Case BriefsHigh Courts

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

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

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

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

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

Analysis, Law and Decision

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

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

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

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

High Court expressed that:

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

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

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

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


Advocates before the Court:

For the Petitioner: Aditya Goel, Advocate

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

Case BriefsHigh Courts

Kerala High Court: The Division Bench of A. Muhamed Mustaque and Kauser Edappagath, JJ., held that to get a decree of divorce under Section 13(1)(iii) of the Hindu Marriage Act, it is necessary for the party seeking divorce to prove that the other party’s unsoundness of mind is incurable or that the mental disorder is of such kind that the petitioner cannot be reasonably expected to live with his/her spouse.

The instant petition was filed by the wife in a marital dispute challenging the Family Court’s Order allowing the application filed by the husband to constitute a medical board and to direct the wife to appear before it for the assessment of her mental condition.

Husband had initiated the divorce proceedings before the Court under Section 13(1)(iii) of the Hindu Marriage Act on the ground of mental order. He added in his submissions that the mental condition of the wife was not normal as she was suffering from obsessive-compulsive disorder as well as a borderline personality disorder.

The husband filed a petition before the Court below to direct the wife to undergo medical examination for borderline personality disorder before a medical board to be constituted for the said purpose, but the wife objected the same.

Analysis, Law and Decision

 Bench while analysing the facts and circumstances of the cases stated that the Court has the power to direct the parties to the litigation to undergo a medical test.

Further, Court referred to the Supreme Court decision in Sharda v. Dharmpal, (2003) 4 SCC 493, wherein it was held that even though the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of the country under Article 21 of the Constitution of India, a matrimonial Court has the power to order a person to undergo a medical test and such a direction need not be in violation of any right to personal liberty.

“…while exercising the power to order a medical test to be undergone by a person, the Court should exercise restraint and there must be strong prima facie case and sufficient material before the Court to pass such an order.”

 In the present matter, wife’s alleged mental order is an issue to be decided.

Divorce Decree

High Court expressed that, in order to get a divorce decree under Section 13(1)(iii) of HMA, the husband must establish that unsoundness of mind of the wife is incurable or her mental disorder is of such kind and to such an extent that petitioner cannot reasonably be expected to live with her spouse.

Family Court

The Family Court has the power to direct a party to appear before a medical board to undergo a medical examination and the question of such action being violative of Article 21 of the Constitution of India would not arise.

It was noted that the husband had produced documents wherein it was stated that the wife was treated by the psychiatrist for the alleged illness. The said documents were perused by the lower court.

“The fact that the wife’s alleged mental disorder is an issue to be decided in the case itself constitutes a prima facie case.”

Medical Board’s opinion regarding the medical condition of the wife may be of utmost importance for granting or rejecting the prayer for a decree of divorce under Section 13(1)(iii) of the HMA.

Further, while concluding its decision, Bench added that the above-stated opinion is relevant under Section 45 of the Evidence Act.

When a party to a litigation alleges existence of certain facts, the Court can draw no inference of its existence unless it is proved through the manner in which the Evidence Act is envisaged.

Therefore, the Family Court’s decision was justified in its order and no interference was required.[Devika M. v. Shibin Prakash, 2021 SCC OnLine Ker 1235, decided on 10-03-2021]


Advocates before the Court:

Counsel for the petitioner Sri. T.R. Harikumar

Counsel for the respondent Sri. Sharan Shahier.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of R.D Dhanuka and V.G. Bisht, JJ., addressed a concern wherein a daughter filed a petition seeking a declaration of her father’s marriage to be null and void on knowing that the lady concealed the fact of her being married and not divorced from her earlier marriage.

Factual Matrix 

Appellant is the married daughter of Late Navnitlal R. Shah with whom the respondent alleged to have got married after the demise of the appellant’s mother. Marriage between the appellant’s father and the respondent was solemnized before the Marriage Officer.

Appellant’s father was a successful businessman who owned various assets and properties.

Appellant alleged that the respondent was already married to someone and she concealed and suppressed the said fact deliberately from the appellant’s father and falsely portrayed herself as a divorcee but was not a divorcee at all.

The said fact of not being divorced came into light recently in front of the appellant.

Further, the appellant alleged that the respondent took undue advantage of the mental infirmities, ailments and unsoundness of mind of her father and exercised undue influence, coercion and duress with the intention of siphoning his entire properties. Respondent got executed various documents including his Will and several Gift Deeds of various valuable immovable properties and deprived the true legal heirs of their rights.

Respondent even took away the custody of the jewellery “Stridhan” of the appellant’s mother.

Appellant sought the declaration of marriage between her father and respondent to be null and void and the status of the respondent as of today continue to be the wife of the said Mansoor Hatimbhai Chherwala under Section 7(1) Explanation (b) and (d) of the Family Courts Act.

