Case BriefsHigh Courts

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

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

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

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

Grave Misconduct

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

Charge Memo

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

The Oral Enquiry Officer held the charge against the petitioner.

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

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

Analysis & Decision

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

Hindu Marriage Act

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

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

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

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

Customary Divorce

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

Court concluded its decision as follows:

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

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

Case BriefsHigh Courts

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

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

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

Brief Facts

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

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

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

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

Analysis and Decision

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

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

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

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

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

Act of Second Marriage | Sheriat 

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

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

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

Marital Cruelty

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

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

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

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

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

Case BriefsHigh Courts

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

Cruelty & Desertion | Dissolution of Marriage

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

Family Court dissolved the marriage.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Case BriefsHigh Courts

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

Willful Disobedience

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

Facts 

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

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

Decree of Divorce

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

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

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

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

Bench considered the following questions:

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

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

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

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

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

Ejusdem Generis

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

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

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

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

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

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

No Civil Contempt

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

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

Case BriefsHigh Courts

Madras High Court:  G.K. Ilanthiraiyan, J., quashed the proceedings filed under the Domestic Violence Act in light of being barred by limitation.

The instant petition was filed to quash the Domestic Violence proceedings under the Domestic Violence Act.

Petitioner and respondent are husband and wife, due to some misunderstanding between the two, the respondent left the matrimonial home and went to her parents home.

Thereafter, petitioner filed a petition for dissolution of marriage, whereas the respondent on the other hand also filed a petition for restitution of conjugal rights.

Petitioner’s Counsel contended that the Domestic Violence proceedings were filed only to harass the petitioner and escape from the legal proceedings.

Domestic Violence complaint was filed after the lapse of 1 year 10 months, therefore barred by limitation, and Magistrate ought not to have been taken cognizance under the DV Act.

In view of the above, the DV proceedings need to be quashed.

Bench relied on the decision in Inderjit Singh Grewal v. State of Punjab, (2011) 12 SCC 588 wherein it was held that, under Sections 28 and 32 of the DV Act, 2005 read with Rule 15(6)of the Protection of Women from Domestic Violence Rules, 2006 which make the provisions of the Code of Criminal Procedure applicable.

“…the issue of limitation, in view of the provisions of Section 468 Code of Criminal Procedure, that the complaint could be filed only within a period of one year from the date of the incident seem to be preponderous in view of the provisions of Sections 28 and 32 of the Act 2005 read with Rule 15(6) of The Protection of Women from Domestic Violence Rules, 2006 which make the provisions of Code of Criminal Procedure applicable and stand fortified.”

Therefore, the respondent ought to have lodged the complaint within a period of 1 year from the date of the incident.

Hence, the complaint lodged against the petitioner under the DV Act cannot be sustained. [N. Prasad v. Harithalakshmi, 2020 SCC OnLine Mad 1767, decided on 20-07-2020]

Case BriefsHigh Courts

Jharkhand High Court: Shree Chandrashekhar, J., addressed an issue with regard to maintenance under Section 125 of the Code of Criminal Procedure Code.

In the present revision petition, maintenance order under Section 125 of the Code of Criminal Procedure has been challenged.

Petitioner-Husband’s wife stated that her husband was irresponsible towards the conjugal relationship and neglected to maintain her. The matrimonial suit which was instituted by the husband seeking a divorce decree was disposed of on a compromise between the parties.

Petitioner’s counsel, Sanjay Prasad contended that the above-stated matrimonial suit was decreed “as per terms of the compromise” under which the wife had relinquished all her claims against the petitioner, hence petitioner’s wife was not entitled to maintenance under Section 125 of CrPC.

In the Supreme Court decision of Nagendrappa Natikar v. Neelamma, (2014) 14 SCC 452, Court dealt with the issue of whether a wife who has agreed for permanent alimony and given up future claim for maintenance is entitled to maintenance under Section 18 of the Hindu Adoption and Maintenance Act, 1956 after the divorce?

To the above, the Supreme Court responded that

“The proceeding under Section 125 CrPC is summary in nature and intended to provide a speedy remedy to the wife and any order passed under Section 125 CrPC by compromise or otherwise cannot foreclose the remedy available to a wife under Section 18(2) of the Act.”

In the present matter, Family Court Judge had observed that permanent alimony or maintenance was not given by the petitioner and the wife was unable to maintain herself. Hence, the Court awarded Rs 5000 monthly maintenance to the wife.

Object of Section 125 CrPC is to ensure that a wife, minor children or helpless parents do not suffer in penury.

High Court declined to interfere in the present matter keeping in mind the limitation under revisional jurisdiction and therefore dismissed the criminal revision.[Umesh Prasad Mahto v. Puspa Devi, 2020 SCC OnLine Jhar 645, decided on 06-07-2020]

Case BriefsHigh Courts

Calcutta High Court: Debangsu Basak, J., while addressing a matter with regard to defamation, observed that

“in a civil action for defamation, the plea of absolute privilege protects a statement as no action would lie for it, however false and defamatory it may be, even though, it was made maliciously and with an improper motive.”

