Case BriefsSupreme Court

Supreme Court: In a divorce proceeding, where a wife had “rejected” all the options for rented accommodation “similar” to her Industrialist husband’s residence, the bench of L. Nageswara Rao and BR Gavai*, JJ has held that the conduct of the wife in firstly, not choosing any house as per her choice and secondly, in rejecting all the properties, which have been identified by the Architect, only on the ground that they are not similar, to say the least is “unreasonable”.

Case Trajectory

  • The husband, Industrialist Jaidev Shroff and his wife Poonam, got married on November 27, 2004. However, the relationship between them soured and various cases including the FIRs were filed by both the husband and wife against each other.
  • The husband filed a divorce petition in 2015 seeking divorce on the ground of cruelty. He also lodged a complaint making certain serious allegations against the wife, after which she voluntarily left the Pali Hill Bandra residence where the husband and wife residing and went to live at her mother’s residence with her daughter.
  • The husband thereafter filed an application seeking an order of injunction restraining the wife from entering the said house. While the Family Court granted an injunction restraining the wife from entering the said house, the Bombay High Court allowed the writ petition filed by the wife.
  • The husband, hence, moved the Supreme Court.
  • Exploring the possibility of an amicable resolution, mediators were appointed twice. However, both the time, the mediators submitted that it was not possible to resolve the matter.
  • On 6 th March 2020, the Supreme Court passed the following order directing the Registrar of the Family Court to engage an architect from the panel of architects maintained by the Bombay High Court for finding out appropriate rented accommodation for the residence of the wife. It is made clear that the residence shall be approximately ‘similar’ to the size of the Pali Hill residence and located as far as possible in Bandra and Juhu area.
  • While the Architect gave a list of as many as 17 properties, the wife rejected all saying that none of the properties shown in the list were similar to the said house.

Analysis

On possibility of shared household

The relations between the parties are strained to such an extent that even the efforts made by this Court to arrive at a settlement by personally discussing the matter in Chambers with them, have failed. On two occasions, the Court appointed Mediators but the mediation proceedings could not succeed. In such a situation, to compel the parties to live together in one house, would not be in the interest of either of the parties.

“With the history of such acrimony and filing of criminal cases against each other, such an order, rather than benefiting the parties, would be detrimental to their interests.”

On what would be a ‘similar’ property

To stretch the word ‘similar’ as used in the order dated 6th March 2020, to be totally identical to the said house, would be unrealistic. It will be difficult to find out a house identical to the said house having the same area, the same facilities and the same luxuries. The word ‘similar’ has to be construed as providing the same degree of luxury and comfort as is available in the said house. Hence,

“… the conduct of the respondentwife in firstly not choosing any house as per her choice and secondly, in rejecting all the properties, which have been identified by the Architect, only on the ground that they are not similar and therefore, not in accordance with the order dated 6th March 2020, to say the least is unreasonable.”

On payment of Rs.35.37 lakhs per month by husband

It was argued by Senior Advocate Shyam Divan, appearing for the wife, that the husband is earning   hundreds of crores per year, whereas the wife and the daughter have to survive on a meagre amount of Rs. 12 lakhs per month, hence, payment of Rs.35.37 lakhs per month should be paid.

The Family Court, by an elaborate order, after recording the details about the income of the parties, had directed an interim maintenance to be paid to the wife at the rate of Rs. 7 lakhs per month and to the minor at the rate of Rs. 5 lakhs per month.

It was, hence, noticed that if the prayer for payment of an amount is allowed, it will be giving an additional amount to the wife. It will amount to awarding an amount which is much more than the one to which the wife was found entitled by the Family Court.

Order

The Court held that if the wife decides to shift to any of the properties listed by the Architect or if she locates any of the rented premises as per her choice, the husband shall pay the rent of the said premises from the date on which such premises are taken on rent. However, taking into consideration that the highest rent of the properties identified by the Architect is Rs. 30 lakhs per month, the husband would be liable to pay rent to the maximum of Rs. 30 lakhs per month.

