Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J. while addressing the matter, expressed that

“…in the opinion of this Court, all cases of family disputes cannot be characterised as cases under the DV Act.”

Plaintiff had filed a suit against his son and daughter-in-law, respectively.

In view of various disputes between the plaintiff and his son/daughter-in-law, he sought the permanent and mandatory injunction, damages seeking vacant and peaceful possession of the suit property and removal of his son and daughter-in-law. Damages and mesne profits were also sought by the plaintiff.

 Issues:

  • Condonation of delay of 342 days, in filing the present second appeal.
  • Merits of matter.

Analysis, Law and Decision

High Court stated that there was no delay in filing the present appeal.

Several disputes arose amongst the said family members, which, according to Plaintiff, were due to the interference of the family members of the daughter-in-law, including the mother and the brothers of the daughter-in-law.

There was no document on record to show the existence of a HUF, of which, Plaintiff was alleged to be the Karta.

Plea of ‘shared household’ appeared to have clearly been put up on behalf of the daughter-in-law, as a faint plea, and as an argument of last resort.

There were no complaints that had been preferred against the father-in-law and there were no cases filed or pending under the DV Act, or any other legislation at the instance of the daughter-in-law.

Further, the Bench stated that the father was merely seeking to evict both his son and daughter-in-law, on the strength of his ownership of the suit property.

Adding to the above, Court stated that the settled position of law is that proceedings under the DV Act are not required and the same can also be raised as defence in the suit, the basic requirements of the said Act ought to be satisfied.

The present is not a case where the case set up is one under the DV Act, involving domestic violence. 

High Court highlighted the peculiar facts:

  • The ownership of the Plaintiff in the suit property is not in dispute.
  • The sale of the property of the mother, which took place in 2011, was never challenged by the Defendants.
  • The purchase of this suit property in the name of the Plaintiff was never challenged by the Defendants.
  • There is no complaint of Domestic Violence raised by the daughter-in-law before any forum. In fact, to the contrary, the Plaintiff has filed complaints against his son and daughter-in-law with police repeatedly, alleging ill-treatment and abuse.
  • The Defendants i.e., the son and daughter-in-law are living together peacefully. The written statement before the trial court was filed jointly. The first appeal was also filed jointly, and so is the present second appeal. There is no estrangement or marital discord between them.
  • The order passed in the application under Order XII Rule 6 CPC has also been executed and the Defendants have already moved out of the suit property and are living in alternate premises.

In light of the above stated facts and noting that they are distinguishable from the facts of Satish Chandra Ahuja v. Sneha Ahuja, [2020 (11) SCALE 476] and Vanitha v. Deputy Commr., [2020 (14) SCALE 210]

Court dismissed the appeal. [Aarti Sharma v. Ganga Saran, 2021 SCC OnLine Del 4110, decided on 24-08-2021]


Advocates before the Court:

For the Appellants: Zahid Ali, Advocate

For the Respondent: Ashok Kumar Tiwari, Advocate

Case BriefsHigh Courts

Bombay High Court: Manish Pitale, J., while upholding the decision of Sessions Court discussed more on the concept of ‘continuing offence’ under the Domestic Violence Act, 2005.

Background

Petitioner had filed an application under the provisions of The Protection of Women of Domestic Violence Act, 2005 for various reliefs. The said application was partly allowed by the Judicial Magistrate directing Omprakash (husband) to pay an amount of maintenance and rent to his wife, whereas the return of Stridhan and household articles was rejected.

With the above decision, both the wife and husband were aggrieved and hence filed appeals before the Sessions Court. Sessions Court had partly allowed the appeal of the wife by enhancing the monthly maintenance and additionally the husband was directed to pay an amount of Rs 50,000 to his wife towards compensation.

Appeal filed by the husband was dismissed.

Aggrieved by the judgment, present petitions were filed in which the Court issued notices.

Analysis, Law and Decision

Limitation

In the instant matter, Court stated that it is concerned with the complaint filed by the wife under Section 12 and other provisions of the D.V. Act.

The wife claimed that she was harassed and abused and that she also suffered economic abuse at the hands of the husband and his relatives. Further, she added that she was subjected to “domestic violence” as defined under Section 3 of the D.V. Act, hence sought redressal for such abuse and claimed return of articles gifted to her by her parents and other relatives.

“…concept of continuing cause of action and continuing offence needs to be appreciated from the point of view of the aggrieved person i.e. wife.”

 In the case of Krishna Bhattacharjee v. Sarathi Choudhury, (2016) 2 SCC 705, Supreme Court held that the concept of continuing offence gets attracted from the date of deprivation of Stridhan and that therefore, an application in that context would have to be entertained and it cannot be thrown out on the ground of limitation

Continuing Offences

Court opined that, the definition of ‘domestic violence’ under Section 3 of the D.V. Act shows that depriving an aggrieved person of not only Stridhan but also shared household, maintenance, alienation from assets, banks lockers etc., prevention from entering place of employment of the aggrieved person, would all be covered, under the concept of continuing offences.

Hence, merely because the wife filed a complaint after one year, the said complaint cannot be barred by limitation.

Enhancement of Maintenance

High Court held that considering the salary of the husband, he directed to pay an amount of Rs 6,000 and the same cannot be said to be unreasonable.

Physical Abuse 

Husband contended that since the wife did not place on record any material to show any physical abuse or proof of having filed any police complaint, she did not deserve to be paid any compensation.

To the above, Court reasoned that in cases of domestic violence, it is often found that the aggrieved person does not immediately rush to the police when inflicted with physical, mental, and physiological and economic abuse.

Adding to the above, Bench stated that even if such persons suffer injuries, they will not necessarily keep medical records of the same and it cannot be said that only because no medical documents were produced, the wife in the present matter was not entitled to compensation.

In view of the above discussions, the Session Court’s decision was upheld. [Aruna v. Omprakash, Criminal Writ Petition No. 372 of 2019, decided on 27-7-2021]


Advocates before the Court:

Shri. C. A. Joshi, Advocate for Petitioner

Shri. A. S. Joshi, Advocate for Respondent.

Op EdsOP. ED.

On 10-3-2021, the Punjab and Haryana High Court, in Moyna Khatun v. State of Punjab[1] dismissed the petition of Ms Moyna Khatun, aged 18 years and Mr Lab Singh, aged 19 years, seeking protection of their life and liberty at the hands of private respondents.

Live-in relationships or relationships in nature of marriage have slowly gained legal and judicial acceptance in the country. Statutorily, the Evidence Act, 1872[2] allows the court to draw a presumption of marriage under Section 114(g)[3] and Section 50[4]. In order to establish the presumption it has to be proved that the man and woman were living together for a long period as husband and wife; and that they projected themselves to the society as a married couple. There is no need to prove the factum of marriage in cases falling under Section 114. This reflects the approach of the law that it assumes in favour of marriage and against concubinage when couples have lived together as husband and wife for a long period of time.

Another statute which recognises live-in relationships is the Protection of Women from Domestic Violence Act, 2005[5] (the PWDVA, 2005), which was passed in keeping with India’s international commitments to address gender specific grievances of women. Section 2(f) of the PWDVA, 2005[6] defines a domestic relationship as a “relationship between two persons who live or have lived together in a shared household when they are related by consanguinity, marriage, adoption or through a relationship in the nature of marriage”.

The need to include relationships in nature of marriage was recognised in the Report of the Parliamentary Standing Committee on the Protection from Domestic Violence Bill, 2002[7]. The Committee acknowledged that there are many instances in India where a man and woman, though not legally married, still live together as husband and wife and have social sanction for it as well. Therefore, these relationships need to be included within the framework of the law to ensure that such women who are victims of any kind of violence that occurs within the family are protected. Relationship in nature of marriage is defined as analogous to common law marriage[8] i.e. the couple has to hold themselves out to the society as being akin to spouse; have to be of legal age to marry; have to be otherwise qualified to enter into a marriage, including being unmarried; and have to voluntarily cohabit for a significant period of time.

Landmark cases such as D. Velusamy v. D. Patchaiammal[9] and Indra Sarma v. V.K.V.  Sarma[10] have recognised and given contour to the factors that need to be established for proving live-in relationships. The Courts, have also generally been sensitive towards partners of live-in relationships. For instance, in Nandakumar v. State of Kerela[11], the Supreme Court allowed an underage couple to live together. It recognised that the concept may be socially unacceptable, but in law, it could not be looked down upon. Similarly, in a Gujarat High Court decision of 2020, the Court ordered the police to extract the documents of the girl from her father so that she could subsequently solemnise marriage with her live-in partner.[12] The Punjab and Haryana High Court has also ordered police protection to live-in couples in cases like Simran Kaur  v. State of Punjab[13] and Sukhbir Singh v. State of Punjab[14], Soniya v. State of Haryana[15], Priyapreet Kaur v. State of Punjab[16], Pardeep Singh v. State of Haryana[17] as also the Allahabad High Court in Kamini Devi v. State of Uttar Pradesh[18].

The case of Moyna Khatun v. State of Punjab[19] is a unique case of live-in relationships. The female partner, aged about 18 years and the male partner, aged about 19 years, entered into a live-in relationship deed, which they settled by way of mutual consent. Through the contractual live-in-relationship, both parties agreed their relationship will not be a marital relationship; that they will fully cooperate with each other without any dispute and will not claim anything against each other; and if either party backs out from the aforesaid deed, the other party will have a right to approach a competent court of law for implementation of the same. Further, the parties will be entitled and will be at liberty to terminate the deed at any time after giving one month’s notice to the other party. Additionally, on attaining marriageable age, the parties agreed to solemnise marriage. It was also submitted by the counsel for the parties that the deed was executed by the parties in Patiala.

This is the first time that a case of such nature has come before any court in India. The Hon’ble Judge dismissed the petition on the ground that the terms and conditions of the deed, especially stating that it is not a marital relationship, is nothing but the misuse of the process of law as it cannot be morally accepted in society. This brings the author of this piece to the larger question of whether deeds of live-in relationships are void ab initio, or they have some merit in the law and can be executed in certain circumstances.

In countries such as the United Kingdom and the United States of America, live-in partners can enter into cohabitation contracts. These contracts are primarily used to protect the rights of the cohabiting partners upon dissolution of the relationship, either by death or dissolution. These generally include, but are not limited to, disclosure of each partner’s assets and liabilities. With respect to property of the partners, the agreement must specify how the parties intend to deal with property owned before the relationship as well as that acquired afterwards. Matters other than property that can form part of such an agreement are support, custody or visitation rights for children born during the relationship and payment of debts before and during the relationship. Inclusion of such clauses will make the agreement holistic and truly lead to protection of the rights of live-in partners.