Plaintiff claimed that the defendant made a statement in an application seeking divorce from his wife which allegedly is defamatory.

Defendant submits that the cause of action of the plaintiff is barred by law.

Further, he states that a civil action for defamation does not lie in respect of a statement made in a pleading filed in a judicial proceeding.

Advocates Dipak Prahladka and Aindrila De appearing for the plaintiff submitted that the plaintiff was married to the elder sister of the defendants’ wife.

Defendant and his wife stayed at a rented flat in Mumbai. After a few months, wife of the defendant left the defendant and came to Allahabad. After a few days, the wife of the defendant along with her mother went to Mumbai where they were informed that the defendant left the flat. Hence they returned to Allahabad.

Defendant after a few weeks filed a petition under Section 11 and 12(1-b) read with Section 12 (1-d) of the Hindu Marriage Act, 1955 before the Family Court, Ranchi praying for an order of decree of declaration of marriage to be null and void.

Later, the wife lodged a complaint against the defendant under Sections 498A, 406, 313, 323, 504, 506 of the Penal Code, 1860 and Section 3 and 4 of the Domestic Violence Act.

Due to the above-said police complaint, family court had issued summons to the plaintiff for settlement of issues in the divorce petition. The divorce petition contained defamatory statements.

Plaintiff advocate submitted that the civil defamation part is yet to be codified.

A statement once made in a pleading filed before a court of law, is a publication of such statement. Such a statement does not enjoy absolute privilege.

Plaintiff sought a decree of Rs 10 crores against the defendant.

The cause of action of the plaintiff was based on the statements claimed to be defamatory in nature, made by the defendant in a proceeding in which the defendant sought a decree of divorce against his wife.

Laws of defamation recognises that statements made in public can be protected from prosecution in a Court of law under certain circumstances. Absolute privilege attaches to public statements made in certain circumstances.

Defamation

In India, defamation gives rise to two types of liabilities — the civil side and one on the criminal side.

On the criminal side, the liability for defamatory statements is governed by Sections 499 and 500 of the Penal Code, 1860. However, there is no statute governing the civil liability of a defamatory statement.

Plea of Absolute Privilege

Further, in a civil action for defamation, the plea of absolute privilege has been held to be a good defence. Absolute privilege protects a statement as no action would lie for it, however false and defamatory it may be, even though, it was made maliciously and with an improper motive.

For the plaintiff’s application claiming that the defendant is guilty of perjury, defendant tendered an unqualified apology for making the wrong statement and the Court accepted the same. [Atul Kumar Pandey v. Kumar Avinash,  2020 SCC OnLine Cal 994, decided on 17-06-2020]

Case BriefsHigh Courts

Allahabad High Court: Vivek Kumar Birla, J., while addressing a matter with regard to “shared household”, held that,

“daughter-in-law can be evicted without seeking decree of eviction against son with whom she had moved on the suit property after the marriage of the son of the plaintiff with the appellant.”

Appellant was married to the plaintiff’s son — Vijay Gandhi. In the year 2013, Vijay Gandhi deserted the appellant and filed a divorce petition under Section 13 of the Hindu Marriage Act.

Further, it has been noted that an FIR was lodged against the appellant by the plaintiff.

Plaintiff is the owner of the property wherein he permitted his son and the defendant to live on the first floor of his house. Defendant started harassing the plaintiff who is old and handicapped along with his wife.

Suit for Eviction

In view of the above incident, the plaintiff asked his son to vacate the house with the defendant, who later came back and refused to vacate the house. Hence suit for eviction was filed against the defendant.

Substantial question in the present appeal

(I) Whether as per definition of shared household provided under Section 2(s) of the Protection of Women from Domestic Violence Act, 2005 appellant daughter-in-law can be evicted without seeking a decree of eviction against son with whom she had admittedly moved on the first floor of the suit property after the marriage of the son of the plaintiff with appellant?

Supreme Court in its decision, S.R. Batra v. Tarun Batra, (2007) 3 SCC 169, while considering the aspect of “shared household” held that where the plaintiff is the exclusive owner, it cannot be called a “shared household”. The wife’s claim for alternative accommodation against the plaintiff was rejected and was held that it can be claimed only against the husband and not against the in-laws or other relatives.

S.R. Batra v. Tarun Batra, (2007) 3 SCC 169: a shared household would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member.

Hence, in the Court’s opinion, no substantial question of law arose or can be raised in the present second appeal.

Order 1 Rule 3 and Rule 9 CPC

Further, the Court added that, it is not in dispute that the husband was not residing in the suit property and left the house. It is also not being questioned that if parents permit his son to live in their house he would be a licensee. If his wife is also living with him, she would also be a licensee.

Where the son has left and is not residing in the suit property, no relief is being or is claimed against him. Since he is not living in the suit property, question of filing a separate suit or which may attract any common question of law or fact would also not arise.