Family Court Judge held that the appellant had deemingly relinquished. Given up her portion of the claim pertaining to the declaration of the marital status of respondent and thus the bar under Order II Rule 2 of the Code shall be applicable.

Present appeal was against the impugned order.

Analysis and Decision

Family Court to provide exclusive jurisdiction

High Court stated that Family Court is intended to provide an exclusive jurisdiction of the matters relating to matrimonial relief including nullity of marriage, judicial separation, divorce, restitution of conjugal rights or declaration as to the validity of a marriage or as to the matrimonial status of any person, the property of the spouses or of either of them, declaration as to the legitimacy of any person, guardianship of a person or the custody of any minor, maintenance, including proceedings under Chapter IX of the Code of Criminal Procedure.

Bench also confirmed that the appellant had every locus to bring into question the validity of the marriage of her father with the respondent and also the respondent’s status.

Object of Order 2 Rule 2 of CPC

The object of Order 2 Rule 2 is to avoid a multiplicity of suits.

“…no one should be vexed twice for same cause of action.”

 Question to be considered:

Whether the appellant was entitled to claim relief of declaration in the previous suit(s) on the basis of the cause of action pleaded by her in the previous suits against the respondent in relation to the validity of the marriage of her father with the respondent?

Court noted that the Family Court lost sight of the fact that Original Suit No.1018 of 2015 was instituted in the year 2015 whereas the Notice of Motion No.1622 came to be filed in the year 2016 after the appellant discovered the fraud alleged to have been played by the respondent pursuant to documents dated 10th and 12th February 2016 secured by her through Right to Information Application.

Thus, there was disclosure and discovery of new facts constituting the new cause of action.

Family Court erred in holding that provisions of Order 2 Rule 2 were attracted without examining the cause of action in the earlier plaints filed by the appellant.

Family Court ought to have taken into consideration — Whether in light of Sections 7, 8 and 20 of the Act, this Court has jurisdiction to grant declaration as to the validity of the marriage between the appellant’s father and the respondent sought by the appellant?

Bench after referring to the decision Full Bench of Bombay High Court in Romila Jaidev Shroff v. Jaidev Rajnikant Shroff, 2000 (3) Mh.L.J. 468 and Supreme Court decision in Balram Yadav v. Fulmaniyua Yadav, (2016) 13 SCC 308, reached an irresistible and inescapable conclusion, that,

“…High Court exercises its ordinary original civil jurisdiction in relation to the matters under the Act, it would be a District Court as understood therein. Resultantly, it would be denuded of its jurisdiction.”

Further respectfully differing from the decision of the Gauhati High Court in Smiti Nitikona Banerjee v. Ram Prasad Banerjee, 2018 SCC OnLine Gau 1577, wherein it was held that as per Section 7(b) of the Family Courts Act:

“…a third party questioning the marriage of any other party would not be entitled to maintain proceedings before the Family Court.”

The above position of the Gauhati High Court was differed by this Court for the simple reason that the same was against not only the letter and spirit of Section 7 but also against the rationale behind the Object and Reasons of the Act.

Hence, the family Court’s conclusion and reasoning cannot be sustained in the above view and the said order is set aside to the extent that the petition was barred by provision of Order 2 Rule 2 of the Code.[Nayana M. Ramani v. Fizzah Navnitlal Shah,    2021 SCC OnLine Bom 385, decided on 17-03-2021]


Advocates before the Court:

Vineet B. Naik, Senior Counsel a/w. Sheroy M. Bodhanwalla i/b. M.S.Bodhanwalla and Co., Advocate for the Appellant.

Deepti Panda a/w. Kirtida Chandarana Nandini Chittal i/b. Mahernosh Humranwala, Advocate for the Respondent.

Case BriefsSupreme Court

Supreme Court: In a case where an Army Officer’s wife made numerous malicious complaints against him to his superiors and various authorities, the 3-judge bench of Sanjay Kishan Kaul, Dinesh Maheshwari and Hrishikesh Roy, JJ held that such conduct cannot be considered to be “squabbles of ordinary middle class married life” and that it amounted to mental cruelty.

Holding that the husband was entitled to dissolution of his marriage, the Court said,

“In circumstances like this, the wronged party cannot be expected to continue with the matrimonial relationship and there is enough justification for him to seek separation.”

Background

The appellant, an Army Officer with M.Tech qualification and the respondent, a faculty in the Government P G College, Tehri with Ph.d degree got married on 27.9.2006 and lived together for few months at Vishakhapatnam and at Ludhiana. But from the initial days of married life, differences cropped up and since 15.9.2007, the couple have lived apart.

In the divorce proceeding, the appellant pleaded that he was subjected to numerous malicious complaints by the respondent which have affected his career and loss of reputation, resulting in mental cruelty. On the other hand, the respondent in her case for restitution of conjugal rights contended that the husband without any reasonable cause had deserted her and accordingly she pleaded for direction to the appellant, for resumption of matrimonial life.

