Case BriefsSupreme Court

Supreme Court: While deciding a case of a matrimonial dispute where the marriage never took off from the first day and was never consummated and the parties had been living separately from the date of marriage for almost 20 years, a Division Bench of Sanjay Kishan Kaul and Hrishikesh Roy, JJ. passed a decree of divorce in favour of the husband on account of irretrievable breakdown of marriage as well as on account of cruelty committed by the wife.

Background

It appeared that the appellant-husband and respondent-wife had a crash landing at the take-off stage itself. The appellant claimed that the respondent’s view was that she had been coerced into marrying the appellant without giving her consent and left the marriage hall at night. An endeavor by the relatives of the appellant to persuade her on the very next day to live with appellant was also not fruitful. The marriage was never consummated. In such view, the appellant issued a notice seeking divorce on the ground of cruelty under Section 13(1)(i-a) of the Hindu Marriage Act.

Respondent filed a petition for restitution of conjugal rights soon after the issuance of the notice. She submitted that it was the appellant who refused to cohabit with her, since her family was unable to fulfil the appellant’s demand for dowry.

After 5 years, the decree of divorce on the ground of irretrievable breakdown of marriage was granted by the trial court and after 6 days of the said decision, appellant got married the second time. The respondent preferred the appeal and the appellate Court set aside the decree of divorce while allowing the petition for restitution of conjugal rights. Thereafter, the High Court restored the decree of divorce granted by the trial court and each stage of scrutiny took 5 years, and 15 years passed in the litigation. This inter alia posed a question mark on status of second marriage of the appellant.

Later, the respondent filed a review petition on the ground that it was not within the jurisdiction of the High Court or trial court to grant a decree of divorce on the ground of irretrievable breakdown of marriage. The review petition was allowed and the same was assailed in the present appeal.

Analysis, Law and Decision

Supreme Court noted that the ground of irretrievable breakdown of marriage does not exist as a ground of divorce under the Hindu Marriage Act. The Bench referred to several judicial precedents including Hitesh Bhatnagar v. Deepa Bhatnagar, (2011) 5 SCC 234, which opined that courts can dissolve a marriage as irretrievably broken down only when it is impossible to save the marriage, all efforts have been made in that regard, the court is convinced beyond any doubt that there is actually no chance of the marriage surviving, and it is broken beyond repair. The Bench expressed:

“… Living together is not a compulsory exercise. But marriage is a tie between two parties. If this tie is not working under any circumstances, we see no purpose in postponing the inevitability of the situation …”

Incidental question in the present matter was, whether the respondent’s conduct after the initial trigger for divorce amounted to mental cruelty?

Respondent after succeeding before the appellate court lodged a criminal complaint against the appellant under Section 494 of Penal Code, 1860 even though an appeal was pending before the High Court. There were episodes of further harassment by the respondent even at the workplace of the appellant including insulting the appellant in front of students and professors. The respondent also threatened the appellant of physical harm in front of his colleagues.

Supreme Court held that the continuing acts of the respondent would amount to cruelty even if the same had not arisen as a cause prior to the institution of the petition, as was found by the trial court. It was observed:

“The marriage having not taken off from its inception and 5 years having been spent in the Trial Court, it is difficult to accept that the marriage soon after the decree of divorce, within 6 days, albeit 6 years after the initial inception of marriage, amounts to conduct which can be held against the appellant.”

The Court was of the opinion that both the grounds of irretrievable breakdown of marriage and cruelty would favour the grant of decree of divorce in favour of the appellant. Hence, a decree of divorce dissolving the marriage between the parties be passed not only in exercise of powers under Article 142 of the Constitution of India on account of irretrievable breakdown of marriage, but also on account of cruelty under Section 13(1)(i-a) of the Act in light of the subsequent conduct of the respondent during the pendency of judicial proceedings at various stages.

In view of the above discussion, decree of divorce was passed and the marriage stood dissolved. [Sivasankaran v. Sathimeenal, 2021 SCC OnLine SC 702, decided on 13-09-2021]

Case BriefsHigh Courts

Bombay High Court: The Division Bench of A.S. Chandurkar and G.A. Sanap, JJ. addressed whether prior to the decision on divorce petition, creating a matrimonial profile expressing the will and consent, would be a ground for divorce.

Factual Background

Respondent and appellant started developing discord in their relations.

Appellant submitted that, after some time in the company of the respondent he found that by nature she was aggressive and would speak utter lies and had an extreme affinity towards her parents and particularly for parents’ residence.

Further, it was also added that the respondent would insist the appellant leave the job and shift to Akola with her and take some new assignment.

The job of the appellant was a permanent job in the High Court. He, therefore, did not agree with the suggestions made by the respondent to quit the job. According to the appellant, this was the trigger point to escalate the conflict between him and the respondent.

Questions for determination 

  • Whether the appellant has proved that the respondent after the solemnization of their marriage had treated him with cruelty?
  • Whether the Judgment and decree passed by the learned Judge of the Family Court rejecting the decree of divorce is sustainable?

Appellant’s Advocate submitted that the arrogant and cantankerous nature of the respondent not only made the life of the appellant miserable but also made the life of his parents miserable.

Further, during the pendency of the petition, the respondent had made her intention of parting ways with the appellant clear, by uploading her profile on two marriage bureau websites.

Respondent had made her intention writ large to get rid of the appellant and begin her life afresh with someone else.

Analysis, Law and Decision

In the decision of Supreme Court in Malathi Ravi v. B.V. Ravi, (2014) 7 SCC 640, it was held that false allegation by one spouse against the other amounts to mental cruelty, It is held that mental cruelty and its effect cannot be stated with arithmetical exactitude. It varies from individual to individual, from society and also depends upon the status of the person.

In another decision, of Supreme Court in Vishwanath v. Sarla Vishwanath Agrawal, Civil Appeal No. 4905 of 2020, it was held that the mental torture caused by one spouse to the another by making wild and false allegations in a report lodged to the authority as well as in the electronic and print media constitute mental cruelty and as such the ground for divorce.

The decision of V. Bhagat v. D. Bhagat, (1994) 1 SCC 337, had considered as to what constitute mental cruelty and what should be the parameters while deciding the cruelty.

Family Court had found that the appellant established the case of cruelty at the hands of respondent in as much as the respondent made unfounded and unsupported allegations against the appellant. Despite the said finding of fact, Judge did not deem it appropriate to grant a divorce decree.

Bench stated that on a plain reading of Section 14 Court has no reason to reject the submissions advanced by the Advocate for the appellant.

In Court’s opinion, the documents produced on record in the form of matrimonial profile uploaded by the respondent on 22-10-2020 can be taken into consideration for deciding the question in controversy in this appeal.

Further, the High Court expressed that on perusal of matrimonial profile uploaded by the appellant it would show that even before decision in the divorce petition she had made up her mind to perform the second marriage. In the said profile she had clearly mentioned that she was awaiting the divorce in pending case.

“…respondent by uploading her profile on two matrimonial websites made her intention writ large.”

In view of the above document, it was inferred that she wanted to get rid of the appellant and wanted to perform the second marriage.

Adding to the above, Court stated that in the written statement, respondent contended that as an obedient wife and daughter-in-law she performed her duties sincerely, but the appellant and his parents did not like her and wanted to get rid of her from the life of the appellant.

In Court’s view, the above statement in the written statement if read in the context of the documents would seriously reflect upon the conduct of the respondent.

Appellant in his evidence stated that due to the false and frivolous complaints and reports made by the respondent to the various authorities, she has caused immense mental stress, depression, pain and agony to him and his parents.

High Court opined that if the Judge of the Family Court had taken into consideration the documents produced on record before Judgment, whereby the respondent had uploaded her marriage profile on two websites, the learned Judge would not have recorded such a finding.

Emphasizing that the evidence clearly indicated that the respondent had no wish and desire to remain in company of the appellant.

If the respondent had sincere wish and desire to save her marriage she would not have taken a conscious decision to perform the second marriage even before the final outcome of the divorce petition.

Further, it was proved that the mental cruelty was such that it would in all probability cause injury to the health of the appellant.

 “…conduct of the respondent to perform the second marriage and not to lead the life with the appellant is writ large from the fact that she did not apply for restitution of conjugal rights.”

 Appellant successfully made out the case that he was made to suffer mental cruelty of a high degree and therefore, he took a conscious decision to get separated.

Hence, family court appeal was allowed.

