Case BriefsSupreme Court

Supreme Court: In a case relating to maternity leave benefit to a woman not fitting in the popular imagination of a family, the bench of Dr DY Chandrachud* and AS Bopanna, JJ has observed that “familial relationships may take the form of domestic, unmarried partnerships or queer relationships.”

The Court was of the opinion that the predominant understanding of the concept of a “family” both in the law and in society is that it consists of a single, unchanging unit with a mother and a father (who remain constant over time) and their children, ignores the fact that many circumstances lead to a change in one’s familial structure, and that many families do not conform to this expectation to begin with.

“A household may be a single parent household for any number of reasons, including the death of a spouse, separation, or divorce. Similarly, the guardians and caretakers (who traditionally occupy the roles of the “mother” and the “father”) of children may change with remarriage, adoption, or fostering. These manifestations of love and of families may not be typical but they are as real as their traditional counterparts. Such atypical manifestations of the family unit are equally deserving not only of protection under law but also of the benefits available under social welfare legislation. The black letter of the law must not be relied upon to disadvantage families which are different from traditional ones. The same undoubtedly holds true for women who take on the role of motherhood in ways that may not find a place in the popular imagination.”

Background

The Court was hearing the case where the maternity leave request of a woman, working as Nursing Officer in the Post Graduate Institute of Medical Education and Research Chandigarh, was rejected on the ground that she had two surviving children born from the first marriage of her spouse and had availed of child care leave earlier for one of them, and hence, her first biological child was her third child. The first wife of the appellant’s husband had died, with whom he had two children.

The maternity leave for the child borne by her, considered as her third child, was found to be inadmissible in terms in terms of Rule 43 of the Central Civil Services (Leave) Rules 1972. Hence, her leave was cumulatively treated as earned leave, medical leave, half pay leave, and extraordinary leave. This decision was upheld by the Punjab and Haryana High Court.

Analysis

The Supreme Court, however, noticed that, in the case at hand, the structure of the appellant’s family changed when she took on a parental role with respect to her spouse’s biological children from his previous marriage. When the appellant applied to PGIMER for maternity leave, PGIMER was faced with facts that the law may not have envisaged or adequately accounted for. When courts are confronted with such situations, they would do well to attempt to give effect to the purpose of the law in question rather than to prevent its application.

It was, hence, observed that unless a purposive interpretation were to be adopted in the present case, the object and intent of the grant of maternity leave would simply be defeated. It was explained that the grant of maternity leave under Rules of 1972 is intended to facilitate the continuance of women in the workplace. It is a harsh reality that but for such provisions, many women would be compelled by social circumstances to give up work on the birth of a child, if they are not granted leave and other facilitative measures.

“No employer can perceive child birth as detracting from the purpose of employment. Child birth has to be construed in the context of employment as a natural incident of life and hence, the provisions for maternity leave must be construed in that perspective.”

On the issue of grant of leave for child care, the Court held that Rule 43(1) of the Rules of 1972 contemplates the grant of maternity leave for a period of 180 days. Independent of the grant of maternity leave, a woman is also entitled to the grant of child care leave for taking care of her two eldest surviving children whether for rearing or for looking after any of their needs, such as education, sickness and the like. Child care leave under Rule 43-C can be availed of not only at the point when the child is born but at any subsequent period as is evident from the illustrative causes which are adverted to in the provisions. Both constitute distinct entitlements.

The Court made amply clear that the fact that the appellant’s spouse had two biological children from his first marriage would not impinge upon the entitlement of the appellant to avail maternity leave for her sole biological child. The fact that she was granted child care leave in respect of the two biological children born to her spouse from an earlier marriage may be a matter on which a compassionate view was taken by the authorities at the relevant time.

The Court went on to show concern over the fact that gendered roles assigned to women and societal expectations mean that women are always pressed upon to take a disproportionate burden of childcare work. According to a ‘time-use’ survey conducted by the Organisation for Economic Co-operation and Development (OECD), women in India currently spend upto 352 minutes per day on unpaid work, 577% more than the time spent by men. Time spent in unpaid work includes childcare. In this context, the support of care work through benefits such as maternity leave, paternity leave, or child care leave (availed by both parents) by the state and other employers is essential. Although certain provisions of the Rules of 1972 have enabled women to enter the paid workforce, women continue to bear the primary responsibility for childcare. Hence, the grant of child care leave to the appellant cannot be used to disentitle her to maternity leave under Rule 43 of the Rules of 1972.

The Court, hence, held that the appellant was entitled to the grant of maternity leave and directed that the benefits to her shall be released to her within a period of two months from the date of the order.

[Deepika Singh v. Central Administrative Services, 2022 SCC OnLine SC 1088, decided on 16.08.2022]


*Judgment by: Justice DR DY Chandrachud


For appellant: Advocate Akshay Verma

For Respondents: Advocate Sudarshan Rajan

Case BriefsSupreme Court

Supreme Court: In a very important ruling, the bench of Dinesh Maheshwari and Krishna Murari*, JJ has held that the mother, who is the only natural/legal guardian of the child after the death of the biological father can decide the surname of the child. She can even give him the surname of her second husband whom she remarries after the death of her first husband and can she give the child for adoption to her husband.

The Court was deciding the dispute between the mother and the parents of the deceased father of the child (grandparents) over the surname given to the child.

The biological parents of the child got married on 18.12.2003. A Child was born out of the wedlock on 27.03.2006. However, unfortunately, the father died on 14.06.2006, when the child in the case was merely 2 ½ months old. After a little over an year, the mother married a Wing Commander in IAF. Out of this wedlock, the couple had a child and they live together. Presently, the child is still a minor aged 16 years and 4 months.

The grandparents sought to become the legal guardian of the child when he was 2 years old. The Trial Court, however, held that it would not be appropriate to separate the child from the love and affection of his mother. The grandparents did get visitations rights. This order was challenged before the High Court of Andhra Pradesh.

The mother, in the meantime, changed the child’s surname from Konda (biological father’s surname) to Akella (step father’s surname).

The High Court directed the mother to restore the surname and father’s surname of the child within a period of three months from the date of receipt of a copy of the order. It is interesting to note that both the Trial Court and the High Court had concurred that the mother is the natural guardian of the child after the demise of the father.

The Supreme Court, strongly disagreed with the High Court’s ruling and held that after the demise of her first husband, being the only natural guardian of the child, it was unfathomable how the mother can be lawfully restrained from including the child in her new family and deciding the surname of the child.

The Court also explained the importance of a surname and observed that a surname refers to the name a person shares with other members of that person’s family, distinguished from that person’s given name or names; a family name. Surname is not only indicative of lineage and should not be understood just in context of history, culture and lineage but more importantly the role it plays is with regard to the social reality along with a sense of being for children in their particular  environment. Homogeneity of surname emerges as a mode to create, sustain and display ‘family’.

Hence, direction of the High Court to include the name of the Appellant’s husband as step-father in documents is almost cruel and mindless of how it would impact the mental health and self-esteem of the child.

“A name is important as a child derives his identity from it and a difference in name from his family would act as a constant reminder of the factum of adoption and expose the child to unnecessary questions hindering a smooth, natural relationship between him and his parents. We, therefore, see nothing unusual in Appellant mother, upon remarriage having given the child the surname of her husband or even giving the child in adoption to her husband.”

It is also worth notice that the mother’s second husband had formally adopted the child by way of Registered adoption deed. This was done despite the fact that an adoption deed is not necessary to effect adoption and the same can be done even through established customs.

As per Section 12 of the Hindu Adoption & Maintenance Act, 1956, an adopted child is deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth are deemed to be severed and replaced by those created by the adoption in the adoptive family. Therefore, when a child takes on to be a kosher member of the adoptive family it is only logical that he takes the surname of the adoptive family and it is thus befuddling to see judicial intervention in such a matter.

The Court also made clear that it is not apathetic to the predicament of the grandparents, but it cannot lose sight of the fact that absolutely no relief was ever sought by them for the change of surname of the child to that of first husband/their son.

In the light of the settled law that relief not found on pleadings should not be granted, while directing for change of surname of the child, the High Court traversed beyond pleadings and such directions are liable to be set aside on this ground.

The Court, hence, concluded that the mother being the only natural guardian of the child has the right to decide the surname of the child. She also has the right to give the child in adoption.

[Akella Lalitha v. Konda Hanumantha Rao, 2022 SCC OnLine SC 928, decided on 28.07.2022]


*Judgment by: Justice Krishna Murari

Case BriefsSupreme Court

Supreme Court: The bench of AM Khanwilkar and JB Pardiwala*, JJ, in a matter relating to custody of two minor children, has advised the parents to respect each other and resolve the conflict respectfully, to give the children ‘a good foundation for the conflict that may, God forbid, arise in their own lives.’

Stating that the two minor children, aged 13 and 9, in the case at hand are watching their parents very closely, the Court observed,

“The parties should try to do their best to remain relaxed and focused. It is critical to maintain boundaries between the adult problems and children. It is of utmost interest to protect the innocence of children and allow them to remain children. They must not be burdened by any adult problem. Minor children do not have the coping skills or the intellectual ability to understand any issues like the financial constraints, adult relationship issues or their parents unhappiness.”

The Court also explained the Doctrine of Parental Alienation Syndrome, i.e. the efforts made by one parent to get the child to give up his/her own positive perceptions of the other parent and get him/her to agree with their own viewpoint. It has two psychological destructive effects: (1) It puts the child in the middle of a loyalty contest, which cannot possibly won by any parent; (2) It makes the child to assess the reality, thereby requiring to blame either parent who is supposedly deprived of positive traits. The Court, hence, observed that the intent of the court should be to circumvent such ill effects.