Family Court’s finding

The Family Court gave a finding that the respondent had failed to establish her allegation of adultery against the husband. Further, it was held that the respondent had subjected the appellant to mental cruelty with her complaints to the Army and other authorities. Consequently, the Court allowed the appellant’s suit for dissolution of marriage and simultaneously dismissed the respondent’s petition for restitution of conjugal rights.

High Court’s finding

In appeal, while the Uttarakhand High Court found that the wife did write to various authorities commenting on the appellant’s character and conduct, the Division Bench opined that those cannot be construed as cruelty since no court has concluded that those allegations were false or fabricated. According to the Court, the conduct of the parties against each other would at best be squabbles of ordinary middle class married life. Accordingly, the High Court set aside the decree for dissolution of marriage and allowed the respondent’s suit for restitution of conjugal rights, under the impugned judgment.

Husband’s case

It was argued that the respondent had filed a series of complaints against him before the superior officers in the Army upto the level of the Chief of Army Staff and to other authorities and these complaints have irreparably damaged his reputation and mental peace. He cannot therefore be compelled to resume matrimonial life with the respondent, in the face of such unfounded allegations and cruel treatment. Moreover, the couple have been separated since 15.9.2007 and after all these years, restitution would not be justified or feasible.

Wife’s case

It was argued that the wife wrote letters and filed complaints only to assert her legal right as the married wife of the appellant and those communications should therefore be understood as efforts made by the wife to preserve the marital relationship.

Supreme Court’s analysis and finding

What amounts to Mental Cruelty?

For considering dissolution of marriage at the instance of a spouse who allege mental cruelty, the result of such mental cruelty must be such that it is not possible to continue with the matrimonial relationship. In other words, the wronged party cannot be expected to condone such conduct and continue to live with his/her spouse.

“The degree of tolerance will vary from one couple to another and the Court will have to bear in mind the background, the level of education and also the status of the parties, in order to determine whether the cruelty alleged is sufficient to justify dissolution of marriage, at the instance of the wronged party.”

Whether wife’s conduct in the present case amounts to mental cruelty?

The respondent had made several defamatory complaints to the appellant’s superiors in the Army for which, a Court of inquiry was held by the Army authorities against the appellant. Primarily for those, the appellant’s career progress got affected. The Respondent was also making complaints to other authorities, such as, the State Commission for Women and has posted defamatory materials on other platforms. As a result, the appellant’s career and reputation had suffered.

“When the appellant has suffered adverse consequences in his life and career on account of the allegations made by the respondent, the legal consequences must follow and those cannot be prevented only because, no Court has determined that the allegations were false.”

The Court also found fault with the High Court’s approach in dealing with the issue. The High Court had, without any definite finding on the credibility of the wife’s allegation, held that the wronged spouse would be disentitled to relief.

The Court also noticed that the allegations are levelled by a highly educated spouse and they do have the propensity to irreparably damage the character and reputation of the appellant.

“When the reputation of the spouse is sullied amongst his colleagues, his superiors and the society at large, it would be difficult to expect condonation of such conduct by the affected party.”

Further, the explanation of the wife that she made those complaints in order to protect the matrimonial ties also would not justify the persistent effort made by her to undermine the dignity and reputation of the appellant.

The Court hence held that the High Court was in error in describing the broken relationship as normal wear and tear of middle class married life.

“It is a definite case of cruelty inflicted by the respondent against the appellant and as such enough justification is found to set aside the impugned judgment of the High Court and to restore the order passed by the Family Court.”

Hence, the appellant was held entitled to dissolution of his marriage and consequently the respondent’s application for restitution of conjugal rights was dismissed.

[Joydeep Majumdar v. Bharti Jaiswal Majumdar, 2021 SCC OnLine SC 146, decided on 26.02.2021]


*Judgment by: Justice Hrishikesh Roy

Know Thy Judge | Justice Hrishikesh Roy

Appearances before the Court by: 

For Appellant – Senior Advocate Gopal Sankaranarayanan

For respondent – Advocate Ahmad Ibrahim

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Vipin Sanghi and Rekha Palli, JJ., upheld the Family Court’s decision and directed the parties approach the local Court of Singapore with regard to sorting out their matrimonial dispute. 

Issue

Present appeal was filed seeking a direction against the Family Court’s decision, wherein the appellant/plaintiff sought an anti-suit injunction against the defendant/respondent to seek restraint against him for proceeding with a divorce petition filed by him to seek dissolution of marriage before the Family Justice Courts of the Republic of Singapore.

Family Court had granted injunction till the next date of hearing, restraining the defendant/respondent from prosecuting, pursuing or going ahead with his divorce action or any other proceedings as emanating from the matrimony in the case pending in Singapore Court.