Hindu Marriage Petition filed by the appellant is allowed. It was declared that the marriage between the appellant and the respondent is dissolved by decree of divorce on the ground of cruelty. [Premdeep v. Bhavana, Family Court Appeal No. 24 of 2020, decided on 27-8-2021]


Advocates before the Court:

Shri Hemant Surve, Advocate for appellant

None for the respondent

Case BriefsHigh Courts

Punjab and Haryana High Court: G. S. Sandhawalia, J., allowed the application for waiving off the mandatory period of six months for divorce by mutual consent.

The instant petition had been filed by the petitioners i.e. Wife and husband who were aggrieved by the order of the Family Court, whereby their application for waiving off the mandatory period of six months had been rejected.

The petitioners submitted that they had sought divorce by mutual consent and their joint statement was recorded under Section 13-B of Hindu Marriage Act on the ground that husband was residing abroad in Houston TX (USA) since 2019. The parties were living separately since then and three children, which were borne out of the wedlock remained with the husband. Therefore, it was submitted by the parties that the mandatory period of six months be waived off.

Reliance was placed by the Family Court on the decision of the Supreme Court in Amandeep Singh v. Harveen Kaur, (2017) 8 SCC 746, wherein it had been held that, “where there are no chances of reconciliation, six months period cannot be waived off except in exceptional circumstances and the parties are thus aggrieved by the impugned order.”

Observing that the couple had settled the matter and were mature to the extent that first petitioner was 34 years old and petitioner 2 was 35 years of age and had been blessed with 3 children; moreover, it was not disputed that the husband was also staying abroad for the last more than two years and they had even settled regarding the children; the Bench opined that in such circumstances, further waiting period would only prolong the proceedings and it was a fit case to exercise the jurisdiction of the Court in waiving off the mandatory period of six months.

The Bench opined that the judgment in Amandeep Singh’s case had not been appreciated in its real sense by the Family Court. The relevant portion of the said judgment reads as under:-

“16. 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 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.”

Accordingly, the impugned order was set aside. The Family Court concerned was directed to take up the application again and dispose of the main case within a period of 10 days.[Sukhjeet Kaur v. State of Punjab, 2021 SCC OnLine P&H 1606, decided on 16-08-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

Counsel for the Petitioners: Mohd. Salim, Advocate

Case BriefsHigh Courts

Bombay High Court: Manish Pitale, J., expressed while addressing the present application that,

“Second marriage cannot come within the definition of domestic violence.”

By the instant application, applicants sought quashing of criminal proceedings filed by sole respondent under the provisions of the Protection of Women from Domestic Violence Act, 2005.

Further, the applicants also prayed for setting aside the orders passed by the Court of Judicial Magistrate.

Applicant 1 got married to the sole respondent and soon after the marriage, there was matrimonial discord between the two, because of which, applicant 1 filed a divorce proceeding on the ground of cruelty.

The divorce decree granted was confirmed upto the Supreme Court and the rejection of the application for restitution of conjugal rights filed by the respondent also stood confirmed.

Bench stated that the contentions raised on behalf of applicant 1 on ground of cruelty were accepted by all the Courts and hence the said findings attained finality.

Question for consideration:

  • Whether respondent is entitled to rely upon incidents pertaining to the same time period and relatable to the allegation and contentions raised to claim that she had suffered domestic violence at the hands of the applicants, as defined under the DV Act.
  • Whether the act of applicant 1 preforming a second marriage after the grant of divorce decree can be said to be an act of domestic violence under the provisions of the DV Act?
  • Whether the proceedings initiated by respondent under provisions of the DV Act can be said to be an abuse of process of law?

Analysis, Law and Decision

High Court stated that on perusal of Sections 12 to 23 of the D.V. Act, respondent has indeed raised the very issues and contentions that she had relied upon during the initial round of litigation pertaining to the divorce petition filed by applicant 1 and application or restitution of conjugal rights filed by respondent.

Hence, respondent cannot be permitted to reiterate the same by filing application under the provisions of the DV Act, 3 months after the Supreme Court dismissed her Special Leave Petition and confirmed the findings rendered by the Family Court and this Court on identical issues.

Second Marriage

 Court rejected the contention that the second marriage performed by applicant 1, after grant of divorce decree amounted to domestic violence.

Section 3 of the D.V. Act defines ‘domestic violence’ in an elaborate manner and it refers to physical abuse, sexual abuse, verbal abuse, emotional abuse and economic abuse. This is in the context of a domestic relation shared between the aggrieved person and respondent.

Family Court granted divorce on the ground of cruelty cannot eb denied in the present matter.

Merely because applicant 1 performed second marriage cannot come within the definition of domestic violence under Section 3 of the D.V. Act.

The manner in which the proceedings were sought to be initiated under the provisions of DV Act was nothing but an abuse of process of law.

Court noted that the respondent appeared to be interested in initiating and continuing the proceedings as a tool of harassment against the applicants.

Prayers pertaining to monthly maintenance, compensation, residence order, etc., have all been made of the contentions raised in the earlier round of litigation.

In view of the above background, High Court held that continuance of the proceedings would amount to permitting abuse of the process of law, hence the same cannot be permitted. [Bhushan v. Nilesha Bhushan Deshmukh, Criminal Application (APL) No. 164 of 2017, decided on 9-08-2021]


Advocates before the Court:

S.A. Mohta, Advocate for applicants

Case BriefsHigh Courts

Kerala High Court: The Division Bench comprising of A. Muhamed Mustaque and Kauser Edappagath, JJ., held that merely for the reason that the law does not recognise marital rape under penal law, it does not inhibit the court from recognizing the same as a form of cruelty to grant divorce.

Expressing concern over situation as it exists with regard to arranged marriage that is followed traditionally in our country; the Bench stated that the choice for a woman is limited as they simply follow the guidance of parents or elders. The Bench further stated that if marriage is seen as a symbol to project status, without reflecting the values the individuals or society would cherish to profess, we may miss the basic concept required for marriage. Voicing the plight of the respondent in the instant case, the Bench expressed,

“The case in hand depicts a story of the struggle of a woman within the clutches of law to give primacy of choice “not to suffer” in the bondage of legal tie. An insatiable urge for wealth and sex of a husband had driven a woman to distress. In desperation for obtaining a divorce, she has forsaken and abandoned all her monetary claims. Her cry for divorce has been prolonged in the temple of justice for more than a decade (12 years). She still awaits a final bell to answer her prayers and cry.”

Facts of the case

The instant appeal arose from a common judgment allowing a petition for divorce on the ground of cruelty and dismissal of a petition for restitution of conjugal rights. The couple had an arranged marriage and had two children in the wedlock. The appellant-husband had claimed to be a qualified medical doctor at the time of marriage but he never practised as a medical doctor and was rather engaged in the real estate business and construction. The real estate business was not a smooth run for the appellant as he never succeeded in the business.

A case of cruelty was put forward by the respondent-wife on constant harassment and demand for money in spite of the fact that she had been given 501 gold sovereigns at the time of marriage besides car and flat. It was the case of the respondent that the respondent’s father gave Rs.77 lakhs to the appellant on different occasions apart from that the respondent contended that the entire gold ornaments were also misappropriated by the appellant. The respondent also alleged sexual perversion and physical harassment as a part of the cruelty; while the allegations of extramarital relationship were levelled against the respondent by the appellant.

The Family Court had allowed the divorce petition filed by the respondent and the petition filed for restitution of conjugal rights by the appellant was dismissed.

Analyses and Opinion of the Court  

Noticing that the appellant’s own father had approached the police with complaints against the him stating that he had been compelling him to give more money, been ill-treating his wife and members of her family, and even threatening his sister and her two children over the phone daily with danger to their lives, the Bench stated that the ‘cruelty’ reflects the character of a person. The Court, therefore, is required to adopt social semiotic approach to analyse the conduct in given situation.

Opining that the demand for money had to be taken into account in the background of the fact that the appellant never cared to provide love and care to the respondent or his children, the Bench was of the view that in the matrimonial life of the appellant and the respondent, the respondent never felt any security or affection or care from the side of the appellant. This, coupled with the fact of constant harassment demanding money, had caused mental pain, agony and sufferings to her.

The physical cruelty and mental cruelty meted out to the respondent had been narrated succinctly in the oral testimony given by the respondent. In spite of the respondent having helped the appellant monetarily in every possible manner, it turned to be a strategy for the appellant to get more money from the respondent and her father in the pretext of his debt using his fiduciary relationship for financial gain and bargain.

