Case BriefsHigh Courts

Delhi High Court: Anup Jairam Bhambhani, J., while addressing a matrimonial dispute, observed that,

“the only criterion or test under Section 14 of Family Courts Act for a Family Court to admit, evidence is it’s subjective satisfaction that the evidence would assist it to deal effectually with the dispute.”

Divorce petition was filed by the husband/respondent on 26th September, 2012 seeking dissolution of marriage on the ground of cruelty under Section 13(1)(ia)of the Hindu Marriage Act, 1955.

As evidence, husband filed a Compact Disc (CD) in which he had recorded how the wife was talking a friend of hers about the husband’s family which clearly was derogatory, defamatory and constituted cruelty.

Recording of ‘private’ conversation without the knowledge or consent of wife is in breach of her fundamental right to privacy.

Wife while objecting to the said evidence stated that since the evidence comprised in the CD was collected in breach of her fundamental right to privacy, the same is not admissible in a court of law.

She further argued that a person is entitled to criticise someone and not share the criticism with the world; and that a person has a right to all thoughts and behavioural patterns within one’s zone of privacy.

Additionally it has been urged that the husband’s action of surreptitiously and clandestinely recording the wife’s telephone conversation with her friend also amounts to an offence under Section 354-D of the Penal Code 1860, whereby the very act of recording such conversation is a criminal offence, punishable in law.

Family Court’s opinion on the CD as evidence:

“This court is of the opinion that the conversation between the respondent and her friend, wherein, she has allegedly spoken about the petitioner/ his family and the status of the matrimonial life would, certainly assist the court in effectively deciding the dispute between the parties. Such a piece of evidence is certainly relevant.”

One of the earliest, leading decisions on the question of admissibility of tape-recorded conversations is Regina v. Maqsud Ali, (1966) 1 QB 688 where a secretly tape-recorded conversation was the only incriminating piece of evidence implicating the accused persons for murder.

Analysis and Conclusion

While a litigating party certainly has a right to privacy, that right must yield to the right of an opposing party to bring evidence it considers relevant to court, to prove its case.

Since no fundamental right under our Constitution is absolute, in the event of conflict between two fundamental rights, as in this case, a contest between the right to privacy and the right to fair trial, both of which arise under the expansive Article 21, the right to privacy may have to yield to the right to fair trial.

In High Court’s opinion,

Legislature could not have enunciated it more clearly than to say that the Family Court “may receive as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872.”

“…What credence, value or weightage is to be given to the evidence so received is discretionary upon the judge, when finally adjudicating the dispute.”

Without at all denigrating the importance of ethical and moral considerations, in the opinion of this court, to say that a Family Court should shut-out evidence at the very threshold on the basis of how it is collected, would be

(i) in breach of Section 14 which unequivocally expresses the intention of the Legislature ;

(ii) in breach of settled principles of evidence ; and

(iii) in breach of the enunciation by the Supreme Court that though the right to privacy is a fundamental right, it is not absolute and must be placed in the context of other rights and values.

Bench further observed that, in most cases that come before the Family Court, the evidence sought to be marshalled would relate to the private affairs of the litigating parties.

Thus, if Section 14 is held not to apply in its full expanse to evidence that impinges on a person’s right to privacy, then Section 14 may as well be effaced from the statute.

In context of the present matter, Court stated that conversation between the wife and her friend, which is the subject matter of recording on the CD, in which she is alleged to have spoken about the husband and his parents, would be a ‘relevant fact’ as understood in law, upon a combined reading of Sections 5, 7 and 8 of the Evidence Act. To that extent therefore, the contents on the CD are relevant for purposes of the divorce proceedings.

Though Court added to its conclusion that, if the right to adduce evidence collected by surreptitious means in a marital or family relationship is available without any qualification or consequences, it could potentially create havoc in people’s personal and family lives and thereby in the society at large.

While law must trump sentiment, a salutary rule of evidence or a beneficent statutory provision, must not be taken as a license for illegal collection of evidence.

In view of the above, no infirmity is found in Family Court’s decision. [Deepti Kapur v. Kunal Julka, 2020 SCC OnLine Del 672 , decided on 30-06-2020]

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

Punjab and Haryana High Court: H.S. Madaan, J. dismissed the application for the transfer of a divorce petition merely on the ground of inconvenience of the attorney in attending hearings.

The applicant herein was the wife of respondent who had filed a divorce petition against her in the Court of District Judge, Sangrur. Applicant filed the instant transfer application seeking transfer of the divorce case from Sangrur to a Court of competent jurisdiction in Patiala on the ground that she lives in Australia and her appointed attorney was facing difficulty in attending the hearings in Sangrur on dates of listing of a divorce case. Her second ground for seeking transfer was that since the respondent’s father was a senior advocate in the Sangrur District Court and had strong political links, there was a threat to the applicant and her family.