Lastly, answering the substantial question of law in the negative, bench once again cited the Supreme Court decision in S.R. Batra with regard to the shared household and the argument for counsel for the respondent (wife) that definition of the shared household includes a house where the person aggrieved lives or at any stage had lived in a domestic relationship was specifically considered and rejected.

Court added that a reading of the said judgment, subject to correction, prima facie, reflects that husband was not a party to the suit and it was held that the claim for alternative accommodation can only be made against the husband and not against the in-laws or other relatives.

Therefore, in view of the definition of the shared house, as provided under Section 2 (s) of the Act, 2005 daughter-in-law can be evicted without seeking a decree of eviction against the son with whom she had admittedly moved in the suit property after the marriage of the son of the plaintiff.

In view of the above observations, petition was dismissed. [Sujata Gandhi v. S.B. Gandhi, 2020 SCC OnLine All 763, decided on 12-06-2020]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Ravi Malimath and Narayan Singh Dhanik, JJ., allowed an appeal which was filed aggrieved by the order passed by the trial court in ordering the medical examination of the wife.

The respondent-wife was alleged to have committed various acts of cruelty; that she had also deserted her husband, therefore, he filed the petition before the Family Court under Sections 13 (ia) and 13 (ib) of the Hindu Marriage Act, 1955. During the pendency of the proceedings, on an application made by the husband, the impugned order was passed by the trial court directing the medical examination of the wife to ascertain whether she was in a position to conceive or not. Thus, the present appeal.

The Counsel for the appellant wife, Harshpal Sekhon contended that wife undergoing a medical test to ascertain whether she can conceive or not is something unheard of and further whether she can conceive or not is irrelevant to the facts and circumstances of the case.

The Court while allowing the appeal quashed the Family Court’s Order and  stated that husband had sought for a decree of divorce on the grounds under Sections 13 (ia) and 13 (ib) of the Hindu Marriage Act, 1955. Section 13 (ia) is with regard to cruelty and Section 13 (ib) is with regard to desertion. Therefore, the husband would have to establish these two facts before the court in order to seek divorce on these grounds. The ability of the wife to conceive or not has no relevance or any nexus with sub-section (ia) or (ib) of Section 13 of the Hindu Marriage Act. Her ability to conceive or not is irrelevant in the present proceedings. [Rashmi Gupta v. Yogesh Babu, 2020 SCC OnLine Utt 339 , decided on 01-07-2020]

Case BriefsHigh Courts

Bombay High Court: N.J. Jamdar, J., while addressing a revision application with regard to maintenance under Section 125 of Code of Criminal Procedure, 1973 held that,

Statutory right of wife of maintenance cannot be permitted to be bartered away or infringed by setting up an agreement not to claim maintenance.

Wife cannot be denied maintenance on the ground of having a source of income.

Family Court’s Judgment was challenged in the present revision application whereby, Order for payment of Rs 15,000 per month to wife under Section 125 of Code of Criminal Procedure, 1973, was passed.

Applicant claimed that since inception of marital life applicant faced extreme cruelty and was subjected to harassment.

Respondent after leaving the applicant to her parental home at Satara did not come to fetch back the applicant due to which police intervention was allowed, after which applicant started reside separately.

To avoid harassment from respondent, applicant signed the documents for presenting a petition for obtaining divorce by mutual consent, accordingly a decree of divorce was obtained. Despite the same, respondent continued to visit applicant’s apartment and had marital relations as well.

Respondent had not made ay provision for the maintenance and livelihood of the applicant and applicant also had no source of income.

Hence, applicant was constrained to prefer application for award of maintenance under Section 125 CrPC.

Family Court had held that

“Applicant being a wife, despite being a divorcee, within the meaning of Explanation (b) to Section 125(1) of the Code, the agreement to reside separately from the Respondent does not disentitle her from claiming maintenance.”

Bench while addressing the present application observed that,

“There is no material on record to indicate at any point of time till the filing of the instant Petition for award of maintenance the Applicant had ever raised any grievance about the decree of divorce having been obtained by fraud.”

Supreme Court in the case — Rohtash Singh v. Ramendri, (2000) 3 SCC 180, considered the question whether a wife against whom a decree of divorce has been passed on account of her deserting the husband can claim maintenance allowance under Section 125 of Code of Criminal Procedure?

To the above, Supreme Court held that,

woman after divorce becomes destitute. If she cannot maintain herself and remains unmarried, the man who was once her husband continues to be under a duty and obligation to provide maintenance to her.

Statutory right of wife of maintenance cannot be permitted to be bartered away or infringed by setting up an agreement not to claim maintenance. Such a clause in the agreement would be void under Section 23 of the Indian Contract Act, being opposed the public policy.

Further the Court observed that,

The decree of divorce by mutual consent was passed in the year 2007. The application for award of maintenance came to be preferred in the year 2016. The Applicant was indubitably running a business under the name and style of “Kalyani Beauty Parlor and Training Institute” when the decree of divorce was passed in the year 2007.