Relying on the decision of the Supreme Court in Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, the Bench held that the appellant’s licentious and profligate conduct could not be considered as part of normal conjugal life. Therefore, the Bench held that insatiable urge for wealth and sex of a spouse would also amount to cruelty. Similarly, the unsubstantiated allegations of adultery alleged by the appellant also constituted mental cruelty.

Marital Rape as a Ground for Divorce

The respondent had deposed that even during her pregnancy, the appellant abused her and had committed forceful sex when she was sick and bedridden. She also deposed that she was subjected to the worst form of sexual perversion and unnatural sex against her will. The respondent deposed that the appellant even did not spare her for sex even on the day the appellant’s mother expired. She also stated that the appellant forced her to have sex in front of their daughter. Considering that there was no serious challenge against the narration of sexual conduct, the Bench opined that there was no reason to disbelieve the respondent’s version that the appellant often forced her to have unnatural sex.

Opining that a husband’s licentious disposition disregarding the autonomy of the wife is a marital rape, the Bench stated, albeit such conduct could not be penalised, it falls in the frame of physical and mental cruelty. Marital rape, though alien to Indian penal jurisprudence, had been defined in Black’s Law Dictionary 8th Edition as “a husband’s sexual intercourse with his wife by force or without her consent”. Hence, marital rape occurs when husband is under notion that body of his wife owe to him. In modern social jurisprudence, spouses in marriage are treated as equal partners and husband cannot claim any superior right over wife either with respect to her body or with reference to individual status. Treating wife’s body as something owing to husband and committing sexual act against her will is nothing but marital rape.

Right to respect for physical and mental integrity encompass bodily integrity, any disrespect or violation of bodily integrity is a violation of individual autonomy. Therefore, marital privacy is intimately and intrinsically connected to individual autonomy and any intrusion, physically or otherwise into such space would diminish privacy. This essentially would constitute cruelty. Hence, merely for the reason that the law does not recognise marital rape under penal law, it does not inhibit the court from recognizing the same as a form of cruelty to grant divorce. Accordingly, the Bench held that marital rape is a good ground to claim divorce.

Findings and Suggestions by the Court

Considering that sex in married life is the reflection of the intimacy of the spouse and the evidence of the respondent clearly established that she was subjected to all sorts of sexual perversions against her will, the Bench upheld the divorce granted by the Family Court.

The Bench opined, a spouse in a marriage has a choice, a choice not to suffer, which is fundamental to the autonomy guaranteed under natural law and the Constitution. Law cannot compel a spouse to suffer against his or her wish by denial of divorce by the court. Expressing concern over plight of the women caught in such marital ties, the Bench expressed,

“This depicts a sordid tale of a woman losing a precious part of her life in a battle of fate. In a changed scenario of marriage in the society, shifting from the social philosophy to individual philosophy, we are afraid whether the present divorce law on enumerated grounds would stand to the test of constitutionality”.

Observing that fine balancing of individual choice and individual’s best interest is missing in law relating to dissolution of marriage, the Bench made following suggestions to introduce reform in existing law:

  1. “Paternalistic intervention through legislation must be limited to help and aid parties in taking a decision for their own good. Therefore, the framework of divorce law must be with an objective to help individuals to take a decision on their own affairs.
  2. The forum provided under law to decide upon the fate of a relationship must be conceded with a power to enable parties to decide on the best possible choice governing their own affairs by themselves and not by wresting the power on a fictional ground to decide on their fate.
  3. The court should articulate its power in a scientific temper to help individuals to make decisions on their own affairs.
  4. Modern-day mediation, medical help like psychological and psychiatric, involvement by families and friends etc., would progressively help the parties to take a decision of their own choice.
  5. Our law also should equip to deal with marital damages and compensation. We need to have a law dealing with human problems with a humane mind to respond.
  6. Marriage and divorce must be under the secular law; that is the need of the hour. Time has come to revamp the marriage law in our country.”

[X v. X, Mat. Appeal No. 151 of 2015, decided on 30-07-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Appellant: (Party in person)

For the Respondent: Adv. Millu Dandapani

Case BriefsHigh Courts

Bombay High Court: Sandeep K. Shinde, J., addressed a petition with regard to waiving the cooling period.

Whether the minimum period of 6 months stipulated under Section 13-B(2) of the Hindu Marriage Act, 1955 for a motion of passing for a decree of divorce on the basis of mutual consent is mandatory or can be relaxed in any exceptional situations?

In the instant petition, it was submitted that the wife had instituted the proceedings under Section 125 of the Code of Criminal Procedure, 1973 and under the Domestic Violence Act, 2005.

Later, wife withdrew the proceedings and the husband filed a petition under Section 9 of the Hindu Marriage Act. The said prosecution was also settled.

Husband and Wife instituted a petition for dissolution of marriage by mutual consent and moved an application for waiving cooling period for 6 months. But the said application was rejected by the Civil Judge on the ground that efforts were not made for mediation to reunite the parties.

Trial Court relied on the Supreme Court decision in Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746, wherein the Court dealing with the matter, if a case was made out to waive statutory period under Section 13-B(2), it can do so after considering the following:

“(i)statutory period of six months specified S.13-B(2), in addition to statutory period of one year under S. 13-B(1) of separation of parties is already over before first motion itself; 

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

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

(iv) waiting period will only prolong their agony.”

In view of the non-fulfilment of (ii) condition, trial court declined to waive the cooling period.

As per the parties, they were referred to mediation and after the same, parties decided to get separated.

High Court in view of the facts and circumstances of the case, held that the statutory period, contemplated under Section 13-B(2) of the Hindu Marriage Act was waived.

Hence, the petition was allowed and disposed of. [Pritam Vijaykumar Dargad v. Sujata Pritam Dargad, 2021 SCC OnLine Bom 983, decided on 3-07-2021]


Advocates before the Court:

Mr. Rathi Swapnil S., Advocate for Petitioner.

Mr. S.S. Gangakhedkar, Advocate for Respondent / Sole.

Case BriefsHigh Courts

Kerala High Court: The Division Bench of A. Muhamed Mustaque and Kauser Edappagath, JJ., held that unsubstantiated allegation of unchastity against wife is a mental cruelty and a valid ground for seeking dissolution of marriage. The Bench stated,

“Levelling disgusting accusation of unchastity and attributing aspersions of perfidiousness to the wife would undoubtedly amount to worst form of mental cruelty. No wife can tolerate such accusation.”

Facts of the Case

The instant matrimonial appeal had been filed to assail the impugned judgment of the Family Court, dismissing the petition filed by the appellant against her husband for divorce on the ground of cruelty.

The couple was working at Sultanate of Oman. According to the appellant, while they were living together, the respondent made false allegations of unchastity against her and the said allegations were spread among his relatives as well as the co-workers of her father. According to the appellant, the said false imputation of adulterous conduct made by the respondent lowered her reputation in the estimate of others including co-workers and, thus, she could not be expected to live with the respondent. It was further alleged that while they were living together the respondent used to pick up quarrels with her on the issue of unchastity and on 01-03-2012, he brutally assaulted her as well.

Analysis and Observation by the Court

The main allegation of mental cruelty on the part of the respondent canvassed by the appellant was the false allegation of unchastity made by him against her. The Bench opined that it is settled that the unsubstantiated accusation and character assassination by one spouse against the other would constitute mental cruelty. Reliance was placed by the Court on K. Srinivas Rao v. D. A. Deepa (AIR 2013 SC 2176), wherein it had been held by the Supreme Court that making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings amount to causing mental cruelty to the other spouse. Similarly, the Court in Raj Talreja v. Kavita Talreja (2017 KHC 6335) had held that the reckless, defamatory and false accusations made by the wife against her husband, his family members and colleagues would definitely have the effect of lowering his reputation in the eyes of his peers and, thus amounts to cruelty. In Gangadharan v. T. T. Thankam (AIR 1988 Kerala 244), it had been held that false, scandalous, malicious, baseless and unproved allegation made by one spouse, whether by letters or written statement or by any other mode, amounts to cruelty.

There was specific pleading in the petition that the allegation of unchastity against the appellant had also spread among the relatives of the and that the respondent’s aunt Smt.Usha Pillai, who resides in USA had sent an email message to the appellant alleging that she was caught hold of by police with a boy friend and both of them were taken to police station. The appellant asserted that there was no such incident as alleged in the email and there was absolutely no truth in the allegation of unchastity levelled against her.

