long years the wife did not appear for any proceedings to disprove the allegations of husband and crucial allegations such as assaulting husband on his vital part of the body are included which were never denied by the wife, then how can the parties be made to live together.

Present appeal was directed against the decision of the Family Court dissolving the marriage between the parties.

Counsel for the appellant/wife argued that the trial court without taking into account the contents of various exhibits and contents of cross-examination of the respondent/husband gave a finding of guilt of cruelty meted out to respondent/husband that could not be sustained as the same was a result of erroneous appreciation of entire materials available before the Court below.

It was also submitted that the husband had fabricated certain documents to evade the payment of maintenance. Due to which the wife had to file a number of proceedings for which the appellant could not be demoralized giving a stamp of inflicting cruelty upon her husband.

Issues that arose in the present matter were as follows:

  • Whether the failure on the part of the appellant/wife to participate in the divorce proceedings before the Court below would amount to accepting the allegations made by the respondent/husband as true?
  • When the respondent/husband has filed the petition for divorce under Section 13(1)(ia) of the Hindu Marriage Act, on the refusal of the appellant/wife either to appear in the witness box to state her own case on oath or not offering herself to be cross examined by the other side, whether the Court below is legally justified in drawing an adverse presumption that the case set up by the appellant/wife is not correct, under Section 114-Illus.(g) of the Evidence Act?

High Court’s Analysis and Finding

Bench stated that since the wife had raised counter-allegations, it was her duty and obligation to appear before the Court below and substantiate the same by disproving the allegations made by the respondent/husband by seriously participating in the enquiry.

It was rightly submitted by the counsel for the husband that when the divorce petition was pending from 2007 till 2019, for almost a period of 12 long years appellant/wife had chosen to filed 13 interlocutory applications but it is not known why she did not choose to appear before the Court below to take part in the enquiry.

Secondly, when the wife filed a case against the respondent under Sections 498(A), 406, 323, 504 & 506 of IPC, for which a trial of 9 long years was held, after which the husband and his parents were acquitted, it is unknown why the appellant devoted time to project a false case but did not appear for the enquiry before the Court below to disprove the allegations made by the husband.

Thirdly, she had also filed a case of domestic violence and for maintenance.

High Court stated that when she had boycotted the proceedings before the Court below, where she had the advantage of examining and cross-examining the respondent, she could not have come to this Court.

Bench referred to Order VIII Rule 5(1) of the Code of Civil Procedure, as per which every allegation of fact in the plaint, if not denied specifically or by necessary implication, the same shall be taken to be admitted as against the person who failed to deny the same.

Conjoint reading of Order XVI, Rule 20, Order XV, Rule 4, Order XVI, Rule 20 and Order XXII, Rule 4 of CPC shows that where any party to a suit pending in Court refuses to give evidence or to produce any document then and there in his/her possession or avoid the Court willfully, the Court can pronounce judgment or make such order against that party on the ground that he or she failed to prove the case.

High Court referred to the Supreme Court decision in Mohinder Kaur v. Sant Paul Singh, (2019) 9 SCC 358, wherein it was held that a party to the suit who does not appear in the witness box to state his own case on oath and does not offer himself to be cross examined by the other side, would suffer a presumption, because the case set up by hi would not be genuine, natural or honest and real one.

12 Long Years and No Appearance

Further, in the present matter, Court’s opinion was that when the appellant/wife deliberately and willfully boycotted the proceedings before the Court below for 12 long years due to not having any evidence, she cannot approach this Court with this appeal since the same will not be maintainable.

A very crucial allegation made by the husband was that the wife had assaulted him on his vital part of the body and the same was not even denied by the wife in the counter affidavit.

In view of the above-said allegation and no denying of the same by the wife, it is clear that the wife not only caused mental cruelty but also physical cruelty upon the husband.

“…when the parties are all fighting for more than 14 long years, they cannot be made to live together.”

Unclean Hands

Family Court of Mumbai found that the appellant came to the Court with unclean hands since in the proceeding regarding maintenance she did not show that she was working and having a source of income.

The above order became final, this Court found no justification in this appeal.

