Case BriefsHigh Courts

Punjab and Haryana High Court: Alka Sarin, J., heard the instant filed by a couple seeking police help to restrain the respondents from interfering with the life and liberty of the petitioners. The Bench said,

Panchayati divorce has no recognition in the eyes of law as by the virtue of Section 4 of the Hindu Marriage Act, 1955 all customs and usages had ceased to have effect. 

The facts of the case were that the petitioners were both major. It was alleged that the relatives of petitioner 2 were against relationship of the petitioners. However, the petitioners had got married on 21-01-2021 at Gurudwara as per Sikh rites and ceremonies. Petitioner 1 was earlier married to one Mandeep Kaur and had taken a Panchayati Divorce on 19-06-2017, whereas, petitioner 2 was earlier married to one Harjinder Singh and had got a divorce under Section 13-B of the Hindu Marriage Act, 1955 vide judgment and decree dated 14-07-2000. The petitioners were apprehending danger to their life and liberty.

Petitioner 1, had alleged to have obtained a Panchayati divorce from his first wife. There was no decree of dissolution of marriage of petitioner 1 by a Court of competent jurisdiction and his first marriage remained subsisting in the eyes of law. Hence, the petitioners were alleged to have got married without petitioner 1 obtaining a legally valid divorce from his first wife.

The Bench observed that after enactment of the Hindu Marriage Act, 1955, marriages and divorce qua Hindus was governed by the procedure as set out in the Hindu Marriage Act, 1955. Section 4 of the said Act read as under :

“4. Overriding effect of Act – Save as otherwise expressly provided in this Act,(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;” 

Therefore, in the view of Section 4 of the Hindu Marriage Act,1955 all customs and usages ceased to have effect. Thus, the contention of the petitioners that petitioner 1 had sought and got a Panchayati divorce could not be accepted. The Bench stated,

“The alleged marriage itself between petitioner 1 and petitioner 2 would be illegal and against the provisions of the Hindu Marriage Act, 1955 inasmuch as this marriage had been contracted without the petitioner 1 being legally divorced.” 

However, in the light of Article 21 of the Constitution which provide that no person should be deprived of his life and liberty except in accordance with law and that the petitioners had approached this Court for protection of their life and liberty to live as a couple which could not be considered in the facts and circumstances of the present case, the Bench had granted them protection as individuals. Further, the petition was dismissed with the direction to the petitioners that if they apprehend any threat to their life or liberty, they would be entitled to approach the Police for redressal of their apprehensions regarding the same.[Nishan Singh v. State of Punjab, CRWP No.763 of 2021, decided on 27-01-2021]


Kamini Sharma, Editorial Assistant has put this story together.

Case BriefsSupreme Court

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

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

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

Background

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

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

Family Court’s finding

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

High Court’s finding

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

Husband’s case

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

Wife’s case

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

Supreme Court’s analysis and finding

What amounts to Mental Cruelty?

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

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

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

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

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

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

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

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

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

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

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

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

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


*Judgment by: Justice Hrishikesh Roy

Know Thy Judge | Justice Hrishikesh Roy

Appearances before the Court by: 

For Appellant – Senior Advocate Gopal Sankaranarayanan

For respondent – Advocate Ahmad Ibrahim

Case BriefsHigh Courts

Bombay High Court: The Division bench of A.S. Chandurkar and Pushpa V. Ganediwala, JJ., upheld the family court’s finding that “the behaviour and the conduct of the husband of making wild and unsubstantiated allegations resulted in causing mental cruelty to the wife.”

Factual Matrix

Appellant and the respondent were married since 2008 and a child was born out of the said wedlock. Appellant and his family started ill-treating the respondent. Respondent was driven away from her matrimonial home, after all, her gold articles were taken away.

In view of the above, she proceeded to file a case under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights.

The above proceedings were however withdrawn and later, wife filed a petition seeking divorce on the grounds of cruelty and desertion. She alleged that the appellant and his family members were ill-treating the respondent physically and mentally. Respondent approached the Mahila Cell with her grievances and after understanding given to both the parties, they started residing together, but the same did not continue for long as the respondent found herself in an unsafe environment and proceeded to file the present proceedings.

Family Court held that the respondent had proved that the appellant was treating her with cruelty. Hence by the impugned judgment, the Family Court proceeded to pass a decree for divorce on the ground of cruelty. Being aggrieved the appellant has preferred this appeal.

Issue for Consideration:

Whether in the facts of the case the Family Court was justified in granting a divorce on the ground of cruelty?

Decision

Bench in view of the facts and circumstances found the Family Court’s decision to be justified.

“…making of unfounded allegations against the spouse or his/her relatives in the pleadings or making complaints with a view to affect the job of the spouse amounts to causing mental cruelty to the said spouse.”

Mental Cruelty: What led to it?

Court elaborated on the above point that the conduct of the husband of not pleading that the wife was suffering from epilepsy and stating the same for the first time in his deposition as well as making wild allegation that the wife and her relatives had secured false caste certificate without attempting to substantiate the said allegation resulted in causing mental cruelty to wife.

Bench also added regarding the husband’s conduct that, it appeared from his conduct in one or the other he intended to prejudice the service of the wife.

The impugned judgment was affirmed. [Thalraj v. Jyoti, 2021 SCC OnLine Bom 255, decided on 10-02-2021]


Advocates who appeared for the parties:

P.K. Mishra, Advocate for the appellant.

A.B. Bambal, Advocate for the respondent.

Case BriefsHigh Courts

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

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

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

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

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

Analysis and Decision

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Advocates who appeared for the parties:

For the petitioner: Gunjan Shah and Vinit Kumar Choubey

For respondents 1, 2 and 4: Kumarjyoti Tiwari

For respondent 9: Subrata Roy

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Vipin Sanghi and Rekha Palli, JJ., upheld the Family Court’s decision and directed the parties approach the local Court of Singapore with regard to sorting out their matrimonial dispute. 

Issue

Present appeal was filed seeking a direction against the Family Court’s decision, wherein the appellant/plaintiff sought an anti-suit injunction against the defendant/respondent to seek restraint against him for proceeding with a divorce petition filed by him to seek dissolution of marriage before the Family Justice Courts of the Republic of Singapore.

Family Court had granted injunction till the next date of hearing, restraining the defendant/respondent from prosecuting, pursuing or going ahead with his divorce action or any other proceedings as emanating from the matrimony in the case pending in Singapore Court.

Analysis

Bench found that the Family Court took note of the law laid down by the Supreme Court decisions on the aspect of grant on anti-injunction suit. Following were decisions of Supreme Court that were relied upon by the Family Court:

Y.Narasimha Rao v. Y. Venkata Lakshmi, (1991) 3 SCC 451

Modi Entertainment Network v. WSG Cricket PTE Ltd., (2003) 4 SCC 341

Dinesh Singh Thakur v. Sonal Thakur., AIR 2018 SC 2094

Appellant’s submission before the Court is that she would be severely prejudiced in case the divorce proceedings were allowed to continue in Singapore Courts, since the divorce would be granted without the appellant being granted any maintenance, or alimony, as also the custody of the children.

Opinion

Court on perusal of the submissions, facts and circumstances of the case stated that:

Firstly, regarding the rights of the parties in a matrimonial dispute according to the law of Singapore can hardly be a reason for the Court to grant the injunction, for the simple reason that the parties were domiciled in Singapore and were continuously residing there since 2012.

Secondly, no reason can be seen why the Singapore Courts would treat the appellant unfairly. Pertinently she had moved an application before the Court at Singapore to seek maintenance. Therefore, the Court cannot accept her claim that she would be prejudiced in any manner on account of her being the wife in the matrimonial dispute before a Singapore Court.