Admissibility of E-mail as Evidence

The respondent argued that the alleged e-mail could not have been even admitted in view of the provisions of Sections 65 and 65B of the Evidence Act and even if it is admitted that the email sent by Usha Pillai, the respondent could not be held liable for its contents inasmuch as nowhere was it stated in the e-mail that the information about the illicit affair of the appellant was furnished by the respondent. Rejecting the argument of the respondent, the Bench opined that,

“The technicalities of the Evidence Act cannot be imported to a proceedings before the Family Court because Section 14 of the Family Courts Act authorizes a Family Court to receive as evidence any report, statement, document, information or matter that may, in its opinion assist it to deal effectually with a dispute irrespective of whether it is relevant or admissible under the Indian Evidence Act, 1972.”

The Bench held that it is discernible from Section 14 of the Evidence Act, 1972 that the technicalities of the Act regarding the admissibility or relevancy of evidence are not strictly applicable to the proceedings under the Family Court and in the matrimonial dispute before the Family Court, a discretion has been given to the Court to rely on the documents produced if the court is satisfied that it is required to assist the court to effectively deal with the dispute.

Findings of the Court

After pursuing the mail, the Bench was of the view that Mrs Usha Pillai and her husband knew about the marital problems between the appellant and the respondent and they had intervened in it. It was specifically stated in the mail that Mrs Usha Pillai had spoken to the respondent about the marital problems between him and the appellant and she heard what the respondent has to say in the matter. It was also further stated that the respondent had knowledge about the boy friend of the appellant even before the marriage. There was a specific aspersion in that the appellant was caught hold of by police along with a boy friend and both of them were taken to police station. Mrs Usha Pillai had even doubted the paternity of the child.

Admittedly, the father of the appellant and the respondent were working in the same company. The respondent had miserably failed to substantiate the imputation made by him that the appellant had relationship with another person and she was an unchaste woman. Ongoing through the relevant portions of imputations in the e-mail, the Bench found that the imputations were of such quality, magnitude and consequence as to cause reasonable apprehension in the mind of the appellant that it was not safe for her to continue the marital tie. The Bench opined,

Inasmuch as the mental cruelty on this ground has been established, it is immaterial whether the allegation of physical assault has been substantiated or not in order to grant a decree for dissolution of marriage on the ground of cruelty.

On an overall appreciation of the pleadings and evidence, the Bench held that the appellant had made out a case for granting a decree for dissolution of marriage on the ground of cruelty and the Court below went wrong in dismissing the original petition for dissolution of marriage. Hence, the impugned judgment was set aside and the marriage between the appellant and the respondent was declared dissolved.[Sabitha Unnikrishnan v. Vineet Das, Mat. Appeal No. 594 of 2018, decided on 28-06-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Appellant: Adv. Nagaraj Narayanan, Adv. Benoj C Augustin, Adv. U.M.Hassan, Adv. Saijo Hassan and Adv. Vishnu Bhuvandendran

For the Respondent: Adv. Jacob P.Alex, Adv. Joseph P.Alex and Adv. Manu Sankar P.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Ujjal Bhuyan and Prithviraj K. Chauhan, JJ., held that wife wishing to stay abroad with the child to maintain her status would not amount to cruelty and desertion

In the instant matter, appellant and respondent after having spent 8 years in courtship got married.

The couple is overseas citizens of Canada and Indian Citizens by birth, however, they acquired Canadian citizenship and thus had dual citizenship.

The circumstances changed for the couple when appellant started experiencing medical problems namely constant back and shoulder pain as well as skin related problems, especially during summer due to rag weed allergy resulting into sleepless nights and miserable days. To add to it, there was recession in 2010 that hit Canada due to which the appellant lost his job resulting into a financial burden upon the respondent.

In view of the above circumstances, the couple decided to permanently return to India.

Respondent visited Kutch without intimating the appellant about her whereabouts over there. After her return from Kutch, when the appellant asked the respondent to resume cohabitation, she refused. Infact, the respondent insisted on a separate accommodation.

It was submitted that the respondent was interested in returning back to Canada.

Respondent visited the appellant’s house along with her father, brother and massi and demanded her passport along with documents and jewelry. When the appellant asked the respondent the reason for such conduct, he was threatened that they would call the police and, therefore, the appellant had returned her passport, documents etc.

Further, respondent was adamant to settle in Canada for a better future, however, appellant expressed his unwillingness to shift to Canada owing to his health issues and other related reasons.

Appellant in order to show his bona fides as well as his love and affection towards the respondent had paid her CAN $ 25,000 plus Rs 1,25,000 in Indian currency to facilitate her departure to Canada. The respondent left for Canada with their son.

Respondent did not return nor made any attempt to contact the appellant and in June 2011, respondent’s massi called the appellant and demanded money on behalf of the respondent.

Later, respondent demanded money from the joint savings by accusing the appellant that he had cheated and abused her financially.

Despite all the efforts, there was no amicable settlement of their dispute and hence appellant was constrained to issue a legal notice calling upon the respondent to come and co-habit with him.

On realising that there would be no hope of any restitution, appellant sought a decree of dissolution of marriage on the ground of willful desertion by the respondent.

Family Court dismissed the petition, inter alia, observing that no case had been made out of the alleged cruelty to the appellant by the respondent-wife; rather they had happily cohabited till the child was born.

Analysis, Law and Decision

Whether appellant was subjected to cruelty by the respondent-wife to such an extent as to entitle him to a decree of divorce in view of the admitted fact that the couple had themselves decided to shift to Canada after their marriage for better prospects and admittedly acquired overseas citizenship of Canada with their free consent and will?

 It is pertinent to note that the respondent had been working as a Regulatory Affairs Associate at Teva Canada Limited which appears to be a pharmaceutical company.

Cruelty and Desertion?

Bench stated that in view of the above-stated status of the respondent, it would not be justified, in any way, expecting her to return to India when she was already well settled over there.

Wish of the respondent cannot be branded as an act of selfishness or the act on her part cannot be said unjustified.

Hence, the respondent’s act could not be said to be cruelty meted out to the appellant by the deserting spouse.

Husband’s allegations: FALSE OR NOT?

Husband did not examine any witnesses to corroborate his claims that the wife’s family had threatened him to return her passport, documents and jewellery or that they demanded any money. No medical records were placed to prove that the appellant couldn’t join the respondent for health reasons.

Appellant’s evidence was quite vague, insufficient and lacking in material particulars.

Court noted that what is surprising is that had it been the intention of the respondent to sever the marital tie, she would not have allowed the appellant to meet their child, Mukund. This aspect is important as per the Bench wherein it was indicated that neither the respondent treated the appellant with cruelty nor did she desire to desert him.

Is there hope to reunite the couple?

Bench reiterated that the matrimonial tie had not reached the stage of such deterioration that was beyond repairs, especially when Mukund was still a child who could be a bond between the couple to reunite them once again.

High Court referred to the Supreme Court decision in Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511 wherein features/instances of human behaviour relevant in dealing the case of mental cruelty were discussed.

In view of the above decision, Bench stated that it would be difficult to construe that the marriage of the parties had deteriorated to such an extent that it would be impossible to unite the couple.

Supreme Court’s decision in  Bipinchandra Jaisinghbhai Shah v. Prabhavati, AIR 1957 SC 176, was relied upon wherein the essential requisites of desertion were set out.

No case of desertion was made out in the present matter and taking into consideration of facts, circumstances and evidence on record, Bench opined that no case was made out by the appellant for seeking a decree of divorce on the ground of either cruelty or desertion. [Prakashchandra Joshi v. Kuntal Prakashchandra Joshi, 2021 SCC OnLine Bom 958, decided on 24-06-2021]


Advocates before the Court:

Mr. Vikas Singh i/b Ravi Dwivedi, for Appellant.

None for Respondent.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of S.S. Shinde and Abhay Ahuja, JJ., reiterated the observation of Supreme Court in Gian Singh v. State of Punjab, (2012) 10 SCC 303, while quashing an FIR registered for offences under Sections 498(A), 406, 504, 323, 34 of the Penal Code and Sections 3, 4 of the Dowry Prohibition Act, on the ground of matter being resolved amicably.

Factual Matrix

Due to differences between the husband and wife, they sought a divorce and a petition was filed before the Family Court, Bandra which was later converted into mutual consent divorce petition under Section 13-B of the Hindu Marriage Act, 1955.

High Court stated that considering the fact that a matrimonial dispute which sought to be amicably resolved, the Court deemed it appropriate to seek guidance from the Supreme Court decision in Gian Singh v. State of Punjab, (2012) 10 SCC 303, wherein it was observed that:

“…the criminal cases having overwhelmingly and pre-dominatingly civil favour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affrmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.”

