Madhya Pradesh High Court
Case BriefsHigh Courts

Madhya Pradesh High Court | Quashing a divorce order against the wife on the ground of cruelty, a division bench comprising of Vivek Rusia* and Amar Nath (Kesharwani), JJ., held that minor difference of opinion between husband and wife cannot be termed as cruelty.

The Court observed that the husband should not expect an overnight change in the behaviour of the spouse and could have given the wife a second chance.

The appellant “wife” and respondent “husband” had an arrange marriage. According to the husband the foundation of the marriage was based on lies. The husband alleged that the wife had given him wrong date of birth, educational qualification and didn’t want to look after his old parents and often threatened to implicate his family members in criminal cases. On the other hand, the wife did not make any allegation against the husband or his parents and had expressed her desire to live with her husband.

The Court observed that the husband could not prove most of his contentions based on which he had contended that he was subjected with mental cruelty by his wife. The husband had deserted her within less than six months of marriage basis of a few instances which are normal between newly wedded couples. Even when the wife has shown her willingness to live with him, he is not ready to take her back to his home. The Court held that the respondent has deserted the appellant without any valid reason.

All these alleged episodes took place within one year of marriage and the respondent has decided to take divorce from the appellant. He did not give second chance to her. even today appellant is ready to go with him from the court, but he has refused straightway which shows that he has deserted the wife on the basis of a few instances which are normal between newly wedded couples.

The Court relied on various judgement of Supreme Court as well as the Division Bench of this Court:

In Romesh Chander v. Savitri, (1995) 2 SCC 7, it was held that in cases where the marriage is emotionally and practically dead and there is no chance of that the marriage can be retrieved, its continuance would amount to cruelty.

In Vinita Saxena v. Pankaj Pandit, (2006) 3 SCC 78, it was held that the decree of divorce can be granted if facts of the case indicate that the parties had crossed the point of return and it would be futile to drag a dead relationship and if the wife stays with the husband it may be injurious to her health.

In Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, it was held that where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. There can never be a straitjacket formula to determine mental cruelty in a matrimonial matter and it would be to evaluate on the facts and circumstances while considering the factors in each case.

The Court stated that “Law does not permit him to spoil the whole life of an innocent lady by giving divorce on grounds other than enumerated in section 13 of the HM Act.”

In the light of facts of the case and authorities cited, the Court set asides the decree of divorce and the decree of restitution of conjugal right was granted to the appellant/wife. The awarded maintenance of Rs 8,000/- per month from the respondent till the date of compliance with the decree of restitution of conjugal right and Rs. 10,000/- as cost of litigation in favor of the wife. [Sarita Sharma v. Gourav Sharma, 2022 SCC OnLine MP 2235, decided on 23.08.2022]


Advocates who appeared in this case:

Mr. Satish Tomar, Counsel for the Appellant;

Mr. Avinash Sirpurkar and Mr. Harshad Wadnerkar, Counsel for the Respondent.


*Ritu Singh, Editorial Assistant has put this report together.

Karnataka High Court
Case BriefsHigh Courts

   

Karnataka High Court: In a case filed by the petitioner-mother (‘petitioner 2') seeking acceptance on her pending passport application for her minor ward (‘petitioner 1') without any compulsion on her to mention the name of the father of the ward or his presence or signature in any form, Krishna S Dixit J., allowed the petition and directed the Regional Passport Officer to consider the subject application for passport without insisting upon the presence or consent of the father of the ward i.e., ex-spouse of petitioner as mere grant of passport does not, in anyway, threaten the rights of the respondent.

The present petition was filed in respect of a minor ward by the mother, who has been accorded exclusive custody of the ward by the Family Court. Counsel for petitioner submitted that once exclusive custody is granted by the Family Court, Regional Passport Officer is not justified in insisting upon the presence of father of the ward or for his consent and therefore, the passport must be granted sans such an insistence.

The Court noted that the Family Court has granted a Divorce Decree in the subject matrimonial cause whereby limited visitation rights have been accorded to the ex-husband of petitioner 2 i.e., father of the ward. Thus, on the apprehension of the respondent that absolute curtailment would occur, in case of visa-less travel, the Court noted that mere grant of passport would not per se result in curtailment of visitation rights as such.

Placing reliance on Master Kishan v. Union of India, in WP No. 32531 of 2017, decided on 15-02-2017, the Court directed Regional Passport Officer to consider the subject application for Passport sans insisting upon the presence or consent of the father of the ward i.e., ex-spouse of the petitioner 2.

The Court also clarified that petitioner 2 shall not travel without getting permission of Family Court.

[Divena Nayudu v. Government of India, WP No. 14716 of 2022, decided on 24-08-2022]


Advocates who appeared in this case :

Swamy MM, Advocate, for the Petitioner;

Sarojini Muthanna K, Advocate, for the Respondent.


*Arunima Bose, Editorial Assistant has put this brief together.

Chhattisgarh High Court
Case BriefsHigh Courts

   

Chhattisgarh High Court: In a case related to an appeal filed against the decision of the family Court, whereby an application filed by the husband seeking divorce was dismissed, Goutam Bhaduri, J. held that the marriage must be stand dissolved under S. 13 of the Hindu Marriage Act, 1955 (‘HMA’) by a decree of divorce primarily on the ground of customary divorce followed by the desertion of each other. Further, for a custom to have a colour of a rule of law, it is necessary for a party claiming it to plead the custom as ancientIn this case, the parties were married in 1982 and eventually a customary divorce was executed in 1994. As the customary divorce was not recognized by the employer of the parties, the husband filed an application under S. 13 HMA in 1995, wherein an ex-parte decree of divorce was passed. Subsequently, the appellant performed a second marriage and thereafter an application was filed by the wife under O. 9 R. 13 of Code of Civil Procedure, 1908 (‘CPC’) to set aside the earlier ex-parte decree.

The Family Court set aside the ex-parte decree. Thereafter, the initial suit continued and eventually it was dismissed by the impugned order. The wife further filed a civil suit for declaration with a prayer that customary divorce is bad in law and would not be operative, the suit was eventually dismissed and however the wife succeeded in the appeal. In such judgment the Appellate Court observed that since the appeal pertaining to same issue is pending before the High Court any finding given by the High Court would prevail over the finding of the appellate court.

The Court observed that “a plain reading of S. 29(2) HMA, clears that a marriage can still be dissolved in accordance with the custom governing the parties or under any other law providing for the same. The operating words of this section that ‘nothing contained in this Act shall be deemed to affect any right recognised by custom’ would lead to demonstrate that the provisions of the Act do not nullify the existence of any custom which confers a right on a party to obtain a dissolution of a Hindu marriage”.

It is further viewed that normally under HMA, the dissolution of a marriage by custom is not recognized but the saving clause of S. 29(2) recognises the customary divorce unless it is against the public policy.

The Court noted that the parties before execution of customary divorce were living separately for three years, and it was written that they cannot adjust with each other and hence decided to get separated. It also contains that both the parties would be free to remarry after the customary divorce and even the custody of the children was also decided. Further, there is no effort of any reunion till date, and they were living separately from past 28 years and the circumstances would show that there is irretrievable breakdown of the marriage and the parties have deserted each other, both mentally and physically.

The Court took note of the ruling in Bipinchandra Jaisinghbai Shah v. Prabhavati, 1956 SCR 838, and observed that “to establish desertion, there must be two essential conditions namely; (i) the factum of separation; and (ii) the intention to bring cohabitation permanently to an end

In the present case, the parties have separated for a long time and with the passage of time it do not show that there is any intention of reunion. Therefore, the Court held that Hindu marriage may be dissolved either under S.13 of HMA or under any special enactment in accordance with the custom applicable to the parties and S.29(2) HMA do not disturb the practice of customary divorce prevailing, before the Act came into force.

[Duleshwar Prasad Deshmukh v. Kirtilata Deshmukh, 2022 SCC OnLine Chh 1567, decided on 24.08.2022]


Advocates who appeared in this case :

Anurag Dayal Shrivastava, Advocate, for the Appellant;

B.P. Singh, Advocate, for the Respondent.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: In a divorce case where the Family Court had refused to hear the case on priority for early disposal, the Division Bench of A. Muhamed Mustaque* and Sophy Thomas, JJ. on observing that the woman belonged to Muslim community, suggested her to exercise her right to extra-judicial divorce.

The Court opined that the Presiding Officer of the Family Court is the best person to judge the management of the cases pending before the Court.

The petitioner, a 26-year-old lady Muslim woman had approached the Family Court for divorce and recovery of gold ornaments. She had sought for early hearing of the petition in the light of the judgment in Shiju Joy v. Nisha, 2021 SCC OnLine Ker 1391, wherein the High Court had issued guidelines to streamline, the disposal of the pending cases before the Family Court. Family Court was also permitted to depart from the guidelines in appropriate cases.

In the instant case, the Family Court dismissed the petition by stating that the petition being considerably a new case, it could not be prioritized f or disposal. The Family Court further found that there were no sufficient reasons to depart from the normal listing of the case.

Assailing the Family Court’s order, the petitioner contended that her parents are Senior citizens and they are longing for her second marriage after settling all the monetary claims.

The Court noted that the petitioner, being from a Muslim community has every right to invoke extra judicial divorce to separate legal marriage and there was no reason for her to wait at the corridors of the court for having separation of her marriage with the respondent. The Court said,

“When law itself bestowed her with the right to invoke extra-judicial divorce, we are at the dismay, why the petitioner has not chosen to exercise that option. If she really needs legal separation, she could have very well invoked extra-judicial divorce even in the pending matter.”

The Court further observed that if she resorts to extra-judicial divorce, the Family Court record the same in the proceedings pending before it and can very well dispose of the case without further delay as there would be no adjudication required.

In regard to the monetary claims, claim for movables, etc., the Court held that it could not pressurize the Family Court to dispose of such case overlooking the other pending matters. Further, the Court opined that the Presiding Officer of the Family Court is the best person to judge the management of the cases pending before the Court.

Hence, the Court affirmed the order passed by the Family Court and dismissed the instant petition.

[Aayisha A. v. Ahammed Haneefa, OP (FC) No. 90 of 2022, decided on 17-02-2022]


*Judgment by: Justice A. Muhamed Mustaque


Appearance:

For the Petitioner: Advocate B. Mohanlal


Kamini Sharma, Editorial Assistant has put this report together.


Kerala High Court
Case BriefsHigh Courts

   

Kerala High Court: While adjudicating a divorce case, the Division Bench of A. Muhamed Mustaque and Sophy Thomas*, JJ., raised concern about the rise of live-in-relationships just to say goodbye when they fall apart. Expressing concern about the alarming increase of divorce cases in the State, the Court remarked,

“The wails and screams coming out of disturbed and destroyed families are liable to shake the conscience of the society as a whole. When warring couples, deserted children, and desperate divorcees occupy the majority of our population, no doubt it will adversely affect the tranquillity of our social life, and our society will have a stunted growth.”