High Court found no infirmity or error in the decision of the Family Court and hence upheld the same. [Narayanee v. S. Karthik,  2021 SCC OnLine Mad 2080, decided on 24-03-2021]

Advocates before the Court:

For Appellant: Dr K Santhakumari

For Respondent: J. Saravanavel

Op EdsOP. ED.

On 10-3-2021, the Punjab and Haryana High Court, in Moyna Khatun v. State of Punjab[1] dismissed the petition of Ms Moyna Khatun, aged 18 years and Mr Lab Singh, aged 19 years, seeking protection of their life and liberty at the hands of private respondents.

Live-in relationships or relationships in nature of marriage have slowly gained legal and judicial acceptance in the country. Statutorily, the Evidence Act, 1872[2] allows the court to draw a presumption of marriage under Section 114(g)[3] and Section 50[4]. In order to establish the presumption it has to be proved that the man and woman were living together for a long period as husband and wife; and that they projected themselves to the society as a married couple. There is no need to prove the factum of marriage in cases falling under Section 114. This reflects the approach of the law that it assumes in favour of marriage and against concubinage when couples have lived together as husband and wife for a long period of time.

Another statute which recognises live-in relationships is the Protection of Women from Domestic Violence Act, 2005[5] (the PWDVA, 2005), which was passed in keeping with India’s international commitments to address gender specific grievances of women. Section 2(f) of the PWDVA, 2005[6] defines a domestic relationship as a “relationship between two persons who live or have lived together in a shared household when they are related by consanguinity, marriage, adoption or through a relationship in the nature of marriage”.

The need to include relationships in nature of marriage was recognised in the Report of the Parliamentary Standing Committee on the Protection from Domestic Violence Bill, 2002[7]. The Committee acknowledged that there are many instances in India where a man and woman, though not legally married, still live together as husband and wife and have social sanction for it as well. Therefore, these relationships need to be included within the framework of the law to ensure that such women who are victims of any kind of violence that occurs within the family are protected. Relationship in nature of marriage is defined as analogous to common law marriage[8] i.e. the couple has to hold themselves out to the society as being akin to spouse; have to be of legal age to marry; have to be otherwise qualified to enter into a marriage, including being unmarried; and have to voluntarily cohabit for a significant period of time.

Landmark cases such as D. Velusamy v. D. Patchaiammal[9] and Indra Sarma v. V.K.V.  Sarma[10] have recognised and given contour to the factors that need to be established for proving live-in relationships. The Courts, have also generally been sensitive towards partners of live-in relationships. For instance, in Nandakumar v. State of Kerela[11], the Supreme Court allowed an underage couple to live together. It recognised that the concept may be socially unacceptable, but in law, it could not be looked down upon. Similarly, in a Gujarat High Court decision of 2020, the Court ordered the police to extract the documents of the girl from her father so that she could subsequently solemnise marriage with her live-in partner.[12] The Punjab and Haryana High Court has also ordered police protection to live-in couples in cases like Simran Kaur  v. State of Punjab[13] and Sukhbir Singh v. State of Punjab[14], Soniya v. State of Haryana[15], Priyapreet Kaur v. State of Punjab[16], Pardeep Singh v. State of Haryana[17] as also the Allahabad High Court in Kamini Devi v. State of Uttar Pradesh[18].

The case of Moyna Khatun v. State of Punjab[19] is a unique case of live-in relationships. The female partner, aged about 18 years and the male partner, aged about 19 years, entered into a live-in relationship deed, which they settled by way of mutual consent. Through the contractual live-in-relationship, both parties agreed their relationship will not be a marital relationship; that they will fully cooperate with each other without any dispute and will not claim anything against each other; and if either party backs out from the aforesaid deed, the other party will have a right to approach a competent court of law for implementation of the same. Further, the parties will be entitled and will be at liberty to terminate the deed at any time after giving one month’s notice to the other party. Additionally, on attaining marriageable age, the parties agreed to solemnise marriage. It was also submitted by the counsel for the parties that the deed was executed by the parties in Patiala.

This is the first time that a case of such nature has come before any court in India. The Hon’ble Judge dismissed the petition on the ground that the terms and conditions of the deed, especially stating that it is not a marital relationship, is nothing but the misuse of the process of law as it cannot be morally accepted in society. This brings the author of this piece to the larger question of whether deeds of live-in relationships are void ab initio, or they have some merit in the law and can be executed in certain circumstances.