Bench added that the present matter involved offences arising out of matrimony and was basically private in nature and the parties sought to resolve their entire dispute and due to the compromise between them, the possibility of conviction would be remote and bleak and continuation of criminal case would lead to great prejudice or injustice.

Therefore, in view of the above discussion, petition was allowed while allowing the below prayer clause:

“a. That this Hon’ble Court be pleased to quash and set aside the FIR No.256 of 2019, registered by Vikhroli Police Station at Mumbai, under Sections 498(A), 406, 504, 323, 34 of Indian Penal Code, and 3, 4 of Dowry Prohibition Act dated 19.06.2019 and Criminal Case No.959/PW/2020 and pending before Ld. 31st Metropolitan Magistrate’s Court at Vikhroli, Mumbai, and further be pleased to discharge the Petitioners from C.C. No.256 of 2019 under Sections 498(A), 406, 504, 323, 34 of Indian Penal Code, and 3, 4 of Dowry Prohibition Act.” 

Petition was disposed of in the above terms. [Yuvraj Raman Jadhav v. State of Maharashtra, 2021 SCC OnLine Bom 780, decided on 1-06-2021]


Advocates before the Court:

Ms. Anushka Shreshtha for the Petitioners.

Mr.J.P. Yagnik, APP for the Respondent-State.

Mr. Jayesh Bhosle for Respondent No.2.

Mr. Yuvraj R. Jadhav – Petitioner No.1 present through V.C.

Mrs. Madhuri Jadhav (maiden name–Madhuri Sawant)-Respondent No.2 present through V.C.

Case BriefsHigh Courts

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

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

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

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

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


Kamini Sharma, Editorial Assistant ahs reported this brief.


Appearance before the Courts by:

For the Petitioner: Adv. Amit Choudhary

Case BriefsHigh Courts

Kerala High Court: The Division Bench of A. Muhamed Mustaque and Kauser Edappagath, JJ., held that false allegation of impotency amounts to mental cruelty, hence, is a valid ground for dissolution of marriage.

The appellant and the respondent were husband and wife, both doctors by profession. Both of them had initiated legal proceedings against each other – the husband, for divorce and the wife, for restitution of conjugal rights. After trial, the Court below, by the impugned common order, dismissed the original petition filed by the appellant and allowed the original petition by the respondent granting her a decree for restitution of conjugal rights.

The appellant had sought for decree of nullity on the ground that his consent to the marriage was obtained by fraud perpetrated by the respondent in suppressing material facts regarding her mental condition. He had also prayed that the marriage be dissolved on the grounds of incurable unsound mind and cruelty on the part of the respondent.

Whether suppression of any information amount to fraud?

Though it was alleged by the appellant, and practically admitted by the respondent, that two psychiatrists had treated the respondent, no steps were taken by the appellant to examine them or to produce the treatment records. The essential ingredient to be proved for securing an order of dissolution of marriage under Section 10 (1) (iii) of the Act, 1869 is that the respondent had been incurably of unsound mind for a continuous period of not less than two years immediately preceding the presentation of the petition; but there was no convincing evidence on record to prove that the respondent had been suffering from any mental disease of incurable nature. Therefore, opining that the proviso to Section 19 of the Act gets attracted only when the consent was obtained through force or by playing fraud, the Bench explained,

“The word ‘suppression’ does not occur in Section 19 of the Act. The Parliament has employed the words ‘force’ and ‘fraud’. Before a party gives consent for the marriage with the other, there is bound to be exchange of information. This Section cannot be treated as a provision placing burden upon a spouse to the marriage, to reveal the entire information about him or her to the other.”

Hence, the Bench reached to the findings that the allegation was about suppression and failure to inform a particular fact cannot be treated as fraud, unless the person failing to mention it was under legal obligation to state it. Thus, the non disclosure by the wife before marriage that she was suffering from delusion disorder was not a suppression of material fact. Hence, it could not amount to fraud in obtaining his consent for the marriage.

 Cruelty

Considering the case of the appellant, the Bench opined that there was nothing to disbelieve the evidence given by the appellant that throughout the period they lived together, the respondent hs perpetrated various acts, ranging from several mental agony by behaving in an immature, irrational and bizarre manner, being drowsy, lethargic and unhygienic always, showing abnormal postures with her hands, talking uninhibitedly, often screaming that some gang was going to attack her, staring at people, having a phobia for darkness, having bad mouth odour, abdicating all shared household duties etc., making his life a living hell. The Bench stated that to constitute cruelty, the conduct complained of need not necessarily be so grave and severe so as to make cohabitation virtually unendurable or of such character as to cause danger to life, limb or health. It must be something more serious than “ordinary wear and tear of the married life”. It is sufficient if the conduct and behaviour of one spouse towards the other is of such a nature that it causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the marital tie. The Bench further stated,

“Malevolent intention is not essential to cruelty. There may be instances of cruelty by unintentional but inexcusable conduct of the party. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs; the act complained of could otherwise be regarded as cruelty.”

It had been held by the Supreme Court in Samar Ghosh (supra) that intention is not a necessary element in cruelty and that the relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill treatment.

False Allegation of Impotency

Yet another facet of mental cruelty on the part of the respondent canvassed by the appellant was the false accusation made by the respondent against the appellant about his sexual capacity, that the appellant was suffering from erectile dysfunction and was incapable of performing sexual activities. In K. Srinivas Rao v. D. A. Deepa, (2013) 5 SCC 226, it was held that making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings amount to causing mental cruelty to the other spouse.

The respondent had imputed that the appellant was suffering from erectile dysfunction, and thus, he was incapable of performing sexual activities, but at the same breath, she had admitted that she had a satisfactory sexual relationship with the appellant after July, 2010. Therefore, opining that the respondent had miserably failed to substantiate the imputation made by her, the Bench said remarked,

“Casting aspersions of impotency or erectile dysfunction by one spouse against other in the counter statement in a matrimonial proceeding will undoubtedly constitute cruelty.”

Hence, it was found that the respondent making unnecessary accusations against the appellant amounted to mental Cruelty. Accordingly, the Bench held that the appellant had made out a case for granting a decree for dissolution of marriage on the ground of cruelty under Section 10(1)(x) of the Act. The prayer for restitution of conjugal rights by the respondent was rejected, the impugned orders were partly set aside and the marriage between the appellant and the respondent was dissolved.[xx v. xx, 2021 SCC OnLine Ker 2327 , decided on 31-05-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Appellant: Adv. P.Gopakumaran Nair, Adv. B.Bindu and Adv. N.K.Subramanian

For the Respondent: Adv. K.N.Abhilash and Adv. Sunil Nair Palakkat

Case BriefsHigh Courts

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

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

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

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

Issues that arose in the present matter were as follows:

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

High Court’s Analysis and Finding

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

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

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

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

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

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

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

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

12 Long Years and No Appearance

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

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

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

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

Unclean Hands

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

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

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


Advocates before the Court:

For Appellant: Dr K Santhakumari

For Respondent: J. Saravanavel

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., while addressing a revision petition in regard to maintenance of wife, held that

Magazine covers are not sufficient evidence to demonstrate that the respondent /wife can sustain herself.

Instant revision petition is against the Family Court’s decision directing the husband to pay maintenance at the rate of Rs 17,000 per month to the wife.

The daughter of husband and wife in the present matter passed away in the year 2010 and at present, they have two major adult sons who are well settled.

Parties have been living separately since the year 2012. Wife filed the petition under Section 125 CrPC for grant of maintenance stating that she was treated with cruelty and was thrown out of the house in the year 2012 and she was unable to sustain herself, hence required maintenance from the husband.

It was stated that the husband was earning an income of Rs 50,000 from the post of Head Constable and also had some agricultural land from which he was earning an income.

Wife claimed Rs 25,000 per month as maintenance.

Husband submitted that the wife was a working lady earning handsomely. Adding to this he stated that she participates in Jagrans and does TV Serials and was in a position to take care of herself. Both the parties filed their respective affidavits of income.

Counsel for the petitioner submitted that as per the Statement filed by the wife under Section 165 of the Evidence Act, she herself stated that she was doing modelling and it was for her to establish that income earned by her was so less that she couldn’t maintain herself.

Petitioners counsel also presented certain magazine covers and newspaper articles to establish that the respondent was employed and capable of maintaining herself.

Bench stated that law laid down by Supreme Court decision in Rajnesh v. Neha, (2021) 2 SCC 324, indicates that proceedings under Section 125 CrPC have been enacted to remedy/reduce the financial suffering of a lady, who was forced to leave her matrimonial house, so that some arrangements could be made to enable her to sustain herself.