Appellant had also moved an application challenging territorial jurisdiction of the Court at Singapore, which application was rejected.

Decision

Hence, the High Court held that the Family Court had rightly rejected the application preferred by the appellant under Order 39 Rule 1 and 2 CPC.

Bench reiterated that parties being permanent resident of Singapore, residing there since 2012, should sort out their matrimonial dispute before the local Court in Singapore.

Adding to the above, Court expressed that Courts in India cannot be said to be forums that would be convenient to either of the parties. Enforcement of orders passed by the Courts in India- when the parties; their children, and; their assets/properties are situated in Singapore, would be a practical impossibility.

On finding no merit in the appeal, it was dismissed. [Rakhee Bahl v. Pankaj Bahl, 2021 SCC OnLine Del 766, decided on 03-02-2021]


Advocates for the parties:

For Appellant: Osama Suhail with Surabhi Diwan, Advs.

For Respondent: Shashank Agrawal, Adv.

Case BriefsHigh Courts

Bombay High Court: Pushpa V. Ganediwala, J., addressed the following substantial questions of law:

  • Whether it is necessary for the wife to file an application in writing to grant permanent alimony under Section 25 of the Hindu Marriage Act, 1955?
  • Whether wife can claim maintenance under Section 25 of the Hindu Marriage Act, 1955, as she is divorcee, after passing the decree of divorce?

Counsels representing both the parties had a consensus that Section 25 of the Act does permit the divorcee spouse to claim maintenance from the other spouse even subsequent to the passing of the decree of divorce, subject to certain conditions.

Court below failed to consider the wife’s prayer for permanent alimony under Section 25 of the Act.

Bench stated that various other High Courts including this High Court have held that the word ‘application’ as referred to in Section 25 of the Act i.e. ‘on an application made to it’ does not specify as to whether it is oral application or application in writing. Adding to this observation, Court stated that a broader view of Section 25 of the Act is to be taken considering the object and purpose for the inclusion of this provision in the Act.

In Madras High Court’s decision of Umarani v. D. Vivekannandan, 2000 SCC OnLine Mad 50, it was held that there is no need of written application under Section 25 of the Hindu Marriage Act and permanent alimony and maintenance can be granted on the basis of oral application.

Madhya Pradesh High Court, in Surajmal Ramchandra Khati v. Rukminibai, 1999 SCC OnLine MP 87, held that merely because the wife had not presented a separate application praying for grant of permanent alimony, it cannot be said that she is not entitled to the same.

In view of the above discussion, Bench expressed that in terms of Section 25 of the Act, for granting the relief of permanent alimony, the Court has to consider the respondent’s own income and other property, if any, the income and other property of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the court to be just.

In the case of a decree by mutual consent, if relief for permanent alimony is sought, there is no occasion for the Court to observe the conduct of the parties, to examine their financial stability and other circumstances of the case to pass any order of permanent alimony at the time of passing of the decree of divorce by mutual consent. Essential element is that the Court should be able to comprehend the financial position and conduct of parties to pass permanent alimony order.

Appellant had narrated the financial status of the respondent-husband in her affidavit before the Court and she prayed to keep open the issue of permanent alimony for its consideration later on.

Since the appellate court dismissed the appeal on a misplaced ground of marital tie not subsisting, the said order is to be set aside.

On observing and noting the above discussion, Court opined that ‘application’ as referred to in Section 25 of the Act implies any application either in writing or oral for seeking permanent alimony and maintenance. Mode and form of the application under Section 25 of the Act are immaterial. The order in this regard cannot be passed in a vacuum.

Therefore, the matter is remanded to the trial court in order to decide the issue of permanent alimony. [Vijayshree v. Dr Nishant Arvind Kale, 2021 SCC OnLine Bom 29, decided on 08-01-2021]

Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J., dismissed an application filed under Section 24 of the Hindu Marriage Act on finding no interest in the same by the wife.

Petitioner filed a divorce petition under Section 13(1)(ia) of the Hindu Marriage Act, 1955, seeking divorce from his wife. To which Family Court granted a decree of divorce to dissolve the marriage. However, on the same date, a notice was issued in the application under Section 24 of the Hindu Marriage Act, Family Court called for the detailed affidavits to be filed as to the expenditure, assets and liabilities of both the Petitioner and Respondent.

The above-said application has been challenged.

Bench noted from the Family Court’s decision that the respondent did not contest the divorce petition at all. Respondent’s defence was struck off and cross-examination of the petitioner was also of a limited nature.

Further, the Court added that since the respondent did not set out any substantial defence and the decree of divorce was granted without contest, respondent didn’t seem to be interested in pressing the application under Section 24 of the Act, which is meant for interim maintenance pendente lite.

 While concluding with the decision, Court expressed that the legal position is that a Section 24 application under the Act can survive beyond the dismissal of the main proceeding for grant of divorce, in respect of the period till the dismissal of the said petition.

Adding to the above, bench stated that the decision in Rita Mago v. V.P. Mago, 20(1981) DLT 103 may no longer be good law.

Hence, Bench concluded that in view of the above facts and circumstances the respondent doesn’t seem to be interested in pursuing the application under Section 24 for interim maintenance, therefore the said application was dismissed. [Apurva Anand v. Chanchal Niranjan, CM (M) 426 of 2020 and CM Appl. 20237 of 2020, decided on 29-01-2021]


Advocates for the parties:

Petitioner: Dr Aman Hingorani and Himanshu Yadav, Advocates

 Respondent: None

Case BriefsSupreme Court

Supreme Court: In a case dealing with Transfer of petition under Section 9 of the Hindu Marriage Act, for restitution of conjugal rights from Palanpur, Gujarat to Mumbai after a previous Transfer Petition was dismissed, the single-judge bench of V. Ramasubramanian, J has held that the dismissal of a petition for transfer, may not operate as res judicata, when a fresh petition is filed on change of circumstances. However, when a case is at its final stage, this Court will be extremely reluctant to order the transfer, as it may derail the entire process.

In the present case, after three years of the dismissal of the first Transfer Petition, the petitioner came up with the present Transfer Petition on the ground that there are change of circumstances warranting a fresh look as her mother had died making it impossible for her to leave two minor daughter in Mumbai to attend to the hearings at Palanpur; and also because it was becoming difficult for her to defend the case, which was being listed for hearing on 2 to 3 occasions every month as the Family Court was imposing penalties upon her whenever a request for adjournment was sought or when the Legal Aid lawyer appointed on her behalf did not attend the Court. Further, the Family Court discarded the evidence of the petitioner and struck off her right of evidence after which the petitioner came up with the Transfer Petition.

The respondent, on the other hand, argued that the proceedings for restitution of conjugal rights have already reached the stage of judgment and that once a request for transfer got rejected on an earlier occasion, a second petition cannot be maintained.

Considering both the aspects, the Court was of the opinion that the present petition for transfer cannot be opposed solely on the ground that the earlier petition was dismissed. But at the same time, the petitioner will have to satisfy the court that there are change of circumstances and that there are sufficient grounds made out.

“While the hardship, both social and financial, pleaded by the petitioner deserves favourable consideration, the transfer of the case at this stage of the proceeding may not be appropriate.”