Analysis

Bench found that the Family Court took note of the law laid down by the Supreme Court decisions on the aspect of grant on anti-injunction suit. Following were decisions of Supreme Court that were relied upon by the Family Court:

Y.Narasimha Rao v. Y. Venkata Lakshmi, (1991) 3 SCC 451

Modi Entertainment Network v. WSG Cricket PTE Ltd., (2003) 4 SCC 341

Dinesh Singh Thakur v. Sonal Thakur., AIR 2018 SC 2094

Appellant’s submission before the Court is that she would be severely prejudiced in case the divorce proceedings were allowed to continue in Singapore Courts, since the divorce would be granted without the appellant being granted any maintenance, or alimony, as also the custody of the children.

Opinion

Court on perusal of the submissions, facts and circumstances of the case stated that:

Firstly, regarding the rights of the parties in a matrimonial dispute according to the law of Singapore can hardly be a reason for the Court to grant the injunction, for the simple reason that the parties were domiciled in Singapore and were continuously residing there since 2012.

Secondly, no reason can be seen why the Singapore Courts would treat the appellant unfairly. Pertinently she had moved an application before the Court at Singapore to seek maintenance. Therefore, the Court cannot accept her claim that she would be prejudiced in any manner on account of her being the wife in the matrimonial dispute before a Singapore Court.

Appellant had also moved an application challenging territorial jurisdiction of the Court at Singapore, which application was rejected.

Decision

Hence, the High Court held that the Family Court had rightly rejected the application preferred by the appellant under Order 39 Rule 1 and 2 CPC.

Bench reiterated that parties being permanent resident of Singapore, residing there since 2012, should sort out their matrimonial dispute before the local Court in Singapore.

Adding to the above, Court expressed that Courts in India cannot be said to be forums that would be convenient to either of the parties. Enforcement of orders passed by the Courts in India- when the parties; their children, and; their assets/properties are situated in Singapore, would be a practical impossibility.

On finding no merit in the appeal, it was dismissed. [Rakhee Bahl v. Pankaj Bahl, 2021 SCC OnLine Del 766, decided on 03-02-2021]


Advocates for the parties:

For Appellant: Osama Suhail with Surabhi Diwan, Advs.

For Respondent: Shashank Agrawal, Adv.

Case BriefsHigh Courts

Madras High Court: J. Nisha Banu, J., while addressing a revision petition directed the Family Court to waive off the cooling-off period in view of the petitioners living separately for the past 13 years.

The instant petition was filed to seek direction to waive off the cooling period.

The revision petitioners had preferred the petition on the file of the Family Court under Section 13-B of the Hindu Marriage Act, 1955. Husband and Wife had been living separately for 13 years and mutually agreed to dissolve their marriage.

The grievance that arose was that, since they had been living separately for the past 13 years, the family Court ought to have disposed of the petition. Hence, petitioners are constrained to move the present revision petition before the Court for granting speedy disposal of the petition.

Revision petitioners’ counsel while narrating the facts of the matter, relied upon the decision of the Supreme Court in Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746, wherein it was held that:

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

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

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

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

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

iv) the waiting period will only prolong their agony.

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

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

Hence, High Court concluded in the present matter that since the petitioners had been separated for the past 13 years and had entered into a compromise along with this in view of the above-referred decision, Family Court shall waive the cooling period and dispose of the petition.[Jaishankar, In Re., 2021 SCC OnLine Mad 708, decided on 01-02-2021]

Case BriefsHigh Courts

Madras High Court: T. Raja and G. Chandrasekharan, JJ., addressed a matter wherein wife approaches the wife appealed against the family court’s decision of dissolving her marriage solemnised with the respondent, on grounds of cruelty.

Bhuvaneswari, wife of S.K. Jayakumar brought forth the instant appeal on being aggrieved by the decision of the family court, dissolving the marriage under Section 13(1)(i—a) of the Hindu Marriage Act, 1955 accepting the case of the respondent/husband that the appellant/wife caused mental cruelty under Section 13(1)(i—a) of the Hindu Marriage Act, 1955.

Analysis

High Court while deciding the matter observed that the wife made wrong statements before the Court blowing hot and cold. Further, it was also noted that once when the husband met with an accident and was an inpatient for 45 days, appellant or her family member refused to visit him which clearly implies that the wife miserably failed to show any iota of trust as a dutiful wife to her husband.

Another significant point was that after the decree of divorce by the husband was filed, nothing prevents the wife to move an application invoking Section 9 of the HMA for restitution of conjugal rights.

The above clearly describes that situation wherein the wife at no pint was showing any interest to resume or rejoin the matrimonial home.