Key Facts

The Court was deciding the case where, after the relationship between the parents went sour, the father took both the minor children away from the mother. Here are some key facts necessary to understand the case:

  1. Daughter was born in India but travelled to the USA when her father got a Job there. Son was born in the USA and is hence, a natural citizen of the USA.
  2. When the father lost his job, the children stayed with the mother who worked on getting a degree. She eventually became a resident of the USA holding H1B visa and sponsorship. She has a good job and earns a handsome salary and has the resources to provide for a comfortable life to her children in the USA.
  3. Despite several interventions by Courts and Authorities, the father did not allow the mother to meet the children unsupervised. He even alleged that the mother was mentally ill and was hence, not fit to take care of the children.
  4. A shared parenting plan[1] was arrived at between the parties vide order dated 12th May 2021 passed by the Court of Common Pleas, Division of Domestic Relations, Cuyahoga County, Ohio, giving both the parties joint custody of their children. The visitation schedule was clearly laid down. The parties agreed to not relocate without the consent of the other party and without the Court’s permission by way of a 60 day prior notice and the passports of the children were to stay in alternation with the non-custodian parent while the children were in the custody of the other parent.
  5. A separation agreement was also entered upon between the parties dated 27th July 2021.
  6. On 28th July 2021, the father intimated the US Court that he would like to take his minor children on a vacation to India. Since the travel itinerary shared by him was such that the children would miss their school by a week, the mother declined to accept it and requested the father to go to India for his vacation, and during that period, the kids would stay with their mother.
  7. On 16th August 2021, the father allegedly, took the children away from her house in her absence. The mother claimed that on the same night, she received a distress call from her minor daughter who informed her that her father was taking both of them to India on the 17th August 2021. However, as per the travel itinerary, the travel was to happen on 19th August 2021.
  8. The daughter again gave a distressed call to her mother from India pleading her to take her back to the USA.
  9. The shared parenting plan ultimately came to be terminated by the Court at Ohio vide order dated 9th February 2022 at the instance of the mother.

Children will have a better future in the USA

  1. Both the minor children are residents of the USA.
  2. The son is a natural citizen and the daughter is a permanent resident of the USA.
  3. Both the children have been brought up in the social and cultural milieu of the USA. They are accustomed to the lifestyle, language, customs, rules and regulations, etc. of that country.
  4. The children are residents of the USA. One of whom is a natural citizen and will have better future prospects if goes back to the USA.
  5. The minor daughter has a remarkable high IQ. She has been identified to be a gifted child. In such circumstances, both the minor children were admitted in a special school meant for children with such remarkably high IQ in the USA. Such schools in the USA are specialized in providing education to the gifted children which, ultimately, helps in the overall development of such children. The special education ultimately enhances the potential of such children. Both the children in the present case have better prospects of getting refined education that may ultimately enhance their potential they already possess and are already accustomed to and comfortable with.
  6. It is the fundamental right of the mother to have the company of her children and not to be deprived of the same without a reasonable cause.
  7. The allegations levelled by the father that the mother suffers from some mental illness appears to be absolutely wild and reckless.

Directions

  1. Father to travel to the USA immediately along with the children, preferably within two weeks.
  2. Once the two minor children reach the USA, it will be open for the mother to take care of her children.
  3. The father can stay back in the USA if he wants and if the laws of the country permit him to do so. But if he decides to come back to India, then the mother shall make both the minor children speak to their father on-line at least once every week.
  4. The Court also left it open for the parties to go back to the Court at Ohio and revive the shared parenting plan as was arrived at vide order dated 12th May 2021.

[Rajeswari Chandrasekhar Ganesh v. State of Tamil Nadu, 2022 SCC OnLine SC 885, decided on 14.07.2022]


*Judgment by: JB Pardiwala

Counsels

For mother: Advocate Prabhjit Jauhar

For father: Senior Advocate Meenakshi Arora


[1] Shared parenting means the parents share the rights and responsibilities as provided for in a plan approved by the Court as to all or some of the aspects of the physical and legal care of their children. The mother and the father together, under a shared parenting agreement, are granted custody, care and control of the minor children until further order that may be passed by the Court subject to certain terms and conditions.

Madras High Court
Case BriefsHigh Courts

Madras High Court: G R Swaminathan J. dismissed the petition of an inter-faith couple seeking registration of their self-respect marriage on the ground that Section 7 of the Hindu Marriage Act, 1955 dealing with such marriages can have no application as both are not Hindus.

The petitioner, who is a Hindu and his wife Lediya, who is a Christian with the consent of both the families in the presence of the local panchayat president and a political functionary, solemnized their marriage. The couple then submitted a joint application before the Sub Registrar ‘R2′ and only a notice was submitted under Section 5 of the Special Marriage Act, 1954 for registration of their marriage and issue of certificate. The registration was denied because Ms. Lediya was yet to turn 21. Assailing the said dismissal, instant petition was filed under Article 226 of the Constitution of India, seeking issuance of writ of Mandamus directing R2 to register the petitioner’s marriage.

The Court observed that Section 15 of the Hindu Marriage Act, 1955 expressly excludes marriages solemnized under the Act and it deals only with marriages celebrated in other forms. In the present case, the petitioner is a Hindu while Lediya is a Christian. They underwent what is apparently a self-respect marriage. But, Section 7-A of the Hindu Marriage Act dealing with such marriages can have no application. The said provision was introduced in the year 1967 to confer recognition for marriages held without religious ceremonies.

The Court noted that a sacramental marriage performed as per ceremonies as well as a marriage celebrated in terms of Section 7-A Hindu Marriage Act, 1955 is both valid. However, Suyamariyathai and Seerthiruththa marriages (reformist/self-respect marriages) can be performed only between two Hindus. Therefore, what was performed on 10-06-2022 between the petitioner and Ms. Lediya cannot be considered as one solemnized under the Hindu Marriage Act, 1955.

The Court further noted that the petitioner can hope to succeed only if he can show that his marriage was solemnized under the Special Marriage Act. Even according to the petitioner, the marriage was performed on 10-06-2022. Only thereafter, notice was given under Section 5 of the Act. Observing that giving notice under Section 5 is the first step, the Court Said,

The couples in question have put the cart before the horse. The parties after performing their so-called marriage had given notice under Section 5 of the Hindu Marriage Act, 1955. The language of Section 5Hindu Marriage Act, 1955 is clear. The petitioner did not marry Ms. Lediya under the Special Marriage Act, 1954. He cannot avail himself of the benefit set out in Section 4 of the Act.”

While the Court noticed that the petitioner and Ms.Lediya did not undergo any marriage in the legal sense of the term on 10.06.2022, it was of the opinion that nothing stops them from solemnizing their marriage under the Special Marriage Act.

The Court opined that the petitioner gave notice under Section 5 of the Hindu Marriage Act, 1955 only on 17-06-2022. The said notice will be valid for a period of three months. He can very well follow the procedure set out in the said Act. In that event, the second respondent cannot refuse to issue a marriage certificate on the grounds that Ms. Lediya has not yet turned 21.

The Court held “The second respondent rightly declined the petitioner’s request. No mandamus can be issued contrary to law. The writ petition stands dismissed.”

[S. Sarath Kumar v. The District Collector, W.P. (MD) No. 13304 of 2022, decided on 30-06-2022]


*Arunima Bose, Editorial Assistant has reported this brief.

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: A writ petition was filed seeking the relief of protection of life and liberty at the hands of family members after the petitioners got married against their will. Considering the competency of the petitioners to enter into a valid contract of marriage and addressing the apprehension raised by them, Jasjit Singh Bedi, J, directed the Senior Superintendent of Police to decide the representation of the petitioners regarding danger to their life and liberty.

In the present case, both the petitioners were Muslims. They fell in love and decided to get married. The boy was 21 years of age while the girl was of 16 years as per their Aadhaar Cards. Both the petitioners solemnized their marriage on 08.06.2022 as per Muslim rites and ceremonies.

The counsel for the petitioners while placing reliance on Kammu v. State of Haryana[1], Yunus Khan v. State of Haryana[2]  and Mohd Samim v State of Haryana[3]submitted that under Muslim law, puberty and majority are one and there is a presumption of majority at the age of 15 years and a Muslim boy or a Muslim girl who has attained puberty is at liberty to marry one he or she likes and the guardian has no right to interfere. The petitioners, however, limited their prayer to the issuance of direction for deciding the representation made to the superintendent of police for protection of their life and liberty which was not acted upon by him earlier. The counsel for respondents 1 to 4 accepted the notice of motion.

Placing reliance on the case of Yunus Khan (supra) and Article195 from the book ‘principles of Mohammedan Law by Sir Dinshah Fardunji Mulla’ as was reproduced in the said case, the Court noted that the marriage of a Muslim girl is governed by the personal law of Muslims, which proposition has been made clear in the above mentioned various judgments. The Court addressed the issue of providing protection to the petitioners as envisaged under Article 21 and held that-

“…merely because the petitioners have got married against the wishes of their family members, they cannot possibly be deprived of the fundamental rights as envisaged in the Constitution of India.” and disposed off  the petition directing the senior superintendent of the police to decide the representation made by the petitioners.