The Court, hence, rejected the Transfer Petition but issued the following directions:

  • The petitioner be permitted to move an application for reopening of her evidence before the family Court.
  • The application may be allowed to be filed online if such a facility is available. Else, it may be permitted to be filed through counsel without the petitioner having to undertake a travel. On all occasions except the date on which the petitioner is to be cross examined, the petitioner may be permitted by the Family Court to be represented by a counsel without being present. If Video   Conferencing facility is available, the petitioner may be granted the said facility;
  • The Family Court may take a lenient view on the said application and have the evidence on the side of the petitioner restored. Thereafter the case may be posted for the cross examination of the petitioner.
  • For facilitating the cross examination of the petitioner by the counsel for the respondent-husband, the Court may be granted a firm date. On the date so fixed, the petitioner shall appear before the Family Court.
  • The respondent shall ensure that the cross examination of the petitioner is carried out without fail by the counsel for the respondent.
  • No request for any adjournment on behalf of the respondent shall be allowed.
  • On every occasion when the family Court wants the physical presence of the petitioner, the respondent shall pay a sum of Rs.10,000/- to the petitioner, towards expenses for travel and stay. If the respondent fails to pay, the petitioner will be at liberty to approach the Supreme Court.

[Amruta Ben Himanshu Kumar Shah v. Himanshu Kumar Parvinchandra Shah, 2021 SCC OnLine SC 46, decided on 29.01.2021]


Counsels who appeared before the Court

For petitioner: Advocate

For respondent: Advocate Ranu Purohit

Case BriefsHigh Courts

Telangana High Court: P. Naveen Rao, J., discussed and reiterated the scope of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 extensively.

“As against the procedure envisaged in the Code of Criminal Procedure, where power is vested in the Magistrate, to monitor investigation of a crime under the Act, 1989 and take cognizance of the crime, the power is now vested in the Special Court.”

Illegal Intimacy

First petitioner submitted that second petitioner is her daughter and her marriage was performed in the year 2017. After 4 months of their marriage, the husband of the second petitioner developed illegal intimacy with another woman who is stated to be the daughter of the sixth respondent and were living under one roof.

The husband of petitioner 2 started harassing her. Later in the panchayat held by the elders, there was an understanding that Shivakumar would lead marital life with the second petitioner by leaving the daughter of respondent 6.

Even after the above-held panchayat, the illegal relationship of Shivakumar and daughter of respondent 6 continued.

Based on the above complaint, a crime was registered under Sections 498-A and 497 IPC. Sixth respondent’s daughter gave an assurance in front of the police that she would not interfere in marital life of second petitioner and requested the petitioners to withdraw the case.

Later, even after the settlement, the illegal relationship continued and this time, the respondent filed a complaint alleging that petitioners abused them in filthy language and on caste lines.

Complaint under Section 34 IPC and Sections 3(1)(r)(s), 3 (2) (va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

Petitioners have now alleged that taking advantage of the registration of crime, sixth respondent and his daughter threatened the petitioners and were forcing the second petitioner to give divorce to her husband.

Petitioners contended that the police has not been following the procedure and requires the Court to direct the fourth respondent to follow the Supreme Court decision in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.

Scope of Power of Police

On the issue of the scope of power of police to conduct an investigation, the arrest of accused, grant of bail, and the role of Constitutional Courts in such matters was extensively considered by the Hon’ble Supreme Court in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335.

Further, the Bench expressed that it is a settled principle of law that once a cognizable crime is reported, police have to register the crime and investigate into the crime. Such an investigation has to be taken up immediately, collect the evidence and then take steps to finalize the investigation and file the final report.

Scope of  The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989

The scope of provisions of the Act, 1989 came up for consideration before the Supreme Court in Subhash Kashinath Mahajan v. State of Maharashtra,(2018) 6 SCC 454. The Supreme Court held that merely because a crime is reported under the Act, 1989, it need not be registered automatically and to avoid false implication of an innocent person, a preliminary enquiry may be conducted by the Deputy Superintendent of Police concerned to find out whether allegations in the complaint made out a case to proceed under the Atrocities Act, and that the person need not be arrested.

In Union of India v. State of Maharashtra, (2020) 4 SCC 761, Supreme Court reviewed the directions issued in Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6 SCC 454.

Further, after extensively referring to the view taken by the Supreme Court in Union of India v. State of Maharashtra, (2020) 4 SCC 761, Supreme Court observed in Prithvi Raj Chauhan v. Union of India, (2020) 4 SCC 727:

“9. Concerning the provisions contained in Section 18-A, suffice it to observe that with respect to preliminary inquiry for registration of FIR, we have already recalled the general Directions 79.3 and 79.4 issued in Subhash Kashinath case [Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6 SCC 454 : (2018) 3 SCC (Cri) 124]. A preliminary inquiry is permissible only in the circumstances as per the law laid down by a Constitution Bench of this Court in Lalita Kumari v. State of U.P. [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524], shall hold good as explained in the order passed by this Court in the review petitions on 1-10-2019 [Union of India v. State of Maharashtra, (2020) 4 SCC 761] and the amended provisions of Section 18-A have to be interpreted accordingly.

10. Section 18-A(i) was inserted owing to the decision of this Court in Subhash Kashinath [Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6 SCC 454 : (2018) 3 SCC (Cri) 124], which made it necessary to obtain the approval of the appointing authority concerning a public servant and the SSP in the case of arrest of accused persons. This Court has also recalled that direction on Review Petition (Crl.) No. 228 of 2018 decided on 1-10-2019 [Union of India v. State of Maharashtra, (2020) 4 SCC 761] . Thus, the provisions which have been made in Section 18-A are rendered of academic use as they were enacted to take care of mandate issued in Subhash Kashinath [Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6 SCC 454 : (2018) 3 SCC (Cri) 124] which no more prevails. The provisions were already in Section 18 of the Act with respect to anticipatory bail.”

Therefore, in light of the above discussion, bench dismissed the petition. [Sattarsetti Nirmala v. State of Telangana, WP No. 141 of 2021, decided on 06-01-2021]

Case BriefsHigh Courts

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

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

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

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

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

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

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

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

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

Case BriefsHigh Courts

Delhi High Court: Anu Malhotra, J., addressed a matter wherein the husband and wife reach a settlement and the wife agrees to a clause wherein her minor daughter would also not be liable to claim anything against the petitioners.

In the instant application, petitioners have been stated to be under judicial custody, Vaibhav Jaiswal was alleged under Section 376 of Penal Code, 1860 and under POCSO Act, 2012.

Other petitioners were alleged to have committed offences under Sections 498 A, 406 and 34 of IPC.

The above-stated FIR was sought to be quashed in light of a settlement arrived between the petitioners and respondent 2 and that the marriage between the petitioner 1 and respondent 2 has been dissolved.

Respondent 2 affirmed the factum of the settlement arrived between her and petitioner 1.

Bench stated that in view of the above there appears no reason to disbelieve that the statement made by respondent 2 that she has arrived at a settlement with petitioners was made of her own accord.

Hence, all the proceedings against the petitioners are quashed.

However, in regard to the settlement deed, it was observed that under clause 7 states as follows:

“It is agreed between the parties that the above settlement is with respect to all claims of wife past, present, future, alimony, stridhan, maintenance, executions, articles property etc. and neither she nor her relatives shall claim anything from husband or from his family members in future for herself or on behalf of Child/children.”

Court stated that it is essential to observe that respondent 2 gave up all the rights of the minor child Vaishanvi qua the petitioners.

But the above could not have been done so in light of the Supreme court decision in Ganesh v. Sudhi Kumar Shrivastava, Civil Appeal Nos. 4031-4032/2019 arising out of SLP (C)  Nos. 32868-32869/2018, a verdict dated 22.4.2019 adhered to by this Court in Rakesh Jain  v. State, Crl. MC No. 2935 of 2019.