When cohabitation contracts, or live-in relationship deeds are so framed, the next point of enquiry becomes whether such deeds are opposed to public policy. Not only in India, but in USA and UK as well, cohabitation contracts have been challenged on the ground of violating public policy. There are two public policy aspects implicit in the proposition of legally accepting the validity of cohabitation contracts – the execution of such contracts can lead to dissolution of the institution of marriage, and an increase in cohabitation; and, these contracts may be based on meretricious agreements. The latter was discussed in the landmark case of Marvin v. Marvin[20]:

Adults who voluntarily live together and engage in sexual relations are nonetheless as competent as any other persons to contract respecting their earnings and property rights. Of course, they cannot lawfully contract to pay for the performance of sexual services so long as the agreement does not rest upon illicit meretricious consideration, the parties may order their economic affairs as they choose, and no policy precludes the courts from enforcing such agreements.[21]

On the question of whether cohabitation agreements discourage marriage, the enquiry will lie in determining whether encouraging marriage is a matter of public policy, or, does it fall within the realm of private lives of people? Historically, marriage has been said to hold a place of extreme significance, both for the individuals as well as for the State. It was considered as the basic unit of society, a constituent element in determining the political theory, and consequently the functioning of the State.[22] It creates strong ties of identity, kinship, mutual interdependence and responsibility[23] and … brings with it a psycho-physical intimacy[24]. Marriage also serves as the backbone for the principle of legitimacy, since human children require a long duration of caring and it is in their benefit that they can associate to an identifiable mother and father as nurturers.[25]

Over the years, marriage has taken an institutional form, acceptable both in society and in religion. This is evident from the sacrosanct status to marriage given under the Hindu Law, wherein it has been considered to be a samskara. Similarly, in Islam, marriage is considered to partake elements of both ibadat i.e. worship and muamlat i.e. daily affairs of men. In Christianity as well, marriages have to be officially validated by a priest and clandestine living together or informal marriages are not accepted.[26]

The social significance placed upon marriage by legitimising it through religious and ceremonial practices reflects the notion of “marriage as a status”. Gradually, however, as with the movement of all States from “status” to “contract”, marital relationships have also moved from “status” to “contract”.[27] As a result of this, people have found the legal space to exercise their option of entering into non-marital unions. Live-in relationships are a form of intimate partner living.

A live-in relationship or cohabitation does not require proof of the couple being akin to spouses. It is thus, an alternate form of living together and founding a family. These relationships find their basis in the will theory of contract.[28] The prime reasons for the growth of live-in relationships have been the freedom associated with this living arrangement, test of emotional and physical compatibility and rejection of restrictions and inequalities that have come about in the institution of marriage.[29] At the same time, cohabitation relationships often involve incidents of marriage such as emotional and physical exclusivity of partners; expectations of a permanent relationship; stability and similar phenomena. Some partners may even comingle their assets, incomes, financial burdens and have children.[30] The main criticism against acceptance of cohabitation relationships is its duration and often impermanence. However, with increasing divorce rates, this argument may not hold tight. In India, the number of divorces has doubled over the past two decades. Though only 1.1 per cent of women are divorced, those in urban areas make up the largest proportion.[31]

In India marriage is the dominant form of intimate partner relationship. Living together, though socially unacceptable is legally acceptable. However, not every relationship qualifies as a live-in relationship, and the strict interpretation laid down by the courts has to be complied with in order to get the protection of the law. Presently, the law provides only limited rights to partners who live together. Maintenance is one such right that has been secured for the female partner, through a catena of judgments. Upon dissolution of the relationship due to separation or death of a partner, the law is silent on property rights, or even the matters of custody of children who are born during the relationship. If live-in deeds provide for the management of property, they will indeed secure rights of both parties, especially when this cannot be achieved by the succession laws of the country.  It will ensure that the partner with lower earnings has an income to rely on upon dissolution; and, the higher earning partner is not exploited eventually. Providing for child custody will also reduce unnecessary litigation and provide a harmonious environment for the upbringing of the child. The arrangement can however, be challenged in the court if it is found to not be in the best interest of the child. Mere mentioning of the relationship as a live-in relationship should also not be considered as a ground for rejecting the contractual arrangement if it can be established by the parties that their relationship is equivalent to a de facto marriage. It is here that the tests laid down by the Supreme Court will be useful. It will also exclude the possibility of the relationship being a meretricious one, as was cautioned in Marvin v. Marvin.[32]

Public policy is an unruly horse, but must change with the changing times. The same can even be said about immorality as a ground for not executing a contract. The aim of public policy is to preserve public welfare, wherein, individual freedom is restricted to ensure the general good of the society. Immorality too aims to protect the larger societal good. In light of this, it is imperative to note that the Parliamentary Standing Committee itself recognised the existence of live-in relationships in India. The author submits that merely mentioning that a relationship is a live-in relationship and not a marital relationship should not be considered immoral. Further, when the live-in relationship deed provides for protection of property, financial and custody and guardianship rights, it must be executed, subject to the principles of property and guardianship laws.


*Assistant Professor of Law, Institute of Law, Nirma University. Author can be reached at shreya.srivastava@nirmauni.ac.in

[1] 2021 SCC OnLine P&H 920.

[2] Evidence Act, 1872.

[3] Ibid, Section 114 (g).

[4] Ibid, Section 50.

[5] Protection of Women from Domestic Violence Act, 2005.

[6] Ibid, Section 2(f).

[7] Department-Related Parliamentary Standing Committee on Human Resource Development on the Protection from Domestic Violence Bill, 2002 (Report No. 124).

 [8] D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469.

[9] Ibid.

[10] (2013) 15 SCC 755.

[11] (2018) 16 SCC 602.

[12] Bhakhodiya Ashokbhai Rameshbhai v. State of Gujarat, 2020 SCC OnLine Guj 2984

[13] 2017 SCC OnLine P&H 5409.

[14] 2015 SCC OnLine P&H 20771.

[15] CRWP No.4533 of 2021, decided on 18-5-2021.

[16] 2020 SCC OnLine P&H 2340.

[17] 2021 SCC OnLine P&H 921.

[18] Writ C No. 11108 of 2020, decided on 23-11-2020.

[19] 2021 SCC OnLine P&H 920.

[20] (1976) 18 Cal 3d 660.

[21] Ibid.

[22] Elizabeth Brake, Marriage and Domestic Partnership, Stanford Encylopaedia of Philosophy (12-3-2021, 10:00 a.m.) <https://plato.stanford.edu/entries/marriage/#:~:text=The%20state%20arises%20from%20component,theory%20(Politics%2C%201264b)>.

[23] Marriage and the Public Good: Ten Principles (Princeton, New Jersey, 2006), [Philosophy (12-3-2021, 10:30 a.m.)] < http://www.laikos.org/PublicGood.pdf>.

[24] E.O. James, Marriage and Society, (Hutchinson University Press, London, 1952)

[25] Kris Franklin, A Family Like any Other Family: Alternative Methods of Defining Family in Law, 18 NYU Rev. L. & Soc. Change 1027, 1033 (1990).

[26] Lord Hardwicke’s Marriage Act of 1753 declared that all marriage ceremonies must be conducted by a Minister in a Parish, Church or Chapel of the Church of England to be legally binding.

[27] Janet Halley, What is Family Law?: A Genealogy Part I, 23 Yale JL & Human, 52, 56 (2011)

[28] Ibid.

[29] State v. Manu Gopal, SC No. 456/2017, decided on 5-1-2019 (Delhi District Court).

[30] See Newcomb, Cohabitation in America: An Assessment of Consequences 43 (3) J. Mar & Fam. (1979); Glick & Norton, Marrying, Divorcing, and Living Together in the US Today, 32(5) Population Bulletin 32 (1977).

[31] UN Women Report on Progress of the World’s Women 2019-2020: Families in a Changing World, United Nations in India, <https://in.one.un.org/un-press-release/progress-worlds-women-report-2019-2020/> (13-3-2021, 9:30 p.m. )

[32] (1976) 18 Cal 3d 660.

Case BriefsHigh Courts

Madras High Court: S.M. Subramaniam, J., held that

Protraction and prolongation of litigations affecting women can never be encouraged by the Courts.

Husband and wife used to live in Singapore and when a misunderstanding arose between the two, the husband stated that the respondent/wife deserted him in the year 2018. Hence, the husband sought the relief of Restitution of Conjugal Rights by filing a petition in the Family Court, Chennai.

Wife had filed a Domestic Violence Complaint against the husband and further filed the maintenance seeking maintenance.

Under the above-stated circumstances, an instant transfer petition was filed to transfer the Domestic Violence Act case.

Questions of Legal Importance

Whether the High Court in the exercise of power of superintendence under Article 227 of the Constitution of India transfer the criminal proceedings from the Criminal Court to the Family Court, when the powers of transfers of cases are already conferred on the High Court under the provisions of the Criminal Procedure Code and Civil Procedure Code?

Presuming, the powers under Article 227 of the Constitution of India is exercised, in order to transfer a criminal case to a Civil Court or Family Court, what would be the consequences and the provisions governing such transfers and the Constitution of Special Courts under the Special enactments?

Whether the decision of this Court in Mohana Seshadri v. Anuja, CDJ 2020 MHC 944, can be followed as a precedent in the present matter?

Analysis

The above case cited by the petitioners need not be relied upon for the purpose of entertaining a transfer petition under Article 227 of the Constitution of India. In the present petition, this Court has to consider the provisions of the Special Acts namely the Domestic Violence Act, Family Courts Act and also the Code of Criminal Procedure for the purpose of forming an opinion.

Domestic Violence Act

Provisions of the ‘DV Act’ are unambiguous that an application is entertainable before the Judicial Magistrate Class I or the Metropolitan Magistrate as the case may be for seeking one or more reliefs under the Act.

Proceedings under the ‘DV Act’ are regulated under the Code of Criminal Procedure as contemplated under Section 28 of the ‘DV Act’. Thus, a complaint registered under Section 12 of the DV Act is criminal proceedings on the criminal side of the judiciary and accordingly the said proceedings are to be regulated under the Criminal Procedure Code.

Generalia Specialibus non derogant (when there is a conflict, general and special provision, the later will prevail)

It is to be held that Special Act will prevail over the General Laws.