[Gulam Deen v. State of Punjab, 2022 SCC OnLine P&H 1485, decided on 13.06.2022]


Appearnces:

For Petitioner: Advocate Sanjeev Kumar

For State: AAG Bhupender Beniwal


[1] 2010(4) RCR(Civil) 716]

[2] 2014(3) RCR(Criminal) 518]

[3] 2019(1) 1 RCR (Criminal) 685

Orissa High Court
Case BriefsHigh Courts

Orissa High Court: A Division Bench of SK Sahoo and M S Raman, JJ. disposed of the petition leaving the petitioner with liberty to seek appropriate remedy before appropriate forum in accordance with law.

The instant writ petition in the nature of Habeas Corpus was filed by the petitioner , who is the mother of a minor child, for the custody of the minor, which is currently with respondent 5, the father of the minor child.

Reliance was placed on Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, (2019) 7 SCC 42, wherein it was observed

“14. Writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from an illegal or improper detention. The writ also extends its influence to restore the custody of a minor to his guardian when wrongfully deprived of it. The detention of a minor by a person who is not entitled to his legal custody is treated as equivalent to illegal detention for the purpose of granting writ, directing custody of the minor child. For restoration of the custody of a minor from a person who according to the personal law, is not his legal or natural guardian, in appropriate cases, the writ Court has jurisdiction.

19. Habeas corpus proceedings do not justify or examine the legality of custody. Habeas corpus proceedings are a medium through which the custody of the child is addressed to the discretion of the Court.

The judgment also states that in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law.

It was also noted that in child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. In cases arising out of the proceedings under the Guardians and Wards Act, the jurisdiction of the Court is determined by whether the minor ordinarily resides within the area on which the Court exercises such jurisdiction. There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ Court which is summary in nature. What is important is the welfare of the child. In the writ Court, rights are determined only on the basis of affidavits. Where the Court is of the view that a detailed enquiry is required, the Court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the Civil Court. It is only in exceptional cases that the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus.

The Court thus held “when the alternative efficacious remedy is available, we are not inclined to entertain the writ petition which is in the nature of habeas corpus.”

[Koushalya Das v. State of Odisha, 2022 SCC OnLine Ori 2008, decided on 07-06-2022]


Advocates who appeared in this case :

Mr PK Das, Advocate, for the petitioner;

Mr AK Sharma, Advocate, for the respondent.


*Arunima Bose, Editorial Assistant has reported this brief.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: The Division Bench comprising A. Muhamed Mustaque and Sophy Thomas, JJ., held that cruelty has to be assessed from the perspective of a spouse, i.e., how he/she would perceive the conduct of the other spouse.

Reversing the impugned judgment of the Family Court, the Court held,

“Mere attempt by the mediators cannot save the laches which otherwise looms large to strain such relationship. She had felt neglect and a sense of insecurity which prompted her to seek divorce.”

Factual Matrix

The marriage between the appellant-wife and the respondent-husband was solemnised on 17-03-2010. It was the case of the appellant that they have lived as husband and wife only for 24 after which the respondent left for his employment in Abu Dhabi. The appellant contended that after reaching Abu Dhabi, the respondent never cared to contact her nor inquired about her well-being.

Further, the appellant alleged that the respondent always suspected her chastity and fidelity; and had even asked her to keep her mobile phone on loudspeaker mode to enable him to listen to the incoming calls. On the contrary, the respondent denied all the allegations and contended that though they had lived as husband and wife only for 24 days, it was the appellant who left the matrimonial home of her own volition and failed to return to the matrimonial home in spite of intervention of many well-wishers.

Findings of the Family Court

The Family Court found that the appellant failed to make out a case for divorce on the ground of cruelty and desertion. The Family Court relied on an excerpt of the diary of the appellant, wherein she had written:

“I always like his presence. His absence pains me. I pray that Sun will not rise today, with the Sunset I remain alone without his presence, without his smile and soft look.”

Thus, the Family Court held that the diary entries did not reflect any bitter experience by the appellant from her husband and that those are the words of the wife who is craving for the presence of her loved husband. Consequently, the Family Court refused to believe the case of cruelty.

The Family Court also noted that the appellant left the matrimonial home for employment and therefore, it could not be construed as desertion. Hence, the case of divorce was dismissed also on the ground of desertion.

Analysis and Findings

Whether the husband going abroad for employment amounts to desertion?

Concurring with the finding of the Family Court dismissing the petition on the ground of desertion, the High Court noted that the respondent left for Abu Dhabi for his job. He had no intention to abandon the marriage. He had also not refused to cohabit with the appellant. The Court expressed,

“There must be an element on the part of the party alleging to be deserted either to abandon the marriage or to forsake the cohabitation permanently. In the absence of those elements, any sort of separation cannot be construed as a ground constituting desertion.”

Cruelty as a Ground for Divorce

Referring to the diary entries, the High Court opined that it portrayed reflection of the mind of a person who felt isolated for want of the presence of her husband. The Court observed,

“Being a lady, she appears to be one who was looking forward to the care and love of her beloved husband. There was no contact from the side of the respondent.”

The Court noted that the diary itself would show that the appellant was longing to live with her husband which never happened and no attempt was made by the respondent to be in her company. Opining that one would not refuse to return to the matrimonial home for no reason, the Court held that there must be some reason that persuaded the appellant to remain at the parental house.

With regard to the ground canvassed by the appellant as cruelty, the Court noted that it was not a singular incident of misconduct that mattered for consideration, but the approach should be to consider the whole conduct of the spouse to analyse if cruelty is meted out or not.

The appellant had a case that she was promised that she would be taken to gulf country and, on that pretext, gold ornaments belonging to her were collected by the respondent. It was only when her hope to live together came to an end, that she decided to have a separation.

Resultantly, the Court held that cruelty has to be assessed from a perspective in which a spouse would perceive the relationship with the other spouse. The Court remarked,

If he cannot nurse the feelings of the spouse and live up to her expectation, that would result in mental frustration.

Conclusion

In the backdrop of above, the Court concluded that since the parties had been living separately for more than a decade, the marriage had become deadwood for all practical purposes. Consequently, the appeal was allowed and the impugned judgment was set aside. The marriage between the petitioner and the respondent was declared dissolved.

[Subhi N. v. Sreeraj E., 2021 SCC OnLine Ker 12117, decided on 25-11-2021]


Advocates who appeared in this case :

Cibi Thomas, Advocate, for the Appellant;

Bindumol Joseph and Advocate B.S. Syamanthak, Advocates, for the Respondent;


*Kamini Sharma, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In a family property dispute wherein the legitimacy of one of the contenders was questioned, the bench of SA Nazeer and Vikram Nath, JJ has held that if a man and a woman live together for long years as husband and wife, there would be a presumption in favour of wedlock and since in the present case, the defendants had failed to rebut the presumption in favour of a marriage between the plaintiff’s parents on account of their long co-habitation, he cannot be held to be an illegitimate son.

In the case at hand, the suit property belonged to a family governed by the Mitakshara Law of Inheritance. The said property originally belonged to one Kattukandi Edathil Kanaran Vaidyar who had   four sons, namely, Damodaran, Achuthan, Sekharan and Narayanan. Achuthan had a son. Sekharan and Narayanan did not marry. Damodaran married one Chiruthakutty and they had a son by the name of Krishnan. However, the defendants contended that Damodaran never married Chiruthakutty and hence, by virtue of illegitimacy, Krishnan, the first plaintiff, cannot claim share in the property.

The Trial Court on examination of the evidence on record held that Damodaran had a long co-habitation with Chiruthakutty and that due to such co-habitation, it could be concluded that Damodaran had married Chiruthakutty and that the first plaintiff was the son born in the said wedlock.  The Trial Court accordingly passed a preliminary decree for partition of the suit property into two shares and one such share was allotted to the plaintiffs.

The Kerala High Court, however, held that the first plaintiff was the son of Damodaran and Chiruthakutty, but not a legitimate son.

Before the Supreme Court, the plaintiff argued that since their marriage took place more than 50 years prior to filing of the suit (now 90 years), there is no possibility of having any documentary evidence of their marriage. He, however, produced documents wherein there were references to periodical payments made to Chiruthakutty from the husband’s house. Witnesses also examined on behalf of the plaintiffs in support of his contention. Hence, it was submitted that the documents would conclusively show that the first plaintiff was the son of Damodaran and Chiruthakutty and the contention of the defendants that Damodaran died as a bachelor or without any legitimate son, cannot be believed at all.

At the outset, the Court reiterated the settled law that if a man and a woman live together for long years as husband and wife, there would be a presumption in favour of wedlock. Such a presumption could be drawn under Section 114 of the Evidence Act. Although, the presumption is rebuttable, a heavy burden lies on him who seek to deprive the relationship of legal origin to prove that no marriage took place.

Coming to the facts of the case, the Court took note of the contention of the plaintiffs that the marriage of Damodaran and Chiruthakutty was performed in the year 1940. There was clear evidence that the first plaintiff was born on 12.05.1942. The documents produced by the plaintiffs were in existence long before the controversy arose between the parties. Hence, these documents, coupled with the evidence of witnessed, showed the long duration of cohabitation between Damodaran and Chiruthakutty  as husband and wife.

The Court held that the defendants failed to rebut the presumption in favour of a marriage between Damodaran and Chiruthakutty on account of their long co-habitation. Hence, the impugned judgment of the High Court was set aside and the judgment and decree passed by the Trial Court was restored.