In countries such as the United Kingdom and the United States of America, live-in partners can enter into cohabitation contracts. These contracts are primarily used to protect the rights of the cohabiting partners upon dissolution of the relationship, either by death or dissolution. These generally include, but are not limited to, disclosure of each partner’s assets and liabilities. With respect to property of the partners, the agreement must specify how the parties intend to deal with property owned before the relationship as well as that acquired afterwards. Matters other than property that can form part of such an agreement are support, custody or visitation rights for children born during the relationship and payment of debts before and during the relationship. Inclusion of such clauses will make the agreement holistic and truly lead to protection of the rights of live-in partners.

When cohabitation contracts, or live-in relationship deeds are so framed, the next point of enquiry becomes whether such deeds are opposed to public policy. Not only in India, but in USA and UK as well, cohabitation contracts have been challenged on the ground of violating public policy. There are two public policy aspects implicit in the proposition of legally accepting the validity of cohabitation contracts – the execution of such contracts can lead to dissolution of the institution of marriage, and an increase in cohabitation; and, these contracts may be based on meretricious agreements. The latter was discussed in the landmark case of Marvin v. Marvin[20]:

Adults who voluntarily live together and engage in sexual relations are nonetheless as competent as any other persons to contract respecting their earnings and property rights. Of course, they cannot lawfully contract to pay for the performance of sexual services so long as the agreement does not rest upon illicit meretricious consideration, the parties may order their economic affairs as they choose, and no policy precludes the courts from enforcing such agreements.[21]

On the question of whether cohabitation agreements discourage marriage, the enquiry will lie in determining whether encouraging marriage is a matter of public policy, or, does it fall within the realm of private lives of people? Historically, marriage has been said to hold a place of extreme significance, both for the individuals as well as for the State. It was considered as the basic unit of society, a constituent element in determining the political theory, and consequently the functioning of the State.[22] It creates strong ties of identity, kinship, mutual interdependence and responsibility[23] and … brings with it a psycho-physical intimacy[24]. Marriage also serves as the backbone for the principle of legitimacy, since human children require a long duration of caring and it is in their benefit that they can associate to an identifiable mother and father as nurturers.[25]

Over the years, marriage has taken an institutional form, acceptable both in society and in religion. This is evident from the sacrosanct status to marriage given under the Hindu Law, wherein it has been considered to be a samskara. Similarly, in Islam, marriage is considered to partake elements of both ibadat i.e. worship and muamlat i.e. daily affairs of men. In Christianity as well, marriages have to be officially validated by a priest and clandestine living together or informal marriages are not accepted.[26]

The social significance placed upon marriage by legitimising it through religious and ceremonial practices reflects the notion of “marriage as a status”. Gradually, however, as with the movement of all States from “status” to “contract”, marital relationships have also moved from “status” to “contract”.[27] As a result of this, people have found the legal space to exercise their option of entering into non-marital unions. Live-in relationships are a form of intimate partner living.

A live-in relationship or cohabitation does not require proof of the couple being akin to spouses. It is thus, an alternate form of living together and founding a family. These relationships find their basis in the will theory of contract.[28] The prime reasons for the growth of live-in relationships have been the freedom associated with this living arrangement, test of emotional and physical compatibility and rejection of restrictions and inequalities that have come about in the institution of marriage.[29] At the same time, cohabitation relationships often involve incidents of marriage such as emotional and physical exclusivity of partners; expectations of a permanent relationship; stability and similar phenomena. Some partners may even comingle their assets, incomes, financial burdens and have children.[30] The main criticism against acceptance of cohabitation relationships is its duration and often impermanence. However, with increasing divorce rates, this argument may not hold tight. In India, the number of divorces has doubled over the past two decades. Though only 1.1 per cent of women are divorced, those in urban areas make up the largest proportion.[31]