Bench noted that the trial court rightly relied on the decision of the Division Bench of this Court in the case of Suguna v. Kubendiran, (2017) 1 CTC 695, wherein it was held that if the acts of the wife are of such quality or magnitude and consequence as to cause pain, agony and suffering on the husband, the same would amount to cruelty in matrimonial law for granting the decree of divorce. Supreme Court in its decision of Pankaj Mahajan v. Dimple, (2011) 12 SCC 1 has laid down several instances of cruelty.

In the present case, the husband has stated that the wife had been insulting his parents and quarrelling with him and abusing him every now and then. Besides she had been behaving in an abnormal manner, causing great mental cruelty to the respondent/husband.

Therefore, the Court stated that the facts and pleadings clearly show that the conduct of the wife towards her husband was substantiated and hence they started to live separately for more than 7 long years.

In view of the above chain of marital life, there is no possibility for the parties to unite, hence the decision passed by the trial court was correct and no infirmity was found. [Bhuvaneswari v. S.K. Jayakumar, 2021 SCC OnLine Mad 371, decided on 20-01-2021]


Advocates for the parties:

For Appellant: G. Saravanabhavan

For Respondent: S. Xavier Felix

Case BriefsSupreme Court

Supreme Court: The 3-Judge Bench of S.A. Bobde, CJ and L. Nageswara Rao and Vineet Saran, JJ., dismissed a review petition while directing the Family Court, Gautam Budh Nagar, to conduct proceedings by video conferencing.

Petitioner preferred the instant petition seeking transfer of HMA No. 487 of 2015 filed by the respondent from Principle Jude, Family Court, District Gautambudh Nagar, U.P. to the Court of Principal Judge, Family Court, Saket District, New Delhi.

The transfer petition was dismissed the and Court directed the trial to be conducted at Gautambudh Nagar, Family Court through Video conferencing.

Reasoning placed by the petitioner for filing the present petition was that there was no video conferencing facility at Gautambudh Nagar, District Courts. Another ground was that video conferencing is not permissible in matrimonial matters in light of the Supreme Court decision in Santhini v. Vijaya Venketesh, (2018) 1 SCC 62.

 Since March 2020, due to the physical functioning of the Courts were stopped. Hence, proceedings in all Courts are being conducted only through video conferencing.

Bench stated that in the normal course, it would not have directed video conferencing in respect of matrimonial matters as per the above-referred Judgment, but in the present matter, since all the proceedings are being conducted in video conferencing, Court directed the Family Court, District Gautambudh Nagar, U.P. to conduct the trial through video conferencing.

In light of the above, the review petition was dismissed. [Anjali Brahmawar Chauhan v. Navin Chauhan, 2021 SCC OnLine SC 38, decided on 22-01-2021]

Case BriefsHigh Courts

Allahabad High Court: Raj Beer Singh, J., observed that:

“The object of the Section 125 CrPC being to afford a swift remedy, and the determination by the Magistrate as to the status of the parties being subject to a final determination by the Civil Court, when the husband denies that the applicant is not his wife, all that the Magistrate has to find, in a proceeding under Section 125 CrPC, is whether there was some marriage ceremony between the parties, whether they have lived as husband and wife in the eyes of their neighbours, whether children were born from the union.”

The instant revision was preferred against the order passed under Section 125 of Criminal Procedure Code.

Contention that falls for consideration:

Whether respondent 2 has been able to show herself as married wife of revisionist in order to claim maintenance from revisionist under Section 125 CrPC?

Proceedings under Section 125 CrPC. are summary proceeding. In Supreme Court’s decision of Dwarika Prasad Satpathy v. Bidyut Prava Dixit, (1999) 7 SCC 675, it was observed that the standard of proof of marriage in a Section 125 proceeding is not as strict as is required in a trial for an offence under Section 494 IPC.

Bench expressed that it is a well-settled law that for the purposes of a proceeding under Section 125 CrPC, the factum of marriage has to be prima facie considered.

“If there is prima facie material on record to suggest that the parties have married or are having relationship in the nature of marriage, the court can presume in favour of the woman claiming maintenance.”

 Court also stated that an order passed in an application under Section 125 CrPC does not finally determine the rights and obligations of the parties and the said section is enacted with a view to provide a summary remedy for providing maintenance to a wife, children and parents.

In the decision of S. Sethurathiuam Pillai v. Barbara it was observed that maintenance under Section 488 CrPC, 1898 (similar to Section 125 Cr.P.C.) cannot be denied where there was some evidence on which conclusion for grant of maintenance could be reached. It was held that order passed under Section 488 is a summary order which does not finally determine the rights and obligations of the parties; the decision of the criminal court that there was a valid marriage between the parties will not operate as decisive in any civil proceeding between the parties.

Court observed that in a proceeding for maintenance under Section 125 CrPC, a Magistrate or Judge of the Family Court has to be prima facie satisfied about the marital status of the parties, as a decision under Section 125 CrPC is tentative in nature, subject to the decision in any civil proceeding, as has been held in Santosh v. Naresh Pal (1998) 8 SCC 447.