Time lag of almost 9 years in approaching the Court with a claim that the Applicant was unable to maintain herself assumes critical significance in this context.

Family Court was of the view that the claim of the Applicant that she had no source of income was reliable and trustworthy and though the Applicant had the necessary qualification and experience, there was nothing to show that the Applicant was running the business of beauty parlor, in praesenti.

In High Court’s opinion in the backdrop of the material on record, the claim of the Applicant that she had no source of income ought to have been accepted by the Judge, Family Court with a pinch of salt.

High Court observes that,

the fact that the wife carries on some business and earns some money is not the end of the matter. Neither the mere potential to earn nor the actual earning, howsoever meager it may be, is sufficient to deny the claim of maintenance.

Supreme Court in the case of Sunita Kachwa v. Anil Kachwa, III 2014 (DMC) 878 S.C., held that: 

“In any event, merely because the wife was earning something, it would not be a ground to reject her claim for maintenance.”

Thus the Applicant is entitled to maintenance from the Respondent even if the Applicant still carries on the business of Kalyani Beauty Parlor and Training Centre and earns some income out of the said business.

In this era of inflationary economy, where the prices of commodities and services are increasing day by day, the income from the business of beauty parlor, which has an element of seasonality, may not be sufficient to support the livelihood of the Applicant.

Impugned order is required to be interfered with to the extent of the quantum of maintenance. The Revision Application, thus, deserves to be partly allowed to this extent.

Hence, Respondent-husband shall pay maintenance to the Applicant at the rate of Rs 12,000/- per month from the date of the Petition i.e. 17th June, 2016.[Sanjay Damodar Kale v. Kalyani Sanjay Kale, 2020 SCC OnLine Bom 694, decided on 26-05-2020]

Case BriefsHigh Courts

Kerala High Court: A Division Bench of A.M. Shaffique and Mary Joseph, JJ., granted a decree of divorce in favour of husband on the ground of cruelty by the wife.

Decree for dissolution of marriage was sought by the petitioner but declined by Family Court and the same is in challenge.

Background

Marital relationship of petitioner and respondent  did not last long due to the quarrelsome nature of respondent who found pleasure in quarelling with petitioner and his mother.

Later she started declaring that she would commit suicide. She used to call the petitioner ‘dog’ and ‘shameless creature’. She used to undermine his person stating that he is not a fit person to be her husband and insult him by beating him in front of his relatives.

Thus transpiring from the above, Original petition seeking for a decree for dissolution for marriage was filed wherein, allegations of cruelty were denied by the respondent. It was further urged that petitioner was a drunkard, who is in the habit of coming home late in the house in intoxicated state, he used to assault her and the child and also destroyed the tea – poy.

On perusal of the circumstances, in family court’s opinion there was no basis for the petitioner to contend that reunion was impracticable due to irrecoverable break down of the marriage.

Thus, the present appeal was filed and dissolution of marriage was sought on ground of cruelty.

Petitioner’s counsel submitted that dislike of respondent towards his mother often resulted in quarrels, which impacted loss of peace and tranquility in their life.

Decision

Court found that respondent has no case that petitioner was a drunkard when he married her. Evidence indicates that the respondent and the petitioner’s mother were not cordial and clashes were frequent.

It is natural for a wife in that scenario to make persistent effort to constrain her husband to be separated from the family life and that would undoubtedly be tortuous for him.

In the case on hand the petitioner’s turning to be a drunkard can only be taken as the natural outcome of the pressure exerted on him by the respondent to have a separate residence to the exclusion of petitioner’s mother.

No family is totally devoid of clashes among members constituting it. It is common for elders to scold and sometimes abuse youngsters. Making a daughter in law to do the house hold/domestic work is also not something unusual.

Thus in Court’s opinion, Family Court’s decision was highly unjustified it took role of a councilor rather than an adjudicator.

Hence in the opinion of the present bench, evidence as discussed above is satisfactory to take a view that the respondent has treated the petitioner with cruelty sufficient enough to grant a decree for dissolution of marriage in his favour.

Judgment of the Family Court under challenge deserves to be reversed. [Ranjith P.C. v. Asha Nair. P, 2020 SCC OnLine Ker 1751 , decided on 20-05-2020]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Hima Kohli and Asha Menon, JJ., while addressing a matrimonial application stated that,

“Marriage is no doubt a sacrament, but it cannot be a one sided affair.”

Present appeal has been preferred against the Judgment of Family Court wherein the marriage between the appellant/respondent and respondent/petitioner was dissolved as the same was sought on grounds of cruelty and desertion within the meaning of Section 13(1)(i–a) and (i–b) of Hindu Marriage Act.

Facts

Respondent/Petitioner alleged that the conduct of the appellant/respondent was extremely cruel and he possessed a callous and indifferent attitude since the initial years of marriage.

It was also discovered that he had many personality and behavioural problems, wife time and again tried to cope up with husband’s shortcomings an tried to help him acquire stability and status in life, many times forgiving his violence.