[Kattukandi Edathil Krishnan v. Kattukandi Edathil Valsan, 2022 SCC OnLine SC 737, decided on 13.06.2022]


*Judgment by: Justice SA Nazeer


For plaintiffs: Senior Advocate V. Chitambaresh

For defendants: Senior Advocates R. Basant and V. Giri

Gujarat High Court
Case BriefsHigh Courts

Gujarat High Court: The Division Bench Vipul M. Pancholi and Rajendra M. Sareen, JJ., dismissed a petition filed by the father under Article 226 of the Constitution of India praying for custody of the minor.

 

Respondent 4&5 were maternal grandparents and  the marriage of the petitioner was solemnized in the year 2011 and out of the said wedlock, the minor corpus was born in the year 2013 and due to matrimonial dispute, wife left her matrimonial home and went to her parental home in  2015. After conciliation efforts wife had returned to her matrimonial home, however, thereafter also disputes had arisen between the husband and wife and his wife again left her matrimonial home in the year 2016 along with the minor son – corpus and started residing with her parents. Petitioner made many efforts to get custody of the minor son but in vain. In 2020, wife of the petitioner  expired due to COVID.

 

Petitioner remarried even during the subsistence of his first marriage and out of the said second marriage, he had two children. Wife of the petitioner was residing since 2016 at her parental home and at that time the minor was aged 3 and a half years and since then the minor is with the Respondent 4 and 5 (‘Maternal grand-parents’). Thus, the instant petition was filed as last resort for custody of the minor son.

 

The Court inquired from the minor  about his status and his daily routine.  He has stated that his maternal grand-parents are taking his care and he is getting love and affection from them and he has no complain against them. He has happily stated that he is happy with his maternal grand-parents. The Court also ascertained the wish of the minor that he wanted to go and reside with his maternal grand-parents.

The Court while dismissing the petition ordered that the custody of the minor  be continued with the respondent 4 and 5. Considering the overall facts of the case, the Court was of the view that, custody of the minor cannot be handed over to the petitioner herein who has remarried and has two children. It was made clear that in any way, the custody of the minor with the maternal grand-parents cannot be said to be illegal custody and it cannot be said that the minor is in illegal confinement.

[Sabirbhai Gafarbhai Multani v. State of Gujarat, 2022 SCC OnLine Guj 747, decided on 09-06-2022]


Mr Harsh A Vyas, Ms Dixa U Pandya : for the Applicant  1

MR HK Patel : APP for the Respondent 1

Vasimraja A Kureshi : for the Respondent 4&5


*Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In a case where the husband had disputed paternity of child on suspicion, though the Division Bench comprising of Indira Banerjee and A.S. Bopanna, JJ., directed to conduct DNA test, the Bench granted a conditional compensation of thirty lakhs to the wife if the suspicion proves to be wrong and respondent-husband turns out to be the father of the child.

The instant appeal was filed against the order of Bombay High Court wherein the High Court had affirmed the directions of Family Court directing the appellant herein to conduct DNA test of the child. The husband of the appellant-respondent had filed a case before the Family Court on having strong suspicion regarding paternity of the child and had requested for a DNA test.

Quashing the revision application, the High Court observed that the respondent-husband could not be foisted with paternity of child, if it is prove by a scientific method that he is not the biological father of the said child, though, he was having access to the petitioner at the relevant time.

Assailing the findings of the High Court, the appellant-wife contended that they got married on 05-02-2014 and the marriage was consummated on 09-02-2014. On 27-28th June, 2014, she underwent medical tests in Singapore when the doctor opined that the foetus was about 21 weeks old. The appellant argued that time gap between 09-02-2014 and 27-28-06-2014 was about 20 weeks, hence, the difference, if any, was only of one week. Since the doctor’s opinion was based on estimation, it could never be absolutely accurate. Further, the child was born after 261 days, i.e., about 17 days earlier which was almost after 9 months, therefore, there was no reason to presume that the petitioner was pregnant when she married the respondent.

To resolve the dispute once and for all, the Bench refrained from interfering with the direction for paternity/DNA Test and directed that the paternity/DNA test may be conducted at the All India Institute of Medical Sciences, New Delhi, for which the appellant and the respondent were directed to give samples and the respondent was directed to bear the expenses.

However, the Bench added that if on testing, it is found that the allegations are based on suspicion and the respondent is, in fact, the father of the child, the respondent shall pay compensation of Rs.30,00,000 (Rupees thirty lakhs only) to the petitioner, in addition to usual maintenance and other costs and charges as he may be directed to pay for the petitioner and for the child. Expenses of the appellant and the child for travel to Delhi and back and for accommodation in Delhi were also directed to be borne by the respondent-husband.

[Priyanka Janardhan Patil v. Janardhan Raghunath Patil, SLA (C) No(s). 5554 of 2020, decided on 04-04-2022]


Appearance by:

For Petitioner(s): Advocate Sangeeta Bharti, AOR Sujeeta Srivastava and Advocate Kamna Vohra

For Respondent(s): Senior Advocate Vinay Navare and AOR Rashmi Singhania


Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsSupreme Court

Supreme Court: The bench of SA Nazeer and Krishna Murari*, JJ has held that if a female Hindu dies intestate without leaving any issue, then the property inherited by her from her father or mother would go to the heirs of her father whereas the property inherited from her husband or father-in-law would go to the heirs of the husband. However, if she dies leaving behind her husband or any issue, then Section 15(1)(a) of the Hindu Succession Act, 1956 comes into operation and the properties left behind including the properties which she inherited from her parents would devolve simultaneously upon her husband and her issues as provided in Section 15(1)(a) of the Act.

Scheme of the Hindu Succession Act, 1956 and the relevant provisions

The main scheme of the Act is to establish complete equality between male and female with regard to property rights and the rights of the female were declared absolute, completely abolishing all notions of a limited estate. The Act brought about changes in the law of succession among Hindus and gave rights which were till then unknown in relation to women’s property. The Act lays down a uniform and comprehensive system of inheritance and applies, inter-alia, to persons governed by the Mitakshara and Dayabhaga Schools and also to those governed previously by the Murumakkattayam, Aliyasantana and Nambudri Laws. The Act applies to every person, who is a Hindu by religion in any of its forms including a Virashaiva, a Lingayat or a follower of the Brahmo Pararthana or Arya Samaj and even to any person who is Buddhist, Jain or Sikh by religion excepting one who is Muslim, Christian, Parsi or Jew or Sikh by religion.

Section 15 lays down the general rules of succession in the case of female Hindus. The scheme of sub-Section (1) of Section 15 goes to show that property of Hindu females dying intestate is to devolve on her own heirs, the list whereof is enumerated in Clauses (a) to (e) of Section 15 (1). Sub-Section (2) of Section 15 carves out exceptions only with regard to property acquired through inheritance and further, the exception is confined to the property inherited by a Hindu female either from her father or mother, or from her husband, or from her father-in-law. The exceptions carved out by sub-Section (2) shall operate only in the event of the Hindu female dies without leaving any direct heirs, i.e., her son or daughter or children of the pre-deceased son or daughter.

The basic aim of the legislature in enacting Section 15(2) is to ensure that inherited property of a female Hindu dying issueless and intestate, goes back to the source.

Thus, if a female Hindu dies intestate without leaving any issue, then the property inherited by her from her father or mother would go to the heirs of her father whereas the property inherited from her husband or father-in-law would go to the heirs of the husband. In case, a female Hindu dies leaving behind her husband or any issue, then Section 15(1)(a) comes into operation and the properties left behind including the properties which she inherited from her parents would devolve simultaneously upon her husband and her issues as provided in Section 15(1)(a) of the Act.

Section 15(1)(d) provides that failing all heirs of the female specified in Entries (a)-(c), but not until then, all her property howsoever acquired will devolve upon the heirs of the father. The devolution upon the heirs of the father shall be in the same order and according to the same rules as would have applied if the property had belonged to the father and he had died intestate in respect thereof immediately after her death.

Applicability of the law on the case at hand

Suit for partition was filed by Thangammal, daughter of one Ramasamy Gounder, claiming 1/5th share in the suit property. The said Ramasamy Gounder had an elder brother by the name of Marappa Gounder. Ramasamy Gounder, predeceased his brother Marappa Gounder who died on 14.04.1957 leaving behind the sole daughter by the name of Kuppayee Ammal who also died issueless in 1967. Further case set up by the plaintiff/appellant was that after the death of Marappa Gounder, his property was inherited by Kuppayee Ammal and upon her death in 1967, all the five children of Ramasamy Gounder are heirs in equal of Kuppayee and entitled to 1/5th share each.

Noticeably Kupayee Ammal, after inheriting the suit property upon the death of Marappa Gounder, died after enforcement of Hindu Succession Act, 1956, which has amended and codified the Hindu Law relating to intestate succession among Hindus.

Since the property in question was admittedly the self-acquired property of Marappa Gounder despite the family being in state of jointness upon his death intestate, his sole surviving daughter Kupayee Ammal, will inherit the same by inheritance and the property shall not devolve by survivorship.

Further, since the succession of the suit properties opened in 1967 upon death of Kupayee Ammal, the 1956 Act shall apply and thereby Ramasamy Gounder’s daughter’s being Class-I heirs of their father too shall also be heirs and entitled to 1/5th Share in each of the suit properties.

[Arunachala Gounder v. Ponnusamy, 2022 SCC OnLine SC 72, decided on 20.01.2022]


*Judgment by: Justice Krishna Murari


Counsels

For appellant: Advocate P.V. Yogeswaran

For respondent: Advocate K.K. Mani

Legal RoundUpSupreme Court Roundups

Year 2021! The year that started with the hope of the COVID-19 Pandemic nearing an end with countries starting vaccination, ended up becoming deadlier than the year gone by. A year of losses for many, 2021 was also the year when the Supreme Court judges lost one of their own. Justice MM Shantanagoudar, a sitting judge of the Supreme Court, breathed his last on April 24, 2021.