The Court observed that the contentions of the applicant were not sufficient to transfer the divorce petition. It remarked that “The Court is not to see the convenience of the attorney. If the attorney has got difficulty in attending the dates of hearing, the applicant can very well appoint some other person as her attorney, who can put in an appearance in the Court conveniently.” It was also opined that “Merely because respondent’s father is a senior advocate at Sangrur does not mean that he is capable of interfering in judicial proceedings or would do so.” If there is an apprehension of physical harm to the applicant then she should approach the legal enforcement agency. 

In view of the above, the instant application was dismissed. [Rubalpreet Kaur v. Harbarkamaljot Singh, TA-526 of 2019 (O&M), decided on 16-07-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: H.S. Madaan, J. allowed the transfer application for the convenience of the wife in the divorce petition.

An application for the transfer of divorce petition was made by the applicant on the ground of financial constraint.

The brief facts of the case were that applicant Rajnish Kaur was the estranged wife of Sukhwinder Singh on account of matrimonial discord between the spouses. The spouses had a fight on the demand of the dowry raised by the respondent and his family and which the applicant could not get conceded from her parents. Thereby applicant with his minor son turned out of matrimonial home and shifted to his parent’s house. A divorce petition was filed against the respondent in Ludhiana despite the fact that such court does not have any jurisdiction. Also, it was difficult for the applicant to attend the dates of hearing due to financial constraint. Thus, the present application was filed.

The Court opined that the in matrimonial dispute between the spouse conveniences of wife should be looked. The reference was made to the case of Bhartiben Ravibhai Rav v. Ravibhai Govindbhai Rav, (2017) 6 SCC 785 in which the Supreme Court allowed the application for transfer of divorce petition to a place where the wife was residing considering various factors including the distance between the places where divorcee petition had been instituted. Reference was also made to the case of Apurva v. Navtej Singh, 2016 SCC OnLine P&H 3138, in which it was held that Generally, it is the wife’s convenience, which must be looked at by the Courts while deciding the transfer application. The application was thus allowed and the petition was transferred to the court of competent jurisdiction for disposal in accordance with the law.[Rajnish Kaur v. Sukhwinder Singh, 2019 SCC OnLine P&H 1422, decided on 14-08-2019]

Case BriefsHigh Courts

Uttaranchal High Court: The Division Bench of Alok Singh and Ravindra Maithani, JJ. contemplated the present appeal filed by the appellant-husband, where the order passed by the Family Court dismissing a suit for divorce was challenged. 

Factual matrix of the appeal was that marriage was solemnized between the parties in 2007. The appellant contended that the alleged behavior of the respondent – wife was not good towards the husband and his family members. Marriage was solemnized against the wishes of the respondent. She threatened them to implicate in a false case of dowry and treated them with cruelty. It was further contended that a divorce petition on the said grounds of cruelty was filed by the appellant and was subsequently dismissed by the trial Court. Appellant sought dissolution of marriage mainly on two counts viz. cruelty and desertion.

P.K. Chauhan, Advocate for the appellant submitted that the learned trial Court failed to appreciate the evidence available on record in the right perspective and had attained a wrong conclusion. Thus, impugned judgment and decree was liable to set aside and decree of divorce was to be granted. 

The Court placed reliance on the judgments of Supreme Court in Ramchander v. Ananta, (2015) 11 SCC 539 and Adhyatma Alwar v. Adhyatma Bhattar Sri Devi, (2002) 1 SCC 308, where the Court explained the scope of ‘cruelty’ and ‘desertion’. 

The Court observed that in the present case, in order to prove cruelty at the hands of wife, the appellant stated that the respondent used to quarrel with him. She maltreated him and his family members. It was alleged that she threatened them to implicate in false case of dowry. The Court further found no evidence to prove desertion or cruelty by the respondent as was stated in the plaint. The Court stated that, the appellant made bald allegations against the respondent. Appellant failed to point out the cause of quarrel. It was further noted that, respondent did not want to marry him but in the statement on oath he himself admitted that he did not want to marry with her. Appellant stated that their marriage was solemnized without any dowry but his father himself contradicted his statement. He stated that respondent’s father gave Rs 30,000 – 40,000 in the marriage. Court took note that appellant husband had completed his B.Sc. but was still unemployed and hence the conduct of the appellant revealed that appellant was not interested to shoulder his responsibility. Court concluded that appellant has failed to prove cruelty and desertion at the hands of respondent – wife. Accordingly, appeal failed and was dismissed. [Deepak Kumar v. Meena, 2019 SCC OnLine Utt 546, decided on 01-07-2019]

Case BriefsHigh Courts

Delhi High Court: The Division Bench of G.S. Sistani and Jyoti Singh, JJ., directed a divorce decree sheet to be drawn up in favour of the appellant-wife in terms of Section 13(1)(i-a) of the Hindu Marriage Act, 1955.