Therefore, when a Special enactment is in force to deal with certain specific offences, in the present context, Domestic Violence Act, then the other general laws cannot have any application and all such Domestic Violence’s are to be tried by following the procedures as contemplated under the Special Enactment and this being the legal principles, the application under

Section 12 of the Domestic Violence Act cannot be construed as a civil natured proceeding.

Family Courts Act, 1984

Applications which are all filed seeking maintenance for wife, children and parents alone shall be tried by exercising the powers conferred under Section 7(2)(a) of the Family Courts Act, 1984. Hence, with regard to the jurisdiction as contemplated under the DV Act, the Family Courts/Civil Courts are not having jurisdiction to deal with certain offences defined under the provisions of the DV Act.

Criminal Procedure Code

Section 407 of the Criminal Procedure Code provides Power of High Court to transfer cases and appeals.

 Hence, the High Court is empowered to transfer the case from one Court to another Court as the case may be as contemplated under the provisions of Section 407 of the CrPC.

Civil Procedure Code

Under Section 24 of CPC, Civil Proceedings can be transferred from one Civil Court to another Civil Court.

 However, Criminal Proceedings cannot be transferred from one Criminal Court to a Civil Court/Family Court.

Article 227 of the Constitution of India

In the Supreme Court decision of Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 8 SCC 329, there was an elaborate consideration of High Court’s Power of Superintendence under Article 227 of the Constitution.

Power of High Court

High Court’s power under Article 227 to be plenary and unfettered but at the same time, the High Court should be cautious in its exercise.

“…in cases, where the High Court exercise its jurisdiction under Article 227, such exercise is entirely discretionary and no person can claiming it as as a matter of right.”

Jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Articles 226 and 227 are separate and distinct and operate in different fields. Jurisdiction under Article 227 is exercised by the High Court for the vindication of its position as the highest judicial authority in the State

Scope of the power under Article 227 of the Constitution cannot be exercised overriding the provisions of the Special Enactments, wherein the specific reliefs are provided for redressal.

Thus, the proceedings instituted under the Family Courts Act before the Family Courts are to be regulated in accordance with the provisions as contemplated.

Equally, an application filed under Section 12 of the Domestic Violence Act is to be regulated under the provisions of the ‘DV Act’ and the application registered under Section 12 of the Domestic Violence Act is a criminal proceedings and the entire provisions of the ‘DV Act’ unambiguously portrays that the nature of proceedings are under criminal law. The procedures as contemplated under the Criminal Procedure Code is to be followed for trial of the cases under the ‘DV Act’.

Thus, there is no reason to form an opinion that application filed under the ‘DV Act’ is a “Civil natured proceeding”.

Bench added that when the scope of Article 227 does not permit the High Court to entertain a transfer petition to transfer a criminal case to a Civil Court or a Civil case to a Criminal Court, then conversion of such power under Article 227 for transfer of cases is certainly beyond the scope of the principles settled by Supreme Court decisions.

Transfer not Traceable

The power of transfer conferred under the Code of Criminal Procedure and the Code of Civil Procedure are expected to be exercised by the High Courts and such power of transfer is not traceable under Article 227 of the Constitution of India.

Multiple options are provided under the special enactments, facilitating the aggrieved women to redress their grievances which are to be dealt in accordance with the provisions of such enactments and speedy disposal being the paramount importance, Courts are bound to ensure all such cases, affecting women must be disposed of at the earliest possible.

Proceedings under the Domestic Violence Act

Further, the Court added to its elaborative analysis that the initiation of proceedings under the Domestic Violence Act with reference to the bodily injuries contemplated under the provisions of the Act, are Criminal acts and therefore, the Domestic Violence proceedings are criminal in nature and to be tried by the competent Judicial Magistrate.

Offences/Bodily Injuries as contemplated under the DV Act are against the society at large and therefore, the proceedings are criminal and competent criminal Court of Law is empowered to try those cases.

In view of the above discussion, Court concluded that criminal proceedings instituted under the Domestic Violence Act cannot be converted as Civil proceedings nor construed as proceedings of civil nature, so as to transfer such criminal proceedings before the Civil Court or Family Court by exercising the supervisory powers under Article 227 of the Constitution of India.

Therefore, any transfer petition, if at all filed to transfer a case registered under the Domestic Violence Act must be entertained only under the Code of Criminal Procedure and certainly not by invoking power under Article 227.

On transferring the DV Act proceedings to Family Court, the appropriate reliefs are depraved.

Hence, the objections regarding the maintainability of the transfer petition raised by the Registry, High Court of Madras, is perfectly in consonance with provisions of law and said objections stands confirmed. [P. Arun Prakash v. S. Sudhamary, 2021 SCC OnLine Mad 1954, decided on 01-04-2021]

Case BriefsHigh Courts

Delhi High Court: Suresh Kumar Kait, J., dealt with the provisions in regard to the concept of the shared household while referring to a very pertinent decision of the Supreme Court.

In the instant case, the petitioner is stated to be the daughter-in-law and respondents her parents-in-law.

It has been added that multiple proceedings have been pending between the husband and wife but the focus and purpose due to which the parties were present before the Court was the Agreement to Sell entered between respondent 1 mother-in-law with third-party qua property which was purportedly in her name.

Shared Household Property

As per the petitioner, the property in question was a shared household property where she had lived with her husband due to which the said property could not be alienated from the said property.

Petitioner with regard to the above, filed an application under Section 19(1)(d) of the Protection of Women from Domestic Violence Act, 2005 (DV Act) and Magistrate after issuance of notice, vide an order granted interim relief to petitioner restraining respondents from selling or alienating the property in question.

Revision Petition was preferred against the interim order before the Sessions Court under Sections 395/397 CrPC which was converted into an appeal and vide judgment dated 03-05-2021, the said appeal was allowed.

Petitioner sought aside the judgment passed by the Appellate Court.

Analysis, Law and Decision

Bench perused the impugned judgment, provisions of DV Act as well as Supreme Court’s decision in Satish Chandra Ahuja v. Sneha Ahuja, (2021) 1 SCC 414.

What was the crux of the matter?

Petitioner filed an application to restrain the parent-in-law from selling or alienating the subject property. Since Agreement to Sell had to be executed with a limited time frame, aggrieved parents-in-law filed an appeal against the restraint order, which was allowed by the Appellate Court after giving due opportunity of being heard.

Appellate Court referred to Section 2(s) of the Statute, which defined shared household and relied upon the Satish Chandra Ahuja v. Sneha Ahuja, (2021) 1 SCC 414 where the rights of an aggrieved woman as provided under Sections 17 & 19 of the Statute, came to be revisited by the Supreme Court.

Appellate Court had observed that daughter-in-law was not residing at the house in question on the day of presentation of the complaint nor any time soon before. It was added to the observation that she was occupying a staff quarter allotted to her husband and lived in the house in question only for a short duration and occasionally visited parents-in-law, to say only thrice.

What did the appellate court held?

“…that these short durational visits or stay of daughter-in-law at the house of the parents-in- law would not get the house a colour of being a shared house hold.”

Bench in the instant case agreed with the ratio laid down by the Supreme Court decision in Satish Chandra Ahuja v. Sneha Ahuja, (2021) 1 SCC 414, however, the facts were different in the present case in comparison to the Supreme Court decision.

High Court added that the fact remained that petitioner never resided with parents-in-laws and always stayed at the place of posting of her husband and visited them occasionally.

Bench added that the intent and purpose of DV Act was to safeguard the interest of distressed women.

Though it is stated that the provisions of Section 17 of the DV Act stipulate that every woman in a domestic relationship shall have a right to reside in the shared household whether or not she has any right, title or beneficial interest in the same, but in the present case, petitioner had in fact neither permanently nor for a longer period resided in the house of parents-in-law and so, it could not be termed as ‘shared household’. Hence, there was no question of evicting or dispossessing her from there.

Pertinent Question in the present case

Whether the old aged parents-in-law, who at the fag-end of their life, wish to sell off their property to relocate themselves in a better place of their choice, be restrained to sell of the house or permitted to do it?

Supreme Court’s observation in Satish Chandra Ahuja v. Sneha Ahuja, (2021) 1 SCC 414 was referred to, wherein it was stated:

90. Before we close our discussion on Section 2(s), we need to observe that the right to residence under Section 19 is not an indefeasible right of residence in shared household especially when the daughter-in-law is pitted against aged father-in-law and mother-in-law. The senior citizens in the evening of their life are also entitled to live peacefully not haunted by marital discord between their son and daughter-in-law. While granting relief both in application under Section 12 of the 2005 Act or in any civil proceedings, the Court has to balance the rights of both the parties. The directions issued by the High Court [Ambika Jain v. Ram Prakash Sharma, 2019 SCC OnLine Del 11886] in para 56 adequately balance the rights of both the parties.”

Hence, in light of the above observations, Court found that the impugned judgment did not suffer from illegality or infirmity.

Therefore, the present application was accordingly dismissed while making it clear that the observations made by this Court are in the peculiar facts of the present case and shall not be treated as a precedent in any other case. [Vibhuti Wadhwa Sharma v. Krishna Sharma,2021 SCC OnLine Del 2104, decided on 17-05-2021]


Advocates before the Court:

For the petitioner: Jatan Singh, Saurav Joon & Tushar Lamba, Advocates

For the respondents: Roopenshu Pratap Singh, Advocate

Case BriefsHigh Courts

Bombay High Court: The Division Bench of S.S. Shinde and Manish Pitale, JJ., quashed proceedings initiated against the petitioner (daughter) by her mother under the Protection of Women from Domestic Violence Act, 2005.

In the present matter, a daughter sought the quashing of proceedings initiated by her mother under the provisions of the Protection of Women from Domestic Violence Act, 2005 (DV Act) claiming that she was facing the ire of her mother due to matrimonial discord between her mother and father.

Further, she added that she has been unnecessarily dragged into the said proceedings pending before the Magistrate Court which is resulting in a detrimental effect on her career as also her prospects of studying abroad.

Respondent 1, Mother of the petitioner had filed an application against the husband under Sections 12,18, 19, 20 and 22 of the DV Act before the Metropolitan Magistrate. Respondent 1 had raised various grievances seeking protection order, monetary relief, residence order and order for grant of compensation.

Petitioner has plans to go abroad for further studies and for that in the application forms while seeking Visa a declaration was to be given regarding pendency of criminal cases against the applicant. But due to the pendency of said proceeding initiated under the DV Act by her mother are creating hurdles for the petitioner to successfully seek Visa.