Read: The Judicial Legacy of Justice MM Shantanagoudar

As the Nation was crippled with hardship and adversity, the Supreme Court refused to bog down and went on to deliver 865 judgments, which is a lot more than the number of judgments delivered in the 2020.

The year also witnessed the appointment of 9 judges, including 3 women judges and if all goes well, Justice BV Nagarathna, might take oath as the first woman Chief Justice of India in 2027!  Read more…

5 judges, including the former CJI Justice SA Bobde, retired. Justice NV Ramana took oath as the 48th Chief Justice of India. Read more…

Also read:

·        Chief Justice SA Bobde retires: A look at his legacy and justice in the time of COVID-19

·        A Winner All Along – Justice Indu Malhotra

·        Messiah of the sufferers: Bidding adieu to Justice Ashok Bhushan

·        A Multifaceted Expert — Justice Rohinton Fali Nariman

·        A Champion who applied technology to optimize human potential and capabilities – Justice Navin Sinha

Let’s go through the most important of the 865 judgments delivered by the Supreme Court in the year 2021. 

CONSTITUTION BENCH VERDICTS

Only 3 Constitution Bench judgments were delivered in the year 2021. Read all about them here.


THE MOST TALKED ABOUT CASES

Central Vista Project

The year began with the Supreme Court giving a go-ahead to the Central Vista Project in a 2:1 verdict. While the majority found itself compelled to wonder if it can dictate the government to desist from spending money on one project and instead use it for something else, Justice Khanna, in his dissenting opinion, observed that citizens have the right to know and participate in deliberation and decision making. [Rajiv Suri v. Delhi Development Authority,  2021 SCC OnLine SC 7]

Read: Supreme Court gives a go-ahead to Central Vista Project in a 2:1 verdict

Also read: Justice Khanna dissents in 2:1 verdict clearing the Central Vista Project

Farm Bill and Farmer Protest

While the repeal of the Farm laws came at the fag end of the year, the Supreme Court stayed the implementation of these Laws right in the beginning of the year after noticing that despite the peaceful protest, a few deaths had already taken place as Senior Citizens, youth and children were exposing themselves to not just the cold weather but also to COVID-19. [Rakesh Vaishanv v. Union of India,  (2021) 1 SCC 590]

Read: Supreme Court stays implementation of Farm Laws

Also read: Farmer Protests| Shashi Tharoor and 6 journalists not to be arrested for now over tweets on protester’s death during Republic Day Tractor Rally

Here’s a list of some more unmissable high-profile cases:


THE WAY FORWARD

The structures of our society have been created by males and for males. As a result, certain structures that may seem to be the “norm” and may appear to be harmless, are a reflection of the insidious patriarchal system.

Nitisha v. Union of India

2021 SCC OnLine SC 261

In 2021, the Supreme Court showed the way forward by giving many progressive orders/judgments. One of the top stories from the year 2021 was where the Court said that the administrative requirement imposed by the Indian Army authorities while considering the case of the Women Short Service Commissions Officers (WSSCO) for the grant of Permanent Commission (PC), of benchmarking these officers with the officers lowest in merit in the corresponding male batch was arbitrary and irrational.

In another important ruling, before taking the oath as the Chief Justice of India, Justice NV Ramana noticed that the conception that housemakers do not “work” or that they do not add economic value to the household is a problematic idea that has persisted for many years and must be overcome. He added that the issue of fixing notional income for a homemaker, therefore, served extremely important functions.

Here is the list of all the judgments that take us as a nation a step forward:


SEDITION AND FREE SPEECH

By way of a series of judgments and orders on free speech, the Supreme made clear that, a citizen has a right to criticize or comment upon the measures undertaken by the Government and its functionaries.

In a big move, the Supreme Court also agreed to decide the constitutionality of Section 124A IPC after it was submitted before the Court that the decision of the Court in Kedar Nath Singh v. State of Bihar, 1962 Supp. (2) SCR 769 required reconsideration. [Kishorechandra Wangkhemcha v. Union of India, (2021) 6 SCC 177]

Read everything here:


IBC – THE IMPERFECT LAW?

While stating that “there is nothing like a perfect law and as with all human institutions, there are bound to be imperfections”, the Supreme Court, in a 465-pages long judgment, upheld the validity of several provisions of the Insolvency and Bankruptcy Code (Amendment) Act, 2020, albeit with directions given in exercise of powers under Article 142 of the Constitution of India. [Manish Kumar v. Union of India,  (2021) 5 SCC 1]

Read: IBC (Amendment) Act, 2020 upheld, albeit with directions

This judgment was followed by a series of judgments and orders on IBC. Check out the list below to read more:


RIGHTS OF PERSONS WITH DISABILITIES

“In their blooming and blossoming, we all bloom and blossom.”

Vikash Kumar v. Union Public Service Commission,

(2021) 5 SCC 370

This year witnessed many Supreme Court Judgments and orders on the Rights of Persons with Disabilities.

Check out this list to know more:


DEMOCRACY AND TRANSPERANCY

No-one is above law; this was the Supreme Court message as it stressed on importance of transparency by Political Parties and Government Institutions.

Read here:


THE CONSTITUTIONAL RIGHT TO PROPERTY

In a case where State took possession of surplus land in absence of surplus land, this Supreme Court’s verdict served as a reminder that right to property is still a constitutional right under Article 300A of the Constitution of India though not a fundamental right. The deprivation of the right can only be in accordance with the procedure established by law. [Bajranga v. State of Madhya Pradesh,  2021 SCC OnLine SC 27]

Read: Right to property is still a constitutional right under Article 300A of the Constitution


WHEN A CONSTITUTIONAL AMENDMENT WAS STRUCK DOWN

In a rare move, the Supreme Court held that the Constitution (97th Amendment) Act, 2011 which inter alia inserted Part IX-B was ultra vires the Constitution insofar it is concerned with the subject of Cooperative Societies for want of the requisite ratification under Article 368(2) proviso. [Union of India v. Rajendra N. Shah2021 SCC OnLine SC 474]

Read: Part IX-B of Constitution relating to cooperative societies unconstitutional for want of ratification by half of the States; Provisions relating to multi-State cooperative societies severable and valid: SC


THE “EVEN MORE DESERVING PARTIES”

Section 89 of CPC and Section 69-A of Tamil Nadu Court Fees and Suit Valuation Act, 1955 contemplate the refund of court fees in all methods of out-of-court dispute settlement between parties that the Court subsequently finds to have been legally arrived at and not just to those cases where the Court itself refers the parties to any of the alternative dispute settlement mechanisms listed in Section 89 of the CPC.

The Court observed that the parties agreeing to out-of-court settlement are “even more deserving”. [High Court of Madras v. MC Subramaniam(2021) 3 SCC 560]

Read: Parties agreeing to out-of-court settlement without judicial intervention under Section 89 CPC can’t be denied benefit of refund of court fees


BANKS AND BANKING

While the Constitution bench looked down upon the “mechanical” conversion of complaints under Section 138 NI Act from summary to summons trial and directed that the magistrates “must” record reasons, many other important decisions were given in 2021.

Read here: 


CONSUMER PROTECTION

The Supreme Court took cognizance of Government’s lackadaisical attitude towards consumer empowerment and observed that the ground reality is quite different as there is little endeavour to translate this Legislative intent into an administrative infrastructure with requisite facilities, members and staff to facilitate the decision on the consumer complaint.

Here are the important rulings on Consumer Protection that you cannot miss:


FROM “DEATH” TO “LIFE”

In 3 cases, the Supreme Court commuted the death sentences of the convicts to Life Imprisonment and in one case, 3 death row convicts were acquitted of all charges.

Read here:


MOTOR ACCIDENTS CLAIMS

Read how a one-stop online platform for all parties involved and Motor Vehicle Appellant Tribunals will help in achieving a hassle free disposal of Motor Vehicle Accident claims:


ARBITRATION

No year goes by without the Supreme Court delivering some important ruling on Arbitration and the year 2021 was no different.

Read the updates here:


A GUIDE FOR THE BENCH!

“The Magistrates are the first lines of defence for both the integrity of the criminal justice system, and the harassed and distraught litigant.”

Krishna Lal Chawla v. State of U.P.,

2021 SCC OnLine SC 191

In 2021, the Court also delivered a number of judgments on the issues of pendency of cases, judicial vacancies and overall standard to be followed by the members of bench while dealing with case.

Read all about these judgments here:


COVID-19

As the second wave of COVID-19 brought the nation to its knees, the Supreme Court did everything in it’s power to ensure that the loss is minimized.

Read all the important judgments here:

Case BriefsSupreme Court

Supreme Court: In a suit where the Karta of a Joint Hindu Family, consisting of himself, his wife and his son, had alienated a property due to legal necessity without the signature of his son, the bench of MR Shah and Sanjiv Khanna*, JJ that the Karta was entitled to execute the agreement to sell and even alienate the suit property and the absence of signature of a coparcener would not nullify the rights and liabilities arising from the agreement to sell.

Factual Background

In the case at hand, one K. Veluswamy, as a Karta of the joint Hindu family, executed the agreement to sell of the suit property for Rs.29 lakhs and had received Rs.4 lakhs in advance from the appellant. His son, V. Manjunath, challenged the alienation and the Karnataka High Court gave him a favourable verdict.