The parties married to each-other in 2007. However, they were living separately since July 2014. The case set up by the wife was that the respondent-husband subjected her to various cruelties. The family court rejected her petition seeking a divorce, basing its judgment on the ground that only general and routine allegations were made which were not substantiated. Aggrieved thereby, the wife preferred the present appeal.

The wife, represented by Kavita Kapil, Advocate, deposed by way of an affidavit that the husband’s behaviour had become extremely arrogant he was a highly suspicious person who levelled false charges on her character. Also, during her pregnancy, he did not provide her medical treatment, nor gave her love or affection, and caused mental trauma.

On careful consideration of the evidence on record, the High Court was of the view that the wife was able to show that the husband treated her with cruelty. As far as specific instances were concerned, it was observed, ” the specific date and time has not been given for all the incidents averred, but has led evidence to prove specific instances of the cruelty, at the time of her pregnancy. It may be noted that since only one child was born out of the wedlock, it was not necessary to give the month, date or time when her husband inflicted cruelty upon her.” Noting that the husband took no steps to either resolve the dispute or contest the case, the Court allowed the appeal by the wife. [B v. R Y, 2019 SCC OnLine Del 7286, decided on 04-02-2019]

Case BriefsHigh Courts

Rajasthan High Court: A Single Judge Bench of Ashok Kumar Gaur, J., disposed of the current petition seeking an early date for a divorce proceeding.

Brief facts of the case are that the petitioner-husband seeking a direction to give early date in divorce petition pending in Family Court Jaipur filed this instant petition. He had also prayed for early disposal of the application of divorce petition filed under Section 13 of the Hindu Marriage Act, 1955. The office had registered the divorce application on 25-09-2018 and issued notices to respondent-wife by fixing the next date i.e. 12-02-2019.

The counsels for the petitioner, Mr Prashant Sharma and Mr Prateek Khandelwal, submitted that the petitioner was facing not only mental trauma but he was also being harassed by his in-laws every day and as such disposal of the application for divorce petition was the need of the hour. They also argued that Section 21-B of the Hindu Marriage Act, 1955 provides that trial should be continued from day to day and further as per sub-section (2) the divorce petition should be tried expeditiously and endeavour should be made to conclude the trial within six months.

The High Court while discussing Section 21-B of the Hindu Marriage Act, 1955 stated that endeavor is required to be made to decide the divorce petition expeditiously and the endeavor should be there to conclude the trial within a period of six months from the date of service of notice of the petition upon the respondent. The Court found that date of service of notice in the instant petition was already fixed on 12-02-2019. The instant petition was thus disposed of observing that no unnecessary adjournment should be taken by parties during the pendency of divorce petition. [Vipul Khandelwal v. Nikita Khandelwal, 2018 SCC OnLine Raj 2322, order dated 11-12-2018]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of A.A. Sayed and S.C. Gupte, JJ. allowed an appeal filed against the judgment of the Family Court whereby it had dismissed the appellant-husband’s divorce petition filed under Section 13(1)(ib) of the Hindu Marriage Act, 1955.

The husband’s case was that his wife had deserted him for more than 20 years when she left the home and they have been living separately since. The family court dismissed the divorce petition filed by the husband holding that the separation was at the instance of the husband. Moreover, it was held that there was no animus deserendi or the intention to bring cohabitation permanently to an end on the part of the wife. Aggrieved thereby, the husband filed the present appeal.

The High Court perused the record and noted that the parties were living separately for 20 years. Though there was a dispute as to the reason why the wife left the home, the wife’s conduct thereafter suggested that there was absolutely no intention on her part to resume cohabitation at any time. The Court was of the view that there was animus deserendi on her part at least with reference to subsequent events. As explained by the High Court, “Animus deserendi or intention to bring cohabitation permanently to an end is nothing but the opposite of intention to resume cohabitation. If there is no intention at all to resume cohabitation for a reasonably long period, there could be said to be intention to bring cohabitation on an end. How much long a reasonably long period would be is a matter of inference to be drawn from the facts and circumstances of each case. But surely twenty years is, in any event, a reasonably long period. If there is no attempt on the part of the deserting spouse to resume cohabitation for twenty years after the initial separation, even if one were to grant that the original separation did not have the element of animus deserendi, there could be said to be presence of such animus afterwards.” Observing that there was no hope for any revival of marriage, the Court allowed the appeal and granted a decree of divorce on grounds of separation. [Shailendra Madhukar Bhalerao v. Suruchi Shailendra Bhalerao,2018 SCC OnLine Bom 5331, decided on 26-11-2018]

Case BriefsSupreme Court

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

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

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

Case BriefsHigh Courts

Punjab and Haryana High Court: A Division Bench comprising of M.M.S. Bedi and Anupinder Singh Grewal, JJ. allowed an application filed by the respondent-wife for maintenance pendente lite.