In view of the above circumstances, present petition was filed to seek quashing of the said proceedings by her mother, insofar as she was concerned.

Analysis, Law and Decision

The intent of the DV Act is to ensure that a woman who faces abuse at the hands of her husband or a male partner has an avenue to raise her grievance against such person and also any relative of such person. Ordinarily, this would include the relatives on the side of the husband or male partner.

In the present matter, only at place of the application filed by respondent 1 under the DV Act before the Magistrate, allegation was made against the petitioner.

It is only at one place in paragraph (m) of the application that an allegation is made against the Petitioner that on the husband of Respondent No.1 (father of the Petitioner) instigating the Petitioner, she allegedly assaulted the Respondent No.1.

As per the material on record, petitioner continued to live with her father, and this was perhaps a reason why she added the petitioner as a party to the proceedings initiated under the DV Act.

Bench stated that it appeared that a single allegation made against the petitioner was an exaggeration and it had arisen out of anger of respondent 1 against the petitioner, as she continued to reside with her father, i.e. the husband of respondent 1.

“…bitterness in the matrimonial relationship between Respondent No.1 and her husband has spilled over to the children, particularly against the Petitioner”

Respondent 1 developed bitterness and anger, not only against her husband but her daughter.

Bench was surprised to note that petitioner’s own mother was hell-bent upon creating obstructions in her progress. This was evident from the affidavit filed by respondent 1, wherein it was stated that it is not necessary for the petitioner to go abroad for higher education and that the said ground was being raised only as an excuse to avoid legal proceedings initiated by respondent 1.

High Court opined that the said allegation raised against the petitioner was exaggerated and her anger and bitterness arose from the matrimonial discord with her husband leading to serious impediment in the progress of her own daughter.

“…allegations seem to be made in a fit of anger and they could be said to be improbable in the peculiar facts and circumstances of the case.”

Bench referred to the Supreme Court decision in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, with regard to exercising jurisdiction to quash the proceedings.

Following categories of cases by way of illustrations wherein such power could be exercised either to prevent abuse of the process of any court or otherwise are:

“(1)Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

 (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 

(5)Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

Observing the above-stated, and in view of the facts and circumstances of the case, Bench held that the allegations levelled by respondent 1 against the petitioner, borne out of the matrimonial discord with her husband, can be said to be inherently improbable and therefore, they fall in Category-5 laid down in the above-quoted portion of the Supreme Court decision.

High Court held that the present case was fit to exercise jurisdiction to quash the proceedings initiated by respondent 1 under the DV Act, insofar as they pertain to the petitioner. [Vanisha Vincent Rodrigues v. Jyoti Vincent Rodrigues, 2021 SCC OnLine Bom 613, decided on 20-04-2021]

Case BriefsHigh Courts

Tripura High Court: S.G. Chattopadhyay, J., elaborated on the aspect of economic abuse in term of Section 3 of the Protection of Women from Domestic Violence Act, 2005.

Factual Matrix

Wife had presented an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005, wherein she referred to several incidents of domestic violence against her husband.

Further, she alleged that her husband subjected her to harassment and torture for dowry and since she was unable to meet his demand, she was physically assaulted by her husband on various dates. Gradually he developed an extramarital affair. When the wife raised a protest against his conduct he assaulted her.

Trial Court found the wife to be entitled to a protection order, residence order and monetary relief, respondents were directed to make payment of Rs 2000/- per month as rent for accommodation to the aggrieved and further payment of Rs 15,000/- per month as monetary relief in the form of maintenance.

Additional Sessions Judge also partly allowed the appeal of the husband, his mother, brother and sister, by which the husband was solely proved to have committed domestic violence upon his wife and others were discharged from the liabilities.

In the present revision petition, husband has challenged the impugned judgment of the Additional Sessions Judge.

Core Issue agitated by the husband’s counsel:

Relief under the DV Act had been provided to the wife in absence of any proof of domestic violence.

Under Section 12 of the DV Act only the aggrieved person or a protection officer appointed under the DV Act or any other person on behalf the aggrieved person may present an application to the magistrate seeking one or more reliefs under this Act.

Allegation of domestic violence is a sine qua non for pursuing a petition under the DV Act.

Further, Court observed that under Section 3 of the DV Act which defines domestic violence, ‘economic abuse’ is a form of domestic violence.

Section 3 relates to ‘economic abuse’ which includes deprivation of all or any economic financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise.

Bench held that in the present matter, wife is obviously legally entitled to maintenance allowance from her husband who is a government employee since she made a good case of justifying why she was living separately.

Denial of maintenance to wife would definitely cause ‘economic abuse’ within the meaning of Section 3 of the Domestic Violence Act, therefore no infirmity in the impugned judgment was found.

Court directed that the monetary relief shall be paid by the husband by depositing the same in the wife’s savings bank account. The Family Court will determine the mode of payment of the outstanding arrear till 31-01-2021 after issuing notice to the parties and hearing them in person.

If the husband fails to pay the arrear, the same shall be deducted from his salary and paid to the wife.

In view of the above. Petition was dismissed. [Ramendra Kishore Bhattacharjee v. Madhurima Bhattacharjee, 2021 SCC OnLine Tri 79, decided on 10-02-2021]


Advocates for the parties:

For the Appellant: Mr B. Deb, Adv.

For the Respondent: Mr S. Debnath, Addl. PP Mr Raju Datta

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., while addressing the present revision petition expressed that:

“A court in revision considers the material only to satisfy itself about the legality and propriety of the findings, sentence and order and refrains from substituting its own conclusion on an elaborate consideration of the evidence.”

The instant revision petition was filed under Section 397/401 CrPC against the Order passed by Additional Sessions Judge. Further, the petitioner has also challenged the Order passed by Metropolitan Magistrate in an application for claiming interim maintenance under Section 23 of the Domestic Violence Act.

Facts leading to the present revision petition:

After marriage, Respondent/wife was inducted as a whole-time Director in the company run by the petitioner/husband. Later, the respondent-wife started living separately claiming that she was deserted by the petitioner after which she filed an application under Section 23 of the protection of Women from Domestic Violence Act, 2005 for seeking interim maintenance.

Since the respondent was continuing as the Director in the said company of the husband she wasn’t able to take up any other job and was not even getting any salary from the husband’s company which all lead to her not being able to maintain herself.

Initially, she was granted interim maintenance of Rs 1,00,000 but it was rejected by the lower court.

Respondent also approached the Company Law Board for a direction that she should be paid salary during the period she served as the Director of the Company to which the Company Law directed the above-stated company to pay the salary to the respondent.

When the petitioner moved an application under Section 25 of the Domestic Violence Act for the modification in the maintenance order since now the respondent was getting a salary from the Company, the said request was rejected.

Analysis and Decision

Bench opined that the scope of interference in a revision petition is extremely narrow.

Section 397 CrPC gives the High Courts or the Sessions Courts jurisdiction to consider the correctness, legality or propriety of any finding inter se an order and as to the regularity of the proceedings of any inferior court. It is also well settled that while considering the legality, propriety or correctness of a finding or a conclusion, normally the revising court does not dwell at length upon the facts and evidence of the case.

 Court noted that the findings of the Metropolitan Magistrate as upheld by the Sessions Court was that the petitioner was not providing adequate maintenance to the respondent and since the said maintenance was not being paid, petitioner was directed to pay a sum of Rs 1,00,000 towards maintenance.

Further, the Company which was being run by the petitioner did not release her salary. The respondent had to move the Court and fight for getting her legitimate salary.

To the above, Bench stated that even though the company is distinct from the petitioner but the company is being run by the petitioner and it can be assumed that the salary was not being paid to the respondent only at the instance of the petitioner.

While concluding, the Court held that it is open for the petitioner to raise all the contentions in the matrimonial proceedings pending between the husband and wife while deciding the issue of grant of alimony under Section 25 of the Hindu Marriage Act. [Taron Mohan v. State, 2021 SCC OnLine Del 312, decided on 25-01-2021]


Advocates for the parties:

Petitioner: Vishesh Wadhwa, Advocate

Respondents: Hirein Sharma, APP for the State

Joel, Advocate for the respondent 2.

Case BriefsHigh Courts

Delhi High Court: Vibhu Bakhru, J., addressed a matter wherein the question was considered whether an application under Section 125 Criminal Procedure Code, 1973 after having secured interim maintenance by an order passed in proceedings under the Domestic Violence Act is maintainable?

The instant petition impugned Family Court’s order whereby the petitioner’s application for interim maintenance under Section 125 of the Criminal Procedure Code, 1973 was rejected.

The said impugned order by the Family Court indicated that the petitioner’s application was rejected on the ground that the petitioners had been granted interim maintenance of Rs 4,000 per month in proceedings filed under Section 12 of the Domestic Violence Act, 2005. Court held that since the petitioners had been awarded interim maintenance for the same period and no appeal had been preferred against the said interim order, an application under Section 125 CrPC for seeking interim maintenance for the same period was not maintainable.

Family Court also added that it was not open for the petitioners to claim maintenance from two different courts in different proceedings for the same period. And, in the event the petitioners were of the view that the amount of interim maintenance granted was insufficient, the appropriate remedy would be to approach the concerned court for modification or enhancement of the interim maintenance.

Petitioner counsel, Dr Amit George contended that the family court’s reasoning was erroneous.

In view of the above-said position, the question to be considered by the bench is as follows:

Whether it is open for the petitioners to maintain an application under Section 125 CrPC after having secured interim maintenance by an order passed in proceedings under the DV Act?

Bench found merit in petitioner counsel’s contention with regard to the Family Court’s order being erroneous.

The question whether an application for interim maintenance under Section 125 CrPC could be maintained for the same period for which interim maintenance has been awarded under the DV Act, is no longer res integra.

In Delhi High Court’s decision of R.D. v. B.D., 2019 SCC OnLine Del 9526 it was held that an order for interim maintenance granted under the DV Act does not preclude an applicant to claim maintenance for the same period in separate proceedings.

Court observed that although a separate application seeking interim maintenance for the same period is maintainable, the Court would of necessarily bear in mind the interim maintenance awarded in the other proceedings while considering the merits of the application.

The above-stated similar view was expressed in the Judgment of Niharika Yadav v. Manish Kumar Yadav, Crl. Rev. P. 755 of 2018, decided on 18-12-2019.