In light of the above discussions, High Court states that if from the evidence which is led, the Magistrate/Court is prima facie satisfied with regard to the performance of marriage in proceedings under Section 125 CrPC which are of summary nature, strict proof of performance of essential rites is not required.

In the instant matter, respondent 2 had submitted that her nikah was solemnized with the revisionist and out of that marriage, she gave birth to a daughter, but she was killed by the revisionist, whereas the case of the revisionist was that his nikah was never solemnized and they never lived as husband and wife together.

Limited Scope of Revisional Court

Question whether the respondent 2 was a married wife of revisionist, is a question of fact and thus, this court cannot upset the finding of the trial court by entering into re-appreciation of evidence, unless it is shown such a finding is not based on evidence or some patent error of jurisdiction is shown. In the instant case, no such eventuality could be shown. In fact, if the wife had been neglected and the wife was entitled to maintenance, the scope of interference by the Revisional Court is very limited.

Further, the Court added that in view of evidence on record, the grant of maintenance from the date of application cannot be said arbitrary or against law. The quantum of maintenance also appeared reasonable and appropriate.

“If a party deliberately delays the proceedings for long period, such party must not be allowed to take advantage of such tactics.”

 High Court found no illegality, perversity or error of jurisdiction in the impugned order.

While parting with the decision, Court added that the Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. [Irshad Ali v. State of U.P., 2021 SCC OnLine All 92, decided on 08-01-2021]


Advocates who appeared on behalf of the parties:

 Counsel for Revisionist: Krishna Mishra

Counsel for Opposite Party: G.A.

Case BriefsHigh Courts

To marry or not to marry and if so whom, may well be a private affair. But, the freedom to break a matrimonial tie is not.

(N.G. Dastane v. S. Dastane: (1975) 2 SCC 326).

Kerala High Court: The Division Bench of C.K. Abdul Rehim and R. Narayana Pisharadi, JJ., while addressing the instant petition highlighted the observation that:

a petition for divorce under Section 27 of the Special Marriage Act, 1954 can be filed only when the marriage is solemnised or deemed to be solemnised under the provisions of that Act.

Husband in the instant case has challenged the divorce decree passed by the Family Court filed by the wife.

Section 27(1)(d) of the Special Marriage Act, 1954 provides that, subject to the provisions of that Act and the Rules made thereunder, a petition for divorce may be presented to the District Court either by the husband or the wife on the ground that the respondent has treated the petitioner with cruelty.

Petitioner and respondent had solemnised their marriage under the provisions of the Special Marriage Act, 1954.

Primary allegation against the respondent was that he was always suspicious of the moral character of the petitioner and that he always used to make accusations of infidelity and immorality against her.

Highlight in the petition

Imputations made by the respondent on the character of the petitioner, especially the accusation of illicit relationship by her with her colleagues in the profession.

Whether the conduct of the respondent imputing infidelity and immorality on the petitioner amounts to inflicting mental cruelty?

Mental cruelty is that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other (See V. Bhagat v. D. Bhagat : (1994) 1 SCC 337)

Bench stated that to constitute cruelty, the conduct complained of must be something more serious that ‘ordinary wear and tear of married life’.

In the instant case, it was submitted that the respondent had publicly humiliated the petitioner by telling two strangers that his wife was sleeping with another man on the previous night.

Court noted that it was proved that the respondent had informed the colleagues of the petitioner in the hospital that she was having an affair with another doctor. Thus the respondent made the petitioner a subject of scandal in the hospital where she was working.

Due to the above-stated petitioner had to resign from the hospital on account of shame.

The above-discussed incidents proved that the respondent was in the habit of imputing infidelity and immorality on the part of his wife.

Injury to reputation is an important consideration in dealing with the question of cruelty.

In Raj v. Kavita : (2017) 14 SCC 194, Supreme Court held that, the conduct of a spouse levelling false accusations against the other spouse which would have the effect of lowering his/her reputation in the eyes of his/her peers, would be an act of cruelty.

In Narendra v. Meena: (2016) 9 SC 455, Supreme Court held that, levelling of absolutely false allegations and that too with regard to an extra-marital life, is quite serious and that can surely be a cause for mental cruelty.

With regard to the above discussions, it was observed that

Unending accusations and imputations can cause more pain and misery than physical beating.

Legal Cruelty

Bench expressed that, in a delicate human relationship like matrimony, one has to see the probabilities of the case. One has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse due to the acts or omissions of the other.

Court further in line with the above discussions also stated that

Any woman with reasonable self-respect and power of endurance would find it difficult to live with such a suspicious and taunting husband.

Hence, the lower Court’s conclusion that the petitioner was treated with cruelty by the respondent and she was entitled to get divorce decree in light of the same was correct.