Further, considering that the divorce petition has been pending before the Family Court for a period of last 6 years, the Court directed that the divorce petition pending before the Family Court be decided expeditiously so that there can be at least some quietus to the acrimonious litigation pending between the parties.

[Jaidev Rajnikant Shroff v. Poonam Jaidev Shroff, 2021 SCC OnLine SC 1175, decided on 03.12.2021]


Counsels

For wife: Senior Advocate Shyam Divan

For Husband: Senior Advocate Dr. Abhishek Manu Singhvi


*Judgment by: Justice BR Gavai 

Case BriefsSupreme Court

Supreme Court: In a case where a woman had, by way of counter claim in a marriage petition filed by her husband for dissolution of the marriage, sought to declare her husband’s alleged second marriage to be “illegal, void and voidable” and son born out of the said “adulterous” relationship illegitimate, the bench of MR Shah* and AS Bopanna, JJ has held that no such relief qua the third party can be prayed as per Section 23A of the Hindu Mariage Act, 1955.

Factual background

The respondent-husband filed a Hindu Marriage Petition before the Family Court under Section 13 of the Hindu Marriage Act for dissolution of marriage, mainly on the ground that the appellant-wife is guilty of cruelty.

According to the appellant-wife, the respondent-husband deserted her and their son on 9.2.2006 and the respondent-husband refused to provide maintenance for her and their son.

It was also her case that the respondent-husband as on today is cohabiting with another woman, openly moves around with the said woman and introduces the said lady as his new wife and is travelling not only in the country but abroad with her and also has a son with her. Since the respondent-husband wants to marry the said woman, a false and fabricated story is placed before the Court.

She, hence, prayed that:

  • the marriage between the petitioner with the said woman dated 14.12.2006 is illegal, void and voidable and that the respondent-husband and the said woman are living in adultery.
  • son born through the said marriage is the illegitimate child of the petitioner.

Section 23A of the Hindu Marriage Act

23A. Relief for respondent in divorce and other proceedings – In any proceeding for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner’s adultery, cruelty or desertion, but also make a counter-claim for any relief under this Act on that ground; and if the petitioner’s adultery, cruelty or desertion is proved, the court may give to the respondent any relief under this Act to which he or she would have been entitled if he or she had presented a petition seeking such relief on that ground.

Analysis

Holding that no relief can be prayed qua the third party under Section 23A of the Hindu Marriage Act, the Court explained that by way of counter claim, the respondent in any proceedings for divorce or judicial separation or restitution of conjugal rights can pray for the relief by way of counter claim only those reliefs which can be prayed and/or granted under the Hindu Marriage Act, namely,

  • Section 9 (Restitution of conjugal rights);
  • Section 10(judicial separation);
  • Sections 11 & 12(declaration of marriage between the petitioner and the respondent void)
  • Section 13 (divorce).

Therefore, the respondent to the aforesaid proceedings can pray for the aforesaid reliefs only by way of counter claim and that too between the petitioner and the respondent.

Since under the provisions of the Hindu Marriage Act, the relief of divorce, judicial separation etc. can be between the husband and the wife only and cannot extend to the third party, therefore, it was not open for the appellant-wife to seek declaration to the effect that the marriage between the respondent-husband and the third party is void. Further, no relief can be prayed by way of counter claim even against the son born out of the alleged wedlock between the respondent-husband and the third party.

The Court, however, explained that in such a situation, the only remedy available to the appellant would be to file a substantive suit and/or initiate independent proceedings claiming such reliefs.

“At the most, the appellant herein – original defendant by way of counter claim could have claimed the relief and prayed for divorce and/or judicial separation on the ground of husband’s adultery. Beyond that, no relief which cannot be granted under the provisions of the Hindu Marriage Act can be claimed by way of counter claim.”