While accepting that K. Veluswamy did execute the agreement to sell for the suit property for Rs.29 lakhs and had received Rs.4 lakhs as advance, the Karnataka High Court held that the agreement to sell is unenforceable as the suit property belongs to the joint Hindu family consisting of three persons, K. Veluswamy, his wife V. Manimegala and his son V. Manjunath and, therefore, could not have been executed without the signatures of V. Manjunath.

Analysis

The Supreme Court took note of the agreement to sell which stated that the subject property is a joint Hindu family property, enjoyed jointly and that the Katha is in the joint names. The executants were in need of funds to meet the domestic necessities and, consequently, had agreed to sell the suit property. As per the agreement, if any dispute arose with regard to the sale transaction, it would be solved by the executants personally at their own risk and cost. Furthery, if there was any loan, mortgage, revenue arrears, etc. over the property, the same shall be cleared by the executants so as to execute and register the sale deed in favour of the appellant. However, the agreement to sell does mention that it would be also executed by V. Manjunath.

Important rulings on right of the Karta to execute agreement to sell or sale deed of a joint Hindu family property

Sri Narayan Bal v. Sridhar Sutar, (1996) 8 SCC 54

A joint Hindu family is capable of acting through its Karta or adult member of the family in management of the joint Hindu family property. A coparcener who has right to claim a share in the joint Hindu family estate cannot seek injunction against the Karta restraining him from dealing with or entering into a transaction from sale of the joint Hindu family property, albeit post alienation has a right to challenge the alienation if the same is not for legal necessity or for betterment of the estate. Where a Karta has alienated a joint Hindu family property for value either for legal necessity or benefit of the estate it would bind the interest of all undivided members of the family even when they are minors or widows. There are no specific grounds that establish the existence of legal necessity and the existence of legal necessity depends upon facts of each case. The Karta enjoys wide discretion in his decision over existence of legal necessity and as to in what way such necessity can be fulfilled. The exercise of powers given the rights of the Karta on fulfilling the requirement of legal necessity or betterment of the estate is valid and binding on other coparceners.

Kehar Singh (D) v. Nachittar Kaur, (2018) 14 SCC 445

Once the factum of existence of legal necessity stood proved, then, in our view, no co-coparcener (son) has a right to challenge the sale made by the karta of his family. The plaintiff being a son was one of the co-coparceners along with his father Pritam Singh. He had no right to challenge such sale in the light of findings of legal necessity being recorded against him. It was more so when the plaintiff failed to prove by any evidence that there was no legal necessity for sale of the suit land or that the evidence adduced by the defendants to prove the factum of existence of legal necessity was either insufficient or irrelevant or no evidence at all.

Ruling on facts

Considering the settled legal position, the Court held that signatures of V. Manjunath, son of Karta – K. Veluswamy, on the agreement to sell were not required. K. Veluswamy being the Karta was entitled to execute the agreement to sell and even alienate the suit property. Absence of signatures of V. Manjunath would not matter and is inconsequential. 

[Beereddy Dasaratharami Reddy v. V. Manjunath, 2021 SCC OnLine SC 1236, decided on 13.12.2021]


*Judgment by: Justice Sanjiv Khanna

Know Thy Judge | Justice Sanjiv Khanna

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: The Division Bench of K.Vinod Chandran and C.Jayachandran, JJ., slammed the Kerala State Commission for Child Rights for directing psychiatric treatment for wife of the accused without any jurisdiction. Expressing anguish over the factum that the Commission had aided the accused in trespassing the house of the victim and forcefully admitting her in the hospital, the Bench remarked,

“The case is very distressing insofar as, the 4th respondent, prima facie has been attempting to style his wife as a mental patient before various forums. By the continued harassment by the 4th respondent; employed in the Law Department of the State and was also once appointed as a temporary Magistrate, who was wont to use his official clout to witch-hunt the wife and children.”   

The wife-daughter of the petitioner had filed a divorce application before the Family Court, and that provoked the husband who attempted to portray the wife as a mental patient, which till date was not successful. The petitioner alleged that the respondent 4, son-in-law of the petitioner and the father of the children, had trespassed into the rental house of the detenue with about ten persons and forcefully took them away. It was also alleged that all the three, the mother (petitioner’s daughter) and the children were injected with some medicines making them unconscious and subsequently, the mother was admitted in the hospital by respondent 4, without any valid cause.

The petitioner had approached the Court in a writ of habeas corpus, seeking production of his daughter and grand children. Moved by the grievances of the petitioner, the Bench observed, “The writ petition narrates a sad tale of marital discord, from the very inception of the marriage and the wife being evicted from the marital home after giving birth to two children. The mother and children resigned to their fate were residing in a rental accommodation when the husband-the 4th respondent relentlessly harassed them in one manner or other.”

Noticeably, during the divorce proceedings, the application made by the respondent 4 under the Mental Health Care Act, 2007 to portray the wife as a mental patient was rejected by the Magistrate Court; yet the mother (wife of respondent 4) had been forcefully admitted to the Sacred Heart Hospital for psychological treatment, and the children were separated from her by the respondent 4. Considering the gravity of the matter, the Bench conducted the psychological test of the mother and children in the Court chamber by one Dr.Priya to assess their mental status. The doctor informed the Court that the petitioner’s daughter did not seem to be suffering from any psychotic illness and that her disturbed mental status, was only due to the stress she had undergone in her life and the horrendous incident she was subjected to recently, of forceful admission in a mental institution and separation from her children.

Kerala Child Rights Commission

Distressed by the manner of the State Commission for Protection of Child Rights with which it had proceeded in the instant case, the Bench stated that it was appalling that the Commission thought it fit to direct the District Child Protection Officer (DCPO), to submit a mental status report of the persons. The DCPO submitted a report pointing out that, the mother is very lean and that she wears five Rudraksha chains and there are photographs of Christian, Hindu and Islam religions in their house. The mother also is said to have the habit of cleaning the residential premises in the morning and in the evening. It was also reported that the mother and children were living without much social contacts.

On the above grounds, the DCPO recommended that the welfare of the mother and children should be monitored with the assistance of the respondent 4. The Commission based on the report of the DCPO directed psychiatric treatment to be given to the wife of the respondent 4 which was totally without jurisdiction. The Bench slammed the commission for putting the DCPO in charge of the children and directing him to approach the Station House Officer for appropriate treatment to be given to the family without any mental status examination by a competent Doctor. The Bench remarked,

“More distressing is the fact that on the strength of this order, the 4th respondent along with ten persons have trespassed into the rented residence of his wife and children and forcefully taken them away.”

Disturbing Conduct of the Accused Husband

The Bench found it surprising that the respondent 4 took it upon himself to separate the wife and the children and admit the wife in a Mental Hospital, when, a valid proceeding initiated for providing psychiatric treatment to the wife was rejected by the competent Court, especially when respondent 4 was a lawyer and was Section Officer in Law Department. The respondent 4 was also said to have served as a temporary Magistrate in the judicial service and it was not as if he did not know the tone and purport of the order of the Commission, which, even if passed with jurisdiction, did not clothe the respondent 4 with the authority to take the children or admit the wife, forcefully to a mental institution for psychiatric treatment.

Decision

On an evaluation done by the Psychiatrist and after evaluating the materials on record, the Bench allowed the daughter of the petitioner and the children to go with the petitioner. Respondent 4 was directed not to interfere in their life. The Station House Officer was directed to go to the house of the petitioner and record the statement of his daughter and her children and take it to logical conclusion if any cognizable offence is detected.

The Hospital was directed to produce the entire treatment records of the daughter of the petitioner. Additionally, the petitioner was directed to ensure that his daughter and the children are taken to Dr Priya, at the Government Medical College. Similarly, the respondent 4 was also directed to appear before the Doctor for check-ups. [Balakrishnan v. Inspector General of Police, WP(Crl.) No. 413 of 2021(S), decided on 06-12-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: Lisy T. Skaria, Advocate

Case BriefsSupreme Court

Supreme Court: In a case where a woman had, by way of counter claim in a marriage petition filed by her husband for dissolution of the marriage, sought to declare her husband’s alleged second marriage to be “illegal, void and voidable” and son born out of the said “adulterous” relationship illegitimate, the bench of MR Shah* and AS Bopanna, JJ has held that no such relief qua the third party can be prayed as per Section 23A of the Hindu Mariage Act, 1955.

Factual background

The respondent-husband filed a Hindu Marriage Petition before the Family Court under Section 13 of the Hindu Marriage Act for dissolution of marriage, mainly on the ground that the appellant-wife is guilty of cruelty.

According to the appellant-wife, the respondent-husband deserted her and their son on 9.2.2006 and the respondent-husband refused to provide maintenance for her and their son.

It was also her case that the respondent-husband as on today is cohabiting with another woman, openly moves around with the said woman and introduces the said lady as his new wife and is travelling not only in the country but abroad with her and also has a son with her. Since the respondent-husband wants to marry the said woman, a false and fabricated story is placed before the Court.

She, hence, prayed that:

  • the marriage between the petitioner with the said woman dated 14.12.2006 is illegal, void and voidable and that the respondent-husband and the said woman are living in adultery.
  • son born through the said marriage is the illegitimate child of the petitioner.

Section 23A of the Hindu Marriage Act

23A. Relief for respondent in divorce and other proceedings – In any proceeding for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner’s adultery, cruelty or desertion, but also make a counter-claim for any relief under this Act on that ground; and if the petitioner’s adultery, cruelty or desertion is proved, the court may give to the respondent any relief under this Act to which he or she would have been entitled if he or she had presented a petition seeking such relief on that ground.