Therefore, the impugned order was set aside and the matter was remanded to the family court to consider the petitioner’s application for interim maintenance under Section 125 CrPC.[Rani v. Dinesh, Crl. Rev. P. 1091 of 2019 and Crl. M.A 13677 of 2020, decided on 02-12-2020]


Advocates who appeared in the matter:

Petitioners: Dr Amit George, Anmol Acharya, Piyo Hardo Jaimon, Rayadurgam, Bharat, Advocates.

Op EdsOP. ED.

India is truly a strange country of diversity. A popular cliché remains in our society that only among the Muslim community polygamous marriage exists. One ignores the fact that before enactment of the Hindu Marriage Act, 1955[1]; there used to exist polygamy among the Hindu community. Section 17 of the said Act provides that Sections 494 and 495[2] of the Penal Code, 1860 shall be attracted if any Hindu commits bigamy.

Muslims are allowed by their personal law to marry four times provided that the husband loves the four wives equally. One can assume that it is possible for a Muslim wife to petition for divorce if this condition is not strictly followed. The Parsi Marriage and Divorce Act[3] provides for a similar penal provision in Section 5 of the Act. Section 44 of the Special Marriage Act[4] mentions that bigamous marriage shall attract penalty under Sections 494 and 495 of the Penal Code. However, one cannot find a similar penal provision in the  Christian Marriage Act[5].

Further Section 18 of the  Divorce Act, 1869[6] provides that “Any husband or wife may present a petition in the District Court or the High Court, praying that, his or her marriage may be declared null and void”. Section 19(4) of the said Act provides that such decree of nullity may be made on the ground that former husband or wife of either party was living at the time of marriage and the marriage with such former husband or wife was then in force. Thus it is amply clear that if neither party (husband or wife) sues for decree of nullity of marriage there is a chance of continuing a number of polygamous marriages.

One can argue that law allows absolute liberty to a subject if there is no express prohibition in it. One can cite Article 21 of the Indian Constitution for the justification.

Conclusion

From practical experience one can gather that marrying more than once even if permissible in personal laws, attracts a disability in Government jobs or for standing as a candidate in election of legislative bodies[7]. Even a  modern Muslim country like Turkey discourages polygamous marriage. In Bai Fatima v. Ali Mahomed[8], the defendant wanted to have a second wife, executed a document in favour of the plaintiff, that is, his first wife, contemplating future separation and also payment of maintenance allowance to the plaintiff. After the execution of the document they lived together for some time. And then they separated. The plaintiff brought an action to recover the arrears of maintenance as mentioned in the document. It was held that such an agreement between Mohammadan husband and wife to live separately in future because the husband wanted to marry again was opposed to public policy as mentioned in Section 23 of the Contract Act and thus, void.

The bane of polygamous marriage is having constant discord among the spouses, hindrance of the welfare of the children and further; stretching the economic resources of the family. There is a threat of population explosion due to polygamous marriage. Further, the earlier social backdrop for polygamous marriages in different religions does not exist anymore. Marriage is, one presumes a “secular institution” and thus law can provide reasonable restrictions.

Section 2(f) of the Domestic Violence Act, 2005[9] provides protection to women who are having a relationship in the nature of marriage with the partner. In Indra Sarma v. N.K.V. Sarma [10] the Court laid down that the women in defacto[11]marriage are protected from the abuse of the partner.

Although the Constitution directs for a Uniform Civil Code,  however, it remains as a far cry and distant reality.


* Assistant Professor, Symbiosis Law School, Pune

[1] The Hindu Marriage Act, 1955

[2] Section 494  IPC punishes the offence of marrying again during the lifetime of husband and wife. Section 495  IPC punishes for the same offence with concealment of former marriage from person with whom subsequent marriage is contracted.

[3] The Parsi Marriage and Divorce Act, 1936

[4] Special Marriage Act, 1954

[5] Christian Marriage Act, 1872

[6] Divorce Act, 1869

[7] See Article 25(1) of the Indian Constitution which provides; Subject to public order, morality and health and to the other provisions of this part, all persons are equally entitled to freedom of conscience and the right freely to profess,  practice and propagate religion.

[8] ILR (1912) Bom 280

[9] The Protection of Women from Domestic Violence Act, 2005

[10] (2013) 15 SCC 755

[11] (i) A reference in a written law to a defacto relationship shall be construed as a reference to a relationship(other than legal marriage) between two persons who live together in marriage-like relationship

(ii)The following factors are indicators of whether or not  a de facto relationship exists between two persons but are not essential,

(a) The length of relationship between them,

(b) Whether two persons have resided together,

(c) The nature and extent of common residence,

(d) Whether there is or has been a sexual relationship between them,

(e) The degree of financial dependence and interdependence and arrangements for financial support between them,

(f) The ownership, use and acquisition of their property (including property they own individually),

(g) The degree of mutual commitment by them to a shared life,

(h) Whether they care for and support children,

(i) The reputation and public aspects, of the relation between them.

Case BriefsHigh Courts

Himachal Pradesh High Court: Jyotsna Rewal Dua J., disposed off the petition without any interference with impugned orders.

The facts of the case are such that the petitioner is the legally wedded wife of defendant having solemnized a marriage with him in the year 1994 and has a son out of the wedlock. Due to marital discord, plaintiff started residing with her father since the year 1998 along with the son.  An application for grant of maintenance under Section 12 of the Protection of Women from Domestic Violence Act, 2005 was filed by petitioner before the Court of learned Judicial Magistrate 1st Class, Manali. Apprehending defeat of her maintenance claim by the defendant by selling the suit land an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure (CPC) was filed for restraining the defendant from alienating, transferring and for creating charge over the suit land which stands dismissed by the trial Court. The order was later upheld by the Appellate Court. Aggrieved by the same, instant petition was filed under Article 227 of the Constitution of India.

Counsel for the petitioner relied on the judgment titled  V. Tulasamma v. Sesha Reddy, (1997) 3 SCC 99 and submitted that both the Courts have misdirected themselves in treating the civil suit as one filed by a coparcener i.e the wife to restrain and injunct Karta i.e. the husband from alienating the suit land, whereas the civil suit was a case instituted by the wife for creation of charge over the property of her husband in lieu of maintenance and, therefore, permanent prohibitory injunction for restraining the defendant was sought for.

Counsel for the respondent relied on a judgment titled Sunil Kumar v. Ram Prakash (1998) 2 SCC 77 and submitted that a coparcener has no right to get an injunction against Karta. He further submitted that respondent being Karta has legal right to alienate ancestral property in case of legal necessity and the petitioner has no right to pray for injunction restraining the defendant from alienating the suit land.

Courts observation on maintenance claim of wife vis-à-vis creation of charge over husband’s property

The Court relied on a judgment titled Kannan v. Maragathammal, 2012 SCC Online Mad 2285 and observed

“The Hindu Law Texts and the important commentaries impose a legal personal obligation on a husband to maintain his wife irrespective of his possession of any property, whether joint or self-acquired. They recognise the subordinate interest of the wife in her husband’s property arising out of her married status. They also prohibit the alienation of properties by the husband which has the effect of depriving her and other dependants of their maintenance…”

“…..The decisions of the various High Courts tow the same line, recognise her subordinate interest in her husband’s property and enforce his personal obligation by creating a charge on his properties either self-acquired or ancestral. A wife, therefore is entitled to be maintained out of the profits of her husband’s property and, if so, under the express terms of S.39 she can enforce her right against the properties in the hands of the alienee with notice of her claim. Though the right of the wife to separate maintenance does not form a charge upon her husband’s property, ancestral or self-acquired, yet, when it becomes necessary to enforce or preserve such a right effectively, it can be made a specific charge on a reasonable portion of the property. If the right of maintenance is imperiled or jeopardised by the conduct and dealings of the husband or father with reference to his properties, the Court can create a charge on a suitable portion thereof, securing the payment of maintenance to the wife or children. Such a charge can be created not only over the properties in the hands of the husband or father but also over properties transferred by him either gratuitously or to persons having notice of the right to maintenance.”

 In view of the observations above, the Court held that in the instant case only relief under Order 39, Rules 1 & 2, Code of Civil Procedure is sought and claim for maintenance has been submitted without presenting any Court order for the same. In light of the submission made by the petitioner herself that respondent has right to alienate property only in case of legal necessity, the Court further held that property being an ancestral property petitioner’s ‘son’ has not been made a party. In the said course of things a charge has not been created over the suit land towards maintenance of the plaintiff but the plaintiff i.e. the petitioner has right to take legal recourse in case of alienation of property.

In view of the above, the instant petition is disposed off without any interference in impugned orders.[Kubja Devi v. Chhape Ram,  2020 SCC OnLine HP 1829, decided on 05-10-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsSupreme Court

“The domestic violence in this country is rampant and several women encounter violence in some form or the other or almost every day, however, it is the least reported form of cruel behavior. A woman resigns her fate to the never-ending cycle of enduring violence and discrimination as a daughter, a sister, a wife, a mother, a partner or a single woman in her lifetime.”

Supreme Court: Answering important question pertaining to the interpretation and working of the Protection of Women from Domestic Violence Act, 2005 (DV Act) in relation to right of residence in the shared household, the 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah, JJ has held that

“The living of woman in a household has to refer to a living which has some permanency. Mere fleeting or casual living at different places shall not make a shared household.”

In the judgment running into over 150 pages, the Court elaborately discussed and interpreted the provisions and scheme of DV Act. Overruling the law laid down in SR Batra v. Taruna Batra, (2007) 3 SCC 169, the Court held that respondent in a proceeding under Domestic Violence Act can be any relative of the husband and in event, the shared household belongs to any relative of the husband with whom in a domestic relationship the woman has lived, the conditions mentioned in Section 2(s) are satisfied and the said house will become a shared household.

In SR Batra v. Taruna Batra, (2007) 3 SCC 169, a two judge-bench had held that where it was held that the wife is entitled only to claim a right under Section 17(1) to residence in a shared household and 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.


KEY TAKEAWAYS FROM THE JUDGMENT


WHAT IS A SHARED HOUSEHOLD?

“Means and includes”

The definition of shared household in Section 2(s) of the DV Act is an exhaustive definition. The first part of definition begins with expression “means” which is undoubtedly an exhaustive definition and second part of definition, which begins with word “includes” is explanatory of what was meant by the definition.

The use of both the expressions “means and includes” in Section 2(s) of Act, 2005, thus, clearly indicate the legislative intent that the definition is exhaustive and shall cover only those which fall within the purview of definition and no other.