A husband, who lost his case for divorce on the ground of matrimonial cruelties had approached the Court to assail the Family Court's order. The husband appellant contended that though they were leading a very cordial and smooth marital relationship till 2018, thereafter the respondent developed some behavioural abnormalities, and she often picked up quarrels with him for no reason. He further alleged that because of the indifferent, abusive, and violent behavior of his wife (the respondent herein), he became mentally stressed and physically ill.

Mental Cruelty

The Court, on analysing the facts and evidence, found that the appellant failed to prove the allegations of cruelty against the respondent so as to dissolve their marriage for the following reasons:

  • As a responsible husband, the appellant was bound to know the reason for such behavioural changes in his wife, whether it be physical, mental, or psychological. He has no case that he ever took his wife to a psychologist or psychiatrist to know the reason for her behavioural abnormalities.

  • The appellant did not disclose/admit that the couple had a love marriage, though his own mother and his own close relative admitted that fact before Court.

  • According to the respondent, her marital life with the appellant was so smooth till 2018 and thereafter, he was trying to avoid her and her children.

  • The mother and close relatives of the appellant categorically deposed that in the year 2017, the appellant developed some illicit intimacy with a lady named Anjali, and thereafter, he wanted to avoid his wife, children, and even his own mother.

  • In such a scenario, the normal human reactions or responses from a wife, on knowing that her husband was having illicit connection with another lady, could not be termed as behavioural abnormality or cruelty from the part of the wife, so as to dissolve their marriage.

  • The appellant was not hesitant, even to question the chastity of his own aged mother, as she was supporting the respondent.

In the light of the aforesaid, the Court opined that the appellant wanted to avoid the respondent and her children to continue his unholy alliance with another woman. The Court noted,

“When the wife had reasonable grounds to suspect the chastity or fidelity of her husband, and if she questions him, or expresses her deep pain and sorrow before him, it cannot be termed as a behavioural abnormality, as it is the natural human conduct of a normal wife.”

Hence, rejecting the appellant's case on the ground of mental cruelty, the Court said,

Courts cannot come to the aid of an erring person to legalise his activities, which are per se illegal. If the husband having unholy alliance with another woman wants to avoid his lawfully wedded wife and his three little children, he cannot seek the assistance of a court of law to get his present relationship legalised by dissolving his lawful marriage, without any valid reasons for the same.”

Non-Cohabitation as a Ground for Divorce

Similarly, considering the respondent's willingness to save the marriage and resume her marital life with her husband, the Court rejected the appellant's case on the ground of non-co-habitation for a long time. The Court relied on Uthara v. Dr.Sivapriyan, 2022 SCC OnLine Ker 921, to hold that non-co-habitation however long it may be, if it was due to deliberate avoidance or due to pendency of cases filed by one party, the other party cannot be found fault with, when that party is still ready to continue his/her matrimonial life, and no grounds recognized by law are established against that party to break their nuptial tie.

Verdict

Emphasizing on the present trend to break the nuptial tie on flimsy or selfish reasons, or for extra-marital relationships, even unmindful of their children, the Court said,

“Now-a-days, the younger generation thinks that marriage is an evil that could be avoided to enjoy free life without any liabilities or obligations. They would expand the word ‘WIFE' as ‘Worry Invited For Ever' substituting the old concept of ‘Wise Investment For Ever'.”

The Court noted that law and religion consider marriage as an institution by itself and parties to the marriage are not permitted to walk away from that relationship unilaterally, unless and until they satisfy the legal requirements to dissolve their marriage through a court of law or in accordance with the personal law which govern them.

Hence, considering that the respondent still wants to live with her husband and live together along with their children, the Court directed that if the appellant is ready to come back to his wife and children, they are ready to accept him, it could not be said that the chances of an amicable reunion are foreclosed forever.

Resultantly, the Court upheld the finding of the Family Court that the appellant is not entitled to a decree of divorce on the ground of matrimonial cruelties.

[Libin Varghese v. Rajani Anna Mathew, Mat. Appeal No. 456 of 2020, decided on 24-08-2022]

*Judgment by: Justice Sophy Thomas


Advocates who appeared in this case :

Mathew Kuriakose, J. Krishnakumar (Adoor), and Moni George, Advocates, Counsels for the Appellant;

B.J. John Prakash, P. Pramel, Nimmy Shaji, and Balasubramaniam R., Advocates, Counsels for the Respondent.


*Kamini Sharma, Editorial Assistant has put this report together.

Chhattisgarh High Court
Case BriefsHigh Courts

   

Chhattisgarh High Court: In a case relating to the appeal filed by the wife against the decision of the family court allowing the application of husband for seeking divorce on the ground of cruelty, the division bench of Goutam Bhaduri and Radhakishan Agrawal, JJ. observed that in a situation when a wife goes to the office premises of the husband, abuses him and accuses him of illicit relation, naturally it would result in diminishing the image of the husband before the colleagues and the office stature will certainly go down. Further, abusing the in-laws and stopping the husband from meeting his parents would also amount to cruelty.

The Court while taking note off all the evidence observed that the act of pulling back the husband mid-way from his brother's marriage ,whereby he was forced to leave the marriage is also an unnatural cruel act and such act would bring down the image and the prestige of a family in the eyes of public, which may also amount to cruelty. Further, the wife has made void allegation of illicit relationship of the husband with a lady outside the marriage and even made a complaint to the Chief Minister to transfer the husband from a particular posting in the office with allegation of illicit relations.

The Court took note of the ruling in Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511, wherein the court held that no uniform standard can ever be laid down for guidance and defined a non-exhaustive list of instances that constitutes mental cruelty. It further relied on Narendra v. K. Meena (2016) 9 SCC 455, wherein the court held that when the assassination of character is made by either of the parties it would constitute a mental cruelty for which a claim for divorce under S.13(1)(i-a) of the Hindu Marriage Act, 1955 would be sustainable.

[Nalini Mishra v. Surendra Kumar Patel, First Appeal (MAT) No. 8 of 2020, decided on 18.08.2022]


Advocates who appeared in this case :

Shishir Shrivastava, Advocate, for the Appellant;

C. Jayant K. Rao, Advocate, for the Respondent.

Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Sunita Agarwal and Om Prakash Shukla, JJ. dismissed and appeal on the admission stage itself which was directed against the order passed by the family court under Section 24 of the Hindu Marriage Act, 1955 in a proceeding for divorce instituted by the appellant husband.

It was noted from the impugned order that only Rs. 3000/- per month had been granted towards interim maintenance to the respondent wife apart from Rs. 5000/- towards the cost of the proceeding. Counsel of the appellant had challenged the order contending that the appellant was unemployed and he has no source of income. It was further submitted that the respondent wife has independent income as she is running a medical store along with his father who is a doctor.

The Court was of the opinion that the mere fact that the respondent wife is educated and is doing something to survive since she has been thrown out of her matrimonial home cannot be a reason to deny interim maintenance.

An able-bodied husband cannot argue that he is not in a position to maintain his wife. It is social, legal and moral responsibility of a man to maintain his wife and no exception to the same can be taken by us, in view of bald assertions of the appellant.

The Court dismissed the appeal referring to the decision of the Supreme Court in Rajnesh v. Neha , (2021) 2 SCC 324 where law of maintenance was discussed.

[Vaibhav Singh v. Divyashika Singh, 2022 SCC OnLine All 577, decided on 03-08-2022]


Advocates who appeared in this case :

Santosh Kumar Singh, Advocate, Counsel for the Appellant.


*Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In a complex case where both the parties claimed to be disabled to get the matrimonial case transferred to the court of their convenience, V. Ramasubramanian, J., held that once the order fixing maintenance has attained finality, the petitioner cannot seek a transfer of the execution pending under Section 125(3) the CrPC to another Court.

In a collateral proceeding, the marriage between the parties had been dissolved by the Family Court and the petitioner-husband was directed to pay the maintenance to the respondent-wife under Section 125(1) CrPC. The said order has attained finality.

Later on, the respondent-wife approached the Family Court on the ground that the maintenance so fixed in the original order had not been. The petition for enforcement was taken up by the Family Court along with an application for modification of the maintenance, filed by the petitioner-husband.

The Family Court passed an order on 18-01-2019 directing the petitioner-husband to pay the entire arrears of maintenance within one month as a condition precedent for deciding the application for modification. Though the petitioner did not challenge the said order dated 18-01-2019, he has come up with the instant petition for transfer of the proceedings on the ground that he is suffering from bone cancer and that he is not in a position to undertake travel from Delhi to Nagpur, Maharashtra. The Petitioner also contended that he is wheelchair-bound and the Family Court in Nagpur is not disabled-friendly. The averments made by the petitioner were disputed by the respondent-wife. In contrast, she claimed to be suffering from a serious kidney disorder forcing her to undergo dialysis.

Considering the contentions of the parties, the Court said,

“The question as to whether the petitioner or the first respondent, who is more disabled has itself become a serious matter of challenge. It is not possible for this Court while dealing with a transfer Petition, to undertake a roving inquiry to find out who is more disabled.”

Noticing that the conditional order dated 18-01-2019 for taking up the application for modification has also not been complied with and a period of more than three years has passed, the Court opined that even if the transfer is ordered, as prayed for, the order dated 18-01-2019 will stare at the face of the petitioner.

Therefore, the Court concluded that however unfortunate the case may be on either side or on both sides, the petitioner did not deserve the indulgence of the Court for transfer. Therefore, the Transfer Petition was dismissed.

[Navneet Wadhwa V. Simran Wadhwa, 2022 SCC OnLine SC 1078, decided on 16-08-2022]


Advocates who appeared in this case :

AOR Krishan Kumar,and Advocates Vidur Kamra and Jyoti Taneja, Advocates , for the Petitioner;

Senior Advocate V. Mohana, Advocates Satyajit A. Desai, Devdeep, and AOR Anagha S. Desai, Advocates, for the Respondent(s).


*Kamini Sharma, Editorial Assistant has put this report together.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: In a divorce case, Anil K. Narendran and C. S. Sudha, JJ., held that constant and repeated taunts by the husband towards his wife that she is not a wife of his expectations; the comparisons with other women, etc. would certainly be mental cruelty which a wife cannot be expected to put up with.

The petitioner-wife had moved a petition under Section 10(x) of the Divorce Act, 1869 (‘the Act’), before the Family Court seeking dissolution of her marriage to the respondent on the ground of cruelty. Later on, the petition was amended to bring in an additional ground for dissolution of marriage; i.e., non-consummation of marriage under Section 10(vii) of the Act.

The Family Court allowed the petition and the marriage between the petitioner and the respondent was declared dissolved by a decree of dissolution of marriage on the ground of non-consummation of marriage. However, the Family Court rejected the allegation of cruelty.

Aggrieved by the decree of dissolution of marriage granted under Section 10(vii), the respondent-husband had assailed the same in the instant case.