Analysis

Holding that no relief can be prayed qua the third party under Section 23A of the Hindu Marriage Act, the Court explained that by way of counter claim, the respondent in any proceedings for divorce or judicial separation or restitution of conjugal rights can pray for the relief by way of counter claim only those reliefs which can be prayed and/or granted under the Hindu Marriage Act, namely,

  • Section 9 (Restitution of conjugal rights);
  • Section 10(judicial separation);
  • Sections 11 & 12(declaration of marriage between the petitioner and the respondent void)
  • Section 13 (divorce).

Therefore, the respondent to the aforesaid proceedings can pray for the aforesaid reliefs only by way of counter claim and that too between the petitioner and the respondent.

Since under the provisions of the Hindu Marriage Act, the relief of divorce, judicial separation etc. can be between the husband and the wife only and cannot extend to the third party, therefore, it was not open for the appellant-wife to seek declaration to the effect that the marriage between the respondent-husband and the third party is void. Further, no relief can be prayed by way of counter claim even against the son born out of the alleged wedlock between the respondent-husband and the third party.

The Court, however, explained that in such a situation, the only remedy available to the appellant would be to file a substantive suit and/or initiate independent proceedings claiming such reliefs.

“At the most, the appellant herein – original defendant by way of counter claim could have claimed the relief and prayed for divorce and/or judicial separation on the ground of husband’s adultery. Beyond that, no relief which cannot be granted under the provisions of the Hindu Marriage Act can be claimed by way of counter claim.”

[Nitaben Dinesh Patel v. Dinesh Dahyabhai Patel, 2021 SCC OnLine SC 902, decided on 07.10.2021]


Counsels

For appellant-wife: Advocate Puneet Jain

For respondent-husband: Senior Advocate Mihir Thakore and Advocate Aastha Mehta


*Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

Case BriefsSupreme Court

Supreme Court: Holding that a testamentary court is not a court of suspicion but that of conscience, the bench of Sanjay Kishan Kaul and MM Sundresh*, JJ has set aside the High Court’s order in a suit for execution of Will wherein the Court had “unnecessarily created a suspicion when there is none”, merely because it thought that was no logic in the exclusion of the sister of the beneficiary of the Will. Neither the beneficiary nor his siblings had raised any issues regarding the validity of the Will.

Asking the appellate Courts to consider the relevant materials instead of adopting an ethical reasoning, the Court explained,

“A mere exclusion of either brother or sister per se would not create a suspicion unless it is surrounded by other circumstances creating an inference. In a case where a testatrix is accompanied by the sister of the beneficiary of the Will and the said document is attested by the brother, there is no room for any suspicion when both of them have not raised any issue.”

Brief Background

  • The Suit Property originally belonged to one Jessie Jayalakshmi, the maternal aunt of the Appellant/Plaintiff, who, being a spinster, adopted the appellant as her son and the appellant took care of her when she suffered an attack of paralysis.
  • The appellant had two siblings, a brother and a sister.
  • A registered Will under Exhibit P4 was executed by Jessie Jayalakshmi on 04.09.1985 in favour of the Appellant. The said Will was attested by the brother of the Appellant.
  • Jessie Jayalakshmi was also brought to the office of the Sub-Registrar by none other than Kantha Lakshmi, the sister of the appellant.
  • The relationship between Kantha Lakshmi and her husband, Respondent No. 1 got strained and they obtained a divorce decree on 26.03.1988.
  • Respondent No. 1, while acknowledging the factum of execution of Exhibit P4, introduced Exhibit D1, an unregistered Will, allegedly executed by Jessie Jayalakshmi in favour of the Respondent No.2 (minor son of Respondent No.1) and claimed that Exhibit P4 has been replaced by Exhibit D1.
  • Trial Court found Exhibit D1 to be forged.
  • The High Court reaffirmed the findings of the Trial Court with respect to the genuineness of Exhibit D1. However, in the absence of any specific pleading coupled with an admission of the execution of Exhibit P4, the High Court suspected that there was no logic in the exclusion of the sister of the Appellant and concluded that there was no basis to leave her out of the Will.

Analysis

The Supreme Court noticed that,

  • The High Court did not give any reasoning whatsoever for differing with the views expressed by the Trial Court.
  • The High Court has also committed an error in misconstruing the presence of the sister of the Appellant, Kantha Lakshmi. Her presence in fact adds strength to Exhibit P4 having been executed properly. It is the specific case of the Appellant and his siblings that the deceased, Ms. Jessie Jayalakshmi wanted the property to be given in his favor.

“Their participation coupled with the subsequent conduct would be sufficient enough to uphold Exhibit P4. When there are no suspicious circumstances surrounding the execution of Exhibit P4, there is no need to remove.”

  • The High Court after giving adequate reasoning for disbelieving Exhibit D1 that it is forged and fabricated should have kept in mind the conduct and attitude of the Respondent No.1.

“The factors such as the fabrication and severance of relationship between himself and his wife in pursuance of the decree for divorce, coupled with the status while squatting over the Suit Property being the relevant materials, ought to have weighed in its mind instead of questioning Exhibit P4. Had that been done, perhaps it would have come to conclusion that such an exercise is not warranted at the hands of the. Respondents, who not only accepted Exhibit P4 but it did not even question it; except by contending that it is replaced by Exhibit D1.”

Conclusion

Noticing that both the Courts have given adequate reasoning for not believing Exhibit D1, the Court concluded that

“In the absence of pleadings to the contrary, followed by issues framed, it is not open to the Appellate Court to embark upon an exercise which is not required and also not permitted under the law.”

[V. Prabhakara v. Basavaraj K., 2021 SCC OnLine SC 896, decided on 07.10.2021]


*Judgment by: Justice MM Sundresh

Counsel:

For appellant: Advocate Kiran Suri

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir High Court: The Bench of Ali Mohammad Magrey, J., granted protection to an inter-faith couple as guaranteed under Article 21 of Constitution qua peaceful married life.

Ordinarily, the court on the strength of the pleadings of the parties supported by the documents and the affidavit, issue directions qua protection to life in tune with the mandate of the judgment of Supreme Court delivered in Lata Singh vs. State of UP, (2006) 5 SCC 475, but keeping in view the nature of pleadings vis-à-vis conversion of religion of the petitioner no. 1, the Bench went further to ensure that the statement of the said petitioner was recorded to ascertain as to whether the averments made in the writ petition were supported by the said petitioner who was shown to have converted.

The Petitioner 1 submitted that she had, of her own free will and without any force from any quarter, made a declaration qua conversion to Islam in presence of the authorized persons. She further stated that she being major had married the petitioner 2 of her own free will and necessary requirements, in this connection, had been fulfilled as required in terms of law. The Petitioner 1 further submitted that it was with great difficulty that she managed to appear before the Court as there is a persistent threat to her life as also of the petitioner 2 as they had  married against the wish of respondents 6 and 7 and it was on their instance that large number of people were bent upon to kill the petitioners. It was also submitted that at the instance of respondents 6 and 7 a case had been against the petitioners.

In order to ensure protection to the life of the petitioners, the Bench directed respondents 1 to  5 to ensure that the petitioners are not harassed/attacked/kidnapped or caused any harm by respondents 6 and 7 or by anyone at their instance and they shall be allowed to live their married life the way they like and protect their rights in terms of the guarantee as enshrined by the Constitution of India. Additionally, respondents 1 to 5 in general and SSP Budgam and SHO Police Station Chadoora were directed to ensure implementation of the directions of the Court in letter and spirit. SHO of Police Station Satwari was also directed not to take any coercive steps against the petitioners in pursuance to the case if any registered.

[Khadeeja v. UT of Ladakh, 2021 SCC OnLine J&K 368, decided on 20-05-2021]


Kamini Sharma, Editorial Assistant has put this report together

Appearance before the Court by:

Counsel for the Petitioner: Adv. Bhat Khursheed

For Union Territory of Ladakh: AAG B. A. Dar

Kerala High Court
Case BriefsHigh Courts

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

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

Controversy before the Court

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

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

Observations and Analysis

 Chapter IV: Verse 28 of Quran states that,

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

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

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

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

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

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

Khula: Whether Consent of Husband a prerequisite?

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

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

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

Validity of Khula without Attempts for Reconciliation

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

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

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

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

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

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


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before The Court By:

Amicus Curiae: Adv.K.I.Mayankutty Mather

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

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

Counsel for Kerala Federation Of Women: Adv. Shajna

Case BriefsSupreme Court

Supreme Court: The bench of Mohan M. Shantanagoudar* and Vineet Saran, JJ., addressed the instant appeal against the order of High Court of Karnataka whereby the Court had refused to engage with the matter and had ordered that the appellant may seek a remedy in accordance with law. The Bench stated,

“It was incumbent on the Division Bench to enquire into and settle the questions of fact arising from the present controversy, to settle finally the question of abatement of the proceedings and prevent the inefficient proliferation of further litigation between the parties.”

Factual Background

In the instant case five properties originally belonged to the joint family of two sisters. After their death, their ten children benefited through a registered partition deed dated 09-01-1984. Through the said partition deed, Leela Sapalyathi, one of the ten children, allegedly came to hold a share of 1983 sq. mts. of land, including land to the extent of 30 cents falling under Survey No. 53/3A.