Hence, the minor child would be entitled to seek her claims against the petitioners and respondent 2 qua maintenance or otherwise in accordance with the law. [Vashno Jaishwal v. State (NCT of Delhi), 2020 SCC OnLine Del 1504, decided on 20-11-2020]

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Manmohan and Sanjeev Narula, JJ., refused to set aside the order of the trial court granting divorce to the respondent-husband.

In the instant appeal, Appellant-wife impugned the Judgment passed by Principal Judge, Family Courts whereby the Court while rejecting the relief sought under Section 12(1)(a) and (c) has allowed the petition of the respondent by granting divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955.

CRUELTY

Trial Court dissolved the marriage between the parties on the ground of cruelty within the meaning of Section 13(1)(ia) of the HMA.

IMPOTENCY

The nature and the extent of allegations made by the appellant are beyond any controversy. Appellant laid down the allegations under two different compartments:

(i) allegations pertaining to the impotency of the Respondent, and

(ii) allegations with respect to mistreatment, torture and dowry demand against the Respondent and his parents.

The above-stated allegations laid the foundation for the ground of cruelty.

Further, the respondent had brought in evidence to establish before the Court that he was not impotent and the false and untrue allegations were causing him mental stress and amounted to cruelty.

On physical examination by the doctor, the respondent was found to be a normal male adult with fully developed secondary sexual character and organs, normal endocrine and sexual function, and had no problem of impotence.

Trial Court concluded that the credibility of the witness could not be impeached, and since respondent suffered no medical infirmity that could render him incapable of consummating the marriage, the allegation of impotence made by the respondents was not proved.

DECISION

Bench stated that, since the witness was a very highly qualified medical expert with immaculate credentials, his testimony was rightly relied upon by the Trial Court, hence no interference by this Court is required.

Court agreed with the observations of the trial court and stated that the accusations were levelled by the appellant and the onus lay on her to establish the veracity of the same.

Appellant entirely failed to produce any medical or corroborated evidence that could remotely suggest that the respondent was medically unfit to consummate the marriage.

Next Question:

Whether a false allegation of impotence amounted to cruelty within the meaning of Section 13(1)(ia) of the HMA?

Cruelty can be physical or mental. High Court stated that it is primarily contextual, pertaining to human behaviour or conduct with respect to matrimonial duties and obligations.

Bench observed that it is essential to see whether the conduct of the party is of such nature, that a reasonable person would neither tolerate the same, nor be reasonably expected to live with the other party.

Decision of the Supreme Court in V. Bhagat v. D. Bhagat, (1994) 1 SCC 337 was relied upon, wherein it was held that:

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

“…What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.”

ALLEGATIONS MADE IN PLEADINGS

Bench stated that it is no longer res Integra that false, baseless, scandalous, malicious and unproven allegations in the written statement may amount to cruelty.

“If it is established from the evidence that the allegations were evidently false, then such baseless allegations made in the written statement can amount to cruelty and the Court can pass a decree of dissolution of the marriage.”

In view of the above, Court found no infirmity in the trial court’s observations that the allegation of the Appellant in the Written Statement with respect to the impotency clearly falls within the concept of cruelty as defined under the law.

Bench also observed that,

There can be no justification for any party to retaliate by making untrue and false allegations regardless of how provocative the allegations may be. If the Appellant was hurt by the allegations made by the Respondent, she had her legal remedies against the same. It did not certainly give her a carte blanche to make counter-allegations which were untrue and cause deep humiliation to the Respondent.

Adding to the above, Court stated that the imputations and allegations made by the Appellant in the Written Statement were repeatedly reinforced during the trial by giving suggestions to the Respondent and also to his expert witness during the course of their cross-examinations.

Bench held that,

The cruelty in the instant case is of enduring and profound nature.

Concluding the instant matter, Cout held that the appellant and the respondent have been separated for more than eight years and since the separation continued for a sufficient length at time, it can be presumed that the marriage has irretrievably broken down.

It was found that a prolonged and continuous separation and the matrimonial bond was beyond repair. Therefore, refusing to severe the matrimonial ties would cause further mental cruelty to the Respondent.

Hence, the trial court’s conclusion could not be faulted with. [Kirti Nagpal v. Rohit Girdhar, 2020 SCC OnLine Del 1466, decided on 20-11-2020]


Advocates for the parties:

Appellant: Manish Sharma, Ninad Dogra and Jigyasa Sharma

Respondent: Prabhjit Jauhar

Case BriefsHigh Courts

Bombay High Court: Sarang V. Kotwal, J., while denied bail on the light of giving divorce in violation of the provisions of The Muslim Women (Protection of Rights on Marriage) Act, 2019.

Applicant sought anticipatory bail for cases registered under Sections 377, 498 A, 323, 504, 506 of Penal Code, 1860, Section 67 of the Information Technology Act and Section 3 and 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019.

The victim in her FIR stated that the applicant had married twice earlier and had 5 children from his first wife. On obtaining a divorce from the first wife, he got married to the second wife.

When informant got married to the applicant, her mother’s gold was to her and Rs 3,50,000 were spent during the marriage. Further, the applicant gave some intoxicating drink to the first informant and in that situation took some photographs and recorded video fo the informant.

In the FIR, it was mentioned that the applicant had sex with her in October 2018. The applicant had inserted aluminium rod causing bleeding in her private parts as he didn’t want a child from this marriage. 

It was also alleged that the applicant used to harass the victim and used to ask her to bring money from her parental house. On one particular day, the applicant told the first informant to do all the work in the house, which the informant refused to do so and hence she was assaulted by the applicant. On the same day itself, the applicant gave her talaq.

Informant was later left at her parental house and was threatened that all he would make all the videos and photographs viral.

In view of the above, FIR was lodged.

Misbaah Solkar, Counsel for the applicant, R.M. Pethe, APP for the State and Adil Khatri, Counsel for the complainant.

Decision

Section 7(c) of the Muslim Women (Protection of Rights on Marriage) Act, 2019, which reads as follows:

“no person accused of an offence punishable under this Act shall be released on bail unless the Magistrate, on an application filed by the accused and after hearing the married Muslim woman upon whom talaq is pronounced, is satisfied that there are reasonable grounds for granting bail to such person”.

Bench found no reasonable ground for granting anticipatory bail to the present applicant. Informant’s counsel that she endured all the harassment over some period to save her marriage was also not improbable.

Considering the allegations, the applicant does not deserve the protection of anticipatory bail. The fact that the applicant was left at her parental house and her number was blocked, all of this corroborates to the allegations that, he had divorced informant illegally in violation of the provisions of The Muslim Women (Protection of Rights on Marriage) Act, 2019.

Allegations of inserting a rod in informant’s private parts and capturing indecent photos and videos require custodial interrogation.

Hence no anticipation bail was granted. [Ebrahim Mohd. Iqbal Lakdawala v. State of Maharashtra, Anticipatory Bail Application (ST) No. 2224 of 2020, decided on 21-10-2020]

Op EdsOP. ED.

  1. Section 13-B of the Hindu Marriage Act, 1955[1] (‘HMA’) states as under:

13-B. Divorce by mutual consent.—(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the District court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.”

2. Section 13-B of HMA contemplates two stages. The first stage is of Section 13-B(1) that lays down the essential requirements to be fulfilled by the parties as detailed below:

(i) The petition for divorce must be presented to the District Court;

(ii) The said petition must be presented jointly, by both the parties to a marriage whether such a marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976;

(iii) The parties have been living separately for a period of one year;

(iv) The parties have not been able to live together; and

(v) The parties mutually agreed that the marriage should be dissolved.