In India marriage is the dominant form of intimate partner relationship. Living together, though socially unacceptable is legally acceptable. However, not every relationship qualifies as a live-in relationship, and the strict interpretation laid down by the courts has to be complied with in order to get the protection of the law. Presently, the law provides only limited rights to partners who live together. Maintenance is one such right that has been secured for the female partner, through a catena of judgments. Upon dissolution of the relationship due to separation or death of a partner, the law is silent on property rights, or even the matters of custody of children who are born during the relationship. If live-in deeds provide for the management of property, they will indeed secure rights of both parties, especially when this cannot be achieved by the succession laws of the country.  It will ensure that the partner with lower earnings has an income to rely on upon dissolution; and, the higher earning partner is not exploited eventually. Providing for child custody will also reduce unnecessary litigation and provide a harmonious environment for the upbringing of the child. The arrangement can however, be challenged in the court if it is found to not be in the best interest of the child. Mere mentioning of the relationship as a live-in relationship should also not be considered as a ground for rejecting the contractual arrangement if it can be established by the parties that their relationship is equivalent to a de facto marriage. It is here that the tests laid down by the Supreme Court will be useful. It will also exclude the possibility of the relationship being a meretricious one, as was cautioned in Marvin v. Marvin.[32]

Public policy is an unruly horse, but must change with the changing times. The same can even be said about immorality as a ground for not executing a contract. The aim of public policy is to preserve public welfare, wherein, individual freedom is restricted to ensure the general good of the society. Immorality too aims to protect the larger societal good. In light of this, it is imperative to note that the Parliamentary Standing Committee itself recognised the existence of live-in relationships in India. The author submits that merely mentioning that a relationship is a live-in relationship and not a marital relationship should not be considered immoral. Further, when the live-in relationship deed provides for protection of property, financial and custody and guardianship rights, it must be executed, subject to the principles of property and guardianship laws.

*Assistant Professor of Law, Institute of Law, Nirma University. Author can be reached at

[1] 2021 SCC OnLine P&H 920.

[2] Evidence Act, 1872.

[3] Ibid, Section 114 (g).

[4] Ibid, Section 50.

[5] Protection of Women from Domestic Violence Act, 2005.

[6] Ibid, Section 2(f).

[7] Department-Related Parliamentary Standing Committee on Human Resource Development on the Protection from Domestic Violence Bill, 2002 (Report No. 124).

 [8] D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469.

[9] Ibid.

[10] (2013) 15 SCC 755.

[11] (2018) 16 SCC 602.

[12] Bhakhodiya Ashokbhai Rameshbhai v. State of Gujarat, 2020 SCC OnLine Guj 2984

[13] 2017 SCC OnLine P&H 5409.

[14] 2015 SCC OnLine P&H 20771.

[15] CRWP No.4533 of 2021, decided on 18-5-2021.

[16] 2020 SCC OnLine P&H 2340.

[17] 2021 SCC OnLine P&H 921.

[18] Writ C No. 11108 of 2020, decided on 23-11-2020.

[19] 2021 SCC OnLine P&H 920.

[20] (1976) 18 Cal 3d 660.

[21] Ibid.

[22] Elizabeth Brake, Marriage and Domestic Partnership, Stanford Encylopaedia of Philosophy (12-3-2021, 10:00 a.m.) <,theory%20(Politics%2C%201264b)>.

[23] Marriage and the Public Good: Ten Principles (Princeton, New Jersey, 2006), [Philosophy (12-3-2021, 10:30 a.m.)] <>.

[24] E.O. James, Marriage and Society, (Hutchinson University Press, London, 1952)

[25] Kris Franklin, A Family Like any Other Family: Alternative Methods of Defining Family in Law, 18 NYU Rev. L. & Soc. Change 1027, 1033 (1990).

[26] Lord Hardwicke’s Marriage Act of 1753 declared that all marriage ceremonies must be conducted by a Minister in a Parish, Church or Chapel of the Church of England to be legally binding.

[27] Janet Halley, What is Family Law?: A Genealogy Part I, 23 Yale JL & Human, 52, 56 (2011)

[28] Ibid.

[29] State v. Manu Gopal, SC No. 456/2017, decided on 5-1-2019 (Delhi District Court).

[30] See Newcomb, Cohabitation in America: An Assessment of Consequences 43 (3) J. Mar & Fam. (1979); Glick & Norton, Marrying, Divorcing, and Living Together in the US Today, 32(5) Population Bulletin 32 (1977).

[31] UN Women Report on Progress of the World’s Women 2019-2020: Families in a Changing World, United Nations in India, <> (13-3-2021, 9:30 p.m. )

[32] (1976) 18 Cal 3d 660.