It is the duty of the husband to maintain his wife and to provide financial support to her and their children. A husband cannot avoid his obligation to maintain his wife and children except if any legally permissibly ground is contained in the statutes. 

Court noted that in the present matter, petitioner relied only on the statement given by the respondent/wife under Section 165 Indian Evidence Act. In the said statement she clearly mentioned her employment adding that her income was very low on which her sustenance was difficult.

In view of the above position, the onus to show how much the respondent/wife was earning shifts on the petitioner to show that it was enough for her sustenance. But petitioner failed to bring any evidence.

Court reiterated the Supreme Court’s position that newspaper clippings, etc. are not evidence.

 It was noted that the petitioner was working as an ASI and both the children were well settled, and he was not under any obligation to maintain his children but the wife.

On asking about divorce, it was stated that the petitioner’s children did not want him to take divorce from his wife, hence it becomes the moral and legal obligation of the husband to maintain his wife.

Bench while dismissing the revision petition held that no material was placed on record to show that respondent/wife was able to sustain herself. [Jaiveer Singh v. Sunita Chaudhary, 2021 SCC OnLine Del 1488, decided on 05-04-2021]


Advocates before the Court:

For the Petitioner: Neerad Pandey, Advocate

For the Respondent: D.K. Sharma, Advocate

Case BriefsHigh Courts

Madras High Court: T. Raja, J., in the present matter while considering the long separation of parties for almost a quarter-century, granted a decree of divorce by dissolving the marriage between the parties.

Factual Matrix

In the present matter, appellant was married to the respondent and a male child was born out of wedlock. During the pregnancy of respondent, it was alleged that even after doctor’s advise, the respondent/wife had not taken proper care. Ultimately, the respondent delivered a handicapped male child.

Further, it was also alleged that from the date of marriage, the respondent was adamantly raising disputes and quarrels even for cohabitation due to which the appellant was subjected to mental agony.

Although the appellant tolerated all the unlawful activities of the respondent on the belief that she would change her attitude in due course, no improvement thereon had occurred.

No Response for 7 long years

Respondent later left the matrimonial house and never came back even after a lot of requests and visits by the appellant and his parents. When there was no response from the respondent for 7 long years and thereby deserted the appellant, petition was filed before the Family Court seeking divorce on the ground of cruelty and desertion under Section 13(1)(i—a) and (i—b) of the Hindu Marriage Act to dissolve the marriage between the appellant and respondent.

Respondent had sought restitution of conjugal rights under Section 9 of the Hindu Marriage Act. Trial Court concluded that husband, wanted to get rid of the special child and mother and no cruelty was caused by the respondent/wife and no desertion was accused of the simple reason that only the appellant has taken both the respondent with the son by car to her parental house and left them there with the promise that he would come and take them back. But he did not turn up to take them back to the matrimonial home.

When the lower appellate court came to the conclusion that no case of cruelty or desertion was made out, aggrieved thereby, the present appeal was filed by the appellant raising the following substantial questions of law:

  • Whether the appellant/husband is entitled to divorce on the ground of cruelty and desertion and whether the respondent/wife is entitled to the relief of restitution of conjugal rights?
  • Whether the Courts below have properly applied the law of evidence as the question of proof of cruelty and desertion can always be decided only on oath?
  • Whether the finding of the lower appellate Court in putting the blame on the appellant in not taking care of the spastic child is not contrary to the evidence available on record?

Analysis, Law and Decision

Bench expressed that a human problem can be properly resolved by adopting a human approach and applying the same ratio in the cases on hand, when the parties are living separately for 25 long years, not to grant a decree of divorce would be disastrous for the parties.

Adding to the above, Court stated that preservation of a ruined marriage is totally unworkable, as this would be a source of misery for the parties. During the pendency of the matters, the parties declined to accept the proposal for re-union.

Therefore, when the parties were living separately for 25 long years and the mediation efforts were undertaken also proved to be of no avail, this Court following the decision of the Supreme Court in Naveen Kohli v. Neelu Kohli, 2006 (2) CTC 510, Bench decided to dissolve the marriage between the parties.

Moving forward, Court being aware and conscious of the fact that the interest of the respondent needs to be safeguarded, elaborated that Section 25 of the Hindu Marriage Act states that at the time of the passing of any decree or at any tie subsequent, on an application made to it, may order one party to pay the monthly sum as maintenance to other party.

Since the appellant had been paying a sum of Rs 10,000 per month to the wife as maintenance without any default and taking care of his son with the assistance of a helper by paying from his pension bearing in mind that the appellant is a retired Bank Officer, this Court directs the appellant to continue to pay the said sum of Rs.10,000/- per month as maintenance to the respondent without fail.

Lastly, the wife was granted visitation rights and the matter was disposed of in view of the above terms. [V. Ramasamy v. L. Priya, 2021 SCC OnLine Mad 1674, decided on 26-04-2021]


Advocates before the Court:

For Appellant: Mrs K.Sumathi

For Respondent: Mr E.Raj Thilak

Case BriefsHigh Courts

Kerala High Court: The Division Bench of A. Muhamed Mustaque and C. S. Dias, JJ., addressed the controversial question regarding rights of Muslim women, i.e.  Have Muslim women lost their right to invoke extra-judicial divorce, after the coming into force of the Dissolution of Muslim Marriages Act, 1939? A number of women had approached the Court for seeking to validate their extra-judicial divorce by obtaining a declaration to that affect. The Bench expressed,

“These cases speak in abundance about the patriarchal mind-set followed in the Society for decades depriving Muslim women their right to invoke extra-judicial divorce. The above sketch the miseries of women despite the promise guaranteed under Article 14 of the Constitution of India.”

Controversy before the Court

The controversy came into force when a Single Judge of Kerala High Court in K. C. Moyin v. Nafeesa, 1972 KLT 785 negated the right of Muslim women to invoke extra-judicial divorce in light of the Dissolution of Muslim Marriages Act, 1939. It was held that under no circumstances, a muslim marriage could be dissolved at the instance of wife, except in accordance with the provisions of the Act.

In the instant case a woman, ‘Y’  ‘Y’ had instituted divorce petition on the grounds that her husband ‒ ‘X’, was impotent and treated her with cruelty and was granted a decree of divorce by the Family Court. The grounds were challenged before the High Court and though the X was willing to prove his potency the Court granted ‘Y’ leave to pronounce Khula (exta-judicial divorce) on her request. Y stated that she was prepared to return the dower to ‘X’. However, ‘X’ had declined to accept the dower, which had raised a question mark on validity of Khula.

Observations and Analysis

 Chapter IV: Verse 28 of Quran states that,

“Man was created weak, to mean that his decisions are vulnerable. The very concept of institutionalizing marriage in Islam through a contract is to remind that the parties to the marriage may error in their decision and they may fall apart in conflict to remain as united. Marriage as a contract guarantees both parties permanent rights and obligations. The Holy Quran, therefore, recognizes the right to divorce equally for both men and women.”

The Bench observed, the Holy Quran gives a clear guidance as to the areas of family law, it does not by itself constitute a system. While conferring rights on spouses for divorce, it did not lay down exhaustive procedure to give effect to dissolution of marriage. This approach clearly gives an indication that areas related to divorce are amenable to change with regard to procedure and process without prejudice to the right conferred on a spouse to separate or severe the marital knot. The Bench noticed, many modes of dissolution of marriage existed prior to Islam which were accepted by the Prophet with certain refinement and modifications. The Prophet always had taken a liberal view in the matter of divorce in the best interest of the parties.

The Legal Conundrum and K. C. Moyin v. Nafeesa Case

The legal conundrum that has resulted from K.C. Moyin’s case wherein the Court in unequivocal terms declared that Muslim wife cannot repudiate a marriage dehors the provisions of the Dissolution of Muslim Marriages Act (the Act). The Single Judge was of the view that unilateral repudiation of marriage by Faskh without the intervention of court under the Dissolution of Muslim Marriages Act was opposed to the law of the land and when a particular branch of law is codified, it was not possible to travel beyond the same and decide the rights of the parties.