Consummation of Marriage

Noticeably, on the direction of the Court below a virginity test of the petitioner was conducted. The petitioner had relied on her virginity certificate to establish that the marriage has not been consummated and that she continues to be a virgin.

To conclude whether the pleadings in the instant case are sufficient to attract the ground under Section 10(vii) of the Act, the Court considered the following allegations raised by the petitioner:

  • After a few weeks of marriage, the respondent confided to the petitioner that she was not cute enough to suit the girl of his expectations and that she had married her only out of the pressure exerted by his mother.

  • Even when they met on weekends at his residence, he did not evince any interest in the petitioner. Instead, he preferred to work on his laptop.

  • Though the petitioner had stayed with the respondent for about 40 days, there was never any sexual relations between the parties, as the latter refused to have it and as such the marriage between the parties has not been consummated.

  • The respondent was not interested in sexual relationship with the petitioner. After the first two weeks of the marriage, they stayed together only on the night of Saturdays. Never there was any sexual relationship between them during those days.

Considering the aforementioned, the Court observed that in spite of the fact that both the spouses are normal and healthy, the marriage had not been consummated, for which no cogent reasons had been given by the respondent, except a bald assertion that he had consummated the marriage, which case stands disproved by the testimony of the doctor who examined the petitioner and the virginity certificate.

Hence, the Court concluded that the aforesaid pleadings do make out a case of studied neglect and indifference on the part of the respondent towards the petitioner.

Wilful Refusal to Consummate

The respondent alleged that the court below had erroneously framed the issue as to whether the marriage has not been consummated; which according to the respondent was incorrectly framed because the right issue should be whether the marriage has not been consummated due to wilful refusal by the respondent.

The respondent alleged that as the petitioner had complained of pain during coitus, they had consulted a gynaecologist at the Medical Trust Hospital. The doctor on examination opined that the petitioner has a thick hymen membrane, which could be rectified by minor surgery or by repeated coitus. However, the petitioner never underwent the surgery, as the problem was solved by repeated coitus.

On the contrary, the petitioner claimed that the pain she had to endure during coitus was quite normal and that the gynecologist, consulted at the instance of the respondent had advised them that regular/repeated coitus would solve the problem and that the pain would subside. However, the respondent never took any interest in the same. While the mother of the petitioner submitted that her daughter had told her that the respondent had not been engaging in coitus with her and that it was to find out the reason for the same, the couple had consulted the doctor.

Hence, the Court opined that the fact that there had been no consummation of the marriage was established by the testimony of the doctor who conducted the virginity test and the virginity certificate. However, the petitioner was not able to prove that it was due to wilful abstinence or refusal by the respondent to consummate the marriage within the meaning of Section 10(vii).

Mental Cruelty

The petitioner had a case of physical as well as mental cruelty by the respondent. She contended that the repeated bullying and humiliating behaviour of the respondent had caused quite a stress, strain, and tension to her and had a deep impact on her mind and health, as a result of which she was not even able to concentrate on her work, which seriously impacted her profession too.

The petitioner referred to the following instances of physical cruelty as well as mental cruelty in her petition as well as in her testimony:

  • The respondent, a man of short temper, and when he loses his temper, he turns violent and physically assaults anyone and everybody including his mother and sister apart from the petitioner and is also in the habit of hurling things like ashtray, flower vase, etc. and breaking them.

  • He had abused her in the most obscene, foulest, and filthiest language, and on one occasion he even attempted to strangle/choke her and it was the respondent’s mother who had got her extricated/released from the respondent’s grip.

  • Once, the respondent even dragged her out of the house, and at night she was not let into their room and was made to sleep in her sister-in-law’s room instead.

  • Respondent even suspected her fidelity and used to get wild and furious whenever the petitioner would receive messages from her male friends.

  • That the respondent was always in the habit of belittling and humiliating the petitioner by comparing her with other women.

The Court noted that the Family Court had disbelieved the petitioner’s allegation of cruelty on two occasions: initially she was disbelieved because there was only the sole testimony of the petitioner to substantiate the allegations; and later on, when she produced further evidence by examining her mother, the court below opined that the same was the outcome of a plan hatched by the mother and the daughter. Criticising the approach adopted by the court below, the Court remarked,

“Then who is the witness to be brought in, to substantiate the petitioner’s case? …the court below has found fault with the petitioner for not examining the mother of the respondent, who in its opinion is the best witness to substantiate the case of the petitioner. Nevertheless, the petitioner cannot be expected to prove her case by examining the opposite party’s own mother. That would be expecting the impossible from her.”

Analysis and Findings

Considering the above mentioned, the Court opined that though there was only the testimony of the petitioner and her mother to substantiate the case alleged, it is a time-honoured principle that evidence must be weighed and not counted.

Further, both the parties were MCA graduates. Hence the Court held that the petitioner could not be expected to put up with such attitude and behaviour of the respondent. The Court expressed,

“The marriage between the parties was solemnized on 17-01-2009. The petition for dissolution of marriage is seen filed on 02-11-2009. Going by the materials on record, the couple seems to have been together for hardly a month or so. Almost 14 years have elapsed since the filing of the present petition. The couple still continues to be separated and are hotly contesting the matter.”

Hence, the Court held that the conduct of the respondent/husband could, by no stretch of imagination, be said to be the outcome of the normal “wear and tear” of family life, especially when the parties cohabited for quite a short period of time.

Conclusion

Consequently, applying the philosophy that “human life has a short span and situations causing misery, cannot be allowed to continue indefinitely. A halt has to be called at some stage. Law cannot turn a blind eye to such situations, nor can it decline to give adequate response to the necessities arising therefrom”, the Court concluded that the petitioner had succeeded in establishing the ground under Section 10(x) of the Act and so the finding of the court below to the contrary deserved to be interfered with.

The appeal was dismissed. The decree granted by the court below for dissolution of marriage between the petitioner and the respondent was modified as one under Section 10(x) of the Act.

[X v. X, Mat. 2022 SCC OnLine Ker 3928, decided on 04-08-2022]


Advocates who appeared in this case :

Thushara James and M.S.Amal Dharsan, Advocates, for the Petitioner;

K.P.Sreeja and M.B.Sandeep, Advocates, for the Respondent.


*Kamini Sharma, Editorial Assistant has put this report together.

Madras High Court
Case BriefsHigh Courts

   

Madras High Court: In a case of marital discord and petitioner-wife, a practicing advocate was seeking removal of respondent-husband from the matrimonial home, R N Manjula, J. granted protection order and directed the husband to move out of the matrimonial home in the best interest and welfare of the children and to ensure peaceful possession and enjoyment of the petitioner wife in the home in any manner.

The petitioner wife filed an Original Petition for dissolution of marriage against the respondent-husband. During the pendency of matrimonial proceedings, the wife filed an interim application seeking mandatory injunction directing the respondent to move out of the matrimonial home in the best interest and welfare of the children till the disposal of the Original Petition which was partly allowed by the Family Court directing the respondent to not disturb the peaceful possession and enjoyment of the petitioner in the matrimonial home in any manner whatsoever where the petitioner living along with her children, till the disposal of the main petition. Assailing this, the revision petitioner preferred the instant Civil Revision Petition.

The Court noted that instead of giving a supportive hand to the petitioner by being accommodative of her demanding profession, the respondent developed a complaining attitude and found fault with the respondent for being engaged with her work.

Placing reliance on Samir Vidyasagar Bhardwaj v. Nandita Samir Bhardwaj, (2017) 14 SCC 583, the Court noted that if the removal of the husband from home alone is the only way to ensure domestic peace, the courts need to pass such orders irrespective of the fact whether the respondent has or has not another accommodation of his own. If the husband has got alternate accommodation, it is fine that he can be asked to accommodate himself in those alternate premises. If he does not have any other accommodation, it is up to him to secure alternate accommodation.

On the impugned order passed by the Family Court, the Court remarked that “Allowing the respondent to be at the same home but directing him that he should not disturb the other inmates of the home is something impractical. A relief for a person who fears about an impending atom bomb, would be just to remove the bomb from his/her vicinity.”

Thus, the Court observed that when a couple lives under one roof, the conduct of one party to the other is always vital in defining the respect and recognition the family would get from others. If domestic peace is disturbed due to unruly acts of one party, namely the husband, there need not be any hesitation in giving the practical enforcement for the protection order by removing the husband from the house.

The Court modified the impugned order passed by the Family Court and directed the respondent-husband to leave the house where the petitioner and the children live and find alternate accommodation within a period of two weeks from the date of receipt of a copy of the order, failing which, the respondent shall be removed from the matrimonial home with the help of police protection.

[V Anusha v. B Krishnan, CRP (PD) No. 1824 of 2022, decided on 11-08-2022]


Advocates who appeared in this case :

S. P. Arthi, Advocate, for the Petitioner;

D. Suresh Kumar, Advocate, for the Respondent.


*Arunima Bose, Editorial Assistant has reported this brief.

Madras High Court
Case BriefsHigh Courts

   

Madras High Court: V Sivagnanam J. directed the State police to add the offences under Sections 417 and 420 Penal Code, 1860 (‘IPC') on allegations that the accused husband has deceived the complainant- ex-wife and made her to marry him, wrongfully displaying that he is competent to consummate marriage.

The petitioner is the complainant whose marriage took place with the first accused took and after the marriage, the complainant found that he is not interested with his wife in the marriage life due to his impotency. Thereafter, the complainant came to know that due to his impotency, he got divorced from his first wife. Pursuant to this, the accused husband left the home on 04-01-2022 and the petitioner made a complaint on 15-02-2022 that got registered on 18-05-2022.

A perusal of the complaint given by the complainant clearly states about the non-disclosure of the impotency of the husband at the time of marriage and he made the complainant to believe that he is a competent person to live ordinary life as husband and wife without disclosing his incapacity and thereby, the accused-husband deceived the complainant and made her to marry him, claiming that he is competent to consummate the marriage. After the alleged deceit came to light, the accused-husband granted divorce to the wife by saying ‘talaq' and went to United States of America.

The case was registered under Sections 498-A and 406 IPC without including Sections 420, 417 and 379 IPC even though the allegation disclosed the fact of cheating committed by the accused persons. Thus, the instant criminal original petition was filed to direct the respondent police to alter the FIR by including Sections 420, 417 and 379 Penal Code, 1860 therein.

Relevant provisions of Penal Code, 1860

Section 417 Punishment for cheating —Whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

Section 420 Cheating and dishonestly inducing delivery of property. —Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Counsel for State submitted that the matter has been referred to the Social Welfare Department, Madurai, for the purpose of conducting a preliminary enquiry. After receiving the report from the Social Welfare Department, Madurai, they are ready to consider the alteration of F.I.R.

Thus, the Court directed the respondent Police to add the offences under Sections 417 and 420 IPC in the case and investigate and file the final report within four months, after receiving the report from the Social Welfare Department, Madurai.