Case BriefsSupreme Court

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

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

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


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

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

Family Court’s finding

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

High Court’s finding

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

Husband’s case

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

Wife’s case

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

Supreme Court’s analysis and finding

What amounts to Mental Cruelty?

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

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

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

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

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

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

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

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

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

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

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

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

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

*Judgment by: Justice Hrishikesh Roy

Know Thy Judge | Justice Hrishikesh Roy

Appearances before the Court by: 

For Appellant – Senior Advocate Gopal Sankaranarayanan

For respondent – Advocate Ahmad Ibrahim

Case BriefsHigh Courts

Calcutta High Court: Sabyasachi Bhattacharyya, J., expressed that:

Where a conflict arises between individual conscience of the concerned Judge and judicial conscience, supported by law of the land, the former has to give way to the latter.

Second wife of Sardar Natha Singh (deceased) who was a freedom fighter getting a pension from the Central Government under the Swatantra Sainik Samman Pension Scheme, 1980 till his demise has preferred the present challenge.

Petitioner, relying on a deed of declaration of divorce, executed by respondent 11, the first wife and Sardar Natha Singh, the husband of petitioner claimed widow pension, which was refused on the ground that such deed of divorce was not acceptable under the Hindu Marriage Act, 1955 in the absence of a decree of divorce obtained from a competent court of law.

It was submitted that the petitioner and her husband were governed by customs of Jat Sikhs, which permit such a divorce. Petitioner claimed that Section 29(2) of the Hindu Marriage Act, 1955 is attracted.

Analysis and Decision

While noting the facts and circumstances of the case, Bench expressed that for Section 29(2) of the Hindu Marriage Act, 1955 to be invoked, it has to be established by the party relying on a custom that the right of the party was recognized by custom, to obtain the dissolution of a Hindu marriage.

Court noted that in the present matter, High Court did not approach the civil court for a declaration regarding the validity of the divorce deed.

Further, Bench added that the burden and the initial onus lies on the petitioner to prove the existence of a custom having the force of law, to be proved by evidence – oral or documentary – in order to attract the benefit of Section 29(2) of the Hindu Marriage Act.

Section 2(1)(b) of the Hindu Marriage Act, 1955 stipulates that the Act applies to Sikhs as well. Thus, the provisions of the Act, including Section 13 thereof (pertaining to divorce), applies to Sikhs in general.

 High Court stated that marriage between respondent 11 and her deceased husband could only be dissolved by a decree of divorce passed by a competent court on any of the grounds as mentioned in Section 13 of the Act, unless the existence of any contrary custom was proved by evidence.

To justify an exception to Section 13 within the purview of Section 29(2), petitioner had to approach a civil court and establish by evidence that the dissolution of the marriage between respondent 11 and her deceased husband was recognized by custom.

Bench also stated that respondent-authorities do not have the jurisdiction in law to decide the matrimonial status of the private parties and/or the validity of the deed of declaration, which could only be done before a civil court.

The initial grant of pension to respondent 11 is an endorsement of the fact that the first wife was found eligible for such pension by the respondent authorities and she had already started getting pension.

A suit in question was filed by respondent 11, inter alia, for a declaration that she was the only married wife and the only widow of Sardar Natha Singh and was entitled to widow pension and that the present petitioner was not the wife and widow of Sardar Natha Singh.

While concluding, Court expressed that the divorce decree executed purportedly between respondent 11 and her deceased husband was not endorsed by any valid custom, the exception envisaged in Section 29(2) of the 1955 Hindu Marriage Act would not be attracted.

Thus, the spouses had to revert back to Section 13 of the Act, which sanctions dissolution of marriage only by a decree of divorce, for the dissolution of marriage to be valid in the eye of law.

Bench held that the fact that pension was granted earlier in favour of respondent 11 upon a valid sanction being issued by respondent-authorities, it would be unjust to deprive respondent 11 of such pension at the behest of petitioner, merely on the basis of the petitioner’s assertion on oath in the present writ petition that a deed of divorce, supported by valid and recognized customs, was executed between respondent 11 and her deceased husband.

Hence, the High Court decided that in view of the long-pending litigation between the private parties, it would be lucrative to direct pension to be paid equally between the petitioner and respondent 11. However, such a course of action would be grossly illegal.