3. The second stage is of Section 13-B(2) that relates to the manner in which the court exercises its jurisdiction, provides that both the parties must again appear in the Second Motion before the court. The parties are also required to make a joint motion not less than six months after the date of presentation of the First Motion and not later than 18 months after the said date. The period of waiting ranging from six to eighteen months is intended to give an opportunity to the parties to reflect/renege and if one of the parties does not wish to proceed ahead with the divorce during this period, then divorce cannot be granted. The said principle has been explained by the Supreme Court in  Sureshta Devi v. Om Prakash[2],  as under:

“13. From the analysis of the section, it will be apparent that the filing of the petition with mutual consent does not authorise the court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. The spouse may not be a party to the joint motion under sub-section (2). There is nothing in the section which prevents such course. The section does not provide that if there is a change of mind it should not be by one party alone, but by both. The High Courts of Bombay and Delhi have proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decree. This approach appears to be untenable. At the time of the petition by mutual consent, the parties are not unaware that their petition does not by itself snap marital ties. They know that they have to take a further step to snap marital ties. Sub-section (2) of Section 13-B is clear on this point. It provides that “on the motion of both the parties. … if the petition is not withdrawn in the meantime, the court shall … pass a decree of divorce …”. What is significant in this provision is that there should also be mutual consent when they move the court with a request to pass a decree of divorce. Secondly, the court shall be satisfied about the bona fides and the consent of the parties. If there is no mutual consent at the time of the enquiry, the court gets no jurisdiction to make a decree for divorce. If the view is otherwise, the court could make an enquiry and pass a divorce decree even at the instance of one of the parties and against the consent of the other. Such a decree cannot be regarded as decree by mutual consent.”

The aforesaid view has been reiterated by the Supreme Court in Hitesh Bhatnagar v. Deepa Bhatnagar[3].

Thus, the object of the cooling-off period is to safeguard both the parties against a hurried decision if there is otherwise a possibility of their differences being reconciled.

4. Now, the issue arises whether this cooling-off period can be waived in law by either of the parties or not. In Krishna Bahadur v. Purna Theatre[4], the Supreme Court inter alia held that a right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved therein, discussing the principles of waiver as follows:

“10. A right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved therein. Whenever waiver is pleaded it is for the party pleading the same to show that an agreement waiving the right in consideration of some compromise came into being. Statutory right, however, may also be waived by his conduct.”

5. In Shri Lachoo Mal v. Radhey Shyam[5], the Supreme Court has explained that everyone has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity which may be dispensed with without infringing any public right or public policy.

6. The aforesaid principle of waiver has also been elucidated in Union of India v. Pramod Gupta[6], wherein the Supreme Court has observed as:

“111. It is, therefore, not correct to contend that there cannot be any waiver of the right to claim interest. Statutory provisions are made for payment of interest with a view to compensate a party which had suffered damages owing to a positive action or inaction of the other resulting in blockade of money which he would otherwise have received. A party which itself represents before the court of law that it would not claim interest with a view to obtain an order of stay which would be for its own benefit, in our opinion, could not be permitted to take advantage of its own wrong.”

7. In view of the above, it may be concluded that waiver is ordinarily contractual in nature inasmuch as two parties can enter into a contract in their private capacity and agree that one of them being well aware of its rights, will not assert the said right, for a consideration. However, where the statute prohibits contracting out, then the parties cannot enter into such a contract as it would be opposed to public policy.

8. The Kerala High Court in V. Janardhanan v. N.P. Syamala Kumari[7] , observed that an agreement to dissolve a marriage in derogation of the provisions of the 1955 Act is violative of the public policy of India.

9. The aforementioned cooling-off period cannot be waived off by the parties, as it gives an opportunity to both to reconsider reconciliation. The Supreme Court in Anil Kumar Jain v. Maya Jain[8],  has also held that the period of six months between filing a petition of divorce by mutual consent under Section 13-B(1)  and grant of decree of divorce under Section 13-B(2) of the 1955 Act cannot be waived off by the parties or by any civil court or High Court.

10. However, in Amardeep Singh v. Harveen Kaur[9], the abovementioned cooling-off period of six months has been held to be directory and not mandatory. The Supreme Court also interpreted Section 13-B(2) to be procedural in nature and highlighted that where the marriage has irretrievably broken down, the waiting period can be waived off by the court to enable the parties to rehabilitate themselves and start their lives afresh. It is the underlying object of the said provision that has prevailed on the Supreme Court to hold that where a court is satisfied that a case for waiver of the statutory “cooling period” under Section 13-B(2) of the Act is made out, it may waive the said period in certain circumstances. The above view has been expressed as follows:

“17. The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. The amendment was inspired by the thought that forcible perpetuation of status of matrimony between unwilling partners did not serve any purpose. The object of the cooling-off  period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option. 

  1. In determining the question whether provision is mandatory or directory, language alone is not always decisive. The Court has to have the regard to the context, the subject matter and the object of the provision.

  1. Applying the above to the present situation, we are of the view that where the Court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13-B(2), it can do so after considering the following:

i) the statutory period of six months specified in Section 13-B(2), in addition to the statutory period of one year under Section 13-B(1) of separation of parties is already over before the First Motion itself;

ii) all efforts for mediation/conciliation including efforts in terms of Order XXXII-A Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;

iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;

iv) the waiting period will only prolong their agony.

The waiver application can be filed one week after the First Motion giving reasons for the prayer for waiver. If the above conditions are satisfied, the waiver of the waiting period for the Second Motion will be in the discretion of the Court concerned.

  1. Since we are of the view that the period mentioned in Section 13-B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.”

Therefore, in Amardeep Singh, the Supreme Court acknowledged the change in public policy by permitting waiver of the statutory period of six months, contemplated in Section 13-B of the Act, with the object of preventing a forcible perpetuation of the status of matrimony between unwilling partners. Thus, the cooling-off period of six months has an element of public policy inbuilt therein, for emphasising the sanctity and importance of sustenance of marriage, as opposed to its dissolution.

11. It is noted that a situation may also arise where despite the undertaking(s) given by the couple or either of them before the court of law in obtaining the settlement, one of the partners unilaterally withdraws the consent earlier given to the petition to be filed under Section 13-B of the Act. As already noted hereinabove, the said party may have a right to renege, more so during the cooling-off period meant for the said purpose, however, whether such a withdrawal of consent contrary to the undertaking given shall make the defaulting party liable for contempt under the relevant law, if the said party fails to file or appear in the petition or motion or both to obtain divorce in view of the option to reconsider/renege the decision of taking divorce by mutual consent under Section 13-B(2) of the Act?

12. In this regard, it is pertinent to reproduce the relevant provisions of the Contempt of Courts Act, 1971:

2. Definitions.— In this Act, unless the context otherwise requires, –

a) “contempt of court” means civil contempt or criminal contempt;

b) “civil contempt” means wilful disobedience to any judgement, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court;..

*                                 *                       *

  1. Power of High Court to punish contempt of subordinate courts.— Every High Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempt of courts subordinate to it as it has and exercises in respect of contempt of itself:

Provided that no High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is an offence punishable under the Indian Penal Code.

*                          *                *

  1. Punishment for contempt of court.— Save as otherwise expressly provided in this Act or in any other law, a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both:

Provided that the accused may be discharged or the  punishment awarded may be remitted on apology being made to the satisfaction of the court.

Explanation.—An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide.

  1. Notwithstanding anything contained in any law for the time being in force, no court shall impose a sentence in excess of that specified in sub-section (1) for any contempt either in respect of itself or of a court subordinate to it.
  2. Notwithstanding anything contained in this section, where a person is found guilty of a civil contempt, the court, if it considers that a fine will not meet the ends of justice and that a sentence of imprisonment is necessary shall, instead of sentencing him to simple imprisonment, direct that he be detained in a civil prison for such period not exceeding six months as it may think fit.
  3. Where the person found guilty of contempt of court in respect of any undertaking given to a court is a company, every person who, at the time the contempt was committed, was in charge of, and was responsible to, the company for the conduct of business of the company, as well as the company, shall be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of each such person:

Provided that nothing contained in this sub-section shall render any such person liable to such punishment if he proves that the contempt was committed without his knowledge or that he exercised all due diligence to prevent its commission.