Conditions to be fulfilled for a shared household

(i) person aggrieved lives or at any stage has lived in a domestic relationship.

(ii) (a) includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent and owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and

(b)includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.

“At any stage has lived”

The use of the expression “at any stage has lived” immediately after words “person aggrieved lives” has been used to protect the women from denying the benefit of right to live in a shared household on the ground that on the date when application is filed, she was excluded from possession of the house or temporarily absent.

The shared household is contemplated to be the household, which is a dwelling place of aggrieved person in present time.

“… shared household referred to in Section 2(s) is the shared household of aggrieved person where she was living at the time when application was filed or in the recent past had been excluded from the use or she is temporarily absent. .”

Further, Section 2(s) read with Sections 17 and 19 of Act, 2005 grants an entitlement in favour of the woman of the right of residence under the shared household irrespective of her having any legal interest in the same or not.

Hence, the words “lives or at any stage has lived in a domestic relationship” have to be given its normal and purposeful meaning. The living of woman in a household has to refer to a living which has some permanency. Mere fleeting or casual living at different places shall not make a shared household. The intention of the parties and the nature of living including the nature of household have to be looked into to find out as to whether the parties intended to treat the premises as shared household or not.

IS RIGHT TO RESIDENCE UNDER SECTION 19 AN INDEFEASIBLE RIGHT?

The right to residence under Section 19 is not an indefeasible right of residence in shared household especially when the daughter-in-law is pitted against aged father-in-law and mother-in-law. The senior citizens in the evening of their life are also entitled to live peacefully not haunted by marital discord between their son and daughter-in-law.

“While granting relief both in application under Section 12 of Act, 2005 or in any civil proceedings, the Court has to balance the rights of both the parties.”

WHO CAN BE A RESPONDENT?

There are two conditions for a person to be treated to be respondent within the meaning of Section 2(q), i.e.,

  • in a domestic relationship with the aggrieved person, and
  • against whom the aggrieved person has sought any relief under Act, 2005.

For the purposes of determination of right of defendant under Sections 17 and 19 read with Section 26 in the suit in question the plaintiff can be treated as “respondent”, but for the grant of any relief to the defendant or for successful resisting the suit of the plaintiff necessary conditions for grant of relief as prescribed under the Act, 2005 has to be pleaded and proved by the defendant, only then the relief can be granted by the Civil Court to the defendant. Hence,

“To treat a person as the “respondent” for purposes of Section 2(q) it has to be proved that person arrayed as respondent has committed an act of domestic violence on the aggrieved person.”

NOTE: The Court in Hiral P. Harsora v. Kusum Narottamdas Harsora, (2016) 10 SCC 165, where the Court has struck down the expression “adult male” from the expression “any adult male person” and held that restricting the meaning of respondent in Section 2(q) to only “adult male person” is not based on any intelligible differentia having rational nexus with object sought to be achieved. Hence, it is now permissible under definition of Section 2(q) to include females also. [Read the full report on the 2016 verdict here]

IS THERE ANY EXCEPTION TO THE RIGHT TO RESIDE IN SHARED HOUSEHOLD?

The expression “save in accordance with the procedure established by law”, in Section 17(2) of the Act, 2005 contemplates the proceedings in court of competent jurisdiction. Thus, the provision itself contemplates adopting of any procedure established by law by the respondent for eviction or exclusion of the aggrieved person from the shared household.

“In appropriate case, the competent court can decide the claim in a properly instituted suit by the owner as to whether the women need to be excluded or evicted from the shared household.”

For example, when the aggrieved person is provided same level of alternate accommodation or payment of rent as contemplated by Section 19 sub-section (f) itself.

Further, the embargo under Section 17(2) of Act, 2005 of not to be evicted or excluded save in accordance with the procedure established by law operates only against the “respondent”, i.e., one who is respondent within the meaning of Section 2(q) of Act, 2005.

CAN AN ORDER UNDER SECTION 19(1)(b) BE PASSED AGAINST A WOMAN?

Section 19 (1)(b) of DV Act provides that while disposing of an application under sub‑section (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order directing the respondent to remove himself from the shared household.

The Court held that while passing the order of residence under Section 19, more particularly under sub-section 19(1)(b) as per the proviso to Section 19(1), no order under clause(b) shall be passed against any person who is a woman.

ARE PROCEEDINGS UNDER THE DV ACT AND PROCEEDINGS BEFORE A CIVIL COURT, FAMILY COURT OR A CRIMINAL COURT, AS MENTIONED IN SECTION 26 OF THE DV ACT INDEPENDENT PROCEEDINGS?

The proceedings under the D.V. Act and proceedings before a civil court, family court or a criminal court, as mentioned in Section 26 of the D.V. Act are independent proceedings, like the proceedings under Section 125 of the Cr. P.C. for maintenance before the Magistrate and/or family court and the proceedings for maintenance before a civil court/family court for the reliefs under the Hindu Adoption and Maintenance Act. However, the findings/orders passed by the one forum has to be considered by another forum.

CONCLUSION

  • The pendency of proceedings under Act, 2005 or any order interim or final passed under D.V. Act under Section 19 regarding right of residence is not an embargo for initiating or continuing any civil proceedings, which relate to the subject matter of order interim or final passed in proceedings under D.V. Act, 2005.
  • The judgment or order of criminal court granting an interim or final relief under Section 19 of D.V. Act, 2005 are relevant within the meaning of Section 43 of the Evidence Act and can be referred to and looked into by the civil court.
  • A civil court is to determine the issues in civil proceedings on the basis of evidence, which has been led by the parties before the civil court.

[Satish Chander Ahuja v. Sneha Ahuja, 2020 SCC OnLine SC 841, decided on 15.10.2020]

Case BriefsHigh Courts

Madras High Court: A Division Bench of M. Sathyanarayanan and P. Rajamanickam, JJ., addressed an appeal with regard to seeking interim maintenance when permanent maintenance was already granted.

Petitioners have filed the present appeal challenging the Family Court’s Order.

Husband sought divorce against the first appellant(wife) on the ground of cruelty.

During the pendency of the above petition, appellants filed an application under Section 7(1) of the Family Courts Act read with Section 25 of the Hindu Marriage Act, 1955 and Sections 20 and 26 of the Protection of Women from Domestic Violence Act, 2005 to direct the husband to pay a sum of Rs 10,000 to appellant 1 and Rs 5,000 to appellant 2 towards monthly maintenance.

Another application under Section 24 of the Hindu Marriage Act, 1055 read with Sections 20 and 26 of the Protection of Women from Domestic Violence Act, 2005 to direct the respondent to pay a sum of Rs 7,500 to appellant 1 and Rs 5, 000, was also filed.

Counsel for the appellants, M.P. Senthil and Counsel S. Jeyavel, for the respondent.

Issues to be considered:

  • Whether the petitioners are precluded from seeking interim maintenance by invoking the provisions of Section 24 of the Hindu Marriage Act r/w Sections 20 and 26 of the Protection of Women from Domestic Violence Act on the ground that they already got an order for payment of maintenance in D.V proceedings?

Analysis & Decision

Bench referred to Section 25 of the Hindu Marriage Act, 1955, which is in regard to the permanent Alimony and Maintenance.

Section 25(1) of HMA empowers the Court, while passing any decree to consider the status of the parties and whether any arrangement needs to be made in favour of the wife or the husband and by way of permanent alimony, an order granting maintenance can also be passed by the Court.

“…at any time, subsequent to the passing of decree also, the Court can order for granting maintenance on application made to it by either wife or the husband.”

Bench noted that the appellants cannot ask for interim relief, when permanent relief has already been granted to them.

In view of the above, court relied on the decision of Rakesh Malhotra v. Krishna Malhotra, 2020 SCC OnLine SC 239 wherein the following was dealt with:

After grant of permanent alimony under Section 25 of the 1955 Act, prayer made by wife before Magistrate under Section 125 of Code for maintenance over and above what has been granted by Court under Section 25 of Act. Impugned order allowing prayer was set aside with direction that application preferred under Section 125 of Code shall be treated and considered as one preferred under Section 25(2) of Act.

What the appellants should have done in the present matter?

Since, the appellants had already received maintenance in the DV proceedings under Section 20 of the DV Act which is permanent in nature, yet if due to a change in the circumstances the said order required modification or alteration, they can approach the same Court seeking the relief by invoking Section 25(2) of the DV Act or the Family Court can also be approached to exercise the power under Section 25(1) of the HMA.

But the resort of filing another application before another forum that too in the nature of interim relief should not be adopted.

Section 26 of the DV Act shows that the aggrieved person may seek any relief under Sections 18 to 22 of DV Act in any legal proceedings before a Civil Court/Family Court or Criminal Court as additional reliefs.

In the present case, the petitioner had already received an order in the petition properly filed under Section 12 of the DV Act before the Additional Mahila Court, Tiruchirappalli and that being so, they were not entitled to file a petition before the Family Court by invoking the provision under Section 26(1) of the DV Act, seeking interim relief.

Therefore, in the High Court’s opinion, the  Family Court Judge had rightly dismissed the application. [Gomathi v. Sacraties,  2020 SCC OnLine Mad 2754, decided on 15-09-2020]

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

Delhi High Court: J.R. Midha, J. laid modified directions and affidavit of assets, income and expenditure to be filed by both the parties at the very threshold of a matrimonial litigation. The Court has modified the directions and the format of affidavit already issued in earlier judgments of the Delhi High Court.

These modified directions/guidelines shall apply to all matrimonial cases including cases under Hindu Marriage Act, 1955; Protection of Women from Domestic Violence Act, 2005; Section 125 CrPC; Hindu Adoption and Maintenance Act, 1956; Special Marriage Act, 1954; Indian Divorce Act, 1869; Guardians and Wards Act, 1890 and Hindu Minority and Guardianship Act, 1956.

Earlier directions and affidavit

The directions to be followed while dealing with matrimonial cases were first issued in Kusum Sharma (1) v. Mahinder Kumar Sharma, 2014 SCC OnLine Del 7672. Further, in exercise of the powers under Section 10(3) of the Family Courts Act, 1984 read with Sections 106 and 165 of the Evidence Act and Article 227 of the Constitution of India, the format of affidavit of assets, income and expenditure was formulated by the Court in Kusum Sharma (2) v. Mahinder Kumar Sharma, 2015 SCC OnLine Del 6793 and the directions were modified. By its judgment in Kusum Sharma (3) v. Mahinder Kumar Sharma, 2017 SCC OnLine Del 11796, the Court modified the affidavit formulated in Kusum Sharma (2). Finally, in Kusum Sharma (4) v. Mahinder Kumar Sharma, 2017 SCC OnLine Del 12534, the directions and the affidavit were further modified. The modified directions in Kusum Sharma (4) have been in effect since 1st January 2018.