[Irfana Nasreen v. The State, Crl. O P (MD) No. 11840 of 2020, decided on 20-07-2022]


Advocates who appeared in this case :

M. Radhakrishnan, Advocate, for the Petitioner;

R. Suresh Kumar, Government Advocate, for the Respondent.


*Arunima Bose, Editorial Assistant has reported this brief.

Calcutta High Court
Case BriefsHigh Courts

Calcutta High Court: Ananda Kumar Mukherjee, J. took cognizance of a petition which was preferred by the petitioner -wife praying for transfer of Matrimonial Suit pending before the Additional District Judge, Fast Track Court, Coochbehar to any other Court of Additional District Judge at Siliguri, allowing the transfer.

Petitioner’s marriage with the respondent was solemnized on 11-03-2020 and they stayed together as husband and wife in the house of the respondent at Coochbehar for 15 days. The respondent filed the Matrimonial suit under Section 13(1)(ia) of the Hindu Marriage Act, 1955 against the petitioner praying for a decree of divorce as a counter blast of the F.I.R. lodged by her. The petitioner contended that she is residing with her mother at Siliguri and has no earning of her own. On the contrary, the husband is employed. She further contended that the relationship between the wife and her husband is strained, and she feels insecure to travel to Coochbehar Court for the purpose of taking part in the proceedings.

Counsel for the respondent submitted that he is a contractual worker, having work for 26 days with a marginal monthly income and is also suffering from Cardiac ailments which requires immediate surgery. He further argued that the petitioner had voluntarily left the matrimonial home within 15 days of the marriage and the present suit for divorce has been filed on the ground of cruelty. Regarding transfer of the case, it was contended that there is conveyance facility to conveniently travel to Coochbehar and the petitioner has no cogent ground for preferring this revisional application and the same is liable to be dismissed.

The Court heard the parties and agreed that travelling at odd hours of the day is a physical hardship for the petitioner and by filing a suit for divorce directly without any attempt to restore the marital relationship, the petitioner-wife cannot be put to such inconvenience. The Court drew its support from the judgment relied on by the counsel of the petitioner in Madhu Saxena v. Pankaj Saxena, (2005) 13 SCC 158 where the principle of “showing leniency towards the wife” was followed.

The Court allowed the petition and opined that it would be appropriate to transfer the Matrimonial Suit from the Court of Additional District Judge, F.T.C., Coochbehar to the Court of District Judge, Darjeeling.

[Sandipa Gupta v. Suraj Gupta, 2022 SCC OnLine Cal 2027, decided on 14-07-2022]


Advocates who appeared in this case :

Mr Sanjay Mazoomdar, Ms Sukanya Adhikary, Advocates, for the Petitioner;

Mr Subhasish Mishra, Mr Swarup Das, Advocates, for the Respondent.


*Suchita Shukla, Editorial Assistant has reported this brief.

Madras High Court
Case BriefsHigh Courts

Madras High Court: A Division Bench of V. M. Velumani and S. Sounthar, JJ. granted divorce as sought by the appellant-husband on grounds of mental cruelty as the wife suspected the character of the appellant-husband and used filthy language in front of his colleagues and students and also alleged for having extra marital affair with his colleague without being able to provide any substantial evidence corroborating the same.

The appellant husband sought for divorce on the ground of mental cruelty before the Family Court which was dismissed as the appellant failed to prove mental cruelty. Aggrieved by the same, present appeal was filed under Section 19 Family Court Act. The appellant alleged that the respondent/wife developed suspicion about the appellant’s conduct and character and humiliated him by connecting him with his female colleagues. A false complaint was preferred by respondent/wife against appellant/husband before Thiruchengodu All Women Police Station and further tarnishing the image of the appellant came to his work-place and used filthy languages and spoke ill of him by connecting him with other female lecturers and as all his attempts for reunion resulted in failure hence, he was constrained to file divorce petition on the grounds of cruelty.

Reliance was placed on A Jayachandra v. Annel Kaul, (2005) 2 SCC 22 to observe that suspecting the character of other spouse and making complaint to police would certainly amount to mental cruelty, when it is not substantiated by any evidence. The Court noted that in the case on hand, the respondent herself admitted that she did not know the name of the lady with whom the appellant was allegedly having illegal intimacy. Thus, she assumed illegal intimacy only because appellant used to talk with his female colleagues over cell phone. Hence, the doubt created in the mind of respondent is nothing but an assumption without any reasonable basis.

Further reliance was placed on Anusha v. Arjun, (2017) 5 LW 165 wherein it was observed that “the fact remains that the appellant went to the workplace of the respondent on the relevant day and she also apologized for what has happened by way of an e-mail to the respondent. This incident, undoubtedly, would have developed a deep scar in the mind of the respondent. While that be so, we hold that the respondent has established that he was subjected to cruelty at the hands of the appellant.”

Placing further reliance on K Srinivas Rao v. D A Deepa (2013) 5 SCC 226 and Narendra v. K Meena (2016) 6 CTC 440 observed that the respondent /wife caused mental cruelty to husband by suspecting his character and making false allegations of extra marital affair in the presence of his colleagues and students and also before the police.

With regard to one of the contention made by the counsel for the appellant regarding removal of thali chain (mangalsutra) at the time of separation by the wife shows her intention to dissolve the marriage, the Court relied on judgment Vallabhai v. R Rajasabhi (2017) 1 MWN (Civil) 128 and categorically noted that though removal of thali chain per se insufficient to put an end to the marital knot, but the said act of respondent is a piece of evidence in drawing an inference about the intentions of the parties. Thus, the act of removal of thali chain at the time of separation coupled with various other evidence available on record, concludes that the parties have no intention to reconcile and continue the marital knot.

As the appellant and the respondent are living separately from 2011 onwards and there was no evidence available on record to show that respondent made any attempt for reunion during this period, thus, the Court granted decree of divorce dissolving the marriage as the actions alleged by the appellant husband amounts to mental cruelty within the meaning of Section 13(i)(a) Hindu Marriage Act, 1955.

[C. Sivakumar v. A. Srividhya, 2022 SCC OnLine Mad 3672, decided on 5-07-2022]


Advocates who appeared in this case :

For the Appellant : Senior Adv. S. Subbiah;

For the Respondent : Adv. S. Vijayaraghavan.


*Arunima Bose, Editorial Assistant has reported this brief.

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab & Haryana High Court: While deciding an appeal arising from a divorce petition, the bench of Ritu Bahri, J. and Meenakshi I. Mehta, J. observed that “the facts and circumstances unequivocally speak volumes of the fact that the respondent has incessantly been filing the complaints against the petitioner as well as his family members and the petitioner even had to go behind the bars in connection with one of those complaints, resulting in harm/damage to his image and reputation in the eyes of their relatives and the society at large”.

Facts and legal trajectory of the case: The marriage between the petitioner and respondent had been solemnized according to Hindu rites and ceremonies in Chandigarh on 26-09-2014. However, soon after the marriage, the respondent allegedly started quarreling over petty issues, threatened to commit suicide multiple times, threatened to file a false case/complaint against the petitioner and his family, and on one occasion, slapped the petitioner in public. On 02-03-2015, the respondent lodged a complaint with the Crime Against Women Cell against the petitioner, his mother, sister, and uncle but later on, she made a statement before the police authorities that she did not want to pursue her complaint further. The respondent again submitted a complaint against the petitioner and his family, in pursuance of which the police had arrested the petitioner under Sections 107/151 of CrPC. and prepared a Calendra against him and his mother. In these proceedings, the petitioner had appeared before the Executive Magistrate, Ambala but the respondent did not make any statement before the said authority and subsequently, the petitioner was discharged on 18-08-2015. After this, the respondent kept filing complaints against the petitioner and his family in the Crime Against Women Cell.

On the other hand, the respondent alleged that the petitioner’s mother and sister wanted to oust her from her matrimonial home and were pitting him against her. The petitioner had also disclosed to the respondent that his mother and sister had threatened to commit suicide in case he took her back to his house. The respondent also claimed that the mother-in-law had demanded a Skoda car in dowry. On one occasion, the respondent had messaged the petitioner saying that she will commit suicide since he had left her outside on the road in the late hours of the night.

Due to such circumstances, the petitioner had filed a petition under Section 13 of the Hindu Marriage Act, 1955 for seeking the dissolution of their marriage by way of a decree of divorce, but the trial court dismissed the petitioner. Consequently, the petitioner filed an appeal in the High Court.

Issue:

Whether the conduct of the respondent would fall within the realm of mental cruelty?

Analysis and findings:

After analyzing the witnesses and evidence on record, the court observed that “the respondent has incessantly been filing the complaints against the petitioner as well as his family members and the petitioner even had to go behind the bars in connection with one of those complaints, resulting in harm/damage to his image and reputation in the eyes of their relatives and the society at large”. The court relied on the case of Joydeep Majumdar v. Bharti Jaiswal Majumdar [2021 (2) R.C.R. (Civil) 289] and held that the respondent had subjected the petitioner to cruelty after their marriage. Even otherwise, the parties have been living separately since 26-01-2015, i.e., for more than the last seven years and therefore, their marriage can safely be termed as a ‘dead marriage’.

Subsequently, the court allowed the appeal and set aside the impugned order of the trial court. The court also allowed the petition under section 13 of the HMA,1955 and dissolved the marriage between the parties.

[Anmol Verma v. Radhika Sareen [FAO No.6969 of 2019 (O&M)], decided on 05-07-2022]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: The Division Bench comprising A. Muhamed Mustaque and Sophy Thomas, JJ., held that cruelty has to be assessed from the perspective of a spouse, i.e., how he/she would perceive the conduct of the other spouse.

Reversing the impugned judgment of the Family Court, the Court held,

“Mere attempt by the mediators cannot save the laches which otherwise looms large to strain such relationship. She had felt neglect and a sense of insecurity which prompted her to seek divorce.”

Factual Matrix

The marriage between the appellant-wife and the respondent-husband was solemnised on 17-03-2010. It was the case of the appellant that they have lived as husband and wife only for 24 after which the respondent left for his employment in Abu Dhabi. The appellant contended that after reaching Abu Dhabi, the respondent never cared to contact her nor inquired about her well-being.

Further, the appellant alleged that the respondent always suspected her chastity and fidelity; and had even asked her to keep her mobile phone on loudspeaker mode to enable him to listen to the incoming calls. On the contrary, the respondent denied all the allegations and contended that though they had lived as husband and wife only for 24 days, it was the appellant who left the matrimonial home of her own volition and failed to return to the matrimonial home in spite of intervention of many well-wishers.

Findings of the Family Court

The Family Court found that the appellant failed to make out a case for divorce on the ground of cruelty and desertion. The Family Court relied on an excerpt of the diary of the appellant, wherein she had written:

“I always like his presence. His absence pains me. I pray that Sun will not rise today, with the Sunset I remain alone without his presence, without his smile and soft look.”

Thus, the Family Court held that the diary entries did not reflect any bitter experience by the appellant from her husband and that those are the words of the wife who is craving for the presence of her loved husband. Consequently, the Family Court refused to believe the case of cruelty.