4. Notwithstanding anything contained in sub-section (4), where the contempt of court referred to therein has been committed by a company and it is proved that the contempt has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of such director, manager, secretary or other officer.

  1. Contempts not punishable in certain cases.—

Notwithstanding anything contained in any law for the time being in force:

a) no court shall impose a sentence under this Act for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice;

b) the court may permit, in any proceeding for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoicing the said defence is bona fide.”

13. In Sudhakar Prasad v. Govt. of A.P.[10], the Supreme Court declared that the powers of contempt are inherent in nature and the provisions of the Constitution only recognise the said pre-existing situation. The relevant observations are reproduced below:

“9. Articles 129 and 215 of the Constitution of India declare Supreme Court and every High Court to be a Court of Record having all the powers of such a court including the power to punish for contempt of itself. These articles do not confer any new jurisdiction or status on the Supreme Court and the High Courts. They merely recognise a pre-existing situation that the Supreme Court and the High Courts are courts of record and by virtue of being courts of record have inherent jurisdiction to punish for contempt of themselves. Such inherent power to punish for contempt is summary. It is not governed or limited by any rules of procedure excepting the principles of natural justice. The jurisdiction contemplated by Articles 129 and 215 is inalienable. It cannot be taken away or whittled down by any legislative enactment subordinate to the Constitution. The provisions of the Contempt of Courts Act, 1971 are in addition to and not in derogation of Articles 129 and 215 of the Constitution. The provisions of the Contempt of Courts Act, 1971 cannot be used for limiting or regulating the exercise of jurisdiction contemplated by the said two articles. 

10…..This Court held that courts of record enjoy power to punish for contempt as a part of their inherent jurisdiction; the existence and availability of such power being essential to enable the courts to administer justice according to law in a regular, orderly and effective manner and to uphold the majesty of law and prevent interference in the due administration of justice (para 12). No Act of Parliament can take away that inherent jurisdiction of the Court of Record to punish for contempt and Parliamen’ts power of legislation on the subject cannot be so exercised as to stultify the status and dignity of the Supreme Court and/or the High Courts though such a legislation may serve as a guide for their determination of the nature of punishment which a Court of Record may impose in the case of established contempt. Power to investigate and punish for contempt of itself vesting in Supreme Court flows from Articles 129 and 142(2) of the Constitution independent of Section 15 of the Contempt of Courts Act, 1971 (para 21). Section 12 of the Contempt of Courts Act, 1971 provides for the punishment which shall ordinarily be imposed by the High Court in the case of an established contempt. This section does not deal with the powers of the Supreme Court to try or punish a contemnor in committing contempt of the Supreme Court or the courts subordinate to it (paras 28, 29, 37). Though the  inherent power of the High Court under Article 215 has not been impinged upon by the provisions of the Contempt of Courts Act, the Act does provide for the nature and types of punishments which the High Court may award. The High Court cannot create or assume power to inflict a new type of punishment other than the one recognised and accepted by Section 12 of the Contempt of Courts Act, 1971.

Similar observation has also been made by the  Supreme Court in Supreme Court Bar Association v. Union of India[11] .

4. The principle of civil contempt has been dealt with in Ashok Paper Kamgar Union v. Dharam Godha[12], wherein the Supreme Court observed as under:

“17. Section 2(b) of Contempt of Courts Act defines ‘civil contempt’ and it means wilful disobedience to any judgment, decree, direction, order, writ or other process of a Court or wilful breach of undertaking given to a Court. ‘Wilful’ means an act or omission which is done voluntarily and intentionally and with the specific intent to do something the law forbids or with the specific intent to fail to do something the law requires to be done, that is to say with bad purpose either to disobey or to disregard the law. It signifies a deliberate action done with evil intent or with a bad motive or purpose. Therefore, in order to constitute contempt the order of the Court must be of such a nature which is capable of execution by the person charged in normal circumstances. It should not require any extra ordinary effort nor should be dependent, either wholly or in part, upon any act or omission of a third party for its compliance. This has to be judged having regard to the facts and circumstances of each case……”

5. In Balasubramaniyam v. P. Janakaraju[13], the High Court of Karnataka has explained the principle of contempt as follows:

“19. Orders of Courts have to be obeyed unless and until they are set aside in appeal/revision. Alternatively in any proceedings for execution or in a collateral proceedings where an order is sought to be enforced or relied on, it is possible for a party to establish that the order is null and void. Then the Court considering the matter, if satisfied, will hold that the order is null and void and therefore not executable or enforceable. In this case, the order of eviction dated 6-8-1996 has been confirmed by the Revisional Court by order dated 18-11-1996  which in turn has been confirmed by order dated 18-12-1996 of this Court. These orders are not set aside. They have not been declared or held to be null and void in any proceedings. Therefore, the respondents cannot assume for themselves that the undertaking given by them is not valid or that therefore they need not comply with it.

  1. The principles relating to contempt are clear. The definition ‘Civil Contempt’ includes wilful breach of an undertaking given to a Court. Public interest requires that solemn undertakings given to a Court with the intention of obtaining any benefit should not be breached wilfully. No litigant can be allowed to wriggle away from a solemn undertaking given to the Court, as it will open dangerous trends and defeat the very purpose of giving undertakings to Court. While Courts will not be vindictive, Courts cannot also allow themselves to be trifled with by violating the solemn undertakings given to them. Litigants ought to understand that once they give an undertaking to a Court, they should comply with it in all circumstances, the only exceptions being fraud or statutory bar. They cannot break an undertaking with impunity and then attempt to justify it. The breach of solemn undertaking given to a Court is a serious matter and will have to be dealt with seriously. Further, while execution ofa decree is a matter between the decree-holder and the judgment- debtor, an undertaking to a Court is a matter between the Court and the person who gives the undertaking to the Court. The right of a landlord to get his tenant vacated in terms of an order of eviction has nothing to do with the solemn undertaking given by a tenant to the Court to vacate the premises to obtain the benefit of grant of time for vacating the premises. It therefore follows that even if the order of eviction becomes inececutable for any reason, that will not absolve the person giving the undertaking to Court, from acting in terms of it.”

16. Similar principles regarding contempt have been reiterated and reemphasised in several pronouncements, including in Rama Narang v. Ramesh Narang[14] , and Shailesh Dhairyawan v. Mohan Balkrishna Lulla[15].

17. In Shikha Bhatia v. Gaurav Bhatia[16], during the pendency of the petition for anticipatory bail in a FIR registered against him and his parents, the respondent husband entered into an agreement with the petitioner wife to pay a quantified amount to her in full and final satisfaction of all her claims and in consideration thereof, the wife agreed to sign the First Motion for grant of divorce by mutual consent and then the petition under Section 13-B(2) of the Act. The wife also agreed not to object to quashing of the FIR. On refusal of the husband to abide by the undertaking given to the wife over making the payments, she initiated contempt proceedings. The Delhi High Court observed that the husband having taken advantage of the agreement entered into with the wife in terms of the settlement, he could not withdraw the same to her detriment. It was thus held that the husband had wilfully and deliberately disregarded the settlement recorded in court on his own representation and accordingly declared him guilty of contempt.