Special Marriage Act, 1954

Appellant’s Counsel submitted that since the marriage was solemnised in a church, the marriage solemnised under the provisions of Special Marriage Act, 1954 would not prevail and the petition for divorce filed under Section 27 of the said Act would not be maintainable.

Hence, the petition for divorce should have been filed under Section 10 of the Divorce Act, 1869.

The Indian Christian Marriage Act, 1872 is not applicable to territories which were comprised in the erstwhile State of Travancore – Cochin existed before the 1st November 1956.

The marriage between the parties in the instant case had taken place in an area comprised in the erstwhile Travancore State.

Therefore, the marriage between the parties in the instant case was not governed by the provisions of the above-mentioned statute.

High Court observed that when the marriage is not governed by any statutory law, the validity of the marriage has to be decided in accordance with the personal law applicable.

Further, it followed that there was no valid marriage solemnised between the parties in the church. If that be so, the marriage solemnised as per the provisions of the Special Marriage Act, 1954 is the valid marriage that existed between the parties.

Adding to the above, bench stated that had the marriage between the parties conducted in the church been valid, it was not necessary for the parties to solemnise the marriage under Chapter II of the Special Marriage Act, 1954.

The very fact that the marriage between the parties was solemnised by them under the provisions of Chapter II of the Special Marriage Act, 1954 would indicate that the parties were also aware and conscious of the fact that the marriage between them conducted in the church was not valid.

In Stephen Joshus v. J.D. Kapoor: 58 (1995) DLT 57,

the parties were Christians who had been married to each other under the provisions of the Indian Christian Marriage Act, 1872. A joint petition was preferred by them under Section 28 of the Special Marriage Act, 1954 seeking the dissolution of marriage by a decree of divorce by mutual consent.

The trial court dismissed the petition on the ground that the marriage was solemnised under the Christian Marriage Act whereas divorce had been sought under the Special Marriage Act and therefore, the petition was not maintainable.

The Delhi High Court held that sub-section (2) of Section 28 of the Special Marriage Act confers jurisdiction upon the District Court to grant a decree, declaring the marriage to be dissolved only on the satisfaction that the marriage has been solemnised under that Act and therefore, upheld the dismissal of the petition by the lower court.

In Aulvin v. Chandrawati: 1974 SCC OnLine All 285,

the husband filed a petition for divorce against the wife on the ground of desertion under Section 27 of the Special Marriage Act. The parties were admittedly Christians and they were married in a Christian church according to Christian rites.

The wife contended that since the parties were Christians and had been married under the provisions of the Indian Christian Marriage Act, 1872, the petition for divorce should have been filed under Section 10 of the Divorce Act, 1869 and the petition filed under Section 27 of the Special Marriage Act was not maintainable.

The Allahabad High Court held that the petition for divorce presented under Section 27 of the Special Marriage Act, 1954 was not maintainable since the marriage between the parties was neither solemnised nor registered under that Act.

Hence, the Court held that the marriage between the petitioner and respondent in the church was not valid and marriage solemnised under the provisions of the Special Marriage Act, 1954 would prevail over it. If only the marriage conducted between the parties in church was valid, the solemnisation of marriage under Chapter II of the Special Marriage Act, 1954 would have been an exercise in futility.

Therefore, the divorce petition under Section 27 of the Special Marriage Act, 1954 would not be maintainable.[Kiran Kumar v. Bini Marim Chandi, 2018 SCC OnLine Ker 13579, decided on 11-10-2018]


Advocates who appeared before the Court:

For Appellant:

SRI.S.V.PREMAKUMARAN NAIR
SMT.M.BINDUDAS
SMT.P.S.ANJU
SRI.P.K.JANARDHANAN
SRI.R.T.PRADEEP

For Respondent:

SMT.MAJIDA.S
SMT.MAJIDA.S CAVEATOR
DR. SEBASTIAN CHAMPAPPILLY AMICUS CURIAE
Case BriefsHigh Courts

Bombay High Court: C.V. Bhadang, J., addressed whether the Family Court can application for reliefs under Section 18 to 22 of the Protection of Women from Domestic Violence Act, 2005.

The instant application was filed in regard to the transfer of Criminal Miscellaneous Application pending before the Judicial Magistrate for dissolution of marriage on the ground of cruelty.

Bench noted that the applicant was seeking reliefs against the respondent with regard to the dissolution of marriage and permanent custody of the children.

Respondent had filed Criminal Miscellaneous Application under Sections 12, 17, 18, 19, 20, 22 and 23(2) of the D.V. Act, seeking a residence order a protection order and monetary reliefs.

Principle Issue 

Whether the Family Court can entertain the application, as framed and filed by the respondent before the Magistrate?