On repeated occasions, she found to her consternation, that the appellant/respondent made no effort to either settle down in his job or contribute to the household including taking care of their child’s educational needs.

Things reached a breaking point when despite the request of the respondent/petitioner not to invite his parents to their transit accommodation at Jawahar Lal Nehru University which had limited space and to request them to stay with his sister who was residing in Gurgaon, the appellant/respondent threw a tantrum and left the house in October 2011 without understanding that the reason for the said request was only the pre- board exams of their daughter.

Premised on the above-stated facts, respondent/petitioner filed for divorce.

Appellant/respondent preferred the present appeal on the ground that the petition for divorce has been filed by the respondent/petitioner after nearly 20 years of the marriage and therefore, it ought to have been dismissed.

Counsel for the appellant contended that, language used by respondent/petitioner in her letters does not demonstrates any hard feelings between the couple and thus the story of cruelty was just a figments of imagination of respondent/petitioner on which marriage could not have been dissolved.

Analysis and Decision

A drowning man clutching on to a straw

It is quite evident from the letters written by the respondent/petitioner that while she was doing her very best to preserve the marriage, there was no reciprocation from the appellant/respondent.

“I have been writing to you every week regularly. There is no reply from you? I have left 4-5 inlands in our room letter holder. Pick one of them and write back soon.” In the letter dated 29.07.2000, once again, it starts “how are you? There is yet no letter from you.” Therefore, to submit that these letters disclose a ‘happy family’ scenario, is to blink at the truth.

Bench while noting the log list of instances of cruelty, stated that,

repeated onslaught on her emotions even subsequent to these instances took a toll on the physical and mental health of the respondent/petitioner.

All the relevant events that have continuously occurred in the lives of the parties, reflect a one sided relationship where the appellant/respondent took everything for granted, with no sense of responsibility, while the entire burden of trying to keep the marriage alive was left for the respondent/petitioner to shoulder.

Court also added that, this is a typical case that showcases as to what would amount to cruel behaviour on the part of one spouse to the utter detriment of the other.

Material on record goes to amply demonstrate the sincere efforts made by the respondent/petitioner to salvage the marriage and show that she did more than what was her duty, to preserve it.

Thus in light of the above observations, Family Court’s decision is upheld. [Venkatesh Narasimhan v. V. Sujatha, 2020 SCC OnLine Del 571 , decided on 01-05-2020]

Case BriefsHigh Courts

Bombay High Court: Nitin W. Sambre, J., dismissed the petitions filed by the petitioner questioning the order of denial of maintenance to her.

The petitioner was a divorced wife. The respondent (ex-husband of the petitioner) had attained a decree of divorce against her under Section 13 of the Hindu Marriage Act, 1956, on grounds of adultery. The said decree had attained finality.

Thereafter, the respondent (ex-husband) moved an application under the provisions of Section 125(4) of CrPC for cancellation of maintenance granted to the wife. The said application was rejected in the first instance by the trial court but was allowed on revision by the Additional Sessions Judge. Aggrieved thereby, the petitioner filed the instant petitions.

Mahendra B. Deshmukh, counsel for the petitioner, submitted that even if there is a decree of divorce passed on the allegation of adultery, still bar under sub-section (4) of Section 125 CrPC, will not be attracted. It was contended that even after divorce, the petitioner continued to be a woman under Explanation (b) of sub-section (1) of Section 125. Per contra, Kavyal P. Shah, counsel for the respondent, submitted that the statutory embargo under sub-section (4) applied to the instant case.

Notably, sub-section (4) Section 125 CrPC says:

“(4) No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.”

Considering the rival submissions, the High Court observed: “The fact remains that, there is an expressed embargo on the right of a woman to claim maintenance, pursuant to the provisions under sub-section (4) of Section 125 CrPC, If the allegation of adultery is proved against such a women or in spite of the husband being ready to maintain her and she refuses to cohabit the women/wife can be refused payment of maintenance.”

In such view of the matter, the Court found no merit in the instant petitions. Accordingly, the petitions were dismissed.[Sanjivani Ramchandra Kondalkar v. Ramchandra Bhimrao Kondalkar, 2019 SCC OnLine Bom 6581, decided on 18-12-2019]

Case BriefsHigh Courts

Patna High Court: Ahsanuddin Amanullah, J. set aside the maintenance awarded to the respondent under Section 125 CrPC as the respondent is able to maintain herself.

In the pertinent case, the petitioner moved to this Court against the impugned order wherein Rs 3,000 per month maintenance was awarded in favour of the respondent, the ex-wife of the petitioner and Rs 2,000 per month each in favour of their children. The counsel for the petitioner submitted that the respondent has already been divorced by him and she herself is a teacher earning sufficiently to maintain herself. He also contended that the application was under Section 125 of the CrPC, is invoked by the Court only when the wife is unable to maintain herself, and in the present case, the wife herself earning sufficient amount is able to maintain herself, and, thus, the application under Section 125 of the Code was not fit to be allowed in her favour. 