The appellant-husband had preferred an appeal against the dismissal of his divorce petition. The respondent-wife had filed the application under Section 24 of Hindu Marriage Act claiming maintenance pendent lite at the rate of Rs 20,000 per month. The appellant submitted that he was dismissed from the Army and was unemployed. Further, he had no source of income except what he got from the selling of milk.

The Court noted that there was no material to ascertain the income of the appellant and in such circumstances a bit of estimation was permissible. The appellant was an ex-army man and an able-bodied person. Even if he worked as an unskilled laborer, he was presumed to earn not less than Rs 15,000-20,000 per month. There was also one daughter born out of the wedlock. The Court held that the appellant cannot run away from his duty to maintain wife and daughter. In such circumstances, an amount of Rs 8,000 per month was found reasonable while awarding the maintenance pendente lite under Section 24. The application was thus allowed. [Jagdish Singh v. Sarabjit Kaur, 2018 SCC OnLine P&H 881, dated 03-07-2018]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of Bharati H. Dangre, J., has held that the Muslim Personal Law can in no way curtail the protection granted under the Protection of Women from Domestic Violence Act 2005, from being available to a Muslim woman.

Brief facts of the case were that the respondent-wife had filed a petition for divorce against the husband under Section 2(viii)(a) and (d) of the Dissolution of Muslim Marriages Act, 1939, on grounds of cruelty. She also filed an application under the Domestic Violence Act for maintenance. The petitioner-husband filed objection to the application contending that he had already given talaq to the respondent after she filed the petition for divorce. He contended that the talaq was given by him in pursuance of the desire of the petitioner to get a divorce, as was evident by the petition filed by her; the said talaq should be considered as ‘khula’ (divorce by consent) and therefore according to the Muslim Personal Law that govern the parties, the respondent was not entitled to any maintenance as asked for by her.

The High Court observed that in the present case, the pronouncement of talaq was disputed by the wife and the husband will have to prove the said factum of talaq. As till the time the talaq was not proved, the respondent continued to be legally wedded wife of the petitioner and in that contingency, the question was whether the wife who was in a domestic relationship with the petitioner was entitled to seek relief under the DV Act.

After extensively considering various provisions of the DV Act as well as Acts concerning the rights of women under Muslim Personal Law, Hon’ble Court held that

“perusal of the provisions of the Protection of Women from Domestic Violence Act, 2005 would reveal that it is an enactment to provide for more effective protection for rights of women, guaranteed under the Indian Constitution, who are the victims of the violence … The definition and connotation of “Domestic Violence” under Section 3 of the enactment do not indicate any intention either express or implied to exclude Muslim women. Section 36 of the said enactment provides that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

The Court held that the provisions of the Muslim Personal Law can in no way curtail the protection provided under Domestic Violence Act. As a result, the impugned order of the Family Court whereby the petitioner was ordered to pay maintenance under the provisions of the DV Act was upheld and the petition dismissed. [Ali Abbas Daruwala v. Shehnaz Daruwala,2018 SCC OnLine Bom 1195, dated 04-05-2018]

Case BriefsHigh Courts

Chhattisgarh High Court: In a first appeal referred to the Single Judge Bench comprising of Sharad Kumar Gupta, J., the impugned judgment and decree in regard to Section 13 of the Hindu Marriage Act, 1955 was dismissed.

Appellant had filed a divorce petition under Section 13 of the Hindu Marriage Act, 1955 which was dismissed by the trial court without recording relevant evidence. The appellant claimed that his marriage was solemnized in the year 1992 in accordance with Hindu rites and rituals and for about 17 years ago the respondent had performed second marriage and the appellant himself had performed second marriage. Though the respondent stated that her marriage was not solemnized with the appellant and neither did she perform second marriage. Therefore, observing the said facts of the case, the trial court had dismissed the divorce petition, against which the appellant had preferred this appeal.

The High Court, after considering the facts and circumstances of the case, concluded that the trial court had failed in recording the evidence in proper perspective and the appellant’s evidence was unrebutted. Moreover, the Court also observed that, the trial court by not paying any heed to the provisions of Section 23(2) of the Hindu Marriage Act, 1955 which talks about “making every endeavour to bring about reconciliation between the parties” and pronouncing their decision ex parte against the respondent due to non-appearance and not framing issues regarding the marriage and most importantly the pleadings in which the respondent states that she is married wife of the appellant under Section 24 of the Act, the High Court on the basis of this remitted the case to the trial court with directions to proceed with the suit in accordance of law and procedure. [Ramnarayan v. Gayatri, 2018 SCC OnLine chh 488, order dated 08-05-2018]