[Nitaben Dinesh Patel v. Dinesh Dahyabhai Patel, 2021 SCC OnLine SC 902, decided on 07.10.2021]


Counsels

For appellant-wife: Advocate Puneet Jain

For respondent-husband: Senior Advocate Mihir Thakore and Advocate Aastha Mehta


*Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

Case BriefsHigh Courts

Rajasthan High Court: Chandra Kumar Songara J. allowed the petition of the wife-petitioner on the grounds of having a child, no source of income and residing with her parents.

The instant transfer application was filed under Section 24 of the Code of Civil Procedure, 1908 i.e. CPC on behalf of the petitioner wife seeking transfer of the Divorce Petition No.39/2020 filed under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘HMA1955’) by the respondent-husband from the Court of Additional District Judge, Kekri District Ajmer to the Family Court situated at Kota.

The Court observed that In the present case, the petitioner-wife is residing in Kota at her parental house. The petitioner-wife has a daughter, namely Vaidehi from her first husband. Presently, she is six years old and is being taken care of by the petitioner alone. The petitioner is a house-wife and she is not employed anywhere and has no source of income. The Kekri Court in Ajmer District is at a distance of more than 100 kms. from Kota. The daughter of petitioner is about six years old and parents of petitioner are too old.

The Court relied on judgments Sumita Singh v. Kumar Sanjay, AIR 2002 SC 396 and Rajani Kishor Pardeshi v. Kishor Babulal Pardeshi (2005) 12 SCC 237  and observed that while going into the merits of a transfer application, Courts are required to give more weightage and consideration to the convenience of the female litigants, and transfer of legal proceedings from one Court to another should ordinarily be allowed taking into consideration their convenience and the Courts should desist from putting female litigants under undue hardships. In such type of matters, the convenience of the wife is to be preferred over the convenience of the husband.

The Court thus held “the present transfer application filed by the petitioner-wife is allowed and case bearing No.39/2020 titled as Rajendra Prasad Sharma Vs. Smt. Ekta Dhadhich pending before the Court of Additional District Judge, Kekri District Ajmer is ordered to be transferred to the Family Court, No.1, Kota.”

[Ekta Dhadhich v. Rajendra Prasad Sharma, S.B. Civil Transfer Application No. 72/2021, decided on 30-09-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances

For Petitioner(s): Mr. Abhishek Bhardwaj

For Respondent(s): Mr. Arnav Singh

Case BriefsHigh Courts

Bombay High Court: Mangesh S. Patil, J., in the present application directed the husband to pay an amount of Rs 10,000 towards alimony pendente lite under Section 24 of the Hindu Marriage Act.

Petitioner-wife has impugned the order passed by the Family Court, Judge wherein her application was rejected in which she sought interim alimony under Section 24 of the Hindu Marriage Act, 1955 in a divorce proceeding filed by the respondent-husband under Section 13(i–a) of that Act.

Petitioner submitted that she was unable to maintain herself since the time she and her husband separated. She was even unable to work due to the psychological pressure and harassment meted out to her by the respondent.

As against this, the respondent is a Medical Officer earning around Rs 60,000 to Rs 65,000 salary. No-one is dependent on him and therefore, she claimed interim maintenance at the rate of Rs 15,000 per month and also claimed Rs 200 for rickshaw fare for attending the Court for each date and Rs 25,000 for engaging Advocate.

Analysis and Decision

Bench stated that as far as the right of a wife, who is capable of earning, to claim alimony is concerned, Supreme Court in the decision of Rajnesh v. Neha,2020 SCC OnLine SC 903, considered it in clause (c) of Part III under the head of ‘Criteria for determining the quantum of maintenance’.

Court in view of the above concluded that even if the petitioner in the matter in hand is a medical practitioner and was earning something for her livelihood, the same cannot be a ground to refuse alimony to her under Section 24 of the Hindu Marriage Act.

Quantum of Maintenance

Bench observed that though the petitioner had produced her Income tax Returns, respondent did not reciprocate the gesture. Supreme Court’s decision in Rajnesh v. Neha, 2020 SCC OnLine SC 903, laid down several guidelines requiring both the parties to make several disclosures in the form of affidavits inter alia touching the income aspect as well. Conspicuously, in that matter, the Supreme Court had directed the husband to produce Income Tax returns before passing the order for granting interim maintenance.