The Family Court also noted that the appellant left the matrimonial home for employment and therefore, it could not be construed as desertion. Hence, the case of divorce was dismissed also on the ground of desertion.

Analysis and Findings

Whether the husband going abroad for employment amounts to desertion?

Concurring with the finding of the Family Court dismissing the petition on the ground of desertion, the High Court noted that the respondent left for Abu Dhabi for his job. He had no intention to abandon the marriage. He had also not refused to cohabit with the appellant. The Court expressed,

“There must be an element on the part of the party alleging to be deserted either to abandon the marriage or to forsake the cohabitation permanently. In the absence of those elements, any sort of separation cannot be construed as a ground constituting desertion.”

Cruelty as a Ground for Divorce

Referring to the diary entries, the High Court opined that it portrayed reflection of the mind of a person who felt isolated for want of the presence of her husband. The Court observed,

“Being a lady, she appears to be one who was looking forward to the care and love of her beloved husband. There was no contact from the side of the respondent.”

The Court noted that the diary itself would show that the appellant was longing to live with her husband which never happened and no attempt was made by the respondent to be in her company. Opining that one would not refuse to return to the matrimonial home for no reason, the Court held that there must be some reason that persuaded the appellant to remain at the parental house.

With regard to the ground canvassed by the appellant as cruelty, the Court noted that it was not a singular incident of misconduct that mattered for consideration, but the approach should be to consider the whole conduct of the spouse to analyse if cruelty is meted out or not.

The appellant had a case that she was promised that she would be taken to gulf country and, on that pretext, gold ornaments belonging to her were collected by the respondent. It was only when her hope to live together came to an end, that she decided to have a separation.

Resultantly, the Court held that cruelty has to be assessed from a perspective in which a spouse would perceive the relationship with the other spouse. The Court remarked,

If he cannot nurse the feelings of the spouse and live up to her expectation, that would result in mental frustration.

Conclusion

In the backdrop of above, the Court concluded that since the parties had been living separately for more than a decade, the marriage had become deadwood for all practical purposes. Consequently, the appeal was allowed and the impugned judgment was set aside. The marriage between the petitioner and the respondent was declared dissolved.

[Subhi N. v. Sreeraj E., 2021 SCC OnLine Ker 12117, decided on 25-11-2021]


Advocates who appeared in this case :

Cibi Thomas, Advocate, for the Appellant;

Bindumol Joseph and Advocate B.S. Syamanthak, Advocates, for the Respondent;


*Kamini Sharma, Editorial Assistant has reported this brief.

Karnataka High Court
Case BriefsHigh Courts

Karnataka High Court: The Division Bench of S. Sunil Dutt Yadav and K.S. Hemalekha, JJ. allowed the petition in part and dissolved the marriage between the parties on account of mental cruelty for levelling unsubstantiated claims against husband by the wife. 

  

The present appeal was preferred by the husband assailing the judgment and decree passed by Principal Judge, Family Court, Dharwad, whereby the petition filed by the husband under Section 13(1)(ia) of the Hindu Marriage Act, 1955 seeking decree of divorce on the ground of cruelty was dismissed. The grounds for divorce are regarding allegations levelled against him that the husband is impotent in front of relatives which amounts to mental agony and cruelty to the husband. 

  

The issue under consideration is whether the allegation made by the wife that the husband is impotent and not competent to perform matrimonial obligations has resulted in mental cruelty as envisaged under Section 13(1)(ia) of the Hindu Marriage Act, 1955 or not. 

  

The Court observed that cruelty includes both physical and mental cruelty as enumerated under the Section 13(1) (ia) Hindu Marriage Act, 1955, and cruelty would require the assessment of the cumulative effect of the attending facts and circumstances established by evidence on record. 

  

The Court noted

No prudent woman would think of making allegation of impotency in the presence of others, rather she would take necessary steps to see that the reputation of the husband is not affected and not thrown out in public.

  

The Court relied on G Padmini v. G Sivananda Babu, 1999 SCC OnLine AP 678 wherein it was observed that putting unnecessary allegations on the husband to not being able to bear children, without presenting any proof, will lead to intense mental agony and anguish for the husband. 

  

The Court also observed, though Section 13 Hindu Marriage Act, 1955 does not consider the impotency as the ground for divorce, the false allegation of impotency being made by the wife would definitely cause mental disharmony and this would amount to mental cruelty within the meaning of Section 13(1)(ia) of the Act, and enables the husband to seek divorce on the ground of cruelty. 

  

The Supreme Court held in Pramila Bhatia v. Vijay Kumar Bhatia, 2000 SCC OnLine Raj 54, as no evidence having been specifically adduced by the wife to prove that the husband is actually impotent; the allegation would remain only an allegation and has the effect of lowering the dignity of the husband, which amounts to cruelty. 

  

The Court held “in light of the allegations having not been proved to be genuine, and calling the husband an impotent without legally substantiating the same, itself would amount to cruelty within the meaning of Section 13(ia) of the Act and the trial Court was not justified in holding that the cruelty asserted by the husband is not proved. Thus, we are of the considered opinion that the judgment and decree of the Family Court needs to be set aside and the petition filed by the husband under Section 13(1) (ia) of the Act needs to be allowed granting a decree of divorce in favour of the husband.”

[X v Y, MFA No. 10265 of 2022, decided on 31-05-2022] 


Appearances:
For the appellant:  Mr. Srinand A. Pachhapure 

For the respondent: Mr. S.R. Hegde 


*Arunima Bose, Editorial Assistant has reported this brief. 

High Court Round UpLegal RoundUp

TOP STORY OF THE MONTH 


Marital Rape

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In a split verdict the Division Bench of Rajiv Shakdher and C. Hari Shankar, JJ., laid down their opinion on “Should a husband be held criminally liable for raping his wife who is not under 18 years of age?”

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Allahabad High Court


Employees State Insurance Act

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Brij Raj Singh, J., expressed that, a father is legally bound to maintain his child according to the status and lifestyle.

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Divorce

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Brij Raj Singh, J., while addressing a maintenance case, observed that if a wife proves that she is unable to maintain herself, she will be entitled to maintenance.

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Sexual Assault

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In an alleged sexual assault case, Samit Gopal, J., noted that allegations of sexual assault were against a practicing lawyer by a junior in his office.

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Andhra Pradesh High Court


[Doctrine of Separability] AP HC discussed the enforceability of arbitration clause embedded in an unstamped charter party/agreement

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Bombay High Court


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Section 377 Penal Code, 1860

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Cruelty

Can filing of divorce petition by husband be an act of ‘Cruelty’?

Vibha Kankanwadi, J., held that, if a husband files a divorce petition that cannot be taken as an act of cruelty.

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Maintenance to in-laws

Can Maintenance and Welfare of Parents and Senior Citizens’ Tribunal direct the daughter-in-law to pay maintenance to her in-laws?

The Division Bench of S.S. Shinde and Revati Mohite Dere, JJ., observed that the daughter-in-law cannot be directed by the  Maintenance and Welfare of Parents and Senior Citizens’ Tribunal to pay maintenance to her in-laws.

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Bonafide Passenger

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While partly allowing the appeal wherein a passenger sustained injuries in an untoward incident, Sandeep K. Shinde, J., expressed that, Railway Claim Tribunal, shall proceed to grant compensation to the appellants in terms of Rule 3 of the Rules, 1990, after verifying the medical evidence produced by the appellant in support of his claim.

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Calcutta High Court


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In case of discrepancy between ocular and medical evidence, ocular testimony shall prevail; Conviction set aside entitling benefit of doubt

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Vital Facts

Vital facts overlooked by the Trial Court; Conviction set aside under Essential Commodities Act, 1955

Moushumi Bhattacharya, J. allowed an appeal which was filed assailing the impugned judgment passed under section 7 (1) (a) (ii), of the Essential Commodities Act, 1955 and paragraph 12 of the West Bengal Kerosene Control Order, 1968. The appellant was convicted under the aforesaid provisions with fine and simple imprisonment.

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Bail

Bail granted to NDPS accused with 100% speech and hearing impairment

The Division Bench of Kesang Doma Bhutia and Moushumi Bhattacharya, JJ. allowed a bail application of the petitioner suffering from 100% speech and hearing impairment under Section 439 of the Code of Criminal Procedure, 1973 under Section 21(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

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Income Tax

Not providing an opportunity to file a reply to the show-cause notice violation of principle of natural justice; Case remanded back to the Assessing Officer for fresh assessment

Md. Nizamuddin, J. allowed a petition which was filed challenging the impugned assessment order under Section 147 read with Section 144B of the Income Tax Act, 1961 relating to assessment year 2013-2014 on the ground of violation of principle of natural justice by not providing the petitioner with an opportunity to file a reply to the show-cause-notice.

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Conviction

Abscondence of an accused by itself does not establish his guilt; Conviction and sentence for punishment of murder set aside

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Chhattisgarh High Court


Irretrievable breakdown of Marriage

Chh HC dissolves marriage on appeal filed by husband against trial court order

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.

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Excise Act

Confiscation order can only be challenged when it reaches its finality and the statute does not give any space to challenge any other order except the final one

Goutam Bhaduri, J., allowed the petition and directed the vehicle to be released on certain conditions.

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Negative Equality

Art. 14 of the Constitution does not envisage negative equality; Grant of study leave to employees under probation, cannot be a ground for claiming negative parity in the teeth of R. 42 (5) of Chhattisgarh Civil Services (Leave) Rules, 2010

A Division Bench of Arup Kumar Goswami CJ. and Rajendra Chandra Singh Samant J. dismissed the appeal and remarked that quality cannot be claimed in illegality.

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Appellate Tribunal

Whether the power exercised by the single-member Appellate Tribunal of STAT formed under MV Act would be valid under RERA and within jurisdiction?

The Division Bench of Goutam Bhaduri and Sanjay S Agarwal, JJ. directed that the State shall ensure that the Appellate Tribunal shall be made functional so that the grievance of the public at large who are affected are redressed.

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Cruelty

Would pledge of ornaments kept for marriage of a daughter and use for self without knowledge of husband would amount to cruelty?

In a matter pertaining to mental cruelty, the Division Bench of Goutam Bhaduri and N.K. Chandravanshi, JJ., expressed that, if a spouse by her own conduct, without caring about the future of the daughter, parts with ornaments which were meant for the marriage, it will be within the ambit of mental cruelty done by the wife.

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Delhi High Court


Shared Household

Visits of sundry family members to matrimonial home, without permanency or intention to treat premises as a shared household: Would it render family members as members of shared household?

Prateek Jalan, J., addressed the issue of whether visits of sundry family members to the matrimonial home, without permanency or the intention to treat the premises as a shared household, would render them members of the “shared household.

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Irretrievable Breakdown of Marriage

Husband and wife, two pillars of family, if one gets weak or breaks, whole house crashes down

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.