The counsel for the respondent submitted that the respondent is a contractual teacher and payments are not made on a regular basis and, thus, she also requires financial support.

High Court held that the maintenance allowed in the favour of the respondent under Section 125 of the Code requires to be interfered with as the same is to be awarded to a wife, which includes a woman who has been divorced, only if she is unable to maintain herself and in the present case, the respondent is able to maintain herself hence, the same not being fulfilled, the Court set aside the order awarding Rs 3,000 per month as maintenance to the respondent.

The Court did not interfere with the award of maintenance of Rs 2000 per month to the children. [Masud Ahmed v. State of Bihar, 2019 SCC OnLine Pat 1880, decided on 14-10-2019]

Case BriefsHigh Courts

Patna High Court: Ahsanuddin Amanullah, J. allowed the application of the petitioner to set aside the order granting maintenance to his wife when the divorce was granted on account of adultery on the wife’s part.

The petitioner filed an application under Section 19(4) of the Family Courts Act, 1984, against the order dated passed by the Principal Judge, Family Court, Vaishali at Hajipur which directed the petitioner to pay Rs 8,000 per month as maintenance to his wife. The order was delivered ex parte and there was no valid service of notice on the petitioner during the proceeding and, thus, he was unaware of the same. The revision petition was filed within the limitation period.

The impugned order was passed under Section 125 of the Code of Criminal Procedure, 1973 which excludes a wife living in adultery from being entitled to receive any maintenance. It was submitted that in Divorce Case filed by the petitioner against the opposite party and one Sunny

Rajak, the Principal Judge, Family Court, Samastipur by judgment dated 11-10-2017, had dissolved the marriage between the petitioner and the opposite party on the ground that she was living in adultery with Sunny Rajak. It was submitted that in the said case, Sunny Rajak had contested the suit whereas the opposite party had chosen not to contest. The learned counsel submitted that once a competent Court had held the opposite party to be living in adultery with Sunny Rajak, Section 125(4) of the Code disentitles her to any maintenance from the petitioner.

The opposite party submitted that they have challenged the decree of divorce which was still pending.

The Court held that the order passed in the Maintenance Case No. 84 of 2016, could not be sustained. Section 125(4) of the Code clearly debars a wife living in adultery from receiving any maintenance from her husband. In the present case, the marriage between the parties was dissolved on the grounds that the opposite party was found to be living in adultery with one Sunny Rajak.  Further, the Court also that mere pendency of an appeal against the order dissolving the marriage, inter alia on the ground of adultery, which till date was neither disposed of nor any interim stay of such order was granted, cannot be a ground to uphold the order impugned.

In view of the above-noted facts, the instant application was allowed and the order in the Maintenance Case was set aside.[Rajesh Rajak v. Rinku Devi, 2019 SCC OnLine Pat 1521, decided on 30-08-2019]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Sudhanshu Dhulia and Narayan Singh Dhanik, JJ. contemplated the special appeals preferred against the judgment of Family Court, where the divorce petition was filed under Section 13 of Hindu Marriage Act, 1955 and was subsequently dismissed but the counterclaim of the wife-respondent for the right of residence was decreed in the favor of the respondent. 

Facts giving rise to the instant appeal were that the appellant and respondent were married. After the marriage, matrimonial discord occurred between the parties and the appellant ultimately filed suit for divorce on the ground of cruelty. The Court below framed certain issues such as, ‘whether behavior of the respondent had been cruel, relief available to the appellant, whether the respondent had the right to reside in the residence of the appellant and whether, in lieu thereof, she was entitled to get the decree for residence right in the disputed property where she was residing?’ Hence, the Court below examined the evidences, dismissed the suit for divorce and decreed the counter-claim of the respondent for the right of residence. The Court had opined that the act of the respondent did not qualify as ‘Cruelty’ so the appellant was not entitled to a divorce. 

The Court observed that the efforts were made to mediate between the parties but no fruitful outcome was possible. In terms of the compromise, the appellant had to pay an amount of rupees seventeen lakhs and fifty thousand, as permanent alimony, to the respondent and after the payment of the said amount, the respondent agreed to vacate the residence in question and both the parties agreed for dissolution of their marriage, with appropriate petition to be filed later before the Family Court. The respondent, however, now had a second thought about the matter as she contended that the amount decided was not enough to get her a decent accommodation in Dehradun.

The High Court further observed that reasons given by the Court below for dismissing the suit for dissolution of marriage was not sustainable and the finding of the Court below that there was no cruelty on the part of the respondent was perverse. The evidence was placed before the trial court and scrutinized. The appellant in his deposition had said that the respondent often used to quarrel with his daughter and eventually started then living in a separate room in the same house and stopped talking to any of the members of the family. It was further contended by the appellant that she used to cook food only for herself, and that too separately, she frequently hurled abuses on her husband and even threatened to implicate him in a false case of dowry.