Consequently, without indulging into further discussion, Court held that the failure of the respondent to come with disclosure as to his own income and taking into consideration all the aforementioned facts and circumstances and bearing in mind the guidelines laid down by the Supreme Court in the case of Rajnesh v. Neha, 2020 SCC OnLine SC 903 and resorting to inevitable guesswork, it would be just and proper to award interim maintenance to the petitioner at the rate of Rs 10,000 per month.

Along with the above direction of interim maintenance respondent shall pay all the arrears up to date to her within 12 weeks from the date of this judgment.

In view of the above discussion, the petition was partly allowed. [Arpana Vijay Manore v. Dr Vijay Tukaram Manore, 2020 SCC OnLine Bom 3925, decided on 09-12-2020]


Advocates who appeared for the matter:

B.R. Warma, Advocate holding for Shrirang B. Varma, Advocate for the petitioner

A.M. Gholap, Advocate for the respondent

Case BriefsHigh Courts

Kerala High Court: Alexander Thomas, J. disposed of a matter wherein a complaint was lodged against the petitioner accusing of committing rape and cheating.

In the present case, the complainant, a married lady whose divorce proceedings were still underway had advertised in the matrimonial column of a newspaper seeking a response from interested persons in respect of her marriage proposal. The petitioner responded to the same by agreeing to marry the complainant. Based on the assurance, both the parties shared an intimate relationship and indulged in sexual intercourse. However, later, the petitioner showed disinterest in the marriage proposal.

It has been stated by the complainant that the petitioner had taken Rs 2 lakhs from her and also her gold ornaments coming to 35 sovereigns and that she has been cheated and that she had given her consent to have sexual intercourse with the petitioner only on the basis of the assurance that he would marry her and that the petitioner has committed the abovesaid offences.

The complainant was filed under Section 376 of the Penal Code, 1860.

The Counsel representing the petitioner, V. John Mani, submitted that the complainant had suppressed facts from the petitioner by seeking marriage from the petitioner despite being a married woman at that point of time as the divorce proceedings were still underway and thus, it was the petitioner who had been cheated. Further, it was submitted that there was a falsification of facts when the complainant stated that the petitioner had borrowed money and gold ornaments, since, the complainant had extracted amount more than five lakhs from the petitioner.

In addition to the above, it was stated that the arrest and detention of the petitioner is absolutely illegal and ultra vires and that going by the admitted allegations in the FIS, the Police has committed a serious illegality in arresting the petitioner and that the arrest and detention of the petitioner is against the binding decisions of the Supreme Court and various High Courts in respect of the legal position relating to the lawful arrest of the accused persons in such cases.

The public prosecutor for the state, T.R. Renjith contended that the Police was given 3 days time for custodial interrogation of the petitioner, after his remand and that the petitioner has not co-operated with the investigating officer in respect of the recovery of the gold ornaments alleged to have been taken by the petitioner from the lady and that the petitioner is likely to threaten or intimidate the complainant, if he is let out on bail.

High Court upon perusal of the facts and circumstances of the case expressed its dissatisfaction with the police authorities arresting the petitioner for the period of time in a case wherein the complainant herself had requested for marriage proposals despite not being lawfully declared as divorced from the former marriage.

Adding to the above, Court stated that, “the petitioner has got a specific case that the lady has suppressed the fact that she was twice married and that though she had secured divorce in respect of her first marital relationship, divorce proceedings are still pending in respect of her second marital relationship, etc. The Police is duty-bound to investigate the crucial aspects as to whether the lady is twice married as alleged by the petitioner. If that be so, it is for the Police authorities to take serious note of such aspects which has been suppressed by the lady defacto complainant in her FIS.”

Thus, bail was granted to the petitioner, however with certain conditions of not committing any offence while on bail, not interacting with the complainant or tampering with evidence. [Prasanth Nelson v. State of Kerala, 2019 SCC OnLine Ker 2934, decided on 18-09-2019]