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Judicial Functions

How an Additional Rent Controller did not exhibit a great degree of temperance in discharge of judicial functions

Hari Shankar, J., expressed that, Unwarranted and needless hypersensitivity is not expected of Judicial Officers, who are expected, at all times to maintain composure and poise, befitting the office they hold.

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Negotiable Instruments Act

When no offence is attributable to Company, it is not possible to attach liability on Managing Director by deeming provisions of S. 141 of the NI Act

Asha Menon, J., held that if no offence is attributed to the company, its Directors and other persons responsible for the conduct of its business cannot be saddled with any liability.

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Trademark Infringement

Infringement of Starbucks trademark FRAPPUCCINO | Del HC awards Rs 2 lakh in damages and 9 lakh costs

In a matter wherein Starbucks trademark ‘frappuccino’ was being infringed, Jyoti Singh, J., while observing that, FRAPPUCCINO trademarks have acquired formidable reputation and goodwill in India, awarded Starbuck Rupees 2 lakhs damages and 9 lakh costs.

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Titles of films are capable of being recognised under trademark law? Read Del HC’s decision in light of film ‘SHOLAY’

Prathiba M. Singh, J., expressed that, the word ‘SHOLAY’, is the title of an iconic film, and consequently, as a mark having been associated with the film, cannot be held to be devoid of protection

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[Trademark Battle] Karim’s v. Kareem’s | Kareem’s related to or associated with Delhi’s iconic Karim’s restaurant?

Prathiba M. Singh, J., has restrained Kareem Dhanani from opening any further restaurants under the marks “KARIM/KARIM’S/KAREEM/KAREEM’S” or any other marks which are identical or deceptively similar to the Plaintiff’s marks “KARIM/KARIM’S/KAREEM” till the next date of hearing.

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Section 304B Penal Code, 1860

Injuries found on person of deceased who was more than 6 months pregnant, but MM ignored postmortem report: Will onus be on husband to offer an explanation under S. 104 Evidence Act?

Asha Menon, J., while setting aside the conclusion of the Metropolitan Magistrate and upholding the intervention by Sessions Court expressed that, injuries were found on the person of the deceased who was more than 6 months pregnant during her residence with her husband, hence the onus will be on him under Section 104 of the Indian Evidence Act, 1872 to offer an explanation.

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Marital Rape

Explainer | Would striking down ‘Marital Rape Exception’ create a New Offence?

In the Split verdict on Criminalisation of Marital Rape Exception (MRE), the Division Bench of Delhi High Court pronounced a 393-Pages Judgment, wherein the Justices Rajiv Shakdher and C. Hari Shankar while disagreeing with each other on various issues, very significantly pointed out the issue if  “NEW OFFENCE”.

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Extradition

When does petitioner’s concern of lack of disclosure of evidence require court’s intervention?

Chandra Dhari Singh, J., while addressing a matter, expressed that,

Under Principles of Natural Justice, it is settled law that (a) where at the stage where an authority is merely required to form an opinion as to whether an enquiry should be held into allegations or contraventions, it is not required to give to the notice details of nature of evidence and documents, and (b) where a hearing for determination of guilt is to be held de novo, without any reference to any preliminary enquiry report, then the report need not be disclosed to the party affected.

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Post-Decisional Hearing

MeitY directed to provide original copy of blocking order and post-decisional hearing to owner and creator of website ‘Dowry Calculator’

The Division Bench of Manmohan and Dinesh Kumar Sharma, JJ., in a matter with regard to blocking of a website ‘Dowry Calculator’, directed the MeitY committee to give a copy of the order to the creator of the website.

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Ration Delivery Scheme

Delhi HC strikes down Delhi Government’s Doorstep Ration Delivery Scheme | Lieutenant Governor expressed his difference of opinion

The Division Bench of Vipin Sanghi, ACJ and Jasmeet Singh, J., held that, the Delhi Government’s Mukhya Matri Ghar Ghar Ration Yojana cannot be implemented and rolled out by the GNCTD since the LG expressed his difference of opinion.

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Society

Can an occupant deprived of his demarcated car parking in a Society registered under Delhi Cooperative Societies Act occupied by unauthorized occupants approach the Court?

The Division Bench of Mukta Gupta and Neena Bansal Krishna, JJ., observed that Court cannot assume the duties of the Administrator or the Executive Committee to address the day-to-day grievances.

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Condonation of Delay

Whether merely writing letters or making representations would give a sufficient cause or ground to a party to seek condonation of delay?

Stating that mere writing of a letter of representation cannot furnish an adequate explanation for the delay, Jyoti Singh, J., expressed that, it is a settled principle of law that in writ jurisdiction, the Court would not ordinarily assist those who are lethargic and indolent.

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Landlord-Tenant

Once tenant starts paying rent, can he/she turn around and challenge title of landlord?

In a matter with regard to the grant of leave to defend, Subramonium Prasad, J., expressed that, the tenant cannot merely make allegations that the landlord has other premises without producing some material to substantiate the same.

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Custom Duty

Import without custom duty, lower Court issued summons order, but Delhi HC sets aside: Read 5 reasons why impugned order was bad in law

Chandra Dhari Singh, J., while setting aside the order of lower Court in a case concerning Customs Act, laid down five reasons why the impugned order was bad in law.

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Maintenance

Whether right to claim maintenance under Domestic Violence Act and S. 125 CrPC are mutually exclusive?

Asha Menon, J., observed that, the right to claim maintenance under the Domestic Violence Act and those under Section 125 CrPC are not mutually exclusive i.e. the aggrieved person can seek interim maintenance before the Magistrate while also seeking permanent maintenance under Section 125 CrPC.

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Gauhati High Court


Can a husband escape from his liability to pay maintenance to his wife by signing an agreement to the contrary?

While addressing a matter with regard to maintenance of wife, Rumi Kumari Phukan, J., expressed that, the statutory right of a wife of maintenance cannot be bartered, done away with or negatived by the husband by setting up an agreement to the contrary.

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Gujarat High Court


Gratuity

If there is a delay in payment of gratuity, whether interest on delayed gratuity will be mandatory or discretionary?

Biren Vaishnav, J., reiterated that, interest on delayed payment of gratuity is mandatory and not discretionary

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Convict

Admission of co-accused cannot be sole base to convict any person; application dismissed

B.N. Karia, J. rejected an application under Section 397 read with Section 401 of the Code of Criminal Procedure, wherein the applicant-State has requested to quash and set aside the order and stay the implementation of the said order till hearing and final disposal of the present application.

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Motor Accident Claims Tribunal

Appeal dismissed on grounds of meagre amount; Order of Motor Accident Claims Tribunal upheld

Sandeep N. Bhatt, J. dismissed an appeal preferred by the Insurance Company being aggrieved and dissatisfied with the judgment and award passed by the Motor Accident Claims Tribunal by which the Tribunal has awarded Rs.65,200/- with 7.5% interest p.a. from the date of the claim petition.

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Himachal Pradesh High Court


Section 125 CrPC

The findings in a proceeding under S. 125 CrPC cannot be binding on matrimonial Court while dealing with an application for divorce on the ground of res judicata

Tarlok Singh Chauhan, J. remarked, “there has been no matrimonial relationship between the parties for the last nearly two decades, which in itself establishes that the parties are not in a position to live together any longer.”

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Jammu and Kashmir and Ladakh High Court


Freedom of Speech and Expression

Statement that Kashmir is under occupation of armed forces and people of Kashmir reduced to slaves, will be protected under Right to Freedom of Speech and Expression?

Stating that, the intention of a person can be gathered from the words spoken or written or other expressions, Sanjay Dhar, J., expressed that,

Expression of outrage at the negligence and inhuman attitude of the security forces, police and establishment would come within the ambit of freedom of expression of an individual which includes freedom to criticize the Government of the day which is permissible under law but the same may not be the position if an individual questions the fact of a State being a part of the Country by using the expression ‘occupation of military or the people being slaves etc.

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Bail

63-year-old woman aided her 65-year-old husband to commit rape on a minor girl: Can she be granted bail?

Sanjay Dhar, J., expressed that, in the cases involving offences of serious nature falling under IPC or POCSO Act, where the victim happens to be a minor child, the Court has to be alive to the need for protecting the victims and the witnesses and it is the duty of the Court to ensure that victim and witnesses, in such serious matters, are made to feel secure while deposing before the Court.

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Karnataka High Court


Lok Adalat

Kar HC issues general directions in matters relating to compromise before the Lok Adalat which are challenged by way of writ petitions

Suraj Govindaraj, J., allowed the petition and quashed the compromise decree in the original suit filed before Principal Senior Civil Judge at Hubballi in the Lok-Adalat proceedings.

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Arbitration

Whether Arbitration involving third parties leading to other proceedings would be arbitrable?

B.M. Shyam Prasad, J., held that there cannot be a complete adjudication of the petitioner’s rights unless the third parties are also heard.

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Maintenance

Granting or non-granting interim maintenance is not punishing any litigant; Kar HC observes Proviso to S. 125 of CrPC provides discretion to court to order interim maintenance during pendency of proceedings

M Nagaprasanna, J., dismissed the petition and refused to grant prayer as the case is at a pre matured stage and is not the right time to post the matter for examination.

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Juvenile Justice Act

In the absence of any declaration that the child is deserted by his biological or adoptive parents or guardians; no offence can be made out under S. 80 JJ Act

Hemant Chandangoudar, J., allowed the petition and quashed the impugned proceedings initiated against alleged offence under Section 80 of Juvenile Justice (Care and Protection of Children) Act, 2015.

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Work From Home

Work From Home under Maternity Benefit Act can be availed only if nature of work assigned to women is possible for them to work from home

Noting that the nature of work assigned to a woman cannot be carried from home, R Devdas, J., held that, as per Section 5(5) of the Maternity Benefits Act, 1961 work from home after availing the maternity benefit could be given only in a case where the nature of work assigned to the women is such that it is possible for her to work from home.

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Industrial Disputes Act

Labour Court has no jurisdiction to first decide the workmen’s entitlement and then proceed to compute the benefit so adjudicated; Labour Court’s power like that of the Executing Court’s power

K.S. Mudagal, J., allowed the petition and set aside the impugned award awarding compensation as well as the silver medal allowance without considering the question of maintainability of the petition under Section 33C(2) of the I.D. Act.

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Indian Nursing Council

No objection from the Indian Nursing Council is not required for the purpose of University granting recognition or approval for the GNM Course

P Krishna Bhat, J. disposed of the application with a direction to KSNC and State to consider the applications of petitioners which were filed in the year 2019 and take a final decision on the same.

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Negotiable Instruments Act

A 138 NI complaint filed was barred by limitation but such issue was raised for the first time before the Appellate Court and not Trial Court

HP Sandesh J. dismissed the petition and upheld the judgment by the Appellate Court and further directed the complainant to file necessary application to condone the delay.