Need for modification

The High Court has now modified the earlier affidavit in Kusum Sharma (4) to make it more comprehensive. In the earlier judgments, the High Court considered International Best Practices including 10 affidavits of assets, income and expenditure used in 5 countries. 50 more formats of affidavits of assets, income and expenditure of various countries namely USA, UK, Ireland, Singapore, Canada, Australia and South Africa had now come to the notice of the Court. Thus, the Court was of the view that its judgment in Kusum Sharma (4) warrants modification.

The Bhandari Engineers case connection

In Bhandari Engineers & Builders( P) Ltd. (1) v. Maharia Raj Joint Venture (Ex. P. 275 of 2012, dt. 5-12-2019), the Delhi High Court had formulated an affidavit of assets, income and expenditure to be filed by the judgment-debtor in execution cases. By its decision in Bhandari Engineers & Builders( P) Ltd. (2) v. Maharia Raj Joint Venture (Ex. P. 275 of 2012, dt. 5-8-2020), the Court modified and improved the format of the affidavit to make it more comprehensive and further directions were passed so that the execution cases are decided within a period of 1 year from the date of their institution. In the Court’s opinion, the affidavits formulated in Bhandari Engineers (2) are far more comprehensive than the affidavit formulated by the Court for matrimonial cases. Therefore, the Court considered it appropriate to incorporate the benevolent features of Bhandari Engineers (2) in the format of the affidavits of assets, income and expenditure in matrimonial cases.

Affidavit of Assets, Income and Expenditure in matrimonial cases

The modified affidavit of assets, income and expenditure (“Annexure A2” in the present Judgment) is very comprehensive and is useful to determine the maintenance in matrimonial litigation.

Salaried person

A salaried person is required to disclose the particulars of his employment including salary, DA, commissions, incentives, bonus, perks, perquisites, other benefits, Income tax, etc.

Self-employed person

A self-employed person is required to disclose the nature of business/profession, share in the business, net worth of the business, number of employees, annual turnover/gross receipts, gross profit, Income Tax, net income and regular monthly withdrawal/drawings from the business.

Income from other sources

The parties are further required to disclose income from other sources, namely, agricultural income, rent, interest on bank deposits and other investments, dividends, mutual funds, annuities, profit on sale of movable/immovable assets, etc.

Assets

With respect to the assets, the parties are required to disclose the particulars of the immovable properties, financial assets including bank accounts, DEMAT accounts, safety deposit lockers; investments including FDRs, stocks, shares, insurance policies, loans, foreign investments; movable assets including motor vehicles, mobiles, computer, laptop, electronic gadgets, gold, silver and diamond jewellery, etc.; intangible assets; garnishee(s)/trade receivables; corporate/business interests; disposal and parting away of properties; properties acquired by the family members, inheritance.

Standard of living and lifestyle

The affidavit requires the parties to disclose their standard of living and lifestyle, namely, credit/debit cards, membership of clubs and other associations, loyalty programmes, social media accounts, domestic helps and their wages, mode of travel in city and outside city, category of hotels, category of hospitals for medical treatment, frequency of foreign travel, frequent flyer cards, brand of mobile, wrist watch, pen, expenditure ordinarily incurred on family functions, festivals and marriage of family members, etc.

Household expenditure, etc.

The affidavit further requires the disclosure of expenditure on housing, household expenditure, maintenance of dependents, transport, medical expenditure, insurance, entertainment, holiday and vacations, litigation expenses, discharge of liabilities, etc.

 Modified Directions

The modified directions laid down by the Court in the present decision in Kusum Sharma (5) are delineated below:

(1) The Court has to ascertain the financial capacity/status of the parties for determining the maintenance and permanent alimony. A comprehensive affidavit of assets, income and expenditure of both the parties is necessary to determine their financial capacity/status.

 (2) Upon completion of the pleadings in the maintenance application, the Court shall fix the date for reconciliation and direct the parties to simultaneously file the affidavits of their assets, income and expenditure. The Court shall also direct the party seeking maintenance to produce the passbook of his/her savings bank account in which maintenance can be directly deposited/transferred by the opposite party.

(3) The Court shall simultaneously take on record the affidavit of assets, income and expenditure of both the parties. The simultaneous filing of the affidavit by the parties is very important and should be strictly adhered to. The simultaneous filing of the affidavit by the parties would avoid any undue advantage to the party who files his/her affidavit later. It is clarified that the affidavit of assets, income and expenditure is not to be filed along with the petition/application or written statement/reply.

(4) If a party is carrying on the business as proprietor of proprietorship concern/partner of a partnership concern/director of a company/member of a HUF/trustee of a trust/ member of a society or in any other form/entity, the Court may consider directing the party to file an additional affidavit with respect to the assets of the proprietorship concern/partnership concern/ company/society/HUF/Trust, as the case may be, in the format of Annexure B1 attached to Bhandari Engineers (2).

(5) In pending maintenance cases, if the parties have not already filed the affidavit of their assets, income and expenditure, the Court shall direct the parties to file their affidavit in the format of Annexure A2.

(6) If the reconciliation fails, the Court shall grant an opportunity to the parties to respond to the affidavit of the opposite party and list the maintenance application for hearing.

(7) The Courts shall ensure that the filing of the affidavits by the parties is not reduced to a mere ritual or formality. If the affidavit of the party is not in the prescribed format or is not accompanied with all the relevant documents, the Court may take the affidavit on record and grant reasonable time to the party to remove the defects/deficiencies.

(8) In appropriate cases, the Court may direct a party to file an additional affidavit relating to his assets, income and expenditure at the time of marriage and/or one year before separation and/or at the time of separation.

(9) If the party does not truly disclose all his assets and income, the opposite party is at liberty to serve the interrogatories under Order 11 CPC and/or seek production of relevant documents from the party filing the affidavit.

(10) In appropriate cases, Court may order interrogatories, discovery, inspection, production of any document and/or order any fact to be proved by affidavit under Section 30 CPC.

(11) The Court shall, thereafter, consider whether the oral examination of the party is necessary under Section 165 of the Evidence Act. If so, the Court shall proceed to examine the party to elicit the truth. The principles relating to the scope and powers of the Court under Section 165 of the Evidence Act have been summarised in Ved Parkash Kharbanda v. Vimal Bindal, 2013 SCC OnLine Del 994, which may be referred to.

(12) If the admitted income of the parties is on record, such as, in the case of a salaried employee whose salary slip is on record, the Court may fix ad-interim maintenance on the basis of the admitted documents pending filing of the affidavit of the assets, income and expenditure by both the parties. The Court may record the statement of the parties, if considered necessary for fixing the ad-interim maintenance.

(13) If any party delays in filing of the affidavit of assets, income and expenditure or the affidavit filed by a party is not in terms of these directions or a party delays the disclosure of further information/documents and the delay is causing hardship, the Court is at liberty to fix ad-interim maintenance after hearing the parties.

(14) If the statements made in affidavit of assets, income and expenditure are found to be incorrect, the Court shall consider its effect by drawing an adverse inference or imposing additional cost, while fixing the maintenance. However, an action under Section 340 CrPC is ordinarily not warranted in matrimonial litigation till the decision of the main petition unless the Court, for the reasons to be recorded, considers it expedient in the interest of justice, to deal with it earlier.

(15) At the time of issuing notice on the petition for dissolution of marriage, the Court shall consider directing the petitioner to deposit such sum, as the Court may consider appropriate for payment to the respondent towards interim litigation/part litigation expenses; except in cases, such as, divorce petition by the wife who is unable to support herself and is claiming maintenance from the respondent husband.

(16) The interim litigation expenses directed by the Court at the stage of issuing notice, does not preclude the respondent from seeking further litigation expenses incurred by the respondent at a later stage. The Court shall consider the respondent‘s claim for litigation expenses and pass an appropriate order on the merits of each case.

(17) At the time of passing a decree of divorce, the Court shall bring to the notice of the party concerned, as the case may be, that he/she can claim permanent alimony without prejudice to his/her right to challenge the decree of divorce and if the party seeks permanent alimony, at that stage, for which an oral prayer/application is sufficient, the Court shall fix the permanent alimony on the basis of the affidavits of assets, income and expenditure, after hearing both the parties. However, if the affidavits have not been filed at the stage of fixing the permanent alimony, the Court shall direct the parties to file the same before fixing the permanent alimony.

(18) In Bhandari Engineers & Builders( P) Ltd. (2) v. Maharia Raj Joint Venture (Ex. P. 275 of 2012, dt. 5-8-2020) the Delhi High Court has laid down comprehensive guidelines and has formulated affidavit of assets, income and expenditure to be filed by the judgment-debtor in execution proceedings, which may be considered in execution cases of the maintenance order apart from following the specific statutory provisions such as Sections 125 to 127 CrPC.

(19) The affidavit of assets, income and expenditure is to be treated as guidelines to determine the true financial capacity/status of the parties. The Courts are at liberty to determine the nature and extent of information/documents necessary and to direct the parties to disclose relevant information and documents to determine their financial capacity/status. The Courts are at liberty to pass appropriate directions as may be considered necessary to do complete justice between the parties and in appropriate cases, such as, the cases belonging to the lowest strata of the society or case of a litigant who is a permanently disabled/paralytic, the Court may, for reasons to be recorded, dispense with the requirement of filing of the affidavit or modify the information required.

(20) These modified directions/guidelines shall apply to all matrimonial cases including cases under Hindu Marriage Act, 1955; Protection of Women from Domestic Violence Act, 2005; Section 125 CrPC; Hindu Adoption and Maintenance Act, 1956; Special Marriage Act, 1954; Indian Divorce Act, 1869; Guardians and Wards Act, 1890 and Hindu Minority and Guardianship Act, 1956.

(21) Matrimonial jurisdiction deserves a special attention and the maintenance applications should be decided expeditiously.

