Case BriefsHigh Courts

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

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

CRUELTY

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

IMPOTENCY

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

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

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

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

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

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

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

DECISION

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

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

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

Next Question:

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

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

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

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

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

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

ALLEGATIONS MADE IN PLEADINGS

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

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

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

Bench also observed that,

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

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

Bench held that,

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

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

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

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


Advocates for the parties:

Appellant: Manish Sharma, Ninad Dogra and Jigyasa Sharma

Respondent: Prabhjit Jauhar

Case BriefsHigh Courts

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

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

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

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

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

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

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

In view of the above, FIR was lodged.

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

Decision

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

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

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

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

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

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

Op EdsOP. ED.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

iv) the waiting period will only prolong their agony.

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

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

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

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

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

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

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

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

*                                 *                       *

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

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

*                          *                *

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

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

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

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

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

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

  1. Contempts not punishable in certain cases.—

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

[1] The Hindu Marriage Act, 1955

[2] (1991) 2 SCC 25

[3] (2011) 5 SCC 234

[4] (2004) 8 SCC 229 

[5] (1971) 1 SCC 619

[6] (2005) 12 SCC 1

[7] 1990 SCC OnLine Ker 13 

[8] (2009) 10 SCC 415

[9] (2017) 8 SCC 746

[10] (2001) 1 SCC 516

[11] (1998) 4 SCC 409  

[12] (2003) 11 SCC 1

[13] 2004 SCC OnLine Kar 226

[14] (2006) 11 SCC 114

[15] (2016) 3 SCC 619

[16] 2010 SCC OnLine Del 1962

[17] 2012 SCC OnLine Del 2445

[18] 2018 SCC OnLine Del 9005

Case BriefsHigh Courts

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

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

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

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

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

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

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

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

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

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

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

Case BriefsHigh Courts

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

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

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

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

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

Substantial Question of Law

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

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

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

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

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

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

What does the said provision state:

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

Triple Talaq

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

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

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

Bench held that,

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

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

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

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

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

Case BriefsHigh Courts

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

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

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

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

Grave Misconduct

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

Charge Memo

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

The Oral Enquiry Officer held the charge against the petitioner.

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

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

Analysis & Decision

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

Hindu Marriage Act

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

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

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

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

Customary Divorce

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

Court concluded its decision as follows:

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

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

Case BriefsHigh Courts

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

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

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

Brief Facts

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

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

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

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

Analysis and Decision

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

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

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

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

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

Act of Second Marriage | Sheriat 

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

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

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

Marital Cruelty

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

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

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

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

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

Case BriefsHigh Courts

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

Cruelty & Desertion | Dissolution of Marriage

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

Family Court dissolved the marriage.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Case BriefsHigh Courts

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

Willful Disobedience

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

Facts 

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

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

Decree of Divorce

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

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

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

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

Bench considered the following questions:

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

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

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

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

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

Ejusdem Generis

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

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

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

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

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

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

No Civil Contempt

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

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

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]