18. In Avneesh Sood v. Tithi Sood[17], disputes had arisen between the parties after a decade of their marriage and they had executed a Memorandum of Understanding (MoU) agreeing inter alia to seek divorce by mutual consent. As per the terms thereof, the husband had agreed to pay a quantified amount to the wife, in instalments. After execution of the MoU, the parties filed a joint petition for dissolution of marriage by mutual consent under Section 13-B(1) of the Act and incorporated therein the terms and conditions of settlement, which were duly accepted by the court during the First Motion proceedings. Later on, when the wife refused to cooperate with the husband for moving the Second Motion petition under Section 13-B(2) of the Act, he filed a contempt petition against the wife on the ground that she had withdrawn from the undertaking given by her to the court at the time of filing the petition for mutual divorce under Section 13-B(1) of the Act before the Family Court. The Court held the wife guilty of contempt of court for having breached the undertaking given to the learned ADJ in the First Motion divorce proceedings under Section 13-B(1) of the Act and issued a notice to show cause  as to why she should not be punished for contempt of court, particularly when she had derived benefits from the husband in terms of the MoU.

19. In view of the above, it thus follows that the Supreme Court and the High Courts, by virtue of being courts of record, have the inherent jurisdiction to punish for contempt of court. Further, Section 2(b) of the 1971 Act encompasses wilful disobedience to any judgment, decree, direction, order etc. of a court, as well as a wilful breach of an undertaking given to the court. Therefore, even though a party who has given an undertaking to the Court withdraws the same exercising the legal right under Section 13-B of the Act, the said party has nonetheless knowingly by his/her undertaking to the Court wilfully breached the same, thus making the said party guilty of civil contempt of court under the 1971 Act.

10. The Division Bench of the Delhi High Court in Rajat Gupta Rupali Gupta[18] answered the following two questions, besides others, referred to it in the following terms:

Q. 1: Whether a party, which has under a settlement agreement decreed by a Court undertaken to file a petition under Section 13-B(1) or a motion under Section 13-B(2) of the 1955 Act or both and has also undertaken to appear before the said Court for obtaining divorce can be held liable for contempt, if the said party fails to file or appear in the petition or motion or both to obtain divorce in view of the option to reconsider/renege the decision of taking divorce by mutual consent under Section 13-B(2) of the Act?

Ans.: The distinguishing feature of Section 13-B of the 1955 Act is that it recognises the unqualified and unfettered right of a party to unilaterally withdraw the consent or reconsider/renege from a decision to apply for divorce by mutual consent, notwithstanding any undertaking given in any legal proceeding or recorded in any settlement/joint statement, in or outside the court, resulting in a consent order/decree, to cooperate with the other spouse to file a petition under Section 13-B(1) or a Second Motion under Section 13-B(2) of the Act, or both. Withdrawal of the consent even at the stage of the enquiry, as contemplated under Section 13-B(2), is also in exercise of the right available to a party under the very same provision. Any other view will not only impinge on the jurisdiction of the court which has an obligation under the statute to undertake an independent enquiry before passing a decree of divorce by mutual consent, it will also encroach upon a statutory right vested in a party under Section 13-B(2) of the Act and go against the very spirit of the provision. However, at the same time, a defaulting party can be held liable for civil contempt on the ground of breaching the terms and conditions incorporated in an undertaking given to the court or made a part of a consent order/decree. In the event the aggrieved party approaches the court for initiation of contempt proceedings against the defaulting party for wilful/deliberate breach of any of the terms and conditions of an undertaking/settlement agreement/consent order or a decree and takes a plea that as a consequence thereof, he/she has been placed in a disadvantageous position or has suffered an irreversible/grave prejudice, the court in exercise of its inherent powers of contempt, supplemented by the 1971 Act has the requisite jurisdiction to entertain the petition and direct restoration of status quo ante in every possible way. Thus, contempt jurisdiction operates in a different field and is uninfluenced by the fetters imposed on a court under the Act of 1955. The only rider to the above is that no direction can be issued even in contempt proceedings to compel the defaulting party to give its consent for a decree of divorce by mutual consent, as it is opposed to the object, policy and intent of Section 13-B of HMA.

 Q. 2: Whether by undertaking before a Court to file a Second Motion under Section 13-B(2) of the Act, 1955 at Section 13-B(1) stage or by giving an undertaking to a Court to that effect in a separate court proceeding, a party waives its right to rethink/renege under Section 13-B(2) of the Act, 1955? If yes, whether such right can be waived by a party under Section 13-B(2) of the Act, 1955?

Ans.: Notwithstanding any undertaking given by a party before a court to file a Second Motion under Section13-B(2) or at the Section 13-B(1) stage or in any separate court proceedings, its right to rethink/renege under Section 13-B(2) of the Act, cannot be waived for the reason that such a waiver is proscribed by the statute that keeps a window open for the parties to withdraw their consent at any stage till the decree of divorce is finally granted. The right of withdrawal of consent in the above proceedings can be exercised at any stage and exercise of such a discretion cannot be treated as being opposed to public policy. Any other interpretation given to the aforesaid provision would negate the underlying aim, object and intent of the said provision. Once a party decides to have a second thought and on reflection, backs off, the court concerned cannot compel the defaulting party to give its consent on the basis of an earlier settlement/undertaking.


* Advocate and a qualified Chartered Accountant. Author is currently a Senior Associate in the Dispute Resolution Practice at L&L Partners Law Offices, New Delhi. Author’s views are personal.

[1] The Hindu Marriage Act, 1955

[2] (1991) 2 SCC 25

[3] (2011) 5 SCC 234

[4] (2004) 8 SCC 229 

[5] (1971) 1 SCC 619

[6] (2005) 12 SCC 1

[7] 1990 SCC OnLine Ker 13 

[8] (2009) 10 SCC 415

[9] (2017) 8 SCC 746

[10] (2001) 1 SCC 516

[11] (1998) 4 SCC 409  

[12] (2003) 11 SCC 1

[13] 2004 SCC OnLine Kar 226

[14] (2006) 11 SCC 114

[15] (2016) 3 SCC 619

[16] 2010 SCC OnLine Del 1962

[17] 2012 SCC OnLine Del 2445

[18] 2018 SCC OnLine Del 9005

Case BriefsHigh Courts

Bombay High Court: Nitin W. Sambre, J., allowed an application seeking waiver of the cooling-off period on an urgent basis in light of woman carrying pregnancy from another person.

Parties to the instant matter tendered the joint petition for divorce by mutual consent pursuant to the provisions of Section 13B of the Hindu Marriage Act, 1955.

The above-stated proceedings were initiated before the Family Court and accompanied with the application for waiving statutory period provided under Section 13B (2) of the Hind Marriage Act, 1955. But the same was rejected by the impugned order dated 09-9-2020.

Petitioners Counsel submitted that the parties stayed separately since December 2018 till date and are unable to live together.

Another significant point to that was brought before the Court was that the petitioner was carrying pregnancy from another person with whom she intends to settle by performing marriage and that being so, there is an urgency in the matter.

Respondents Counsel consented to the submissions made by the Petitioner Counsel and submitted that he is equally supporting the Petitioners case for waiving the statutory period.

Bench perused the Supreme Court’s decision in Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746, wherein it was observed that:

“…Section 13B(2) contains a bar to divorce being granted before six months of time elapsing after filing of the divorce petition by mutual consent. The said period was laid down to enable the parties to have a rethink so that the court grants divorce by mutual consent only if there is no chance for reconciliation.

The object of the cooling off the period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option.”

In the present matter, Court opined that in the present matter it will be appropriate in the fitness of things, particularly having regard to the medical/health condition of the petitioner, to allow the joint application moved for waiving the period as specified under Section 13B of the Hindu Marriage Act.