The Court found that the appellant in his evidence had narrated in detail; the incidents of alleged cruelty suffered by him and as a cumulative effect of the same, any reasonable man would find his life unbearable with his/her spouse. “Cruelty can be both physical as well as mental. Since we are dealing here with human beings and human emotions, cruelty or even “legal cruelty” cannot be precisely defined. What we can say, however, is that cruelty or cruel treatment is something which makes the life of other spouses unbearable. We are convinced that based on the allegations and the evidence submitted by the appellant before the Family Court, a case of cruelty was made out.” The entire body of evidence led before the trial court, had to be evaluated in the light of the conduct of the wife. The conduct of a person has an important bearing in terms of Section 8 of the Evidence Act, 1872. Hence, the appeals were allowed and divorce was granted with an order of permanent alimony. [Raghuveer Kaintura v. Meera Kaintura ,2019 SCC OnLine Utt 718, decided on 07-08-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court:  Deepak Sibal, J. dismissed the present petition as the impugned order was not defective on the ground that framing of the issue was not challenged by the petitioner and evidence were led only on the same ground. 

A petition was filed against the dismissal order in which application filed by the petitioner was prayed for withdrawal of divorce petition with permission to file afresh.

The brief facts of the case were that petitioner filed a petition under Section 13 of the Hindu Marriage Act, 1955 for dissolution of the marriage between the parties on the ground of cruelty.  During the course of the trial, at the final argument stage, petitioner filed an application under Order 23 Rule 1 of the Code of Civil procedure, 1908 seeking withdrawal of his divorce petition with permission to file a fresh petition on the same cause which through the order impugned in the present proceedings has been dismissed.

Manish Kumar Singla, counsel for the petitioner submitted that there was a formal defect in the petition as averments had been made in the petition with regard to the respondent-wife having deserted the petitioner but since between the alleged date when the respondent-wife had deserted him and the filing of his petition the statutory period of 2 years had not elapsed, the Trial Court erred in not permitting the petitioner to withdraw his divorce petition with permission to file a fresh one on the same cause.

Karan Bhardwaj, counsel for the respondent submits that with regard to the issue of desertion, there was no formal defect in the petitioner’s petition and therefore, the petitioner cannot be allowed to withdraw his petition with permission to file fresh one on the same cause.

The Court opined that the respondent-wife had refused to join the company of the petitioner would not give a cause to the petitioner to seek divorce on the ground of desertion and there was no formal defect in the petitioner’s defect. It was further submitted that the ground of desertion was neither available to the petitioner nor taken by him. During the pendency of the petition, even if such ground has become available, the same would not make the petitioner’s petition as defective. Thus the matter was dismissed. [Kulwinder Singh v. Manmohan Kaur, 2019 SCC OnLine P&H 1337, decided on 25-07-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court:  A Division Bench of Rakesh Kumar Jain and Harnaresh Singh Gill, JJ. heard an appeal that sought divorce under Section 13 of Hindu Marriage Act, 1955.

The facts of the case at hand were that the couple got married in March, 2019 and later the respondent-wife left her matrimonial house in May 2015. In February 2016, the husband (appellant herein) filed for divorce on the grounds of blackmail, adultery and mental harassment of the husband as well as his family. The trial court rejected the relief of divorce on the ground that on the date of filing of the divorce petition, the statutory period of two years had not expired.

I.P.S Kohli, the counsel for the appellant, contended that since the very beginning of the marriage, the respondent quarrelled with her in-laws and threatened them to do everything under her command. He further claimed that she refused to do the household work and held that she would commit suicide if she was forced to do chores to create troubles for them. He further accused the respondent of adultery and for consuming alcohol and drugs. The counsel maintained that the respondent had a habit of leaving her matrimonial home without informing them and any inquiry of her whereabouts would be called as ‘interference on her personal life’. He alleged that the respondent refused to share a bed with the appellant which caused mental stress to him. He claimed that the respondent broke her mangalsutra in front of the Panchayat members and outrightly refused to live with the appellant as his wife and left her matrimonial home.

The respondent-wife, though agreed to the facts regarding the marriage, denied the accusation that she threatened to commit suicide. She also negated the facts that she refused to do household chores and in turn claimed that she would cook meals regularly and feed the family and the guests. She contended that she was pressurized to bring money from her parents and to influence them to sell their land. However, these demands were not acceded to by the respondent or her father. She added that the appellant and his parents harassed her physically and mentally. She further claimed that the appellant and his family never accepted her and turned her out of the house.

The Court observed that the allegations of cruelty remained unsubstantiated and there was no infirmity and illegality in the impugned judgment and decree passed by the trial Court. It relied on the case Rajni Goyal v. Amit Kumar, 2014 SCC OnLine P&H 24088, to rule that adultery on part of the respondent cannot be proved as there was no cogent evidence was presented by the appellant “Rather unsubstantiated and uncorroborated testimony associating the respondent with adulterer has caused mental cruelty to the respondent”. In addition to this, the Court was of the opinion that this case was of normal ‘wear and tear’ of the married life of the parties, which takes place on a daily basis in life. The Court further remarked that on the date of filing of the divorce petition, the statutory period of two years had not expired. Thus, the present divorce petition had rightly been rejected on this count by the trial court. Hence, the appeal was dismissed.[Ravinder Yadav v. Padmani, 2019 SCC OnLine P&H 1294, decided on 17-05-2019]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Alok Singh and Ravindra Maithani, JJ. entertained an appeal filed by the appellant-wife who challenged the judgment passed by the Family Court, dissolving the marriage of the appellant and respondent.