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POCSO

Teacher aged 55 years harassed a student on separate occasions, booked under POCSO, released on bail

H.P. Sandesh, J. allowed the petition and granted bail to the petitioner in connection with a crime registered in  Magadi Police Station, Ramanagara District, for the offence punishable under Sections 8 and 12 of the POCSO Act.

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GST Act

Whether on coming into force of GST Act a Municipal Corporation can levy advertisement tax/fee?

The Court observed that in the entire transaction of GST, the petitioners are only a collecting agency who collects the GST payable on the service rendered and deposits the same with the authorities, the incidence of tax, i.e., GST being on the services rendered or goods supplied, the obligation of payment being on the person availing the service and or receiving the goods.

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Kerala High Court


Suicide

Person tries to commit suicide after being subjected to severe mental stress, which is a punishable offence: Is there any provision which can save her from penal provision?

Expressing that, Criminal prosecution followed by conviction and imposing substantive sentences and fines on those convicted of suicidal behaviours are believed to constitute an affront to human dignity, K. Haripal, J., pointed out that a large section of the society considers that suicidal behaviour is typically a symptom of psychiatric illness or an act of psychological distress, suggesting that the person requires assistance in his personal and psychological life, not punishment with imprisonment or fine.

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Maternity Benefits

Do employers have a responsibility to ensure that delivering and raising a child, shall not be detrimental to female officer’s career?

Addressing a matter wherein maternity benefits were not being allowed to female officersRaja Vijayaraghavan V, JJ., expressed that the employer is to take all steps possible to ensure that they are sympathetic to the cause of the female officer so that she can achieve her potential in the workplace and the time spent by her to deliver and raise her child shall not be detrimental to her career or her prospects.

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Floods

Persons who violate directions of Corporation, as mandated by law, against deposit of garbage into canals, shall be taken to task under fullest warrant of law

Expressing that, as much as this Court does not desire to control the management of the drains or the flood mitigating systems of the city on regular basis, it is forced to do so because of the large-scale inundation witnessedDevan Ramachandran, J., held that it is necessary that citizens understand their duty to ensure that canals are fenced and maintained well and kept free of debris, which otherwise would challenge the lives of many other affected by the flooding.

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Educational Loan

Can low CIBIL Score of a co-borrower be a reason for denial of an education loan?

In a case wherein, due to low CIBIL Score education loan was denied, N. Nagaresh, J., directed for reconsideration of loan applications, disregarding the low Credit Score of the co-obligants.

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Right of Press

Right of Press to report truthfully and faithfully | Press shall NOT indulge in sensationalism

Stating that, though the Press has a duty to inform the public, the Division Bench of Devan Ramachandran and Sophy Thomas, JJ., observed that, it is the well-accepted thumb rule that the Press shall not indulge in sensationalism; or in speculating upon the guilt or otherwise of any accused or other individual; or to create an opinion about the comportment or character of a person involved in the Trial; and not to embellish, by impelling or sponsoring an opinion they seek.

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Promise to Marry

Whether promise to marry made to married women is legally enforceable?

In a bail matter,P.V. Kunhikrishnan, J., noted the position of law that, a promise to marry made to married women is not legally enforceable, the offence of rape is not attracted.

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Political Rallies

Can organisers of political rallies be responsible for provocative slogans raised by any of the participants during such rallies?

P.V. Kunhikrishnan, J., observed that, if a member of a rally raises provocative slogans, the persons who organize the rally is also responsible.

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Madras High Court


Legal Entity

Mother Nature is a living being having legal entity? Madras HC answers

Stating that the past generations have handed over the ‘Mother Earth’ to us in its pristine glory, S. Srimathy, J., expressed that it is the right time to declare/confer juristic status to the “Mother Nature”.

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Right to Worship

Whether constitutional guarantee of freedom of religion enshrined in Art. 25(1) of the Constitution of India extends even to rites and ceremonies associated with a religion?

Expressing that, the right of worship guaranteed under the Constitution to be respected by all concerned and devotees cannot be denied their right to worship under any circumstances, S.M. Subramaniam, J., held that every devotee has got a right to enter into the temple and worship Lord Sri Varadaraja Perumal in the way he likes without affecting the rights of other devotees/worshippers and temple activities.

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Negotiable Instruments Act

Obligation of Thumb Impression and Signature, both, for a Pro-Note under Negotiable Instruments Act: Mandatory or Not?

Teekaa Raman, J., observed that there is no mandatory provision under the Negotiable Instruments Act that both the signature and thumb impression has to be obtained for a pro-note and the lower Appellate Judge has totally misguided and misused the provision of the Negotiable Instruments Act, regarding the burden of proof and not even followed basic rudimentary of Section 20 of the Negotiable instruments Act.

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Public Employments

Can appointments be claimed as a matter of absolute right?

S.M. Subramaniam, J., observed that, equal opportunities in public employment is the Constitutional mandate.

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Madhya Pradesh High Court


Retiral Dues

Illicit deduction of amount from the retiral dues; Directions issued to refund the amount

Sushrut Arvind Dharmadhikari, J. allowed a writ petition which was filed assailing the legality, validity and propriety of the order dated 1-8-2018 whereby the excess amount of Rs.81,239/- has been sought to be recovered from the gratuity payable to him.

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Section 311 CrPC

Permission to change statement before Court would be dangerous for legal system and it may be also misused of S. 311 of CrPC; application for restatement after 2 years dismissed

Anil Verma, J. dismissed a criminal revision filed against the impugned order whereby an application preferred by the applicant/prosecutrix under Section 311 of CrPC was been dismissed.

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Civil Suit

Application under S. 151 of CPC maintainable despite the fact that order allowing the application under Or. 7 R. 11 of CPC is appealable; Trial Court directed to restore civil suit

Dwarka Dhish Bansal, J. allowed a civil revision under Section 115 of CPC against the order rejecting the application filed under Section 151 of CPC holding that the same was not maintainable.

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Bail

Not entitled to keep the amount of compensation paid to the State government in the event of a false rape case; Court allows bail

Vivek Agarwal, J. deciding a second bail application filed by the applicant in connection with Crime under Sections 376, 376(2)(N), 506 of IPC and Sections 3,4,5J(ii), 5L POCSO Act and Sections 3(1)(w)(II), 3(1)(w)(II), 3(II)(V) of SC/ST Act directed the Trial Court to ask the prosecutrix to refund the compensation amount paid by the State.

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Police Protection

Major Couple entitled to police protection in event of any future threats from parents; Permission granted to approach police commissioner directly

Vivek Rusia, J. decided on a petition which was filed seeking police protection.

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Termination of Pregnancy

Victim of rape allowed to terminate 13-week pregnancy; Direction issued to District Hospital for immediate action

Vivek Rusia, J. allowed an appeal which was filed seeking permission/ direction for termination of pregnancy.

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Principles of Natural Justice

Order by Trial Court violative of principles of natural justice; IO to be given opportunity to be heard

Atul Sreedharan, J. allowed a petition which was filed aggrieved by the order where after deciding a criminal case, the Additional Sessions Judge passed an order asking the Superintendent of Police to take action against the petitioner, who was the Investigating Officer of the case.

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Meghalaya High Court


Piling up Garbage

With serious menace of garbage piling up in one of the major towns, State administration seeks only to play the fiddle; matter receives the urgent attention at the highest quarters

The Division Bench of Sanjib Banerjee, CJ. and W. Diengdoh, J. took up a petition on a matter pertaining to the piling-up of garbage in the town of Jowai. The petition was filed on 12-04-2022 complaining of household waste and general garbage not being collected in the Jowai urban township area from 04-02-2022. The Court had served the respondents served immediately and informed that the matter will appear a week hence for a preliminary hearing and appropriate directions on 20-04-2022.

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Orissa High Court


Exercise of power involving Application under Or. 1 R. 10 of CPC is completely different from Exercise of Power under Or. 21 Rules 97, 99 & 101 of CPC; Scope of latter is much wider

“…there exist two decrees passed by two different courts at the instance of third party and the other at the instance of the Plaintiff- Petitioner involved here in the Execution Proceeding.”

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Section 37 IT Act

The reasonableness of the expenditure had to be adjudged from the point of view of the businessman; Applied the test of commercial expediency

A Division Bench of S. Muralidhar CJ and R. K. Pattanaik J. dismissed the appeal filed by the assessee and upheld AO’s decision to disallow part of the payment towards commission.

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Food License

Any person selling article or food without a license would be punishable under S. 16 (I)(a)(ii) PFA Act as per S. 7(iii) PFA Act

Muralidhar CJ dismissed the revision petition and set aside the conviction decision of the Trial Court which was later affirmed by the Appellate Court.

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POCSO

Proceedings of the High Court cannot be held hostage to the whims of the investigating agency; granted bail to a CCL

V Narasingh, J. disposed of the bail application and restrained the Court to not grant any further adjournments and released the petitioner on bail.

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Industrial Disputes Act

It is not mandatory for Central Government to make a reference to a dispute which is of national importance to a National Tribunal in view of S. 7-B r/w S 10 (1-A) ID Act

A Division Bench of S. Muralidhar, CJ and R.K. Pattanaik J. dismissed the petition and upheld the judgment by CGIT, Bhubaneshwar declining the prayer of the Petitioner as regards the maintainability of the dispute before it.

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Contract

It is only when a purchase order is placed that a ‘contract’ would be entered into and only then arbitration clause would become part thereof

Muralidhar, CJ. dismissed the petition, declined the appointment of arbitrator and left it open to the petitioners to avail other remedies as may be available to them in accordance with law.

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Patna High Court


Negotiable Instruments Act

Can an order of interim compensation under S. 143-A NI Act, be enforced as ‘public demand’ under Bihar & Orissa Public Demands Recovery Act, 1914?

The Division Bench of Sanjay Karol, CJ and S. Kumar J., held that an order of payment of interim compensation under the Negotiable Instruments Act, 1881 can be enforced under the Bihar & Orissa Public Demands Recovery Act, 1914 as ‘public demand’.

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Punjab and Haryana High Court


Protection of Life and Liberty

State’s respect for individual independent choices has to be held high

“Courts’ responsibility to uphold the principles of constitutional morality, there exists a parallel duty to not infringe upon the personal relationship between two free willed adults.”

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Abetment of Suicide

Abetment of suicide by wife and mother-in-law of deceased?

Vikas Bahl, J., granted bail to mother-in-law and wife alleged to have incited husband to commit suicide.

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Maintenance Tribunal

If a person is aged below 58 years, Can Maintenance Tribunal invoke jurisdiction under the Maintenance and Welfare of Parents and Senior Citizen Act?

Arun Monga, J., held that the Maintenance Tribunal has no jurisdiction under the Maintenance and Welfare of Parents and Senior Citizen Act, 2007 if a person is aged below 58 years old.

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Mental Cruelty

If a husband stops talking to the wife, would that cause mental cruelty?