High Court directed the Family Court to decide the divorce application expeditiously. [Kovelamudi Kanika Dhillon v. Kovelamudi Surya Prakash Rao,  2020 SCC OnLine Bom 2054, decided on 26-10-2020]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Vipin Sanghi and Rajnish Bhatnagar, JJ., in regard to Triple Talaq observed that,

Prima facie it appears that the object of Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 is to discourage the age-old and traditional practice of pronouncement of talaq by a Muslim husband upon his wife by resort to talaq-e-biddat.

Issues in the instant petition have been pending for consideration before the Supreme Court in WP (C) No. 994 of 2019.

In view of the above, Bench stated that since the matter is pending before the Supreme Court, hence it would wait for the judgment of the Supreme Court.

Petitioners Counsel, Tarun Chandiok and Naseem Ahmed had moved the present application with the prayer that pending the consideration of the petition, all FIRs registered under Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 be stayed.

Substantial Question of Law

Further, it added to its submissions that the minimum number of Judges who should sit for the purpose of deciding any case involving substantial question of law as to the interpretation of the constitution, or for the purpose of hearing any reference under Article 143 should be five.

Bench rejected the above-stated submission stating that there is no provision either in the Constitution or in any other law which required this Court to place the matter before a Larger Bench at this stage.

Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019

Bench noted that the present petition is not in the nature of a Public Interest Litigation. Hence Court denied invoking Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019.

Section 3 of the Muslim Women (Protection of Rights on Marriage) Act, 2019

Petitioner also submitted that Section 3 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 declares the practice of triple talaq as popularly known, to be void and illegal.

What does the said provision state:

“any pronouncement of talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal”. Section 2(c) defines talaq to mean “talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband”.

Triple Talaq

Petitioner’s Counsel also added to its submissions that once triple talaq has been rendered void and illegal, there is no justification for criminalizing pronouncement of triple talaq, since such triple talaq would have no legal effect on the status of the Muslim Marriage.

Since it is of no consequence and does not end the marital status of the wife – who may be subjected to triple talaq, there is no purpose of penalising the said Act. Section 4 of the said Act provides “any Muslim husband who pronounces talaq referred to in Section 3 upon his wife shall be punished with imprisonment for a term which may extend to 3 years and shall also be liable to fine.”

Counsel relied on the decisions of the Supreme Court in Shayara Bano v. Union of India, (2017) 9 SCC 1 and Behram Khurshid Pesikaka v. State of Bombay, (1955) 1 SCR 613.

Bench held that,

“Legislation is presumed to be valid, unless it is declared to be invalid, or unconstitutional by a Competent Court, and is struck down.”

Court observed that the prima facie it appears that the object of Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 is to discourage the age-old and traditional practice of pronouncement of talaq by a Muslim husband upon his wife by resort to talaq-e-biddat i.e. triple talaq.

Purpose of Section 4 appears to provide a deterrent against such practice.

Merely because triple talaq has been declared to be void and illegal, it does not mean that the legislature could not have made the continuation of such practice an offence.

High Court in view of the above discussion, did not grant any interim relief. [Nadeem Khan v. Union of India, 2020 SCC OnLine Del 1336, decided on 13-10-2020]

Case BriefsHigh Courts

Madras High Court: RMT. Teeka Raman, J., while addressing a petition observed that,

“A plea of customary divorce is a valid defence in departmental proceedings initiated for the misconduct of bigamy under Service Rules/Conduct Rules.”

The instant petition was sought to set aside the punishment order imposed in proceedings under Rule 3(b) Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955.

Petitioner, during his service, married a staff nurse and has two children. Later, in 2007, the petitioner during his service married a Woman Sub Inspector of Police and had two children with her as well.

Grave Misconduct

Petitioner’s grave misconduct was having married Woman Sub Inspector of Police while his first wife was living with two children and thereby violating Rule 23(1)(b) of the Tamil Nadu Subordinate Police Officer’s Conduct Rules, 1964.

Charge Memo

In view of the above-stated act, a charge memo was issued under Rule 3(b) of the Tamil Nadu Police Subordinate Service (D&A) Rules, 1955.

The Oral Enquiry Officer held the charge against the petitioner.

Deputy Inspector General of Police also arrived at the conclusion that the petitioner violated Rule 23(1)(b) of the Tamil Nadu Subordinate Police Officers’ Conduct Rules, 1964 and awarded the petitioner a punishment of “Reduction in rank by the stage from the post of Head Constable to Gr.I PC for a period of two years to be spent on duty from the date of receipt of the order”.

Senior Counsel, Veera Kathiravan submitted that there was a customary divorce between the petitioner and his first wife and subsequently the petitioner married the widow Woman Sub-Inspector of Police and hence he did not violate any rules.

Analysis & Decision

Crux of the charge framed against the petitioner was that the delinquent was reprehensible conduct in having married the Woman Sub-Inspector of Police when his first wife was living and thereby violating the Rule 23(1)(b) of the Tamil Nadu Subordinate Police Officers’ Conduct Rules 1964 and tarnished the image of Police Force.

Hindu Marriage Act

Bench stated that after the coming into force of the Hindu Marriage Act, 1955, an end to marriage can be sought by either obtaining a declaration that the marriage between them was a nullity on the grounds specified in Section II or to dissolve the marriage between them on any of the grounds mentioned in Section 13 of the Act. While, Section 29 of the Act saves the rights recognized by custom or conferred by special enactment to obtain the dissolution of marriage, whether solemnized before or after the commencement of the Act.

Authorities have established that the prevalence of customary divorce in the community to which parties belong, contrary to the general law of divorce must be specifically pleaded and established by the person propounding such custom.

Core question to be decided in the present matter was whether the plea of customary divorce is a valid defence in the departmental proceedings initiated for action of bigamy as defined in Section 3(b) of the Tamil Nadu Police Rules?

Bench noted the statement of the first wife that due to misunderstandings between the couple, as per the custom prevailing in the community, there was a customary divorce.

Customary Divorce

Hence, the plea raised by the delinquent about the prevalence of customary divorce in their community which was pleaded by the petitioner and the same was accepted by none other than the first wife herself only after the dissolution of the first marriage, he contracted the second marriage.

Court concluded its decision as follows:

  • Disciplinary Proceedings can be initiated even if the second marriage is contracted with the knowledge of the first wife so also even if the first wife does not prosecute the husband for the same and hence the complaint given by the third party alleging contract of the second marriage, departmental proceedings can still be maintainable.
  • A plea of customary divorce is a valid defence in departmental proceedings initiated for the misconduct of bigamy under Service Rules/Conduct Rules.
  • To substantiate plea of customary divorce a specific plea has to be raised in the statement of defence by the delinquent officer and has to be proved on up to the decree of the preponderance of probability and execution of the customary divorce as projected by the delinquent.

Hence, in view of the above, the petition was allowed and the punishment was set aside. [Sudalaimai v. Deputy Inspector General of Police, WP (MD) No. 17504 of 2014, decided on 09-09-2020]

Case BriefsHigh Courts

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

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

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

Brief Facts

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

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

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

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

Analysis and Decision

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

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

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

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

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

Act of Second Marriage | Sheriat 

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

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

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

Marital Cruelty

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

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

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

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

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

Case BriefsHigh Courts

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

Cruelty & Desertion | Dissolution of Marriage

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

Family Court dissolved the marriage.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Case BriefsHigh Courts

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

Willful Disobedience

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

Facts 

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

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

Decree of Divorce

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

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

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

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

Bench considered the following questions:

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

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

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

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

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

Ejusdem Generis

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

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

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

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

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

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

No Civil Contempt

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

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