Although Court’s empathy went fully with the petitioner, who was an unemployed lady of about 63 years as per her affidavit, however, the Court found that it had no power to enact law but was bound by the provisions of law as the Parliament, in its own wisdom, chose to promulgate.

Therefore, the writ petition was dismissed.[Krishna Veni v. Union of India,  2021 SCC OnLine Cal 437, decided on 18-02-2021]

Advocates who appeared for the parties:

For the petitioner: Gunjan Shah and Vinit Kumar Choubey

For respondents 1, 2 and 4: Kumarjyoti Tiwari

For respondent 9: Subrata Roy

Case BriefsHigh Courts

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

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

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

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

Principle Issue 

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

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

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

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

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

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

Advocates who appeared before the Court:

Abhijit D. Sarwate for the Applicant.

Arvind Chavan for the Respondent.

Case BriefsHigh Courts

Gauhati High Court: Achintya Malla Bujor Barua, J., addressed a matter wherein a marriage took place under the Special Marriage Act, but the wife converted to Islamic Religion during the sustenance of marriage, in light of the said premise under which Act for the purpose of divorce parties would be governed.

In the instant petition, the wife had assailed the first and second talak on 13-01-2015 and 15-02-2015, respectively.

Proceedings initiated by the Muslim Marriage and Divorce Registrar, Sada Kaji, Kamrup stayed as a legal issue was raised that as the marriage in question was performed under the Special Marriage Act, 1954, a proceeding by the Muslim Marriage & Divorce Registrar, is not maintainable.

In the interlocutory application for vacating the interim Order dated 29-04-2015, applicant husband took a stand that in the year 2011 i.e. during the sustenance of the marriage under the Special Marriage Act, the writ petitioner Malina Deb Barman was converted to Islamic religion and since then she is governed by the Mohammedan law. Further, there was also a marriage between the parties under the Mohammedan law on 12-02-2011.

In light of the above-stated that it is stated that interlocutory application for vacating the interim order was instituted on the premises that upon such conversion of the petitioner to Islamic religion and their marriage subsequently solemnized under the Mohammedan law, the parties would now be governed by the principles of Mohammedan law and therefore, a divorce under the principles of Mohammedan law would be maintainable.

Hence, in view of the above, Bench stated that a question for decision would arise, which is as follows:

Whether upon the conversion of the writ petitioner Malina Deb Barman into Islamic religion and upon having subsequently entered into a marriage with the respondent 5 under the Mohammedan law, the original marriage under the Special Marriage Act sustains or such marriage on its own by operation of law had got dissolved.

If the marriage under the Special Marriage Act sustains, whether during the sustenance of such marriage a dissolution of the marriage can be effected under the Mohammedan law.

Court fixed the next date to be 29-05-2020 as the petitioner was not present and again the registry on 29-05-2020 was asked to send a notice to the petitioner.[Md Makfur Rahman v. Malina Deb Barman, 2020 SCC OnLine Gau 4645, decided on 23-04-2020]

Case BriefsHigh Courts

Kerala High Court: A Full Bench of A.M. Shaffique, Sunil Thomas and Gopinath, JJ., held that there is no limitation period for wife/divorced wife to claim her property entrusted to husband/in-laws given in the form of dowry or otherwise.

Questions involved was:

Whether trust created by a wife entrusting her property to her husband gets extinguished after the dissolution of marriage and whether she can initiate proceedings invoking Section 10 of the Limitation Act, 1963 without any limitation of time?

For the above-stated question, reference was made to the decision of Bindu K.P. v. Surendran C.K., [2018 (2) KHC 1] wherein it was held that claim of the wife or ex-wife for a dowry is not barred by any length of time.