(22) The Courts below shall expedite the maintenance proceedings and shall make an endeavour to decide them within the prescribed time. The Family Courts shall send the list of all pending maintenance cases which are more than one year old, through the Principal Judge, Family Court. The list shall contain the name of the case; date of institution; number of hearings that have taken place; and the reasons for such delay. List be prepared according to the seniority, i.e. the oldest case shall be mentioned first. The Principal Judge, Family Court shall compile the lists of all Family Courts and shall send them to the Registrar General of the Delhi High Court by 31st December 2020 for being placed before the High Court.

Ancillary directions and suggestions

(a) The amici curiae submitted that the matter be kept pending for seeking feedback/comments of the Family Courts after implementation of the modified directions/guidelines. The matter is to be listed on 18th December 2020.

(b) The Court was of the view that the mandatory filing of the affidavit of assets, income and expenditure by the parties in a detailed prescribed form should be incorporated in the statutes, as in the developed countries. The Court was of the view that this suggestion be considered by the Central Government. Copy of the present judgment along with Annexure A2 is directed to be sent to Chetan Sharma, ASG, for taking up the matter with Ministry of Law and Justice.

(c) The modified directions and format of affidavit of assets, income and expenditure (Annexure A2) is directed to be uploaded on the website of the District Court (in .pdf format) to enable the lawyers/litigants to download the same.

(d) Copy of the present judgment and modified format of the affidavit of assets, income and expenditure (Annexure A2) is directed to be sent to the Registrar General of this Court who shall circulate it to the District Judge (Headquarters) and Principal Judge, Family Courts (Headquarters) for being circulated to all the concerned courts.

(e) Copy of the judgment along with the modified format of the affidavit of assets, income and expenditure (Annexures A2) is directed to be sent to the Delhi Judicial Academy to sensitise the judges about the modified directions laid down by the High Court.

(f) National Judicial Academy is reporting the best practices of the High Courts on their website (www.nja.nic.in) under the head of Practices & Initiatives of various High Courts. Copy of the present judgment along with Annexure A2 is directed to be sent to National Judicial Academy.

Note of appreciation

The Court appreciated the assistance rendered by Sunil Mittal, Senior Advocate and Anu Narula, Advocate as amici curiae. The Court also appreciated the extensive research on corresponding law in other countries by Akshay Chowdhary, Law Researcher, attached to the Delhi High Court. [Kusum Sharma (5) v. Mahinder Kumar Sharma, 2020 SCC OnLine Del 931, decided on 6-8-2020]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J. allowed a criminal revision petition filed by the petitioner-wife against the order of the Appellate Court whereby her appeal against the trial court order rejecting the application for grant of interim maintenance was dismissed.

The petitioner had filed an application under Protection of Women from Domestic Violence Act, 2005 and along with it filed another application under Section 23 seeking interim maintenance. The application was rejected by the trial court on the sole ground that the petitioner and the respondent-husband were equally qualified. That she was previously employed and had not disclosed any cogent explanation so as to disable her to earn her living. The appeal filed by the petitioner against this order was dismissed by the Appellate Court. Aggrieved thereby, the petitioner filed the present revision.

Arvind Kumar with Vaibhav Kumar, Advocates represented the petitioner. Per contra, Sofia Bhambri, Advocate appeared for the respondent.

The High Court was of the view that both the courts below erred in not appreciating the decisions wherein it had been specifically held: “capacity to earn and actually earning are two different things.” Reference was made to the recent decisions in Kanupriya Sharma v. State, 2019 SCC OnLine Del 8816 and Bisht v. Dharmender Singh Bisht, 2019 SCC OnLine Del 8775.

In the present case, the Court noted that it was not the case of the respondent that petitioner was actually employed or earning. The only ground taken was that she is qualified and capable of earning. Reliance was placed on the Supreme Court decision in Shailja v. Khobbanna, (2018) 12 SCC 199, wherein it was held that whether the wife is capable of earning or whether she is actually earning two different things. The High Court observed: “Qualification of the wife and the capacity to earn cannot be a ground to deny interim maintenance to a wife who is dependent and does not have any source of income.”

In such view of the matter, it was held that the impugned orders of the trial court as well as the Appellate court could not be sustained and were, therefore, set aside. Accordingly, the petition was allowed and the matter was remitted to the trial court with a direction to pass appropriate order assessing interim maintenance after taking into consideration the income of the respondent as well as his dependant family members within 3 months.[Binita Dass v. Uttam Kumar, 2019 SCC OnLine Del 9666, decided on 09-08-2019]

Case BriefsHigh Courts

Bombay High Court: M.G. Giratkar, J. refused to interfere with an order of the Judicial Magistrate as confirmed by the Sessions Judge, whereby the application filed by the applicant under Section 12 and 18 of the Protection of Women from Domestic Violence Act, 2005 was dismissed.

The applicant married to the respondent in 1999, However, a decree of divorce under Section 13 of the Hindu Marriage Act, 1955 had been passed by the family court in 2008 at the instance of the husband. The application under the DV Act was filed by the applicant in 2009, i.e., subsequent to the grant of divorce. The respondent resisted the application on the ground that there was no “domestic relationship” between them and therefore any application under DV Act was not maintainable. The application was rejected by the Judicial Magistrate as well as the Sessions Judge. Aggrieved thereby, the applicant filed the present revision application.

Amruta A. Ghonge, Advocate led arguments for the applicant. Per contra, R.N. Sen, Advocate appearing for the respondent, resisted the application.

After perusing a conspectus of decisions of the Supreme Court as well as High Courts, the Court came to the conclusion that no relief could be granted to the applicant. It was observed: “In the present case, divorce was granted by the family Court vide order dated 30-06- 2008. Application under the DV Act was filed in the year 2009. At the time of filing of application under the DV Act, the applicant was not the wife. There was no domestic relationship between them. Hence, orders passed by the learned JMFC, Nagpur and maintained by Additional Sessions Judge, Nagpur in Criminal Appeal No. 235 of 2015 are perfectly legal and correct.” In such view of the matter, the revision application was dismissed. [Sadhana v. Hemant, 2019 SCC OnLine Bom 659, decided on 18-04-2019]

Case BriefsHigh Courts

Delhi High Court: Sunil Gaur, J. allowed a petition filed by petitioner (wife) for striking off respondent’s (husband) defence in proceedings pending under the Protection of Women from Domestic Violence Act, 2005.

Earlier, the trial court vide its order dated 2-3-2017 had dismissed the wife’s application for striking off husband’s defence observing that non-payment of maintenance/arrears of maintenance cannot be a ground to do so. Aggrieved thereby, the wife preferred the present petition.

Jatin Sehgal, Adhirath Singh and Raymon Singh, Advocates appeared for the wife. On the other hand, the husband was represented by Laksh Khanna, Advocate who supported the trial court’s order.

The High Court noted that the respondent was in arrears of Rs 9,00,000 towards payment of maintenance to the wife. Furthermore, the Appellate Court vide its order dated 14-7-2017 evolved an equitable solution whereby husband’s employer was to deduct Rs 50,000 from his salary every month and pay that sum directly to the wife. Out of this, Rs 25,000 was to be the current monthly maintenance amount, and remaining Rs 25,000 were to be adjusted against the arrears. However, this order was not complied with by the husband.

In view of such facts and circumstances, the Court found that the husband’s failure to clear arrears of maintenance in terms of the Appellate Court’s order justified striking off his defence. Consequently, the wife’s application was allowed. [Swati Kaushik v. Ashwani Sharma, 2019 SCC OnLine Del 7133, dated 11-2-2019]

Case BriefsHigh Courts

Delhi High Court: The Bench of R.K. Gauba, J. dismissed a husband’s petition filed against the order of Metropolitan Magistrate as confirmed by Additional Sessions Judge whereby he was directed to pay interim maintenance allowance of Rs 3500 to his wife and Rs 2000 for his minor daughter.

The parties were married to each other and a daughter was born to them from the wedlock. On account of certain circumstances, the wife left the matrimonial home along with the daughter. Subsequently, she filed a petition under Section 12 of the Protection of Women and Domestic Violence Act, 2005. On her application, the Metropolitan Magistrate directed the husband to pay the interim maintenance allowance as mentioned above. The husband challenged the order in an appeal which was dismissed by Additional Sessions Judge, Aggrieved thereby, he filed the present petition under Section 482 CrPC.

S.C. Singhal, Advocate for the husband submitted that he was unemployed and therefore unable to pay the allowance. It was also submitted that the wife was gainfully employed in a beauty parlour for the proof of which certain photographs were produced.

The High Court held that mere photographs showing the wife’s presence in a parlour were not sufficient to prove that she had a regular income sufficient to maintain herself and the minor daughter, Furthermore, the husband made a cursory statement that he was unemployed, but did not disclose as to how he had been surviving all along. The Court was of the view that he was concealing facts and intentionally withholding information about his income. In such a situation, the Court approved the course adopted by Metropolitan Magistrate as per which he assumed husband’s income notionally on the basis of minimum wages and passed the order of interim maintenance. Resultantly the petition was dismissed. [Khem Chand v. Bhagwati, 2019 SCC OnLine Del 6776, Order dated 22-01-2019]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of R.K. Gauba, J. dismissed a petition filed by the petitioner-wife for a right to possession in the house owned by her father-in-law.

The wife had filed a suit under Section 12 of the Protection of Women from Domestic Violence Act, 2005 impleading her husband and father-in-law. Concededly, the wife lived with her son in a portion of the house which was owned by the father-in-law. The wife submitted that she was allowed to live in the said house under a family arrangement. She claimed a right to possession in the shared household under the Act. The question that arose for consideration was whether the property in question or any portion thereof could be described under the facts and circumstances as a shared household?

The High Court perused Section 2(s) of the Act which describes a shared household. It was conceded at the bar that right of residence under the above mentioned special legislation can be claimed and pressed only against the husband and not against the father-in-law. It was observed as inherent in definition of shared household that the person against whom the right of residence is claimed qua the household described as such, should have a right, title or interest therein. In the facts of the present case, it was held that the wife has no such right of residence, as her claim which was through her husband could not be sustained. The partition suit filed by the husband against his father as also the claim brought through her son had already been rejected by the civil court which had attained finality. It was held that the petitioner was only a permissive user of the house and as such could not force herself on the owner of the property, particularly when she had no vested or legal right to claim residence in his property. For reaching the said conclusion, the Court relied on the Supreme Court decision in S.R. Batra v. Taruna Batra, (2007) 3 SCC 169. The petition was accordingly dismissed. [Manju Gupta v. Pankaj Gupta,2018 SCC OnLine Del 11337, Order dated 30-08-2018]