In the initial case, the respondent-husband had alleged that the appellant was mentally sick and she suffered from generalized epilepsy, it was further contended that the case of the appellant was incurable. The respondent narrated that on the third day of marriage itself the appellant felt unconscious and with the passage of time due to the mental illness of the appellant the couple was not able to consummate. Hence on the basis of mental disorder, the respondent sought divorce which was duly awarded by the Family Court, after examining witnesses and evidences.

The said appellant hence filed the instant appeal and contended that she never suffered from such mental disorder and thus, the allegation of the respondent was false. She also contended that the marriage was consummated and she was pregnant at a point of time but pregnancy was aborted due to uncertain circumstances. She denied all the allegations made by the appellant and alleged that demand of dowry was made by the respondent’s family, as the demand was not fulfilled the respondent deserted her. It was further contended that the decision of the Family Court was not justified and the appellant never wanted divorce.

The Family Court had observed that the appellant-wife had not presented any evidence or witness in support of her claim and she had simply denied the claims and allegation made by the respondent.

In the instant appeal the counsel for the appellant, J.P. Joshi, placed reliance on Kollam Chandra Sekhar v. Kollam Padma Latha, 2013 AIR SCW 5559, where Supreme Court observed that if mental illness is proved, and even then the family court was not justified in granting the divorce. The Court observed that all the witnesses produced by the husband supported his case. It was further observed that the husband stated that appellant–wife was not able to do her day to day work; he had to maintain her in every possible way. The Court found that the appellant wife had not disclosed about her illness prior to marriage. The statement of the medical practitioner was attached who examined the appellant and found that she suffered from mental illness. The Court found the story of the respondent to be true. It was held that, “Since there is no rebuttal with proof on the part of appellant wife, we have no option except to accept the version of respondent-husband that appellant wife is mentally sick and she was unable to manage her matrimonial life. Appellant wife had neither produced any witness nor got herself examined as a witness.” The Court stated that in the present case the decision of Kollam was not applicable as in Kollam the wife did not show any symptom of psychotic illness and responded well to the treatment but in this particular case wife was not able to manage her daily martial life. Hence the judgment of the Family Court was upheld.[Mamta Negi v. Yogendra Singh Negi, 2019 SCC OnLine Utt 576, decided on 12-07-2019]

Case BriefsHigh Courts

Patna High Court: Ahsanuddin Amanullah, J. dismissed an application filed under Section 482 of the Code of Criminal Procedure, 1973 praying for quashing of cognizance taken against petitioner, in a case pertaining to demand of dowry and torture therefor.

Petitioner, along with eight others, was charged with offence of torture, assault, demand of dowry and conspiracy to kill the opposite party 2 (daughter-in-law of the petitioner herein). In a complaint case filed by opposite party 2, the learned Sub-Divisional Judicial Magistrate passed an order taking cognizance of offences under Sections 323, 498-A of Penal Code, 1860 and Sections 3 and 4 of Dowry Prohibition Act, 1961. Aggrieved thereby, the instant application was filed praying for quashing of the said order.   

Learned counsel for the petitioner, Sanjay Kumar Ojha, contended that the opposite party 2 did not reside in the matrimonial home and she had got divorced from the petitioner’s son in 2011.

Learned Assistant Public Prosecutor, Jharkhandi Upadhyay contended that the matrimonial case wherein divorce was granted to opposite party 2, was filed in the year 2010 while the complaint case in question was filed in 2004. Thus, the opposite party 2 was still the petitioner’s daughter-in-law when the complaint case was filed. Hence, the petitioner’s main contention of divorce was of no relevance. Further, the cognizance order in complaint case, was passed in the year 2003, i.e., ten and a half years ago, which made the application unfit for consideration. 

The Court noted that the complaint case was of the year 2004 and the order of cognizance was also of the same year. Thus, the present application, filed in the year 2015, challenging cognizance order of the year 2004 was clearly unfit to be entertained on the ground of gross delay and laches. Further, the main contention of the petitioner that her son and opposite party  2, were already divorced, was of no consequence, as the matrimonial case (for divorce) was filed in the year 2010 by opposite party 2; and that itself was proof of the fact that she was tortured in the matrimonial home. 

In view of the above, it was held that the cognizance order did not suffer from any infirmity, and it did not warrant any interference by the Court in exercise of its inherent power under Section 482 CrPC.[Sushila Devi v. State of Bihar, 2019 SCC OnLine Pat 653, decided on 13-05-2019]