Counsel for the appellant Sri S.K. Balachandran placed the following decision before the Court:

    • Swapna v. Thankavelu, 1990 SCC OnLine Ker 168: – In the above case, a Single Judge of this Court held that when valuable articles are entrusted by the wife to the husband for safe custody, the husband remains in the position as a trustee who is bound to account to the wife all her properties at any time when she demands. The aforesaid judgment was delivered following the Supreme Court judgment in Pratibha Rani v. Surajkumar, (1985) 2 SCC 370. It was further held that if the husband is a trustee, the wife is entitled to follow the property in the possession of the trustee, and Section 10 of the Limitation Act would apply.
  • Chacko v. Annamma, (1985) 2 SCC 370: – In this case, the Division Bench of this Court approved Swapna’s case stated above. In the above case, on a detailed analysis of the relevant provisions including Section 10 of the Limitation Act and the provisions of the Trusts Act, overruling an earlier judgment in Annamma v. Thressiamma, 1971 SCC OnLine Ker 86, it was held that there is a creation of trust in respect of stridhanam property and therefore Section 10 applies.
  • In Bhatacharjee v. Sarathi Choudhury, 1993 SCC OnLine Ker 13, while considering the impact of Section 12 of the Protection of Women from Domestic Violence Act, 2005, the Supreme Court held that as long as the status of the aggrieved person remains, and the stridhanam remains in the custody of the husband, the wife can put forth a claim under Section 12 of the Act.

Question involved in the above reference was the following:

When there is a change in circumstances between the spouses, especially when there is a dissolution of marriage and substantial time had elapsed, whether the trust created between them would be extinguished?

Section 10 of the Limitation Act states as follows:

“10. Suits against trustees and their representatives- Notwithstanding anything contained in the foregoing provisions of this Act, no suit against a person in whom property has become vested in trust for any specific purpose, or against his legal representatives or assigns (not being assigns for valuable consideration), for the purpose of following in his or their hands such property, or the proceeds thereof, or for an account of such property or proceeds, shall be barred by any length of time.

Explanation.-For the purposes of this section any property comprised in a Hindu, Muslim or Buddhist religious or charitable endowment shall be deemed to be property vested in trust for a specific purpose and the manager of the property shall be deemed to be the trustee thereof.”

In view of the decisions referred above, it is settled that,

when the wife entrusts with the husband any property belonging to her, a trust is created and the husband is bound to return the same to his wife. If the same is not returned, the wife has a right to demand the same by filing a suit or as in the present case, file an application before the Family Court or take other necessary steps under the relevant statutes in force.

When Section 10 of the Limitation Act indicates that there is no limitation for initiating any such action, in the absence of any other statute providing for a limitation, the trustee cannot take a contention that he shall not return the trust property on account of any period of limitation. The question posed is, when the relationship between the parties gets deranged and results in divorce, whether the trust gets extinguished and the divorced wife would be entitled to invoke Section 10 of the Limitation Act and file a suit at her will and pleasure at any point in time. In such an event, the questions to be considered are (i) whether a trust had been created at any point of time, (ii) if a trust has been created and the husband remains in the position of a trustee, whether it gets extinguished on the dissolution of marriage or under any other circumstances.

Under Section 77 of the Indian Trusts Act, 1882, a trust gets extinguished only under certain circumstances. Section 77 reads as under:

“77. Trust how extinguished.— A trust is extinguished—
(a) when its purpose is completely fulfilled; or
(b) when its purpose becomes unlawful; or
(c) when the fulfilment of its purpose becomes impossible by the destruction of the trust-property or otherwise; or
(d) when the trust, being revocable, is expressly revoked.”

Hence, unless any of the above-stated eventualities as mentioned take place, which is a question of fact to be decided on a case to case basis and once a trust is created, it continues to operate, even though marriage is dissolved. However, in an instance where there is an agreement between the parties settling the obligations arising from the trust, it gets fulfilled in terms of Section 77(a).

As per the Dowry Prohibition Act, 1961, when a statutory trust is created in respect of dowry, the principle aforestated shall apply.

Further, the Court added that, in the case of ornaments which are given in the form of dowry, definitely, a statutory trust is created. Even otherwise, if the ornaments owned by the wife do not form part of the dowry and if there is an entrustment of gold ornaments by the wife to the husband or his parents, a trust gets created, in which event, the trustee or trustees, as the case may be, are liable to return the same and there is no limitation for claiming the same by the wife/divorced wife.

In light of the above, the Court agreed with the law laid down in Chacko v. Annamma, (1993) 1 KLT 675 and upheld the view expressed in Bindu K.P. v. Surendran C.K., [2018 (2) KHC 1]. [Sheela K.K. v. N.G. Suresh, 2020 SCC OnLine Ker 4240, decided on 24-09-2020]

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.


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