In a matter with regard to mental cruelty, the Division Bench of Ritu Bahri and Ashok Kumar Verma, JJ., observed that, even if the husband and wife were staying together and the husband stopped talking to the wife, it would cause mental cruelty and a spouse staying away by sending vulgar and defamatory letters or notices by initiating a number of judicial proceedings could make the life of other spouse miserable.

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Sedition

Can an act of dissent be labeled as sedition?

Expressing that, in a democratic set-up, there always would be voices of dissent and opinions against rules and protest against actions, Vinod S. Bhardwaj, J., observed that, some protests may have aggression but still an act of dissent would not be ordinarily labeled as sedition.

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Rajasthan High Court


Remedy

Writ Petition not maintainable due to having an alternative and efficacious remedy under S. 17 of the SARFAESI Act

Mahendar Kumar Goyal, J. dismissed the writ petition in view of availability of alternative remedy to the petitioners under the provisions of the SARFAESI Act. 

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Sikkim High Court


Penetrative Sexual Assault

Trial Courts should exhibit sensitivity to the plight of a child victim but they cannot go overboard and stonewall steps that are mandatory to be complied with when analysing and interpreting evidence given by  witnesses; Sentence of rape accused modified

The Division Bench of Meenakshi Madan Rai and Bhaskar Rai Pradhan, JJ. partly allowed an appeal which was filed by the appellant who aged about 40 years, was accused of having committed the offence of aggravated penetrative sexual assault, as defined under Section 5(m) of the Protection of Children from Sexual Offences Act, 2012, on the victim, aged about 10 years. Trial Court on consideration of the evidence on record convicted the Appellant of the offence under Section 5(m) punishable under Section 6 of the POCSO Act, 2012 by the impugned Judgment and Order on Sentence, both dated 11- 11-2020, and sentenced him to undergo rigorous imprisonment for a term of 40 years and to pay fine of Rs 30,000/- (Rupees thirty thousand) only, with a default clause of imprisonment of 5 years.

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Telangana High Court


Police Negligence

Tel HC remarks several writ petitions are filed complaining about police negligence and delays during investigation; Such issues cannot be decided by invoking jurisdiction under Art. 226 of the Constitution

“…The appropriate and efficacious remedy available to the petitioner, if she is aggrieved by the action/inaction of the Investigating Officer is to file a private complaint against the said officer before the competent Court.”

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Contempt of Court

‘slap- say sorry-forget cannot be accepted’; An apology can neither be a defence nor a justification for an act which tantamount to Contempt of Court

A Division Bench of P Naveen Rao and M G Priyadarshini, JJ. dismissed the petition and held that contempt has taken place and no apology must be given.

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Uttaranchal High Court


POCSO

Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case; appeal dismissed in POCSO matter

Ramesh Chandra Khulbe, J. dismissed a criminal appeal which was filed from jail assailing the judgment and order whereby the Trial Court had convicted and sentenced the appellant on the counts of Sections 376, 377, 506 Penal Code and Section 6 of POCSO Act.

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Juvenile Justice Act

Child in conflict with law cannot be allowed anticipatory bail as JJ Act does not make any provision for the same; Application dismissed

Ravindra Maithani, J. dismissed an application for anticipatory bail in regards to an ongoing trial under Sections 376, 323, 504, and 506 Penal Code, 1860. The previous anticipatory bail application of the applicant had been rejected by the Fast Track Court/Special Judge, POCSO/Additional Sessions Judge, Dehradun on the ground that since the applicant is a child in conflict with the law (“CIL”) and the Juvenile Justice (Care and Protection of Children) Act, 2015 (“the Act”) does not make any provision for anticipatory bail, the application cannot be allowed.

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Intra-Court Appeal

Adequate opportunity of filing counter-affidavit should be afforded to State; intra-Court appeal allowed

The Division Bench of S.K. Mishra, ACJ and A.K. Verma, J. allowed an intra-Court appeal wherein the State has assailed the order passed by the Single Judge whereby the Writ Petition of the writ petitioners-respondents herein was allowed supposedly on the concession made by the government pleader.

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Himachal Pradesh High Court
Case BriefsHigh Courts

Himachal Pradesh High Court: Tarlok Singh Chauhan, J. remarked “there has been no matrimonial relationship between the parties for the last nearly two decades, which in itself establishes that the parties are not in a position to live together any longer.”

The brief facts of the case are that the marriage of the appellant and respondent was solemnised in 1983 according to Hindu rites and ceremonies. However, on account of matrimonial discord, appellant filed a petition for divorce in the year 1985-86 which, however, was ultimately compromised.  Thereafter, the parties resided peacefully and out of wedlock two sons were born. But allegedly even after those differences continued which even took the shape of occasional violence. Both even accused each other of adultery. The Trial Court passed a decree of dissolution of marriage in favour of the husband. Aggrieved by the decree of divorce passed by the Trial Court below, the appellant – wife has filed the instant appeal.

Counsel for petitioner Suneet Goel submitted that the Trial Court erred in coming to the conclusion that the wife is living in adultery, which contention had already been negated by the Court while adjudicating the petition filed by the wife for maintenance under Section 125 CrPC.

Counsel for respondents Varinder Thakur submitted that as regards the findings recorded by Trial Court under Section 125 CrPC. the same were not binding on the matrimonial Court in the matrimonial disputes and secondly, there is ample amount of evidence available on record, which shows that wife was living in adultery

The Court relied on judgment Pranab Kumar Karmakar v. Aarti Karmakar, 2008 SCC OnLine Cal 833  and observed that the findings in a proceeding under Section 125 Cr.P.C. cannot be binding on matrimonial Court while dealing with an application for divorce on the ground of res judicata. A matrimonial Court is required to arrive at an independent finding based on a material laced before it.

The Court further observed in light of the pleadings, evidence and subsequent events, that there has been no matrimonial relationship between the parties for the last nearly two decades, which in itself establishes that the parties are not in a position to live together any longer. Moreover, each of the parties is already residing with a partner of opposite sex as husband and wife. Their relations are so strained that there is no possibility of reconciliation and the marriage between them has broke down irretrievably.

Thus, It would be unrealistic for law to not take notice of the fact that the irretrievable broke down of marriage must be considered as a ground for divorce.

The Court held “I find no merit in this appeal and the same is accordingly dismissed, leaving the parties to bear their own costs.” [Sunita Devi v. Suresh Kumar, 2022 SCC OnLine HP 1968, decided on 03-03-2022]


Arunima Bose, Editorial Assistant has reported this brief

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: In a matter with regard to mental cruelty, the Division Bench of Ritu Bahri and Ashok Kumar Verma, JJ., observed that, even if the husband and wife were staying together and the husband stopped talking to the wife, it would cause mental cruelty and a spouse staying away by sending vulgar and defamatory letters or notices by initiating a number of judicial proceedings could make the life of other spouse miserable.

Appellant-wife came up in the present appeal against the decision of the Family Court by the respondent-husband under Section 13 of the Hindu Marriage Act, 1955 seeking dissolution of marriage by a decree of divorce was allowed and he had been granted a divorce.

As per the husband, when he filed a petition under Section 13 of the HMA, the behaviour of the respondent was very cruel, barbaric, rude and crude towards the respondent from the very beginning.

It was stated that, the wife had tried to take forcible possession of the agricultural land owned and possessed by the respondent and a civil suit against the appellant was pending in the District Courts, Karnal.

Further, it was alleged that the appellant was living in adultery with some person in the year 2012 and she forcibly turned out the respondent along with his four children from the house.

When the marriage of the husband and wife was fixed by the respondent, husband had requested the appellant to join the marriage, but she taunted that she had no concern with the respondent and his children.

In view of the above, a divorce petition was filed.

Analysis, Law and Decision

High Court expressed that, even if husband and wife are staying together and the husband does not speak to the wife, it would cause mental cruelty and a spouse staying away by sending vulgar and defamatory letters or notices or filing complaints containing indecent allegations or by initiating a number of judicial proceedings can make the life of other spouse miserable.

The Bench stated that in the present case, after the acquittal in the FIR and dismissal of the domestic violence complaint, enough mental cruelty had been caused to the husband.

Hence, the appellant’s counsel was unable to point out any illegality or infirmity in the impugned judgment.

In view of the above, the appeal was dismissed. [Harbans v. Joginder Pal, 2022 SCC OnLine P&H 1101, decided on 6-5-2022]


Advocates before the Court:

Mr. Avtar Singh Sandhu, Advocate, for Mr. A.S. Rai, Advocate, for the appellant-wife.

Mr. R.S. Budhwar, Advocate, for the respondent-husband.

Case BriefsHigh Courts

Allahabad High Court: Brij Raj Singh, J., while addressing a maintenance case, observed that if a wife proves that she is unable to maintain herself, she will be entitled to maintenance.

A revision petition was preferred to quash the judgment and order passed by the Family Court so far as it related to the rejection of the application under Section 125 of the Criminal Procedure Code in respect of revisionist 1 and also enhance the amount of maintenance awarded to revisionist 2.

 The wife and daughter filed an application under Section 125 CrPC.

The husband argued that as per Muslim Personal Law revisionist 1 was divorced Muslim wife, therefore, she had to pursue the maintenance case before the Muslim Women (Protection of Rights on Divorce) Act, 1986. Further, he argued that after divorce she was not entitled to maintenance.

The High Court stated that the OP 2’s argument that the revisionist was entitled to seek remedy as provided in Act, 1986 was not sustainable in the eyes of law.

In Court’s opinion, the proceeding under Section 125 CrPC is available to revisionist once she had taken resort to proceed under Section 125 CrPC.

It is true that the wife was divorced but as per the Supreme Court decision in Shayara Bano v. Union of India, (2017) 9 SCC 1, wherein it had been pronounced that if the divorce is declared in one go and the Fatava is issued, the same cannot be legal divorce and it has no legal force.

Bench stated that since the divorce given by OP 2 was not in accordance with the Quoran, hence the divorce given by OP 2 was not in accordance with law. In view of the judgment of the Supreme Court passed in the case of Iqbal Bano v. State of U.P., (2007) 6 SCC 785, it was not in accordance with law and the opposite party 2 could not prove the divorce as per law.

The High Court added that Section 125 CrPC is to be read in harmonious construction, but only on the basis of Section 125(4) CrPC the lower court came to the conclusion that revisionist 1 was deserted because she could not produce the evidence of physical assault and cruelty.

where the wife states that she has great hardships in maintaining herself and daughters, while her husband’s economic condition is quite good, wife would be entitled to maintenance.

High Court opined that revisionist 1 was entitled to maintenance under Section 125 CrPC.

The application for maintenance filed by revisionist 1 was allowed and it was observed that she would be entitled to Rs 7,000/- per month as maintenance. [Arshiya Rizvi v. State of U.P., 2022 SCC OnLine All 318, decided on 13-5-2022]


Advocates before the Court:

Counsel for Revisionist:- Nadeem Murtaza, Mohd. Mohsin

Counsel for Opposite Party:- Govt. Advocate, Purnendu Chakravarty