On 17-02-1976, the Urban Land (Ceiling and Regulation) Act, 1976 came into force in Karnataka. Padmanabha, one of the ten children, filed a statement under S. 6(1) of the Act on 15-06-1984 declaring that the property had been partitioned and individual share of each of the children subsequent to partition was within the ceiling limit prescribed under the Act. On 16-10-1996, the Competent Authority directed that an extent of 5,210.10 sq. mts. of land held by the declarant be treated as excess vacant land to be surrendered.

The Appellant’s case was that he had executed a sale deed on 26-03-1994 with Leela Sapalyathi whereby he purchased a portion of Survey No. 53/3A measuring 14 cents comprising an old house. He had also produced copies of the Record of Rights, Tenancy and Crops (‘RTC’) for the years 1993-1994 and 1994-1995.The Appellant stated that he was unaware of the Authority’s order and upon enquiry he came to know that the RTC was registered in the name of government. It had been contended by the appellant that the Competent Authority had not issued notice to the appellant regarding taking of possession of the suit property. That, in any case, the Competent Authority had not taken physical possession of the suit property as on the date of commencement of the Repeal Act. Hence, the proceedings would abate and the Competent Authority could not take further action under the Act.

Analysis and Findings

The Bench observed that regardless of whether the declarant Padmanabha and his family members had affected partition after the Act had commenced, the concerned land would still be subject to the proceedings initiated under the Act. Section 6 of the said Act had prescribed that, “every person holding vacant land in excess of the ceiling limit at the commencement of the Act…” Thus, the determination of ‘excess land’ was to be made considering the status of the land at the time of commencement of the Act, and not at the time of filing of the declaration.

Noticing that the partition was affected after Commencement of the Act, the Division Bench’s decision was held to be corrected in holding that the partition deed dated 09-01-1984 would not affect the validity of the Competent Authority’s determination of excess land. The Bench further observed,

“Section 8 and Section 9 of the Act make it incumbent on the Competent Authority to issue notice to or provide an opportunity to be heard only to the ‘person concerned’, i.e., the person who has filed the statement under Section 6 of the Principal Act.”

Claims of all other persons interested in the vacant land was to be considered through issuing a Gazetted notification as per Section 10(1) of the Act, which had been duly issued by the Competent Authority on 27-10-1995. The Repeal Act, which came into effect from 08-07-1999 had provided under S. 4 as follows:

Section 4: All proceedings relating to any order made or purported to be made under the principal Act pending immediately before the commencement of this Act, before any court, tribunal or other authority shall abate:”

Section 3(2) of the Repeal Act, i.e., savings clause, had laid down that vacant land vested in the State Government by the Act, the possession for which had not been taken over, should be restored only once any compensation paid to the landholder had been returned. Hence, any proceeding for any excess land under the old Act was liable to abate, as per Section 3 and Section 4 of the Repeal Act, and the Appellant would be entitled to ownership and possession over the suit property.

However, neither the partition deed dated 09-01-1984, nor the sale deed dated 26-03-1994 that purportedly passed on the title to the Appellant, had been produced before the Court. Thus, there was nothing on record to establish Appellant’s purchase of, possession of, or interest in the suit property. Also, there was nothing to conclusively establish possession of the suit property either by the Competent Authority or the Appellant.

Hence, observing that the contention depend on question of fact, the Bench directed  the matter to be remitted to the Division Bench of the Karnataka High Court and further ordered to consider the case afresh while disposing of the present appeal.

[U.A. Basheer v. State of Karnataka,  2021 SCC OnLine SC 98, decided on 17-02-2021]


Kamini Sharma, Editorial Assistant has put this report together 

*Judgment by: Justice Mohan M. Shantanagoudar

Case BriefsSupreme Court

Supreme Court: The bench of R Banumathi and Indira Banerjee, JJ has given a split verdict on the issue whether a Family Court can convert the petition for maintenance under Section 125 Cr.P.C. to one under Section 3 or Section 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The matter has, hence, been referred to a larger bench.

Background of the case

  • A Muslim woman filed a petition under Section 125 Cr.P.C. alleging that she was subjected to cruelty and harassment for additional dowry and that she was thrown out of matrimonial home.
  • Family Court held that as the appellant is a Muslim divorced woman, her petition for maintenance under Section 125 Cr.P.C. is not maintainable.
  • Treating the application under Section 125 Cr.P.C. as application under Section 3 of the Muslim Women’s Protection Act in the light of the judgment in Iqbal Bano v. State of Uttar Pradesh, (2007) 6 SCC 785, the Family Court directed the husband to pay rupees three lakh in lump sum to appellant towards her maintenance and future livelihood.
  • Rajasthan High Court held that the order of the Family Court converting the application under Section 125 Cr.P.C. into an application under Section 3 of the Act is without jurisdiction and on those findings, set aside the order of the Family 3 Court to that extent.

Banumathi, J’s opinion

Holding that the Family Court cannot convert the petition for maintenance under Section 125 Cr.P.C. to one under Section 3 or Section 4 of the Act of 1986, Banumathi , J said

“the application under Section 3(2) of the Act of 1986 by the divorced wife has to be filed before the competent Magistrate having jurisdiction if she claims maintenance beyond the iddat period. Even if the Family Court has been established in that area, the Family Court not having been conferred the jurisdiction under Section 7 of the Family Courts Act, 1984 to entertain an application filed under Section 3 of the Muslim Women Protection Act, the Family Court shall have no jurisdiction to entertain an application under Section 3(2) of the Act of 1986.

On Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986

Section 3 of 1986 Act opens with the words “notwithstanding anything contained in any other law for the time being in force,” a divorced woman shall be entitled to rights enumerated in clauses (a) to (d) of Section 3(1) of 1986 Act. Muslim Women Protection Act may have conferred more rights but the Act confers these rights notwithstanding anything contained in Section 125 Cr.P.C. The nonobstante clause has to be understood fairly and reasonably. The non-obstante clause cannot be lightly assumed to bring in the effect of supersession. It should not be allowed to demolish or extinguish the existing right unless the legislative intention is clear, manifest and unambiguous.

On Section 7 of the Family Courts Act, 1984

The expression “conferred on it” occurring in sub-clause (b) of Section 7(2) speaks of conferment of the jurisdiction on the Family Court by an enactment. Thus, under Section 7(2)(b), the jurisdiction must be specifically conferred and cannot be assumed or deemed to have been conferred. The provisions of the Muslim Women’s Protection Act do not confer any jurisdiction on the Family Court.

Conclusion

Section 3(2) of the Muslim Women’s Protection Act provides that the application may be made to a Magistrate; but not to the Family Court. Also, the Muslim Women’s Protection Act was enacted in 1986 subsequent to the Family Courts Act, 1984. Hence, the Family Court has no jurisdiction to entertain the petition under Sections 3 and 4 of the Act of 1986 and that the Family Court cannot convert the petition for maintenance under Section 125 Cr.P.C. to one under Section 3 or Section 4 of the Act of 1986.

Banerjee, J’s opinion

Disagreeing with Justice Banumathi’s opinion, Banerjee, J said

“Family Courts Act is a secular statute, which applies to matters contemplated therein, irrespective of the religion of the litigating parties.”

On Family Court’s scope of power to lay down procedure

Notwithstanding sub-section (1) and sub-section (2) of Section 10 of the Family Courts Act, which makes the provisions of the CPC applicable to suits and proceedings before the Family Court, other than those under Chapter IX of the Cr.P.C., and the provisions of the Cr.P.C. applicable to all the proceedings under Chapter IX of that Code, it is open to the Family Court to lay down its own procedure with a view to arrive at a settlement in respect of the subject matter of the suit or proceeding.

On Territorial Jurisdiction of Family Courts

Where a Family Court has been established for any area, Section 8 of the Family Courts Act denudes the District Court or any Subordinate Civil Court referred to in sub-section (1) of Section 7 of jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that sub-section. Section 8(b) of the Family Courts Act prohibits any Magistrate from exercising jurisdiction or powers under Chapter IX of the CR.P.C. in relation to any area for which a Family Court has been established.

On Overriding effect of Family Courts Act

It is important to note that Section 20 of the Family Courts Act, with its non-obstante clause gives the provisions of the Family Courts Act overriding effect, over any other law, which would include the 1986 Act for Muslim Women. The Family Courts Act is to have effect, notwithstanding anything inconsistent therewith, contained in any other law, for the time being in force, or in any instrument having effect, by virtue of any law other than the Family Courts Act.

“the expression “in any other law, for the time being in force”, cannot be construed narrowly to mean a law which was in force on the date of enactment and/or enforcement of the Family Courts Act”

There is no conflict between Section 3(2) of the 1986 Act for Muslim women and the Family Courts Act. On the other hand, Section 20 of the Family Courts Act, 1984 gives overriding effect to the Family Courts Act notwithstanding anything therewith contained in any other law in force. The Family Court is to exercise all the jurisdiction exercisable by any District Court or any other subordinate Civil court in respect of a proceeding for maintenance.

Conclusion

Banerjee, J, hence, concluded that there can be no dispute that the Family Court alone has jurisdiction in respect of personal and family matters relating to women and men, irrespective of their religion. Family matters of Muslim women pertaining inter alia to marriage, divorce etc. are decided by Family Courts, as also claims of Muslim wives to maintenance under Section 125 of the Cr.P.C.

“There could be no reason to single out divorced Muslim wives to deny them access to the Family Courts, and that in my view, was never the legislative intent of the 1986 Act for Muslim Women.”

[Rana Nahid v. Sahisul Haq Chisti, 2020 SCC OnLine SC 522 , decided on 18.06.2020]