To assess the validity of abovementioned decision the Bench pursued to examine the reasons and objects of enactment of the Act. Accordingly, the Bench observed that Section 2 of Muslim Personal Law (Shariat) Application Act, 1937 (the Shariat Act) specifically recognized all modes of extra-judicial divorce except Faskh for which intervention of an authority like Qazi was mandatory. In Section 5 of the Shariat Act a provision was made to dissolve marriage by the District Judge on a petition made by Muslim married women. This would show that the intention of the Shariat Act was to entrust the mode of dissolution of marriage by Faskh through the court. Thus, under the Shariat Act, Muslim women retained the right of all modes of extra-judicial divorce recognized under their personal law Shariat, except Faskh. Later on, after observing that inspite of Shariat Act, Hanafi women were not allowed to obtain decree from the court to dissolve their marriage. Therefore, the Dissolution of Muslim Marriages Act, 1939 was enacted to consolidate and clarify the provisions of the Muslim law relating to the suit for dissolution of marriage by married Muslim women. By the said Act Section 5 of the Shariat Act was repealed, which consolidated the law relating to Faskh alone and the Act, 1939 never intended to do away with the practice of extra-judicial divorce otherwise available to a Muslim woman. Hence,

On an overall analysis of the scheme of the Shariat Act as well as the Dissolution of Muslim Marriages Act as above, we are of the considered view that the Dissolution of Muslim Marriages Act restrict Muslim women to annul their marriage invoking Faskh except through the intervention of the Court. All other forms of extra-judicial divorce as referred in Section 2 of the Shariat Act are thus available to Muslim women. We, therefore, hold that the law declared in K.C.Moyin’s case (supra) is not good law.”

Khula: Whether Consent of Husband a prerequisite?

The right to invoke khula conferred upon married Muslim women is an absolute right; akin to talaq conferred upon the married Muslim men. It was submitted by the Amicus Curiae that like talaq, there are no specific stages or procedures to be complied by the wife before seeking divorce invoking khula. The Bench opined that the idea of justice in Quran is rooted in fairness and Chapter IV verse 1 Quran which refers to mutual obligation has to be read into the right conferred on the wife to invoke khula. The Quranic verse as referred in verses 228 in Chapter II in clear terms confers absolute right on the wife to annul the marriage with her husband. Therefore, husband’s consent is not a precondition for validity of khula.

Khula: If Valid When the Wife fails to Return Dower?

The Bench opined that in Hadith, the direction of the prophet to the wife to return or pay compensation to the husband had to be understood to ensure fairness of justice. The right of the husband to claim back what was given in marriage could not be construed to mean khula can be effective only when the husband had consented to the offer made by the wife. Such an approach would deny the right conferred upon wife under Quran in unequivocal terms. The Bench remarked, the procedural equity to be followed cannot override such substantial right. Insistence to return dower or payment of compensation, therefore, were to be understood as husband is legitimately entitled to claim back what is otherwise due to him on account of unilateral invocation of khula by wife and can very well approach the court of law for the return of the same. Reliance was placed on the decision of Supreme Court in Juveria Abdul Majid Patni v. Atif Iqbal Mansoori, (2014) 10 SCC 736, wherein the Court while considering extra-judicial divorce of khula had held that, “This may or may not accompany her offer to give something in return. The wife may offer to give up her claim to Mahr (dower). The `Khula’ is a mode of divorce which proceeds from the wife, the husband cannot refuse subject only to reasonable negotiation with regard to what the wife has offered to give him in return.”

Validity of Khula without Attempts for Reconciliation

Human minds are vulnerable. Quran itself describes a human as fallible. Sometimes, a decision to invoke khula by wife may be due to perceptible differences she had in the relationship with her husband. Quran, therefore, thrusts on conciliation as a medium of dispute resolution before taking a concrete decision. Since, if an unbridled power to invoke khula is given to a Muslim wife, it may result in untold miseries and hardships to both.

Shayara Bano v. Union of India (2017) 9 SCC 1 it was held that triple talaq invoked without any attempt for reconciliation is arbitrary and violative of fundamental right contained in Article 14 of the Constitution. Hence, the Bench held that though there need not be any specific reasons to invoke khula, the procedure of reconciliation itself become a reasonable cause in as much as that it would reflect an attempt to resolve the disputes amicably between parties.  Hence, any invocation of khula without there being an attempt for reconciliation was held to be bad in law.

Jurisdiction of Family Court In Matters Related to Extra-Judicial Divorce

In the matter of unilateral dissolution of marriage, invoking khula and talaq, the scope of inquiry before the Family Courts is limited. In such proceedings, the court shall record the khula or talaq to declare the marital status of the parties after due notice to other party. The Family Court therefore, shall restrain from adjudicating upon such extra-judicial divorce unless it is called upon to decide its validity in appropriate manner.

In the light of above, Khula pronounced by Y was held to be valid in law. However, X, the husband of Y was granted liberty to approach the Family Court for the demand of consideration or dower. Accordingly, the case was disposed of.

[X v. Y, Mat.Appeal.No.89 of 2020, Decided On 09-04-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before The Court By:

Amicus Curiae: Adv.K.I.Mayankutty Mather

Counsels for the Petitioners: Sri.Babu Karukapadath, Smt.M.A.Vaheeda Babu
Shri.P.U.Vinod Kumar, Sri.Avinash P Raveendran, Smt.Arya Raghunath
Smt.Sneha Sukumaran Mullakkal And Sri.Shelly Paul

Counsel for the Respondent: Sri.P.Narayanan And Smt.P.Sheeba

Counsel for Kerala Federation Of Women: Adv. Shajna

Case BriefsHigh Courts

Jammu and Kashmir High Court: Rajnesh Oswal, J., heard the instant petition against the order of the Trial Court whereby the petitioner had been directed to pay maintenance to the allegedly divorcee lady. The Bench stated that,

“The petitioner had not led any evidence as to who sent the divorce to the respondent (wife) to prove the plea of Talak. Otherwise also a meager amount of Rs.2000 as has been awarded to the respondent 1 herein, that in the present era of inflation can in no way be termed as either exorbitant or excessive.”

The petitioner contended that he had already divorced his wife vide “Talaq Nama‟ dated 02-08-2011 which was sent to her through registered post. The facts of the case were such that the  wife of the petitioner had filed a petition for interim maintenance before the Trial Court, wherein the petitioner had claimed that he had already divorced her and as such, he was not under any obligation to maintain the divorced lady. The Trial Court, after relying on the verdict of Supreme Court in Shameem Ara v. State of U.P., AIR 2002 S.C. 355,  and considering the evidence on record granted maintenance of Rs.2000 (Rupees Two thousand) per month to the wife.

Referring to the observations of the Trial Court and Sessions Court, the Bench stated that the Magistrate had held that the petitioner had miserably failed to prove the requisites of Talaq and also that Talaknama was sent to the respondent. The petitioner had not been able to prove as to on which date the divorce was pronounced upon the respondent(wife). The delivery of the envelope was also doubtful as the postman had not seen any such record in which he had obtained signatures of the respondent. Moreover, none of the witnesses produced by the petitioner had stated whether any-one tried to reconcile the parties before the divorce. Needless to mention here that if the plea of Talak is taken then the same is required to be proved like any other fact.

The Bench stated that there was not even an iota of evidence that any reconciliation efforts were made by two arbiters one chosen by the wife from her family and the other by the husband from his family. So there was no perversity in the finding returned by the Magistrate and upheld by the Court of revision that the petitioner had not been able to prove the plea of Talak taken in his objections. Furthermore, the petitioner had not led any evidence as to who sent the divorce to the respondent (wife) to prove the plea of Talak. Otherwise also a meager amount of Rs.2000/- (Rupees Two thousand) as has been awarded to the respondent no.1 herein, that in the present era of inflation can in no way be termed as either exorbitant or excessive.

In view of the above, the Court denied to interfere with the orders impugned and the petition was dismissed for being devoid of merit.

[Abdul Majeed Dar V. Hafiza Begum 2021 SCC OnLine J&K 294, Decided On 26-03-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

For the Petitioner/Applicant(s): Adv. Parvaiz Nazir

For the Respondent(s): Adv. Shabir Ahmad

Case BriefsHigh Courts

Delhi High Court: Mukta Gupta, J., while addressing a matrimonial matter, highlighted the scope of the Protection of Women from Domestic Violence Act,

PWDV Act provides for a complete mechanism for enforcement of the rights claimed under Section 12 of PWDV Act and merely because the rights as provided under Sections 18 to 22 of PWDV Act can be claimed in other legal proceedings also does not imply ouster of jurisdiction of the Magistrate to try the matter once divorce proceedings have been filed.

Due to the petitioner and respondent’s marriage running into rough weather, respondent had to leave the matrimonial home. After which the respondent filed a complaint under Section 12 of the Protection of Women from Domestic Violence Act (PWDV Act) against the petitioner and his parents.

In 2014, petitioner filed a divorce petition against the respondent.

By the present petition, petitioner sought transfer of complaint filed by the respondent under Section 12 of the PWDV Act and the execution petitions filed to the Principal Judge, Family Courts, South-East District, Saket Courts.

Analysis, Law and Decision

Present petition hinges on the interpretation of Section 26 of the PWDV Act.

In P. Rajendran v. Sasikala, Criminal Original Petition No. 29522 of 2013, decided on 14-09-2017, Madras High Court followed the decision on Capt. C.V.S Ravi v.  Ratna Sailaja, Crl. O.P. No.17122 of 2008, reiterated that merely because Family Court can grant reliefs under Sections 18 to 22 of the PWDV Act, it does not lead to the conclusion that an application filed by an aggrieved person under Section1 2 of the PWDV Act was required to be transferred to the Family Court.

Bench noted that Section 26 of the PWDV Act reveals that it permits availing of the reliefs provided under Sections 18, 19, 20, 21 and 22 of the PWDV Act in any other legal proceedings before a civil or criminal court and in case such a relief is granted than information to this extent was required to be given to Magistrate dealing with the application under the PWDV Act.

Section 26 of PWDV Act does not contemplate ouster of jurisdiction of the Magistrate even in a case some relief as contemplated under Sections 18 to 22 of the PWDV Act is granted by the civil or criminal court in some other legal proceedings.

High Court expressed that:

“…even if a proceeding is pending before the Family Court, the same will not warrant the application under Section 12 of PWDV Act to be transferred to the Family Court.”

 Court found that the petitioner had been delaying the proceedings in the application under Section 12 of the PWDV Act and was not complying with the Magistrate’s order, while avoiding making payment of maintenance to the respondent.

Hence, it was directed to conclude proceedings under Section 12 of PWDV Act as expeditiously as possible.

No reason was found to transfer the proceedings before the Metropolitan Magistrate to Family Court, therefore, petition was dismissed. [Sandeep Aggarwal v. Viniti Aggarwal, 2021 SCC OnLine Del 1524, decided on 07-04-2021]


Advocates before the Court:

For the Petitioner: Aditya Goel, Advocate

For the Respondent: Lalit Gupta, Sidharth Arora, Advocates with the respondent in person.

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Dr Kaushal Jayendra Thaker and Ajit Singh, JJ., while setting aside a decree of divorce addressed the issue of granting maintenance to a widowed wife.

Present application was filed for modification of Court’s earlier order whereby the appellant wife’s appeal against the divorce decree granted to the husband was dismissed as withdrawn.

Factual Matrix

An appeal that was filed in the year 2009 challenged the decree of divorce passed in favour of the respondent-husband. The said appeal was pending for a period of 9 years.

The appeal came up before the Court on 12-04-2018, Court inquired from the appellant and counsel for the respondent-husband as to whether there was any chance of settlement between the parties, to which both parties agreed to live together.

Pursuant to that, both parties resumed cohabitation. The appellant wife requested for withdrawing her appeal as no dispute survived since both parties were now happily living together.

The High Court allowed the withdrawal of appeal, however, without interfering in the decree of divorce already granted in favour of the husband.

Subsequently, the respondent-husband passed away. The appellant wife now claimed maintenance under Hindu Adoption and Maintenance Act as his widowed wife. Consequently, she sought the modification of the Court’s earlier order dismissing her appeal as withdrawn without interfering in the decree of divorce passed by the trial court.

Analysis and Decision

In the present scenarios, except the son and the appellant, there was no one else to claim as the heir of the deceased respondent and hence the only legal heir entitled to inherit the estate of the deceased is the appellant and her son.

During the time period of 20 years of litigation, the wife never sought maintenance but now claimed the same under the Hindu Adoptions and Maintenance Act, 1956.

Bench cited the Supreme Court decision in Rohtas Singh v. Sant Ramendri, (2000) 3 SCC 180 and Swapan Kumar Banerjee v. State of West Bengal, 2019 SCC OnLine SC 1263, with respect to the status of the divorced wife.

High Court held that in view of the above-stated cases, the appellant would be entitled to the maintenance as per the Hindu Adoptions and Maintenance Act, 1956 as she was dependent on the deceased.

The Bench held that it cannot be said that the appellant was a divorced wife. Being a Hindu wife, the appellant has condoned all the misdeeds of the respondent and if her husband did not cohabit with her and has thereafter, started co-habiting with her, in that view of the matter, the decree of divorce both on merits and on cohabiting and condonation of misdeeds, if any, both by the husband and the wife, the decree is liable to be set aside.

The husband after 30.07.2018 had never came up before the Court to complain that she had again deserted him or what is the status of the matrimonial relations between them, which means he had also condoned misdeed of the appellant (wife), if any.
According to the Court, a case for setting aside the impugned decree of divorce was made out.

Hence the divorce decree was set aside. The earlier order of the High Court which was sought to be modified was also set aside.[Jyotsna Verma v. Ashok Kumar, First Appeal No. 432 of 2009, decided on 10-03-2021]


Advocates before the Court:

Counsel for Appellant:- In-Person, Ms. Jyotsna Verma (In Person)

Counsel for Respondent:- B. D. Mishra, Syed Fahim Ahmed

Case BriefsHigh Courts

Madras High Court: V. Bhavani Subbaroyan, J., while addressing a very significant issue with respect to a divorce being sought, expressed that:

“…concept of marriage in the present generation has been taken very lightly and even for trivial issues, divorce is filed, and marriage is broken.”

Wife filed the present petition against the petition filed by the Husband before the Family Court. The husband’s petition was filed on the ground that the wife was suffering from Polycystic Ovarian Syndrome (PCOS) and was not fit for cohabitation or to give birth to a child.

Husband also filed an interlocutory application seeking for an amendment to include the provision of law from 12(1)(a) and 12(1)(a) and (c). The said petition seeking for amendment was pending before the Family Court for decision.

Petitioners Counsel, S.P. Arthi submitted that PCOS disorder is an endocrine system disorder that affects the capacity of reproduction in women, and which is totally distinct and different from claiming to be impotence.

As per the contention of counsel for the petitioner, the said claim made by the husband was absolutely incorrect and the said usage of terminology of impotency against the wife could not be sustained and on the said ground striking off the petition was sought.

Analysis, Law and Decision

Bench noted the categorical allegation placed by the husband with regard to the issue of PCOS in the wife due to which the husband sought a divorce.

High Court expressed that:

The term ‘PSOS’ by itself cannot be termed as ‘impotency’. Impotency is different and unable to give birth to a child is different, owing to various physical and mental reasons.

 On careful consideration of the contentions placed on record, it was clear that the husband did not plead the wife’s inability to give birth to a child as ‘Impotency’, but he sought annulment of marriage on the reason that there was no cohabitation and wife could not bear a child. He also submitted that the wife did not cooperate for cohabitation owing to her medical condition, as she was almost 25 days on her menstrual cycle.

Marriage being a bondage between men and women as husband and wife, it not only limits to a biological needs and desires, but also as a companion in life caring forward to the next generation through their children.

Elaborating more in respect to the present set of facts and circumstances, Bench added that Family Courts have increased in numbers to cater to the demand of intolerant couple, who are unmindful of the institution of marriage, break the relationship on unimaginable trivial reasons.

As per the pleadings placed, nowhere the husband used the word connoting impotency towards his wife. He mainly approached with the complaint that the wife could not bear a child for two reasons:

  • No Cohabitation
  • Suffering from ‘PCOS’ due to which wife suffers from improper menstrual cycle.

Legitimate Expectation?

Bench expressed that it is the husband’s legitimate expectation to live with his wife and have cohabitation and bear children and if the same is not achieved owing to some physical or mental problems, it is quite logical that either of the parties will approach the Court for seeking a divorce.

Except for some case wherein the couple are understanding and come forward with the life issue-less or even go for adoption, however, the same has to be proved by the person claiming that his or her partner is incapacitated to give or bear the child.

Petitioner/Wife could not show the husbands averments to be illusive.

Hence, High Court did not find any grounds seeking for the intervention of this Court under Article 227 of the Constitution of India with regard to striking off the petition.[ Annapoorani v. S. Ritesh,  2021 SCC OnLine Mad 1079, decided on 16-03-2021]

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,  2021 SCC OnLine P&H 523, decided on 27-01-2021]


Kamini Sharma, Editorial Assistant has put this story together.