Court referred to the three decisions of Single Judges of this Court which have already covered the above issue:

  • Minoti Subhash Anand v. Subhash Manoharlal Anand (R.D. Dhanuka, J.),2015 SCC OnLine Bom 6113
  • Sandip Mrinmoy Chakraborty v. Reshita Sandip Chakraboarty ( Bharati H. Dangre, J.), 2018 SCC Online Bom 2709
  • Santosh Machindra Mulik v. Mohini Mithu Choudhari (S.C. Gupte, J.), Misc. C.A. No. 64 of 2019 decided on 15-11-2019

This Court has consistently held that in view of Section 7(2)(b) of the Family Courts Act, read with Section 26 of the Protection of Women from Domestic Violence Act, 2005, Family Court would get jurisdiction to entertain the application for reliefs under Section 18 to 22 of the D.V. Act.

“…if the Family Court can entertain an application under Sections 18 to 22, if filed under Section 26 merely because the application is styled as one under Section 12, would hardly make any difference.”

Hence, the present application was allowed and the Criminal Miscellaneous Application was transferred to the Family Court.[Hitesh Prakashmalji Mehta v. Aashika Hitesh Mehta, 2020 SCC OnLine Bom 983, decided on 28-09-2020]


Advocates who appeared before the Court:

Abhijit D. Sarwate for the Applicant.

Arvind Chavan for the Respondent.

Case BriefsHigh Courts

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

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

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

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

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

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

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

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

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

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

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

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

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


Advocates who appeared in the matter:

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

Case BriefsHigh Courts

Kerala High Court: Shircy V. J., while allowing the present petition against the original petition filed in the family court, reiterated, “In matrimonial disputes, while considering transfer petitions, the convenience of the wife is to be preferred over the convenience of the husband.”

Background

The present petition is filed by the respondent in the original petition no. 557 of 2020, to seek transfer of the said petition from Family Court, Attingal to Family Court, Chavara.

It is submitted by the counsel for the petitioner that the petitioner is currently residing at Puthukkad which is hardly 6 km from the Family Court, Chavara where two cases were pending. Now she has to undertake a long journey to contest her case as the Family Court at Attingal is situated 64 km away from her place of residence. Such being the case, it will become extremely difficult for her to attend the court proceedings before the Family Court, Attingal with her child.

 Observation

Upon observing the facts and circumstances of the present case, the Court acknowledged the genuineness of the prayer sought and further said that the factum of convenience tilts in the favour of the wife. It was further specified by the Court that, “…in matrimonial disputes, while considering transfer petitions, the convenience of the wife is to be preferred over the convenience of the husband.” Reliance was placed over, Sumita Singh v. Kumar Sanjay, (2002) KHC 1889, Sailaja V v. V. Koteswara Rao, (2003) KHC 3105 and Rajani Kishor Pardeshi v. Kishor Babulal Pardeshi, (2005) 12 SCC 237 against the same.

 Decision

While concurring with the settled precedents upon the said premise, the Court allowed the petition for transfer in the interests of justice and good conscience.[Kavitha v. Gopakumar, 2020 SCC OnLine Ker 6098, decided on 30-11-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

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

Cruelty & Desertion | Dissolution of Marriage

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

Family Court dissolved the marriage.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Case BriefsHigh Courts

Gujarat High Court: A.P. Thaker, J., dismissed an application that was filed on being aggrieved and dissatisfied with the order of maintenance passed by the Family Court whereby the petitioner was ordered to pay maintenance of Rs 4, 000 per month to his wife.

The Counsel for the applicant, Jatin Yadav had contended that the respondent had filed an application before the Family Court, Ahmedabad, on the ground that she was deserted by the husband and the husband had not paid any maintenance to her. He further contended that marriage between the parties was solemnized on the false statement of the wife that she was unmarried therefore, he had also filed a criminal complaint against the wife for cheating and the same was pending. He further contended that the wife was serving in a company and was getting Rs.9, 000/as income from that job and, therefore, she was not entitled to get any maintenance from him and that the applicant was earlier working as RTO agent and since the system of online was introduced, he had no such income as has been alleged by the wife.

The Court while dismissing the revision petition stated that after appreciating all the evidence in proper perspective it is clear that the Family Court has not committed any serious error of law and facts. It is incumbent upon the husband to lead evidence with regard to his income. In the present case, wife has fairly admitted that she was working in a private company and was getting Rs 5, 000 per month. As against this, the husband had merely stated that he was working as RTO agent and now due to coming into operation of the online system, he was not getting that much income as has been alleged by the wife. At the same time, the husband has not led any evidence regarding his actual income thus; it was the liability of the husband to pay maintenance to his wife.[Ajitbhai Mohanbhai Parghi v. State of Gujarat, 2020 SCC OnLine Guj 1228, decided on 03-09-2020]


Suchita Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Ravi Malimath and Narayan Singh Dhanik, JJ., dismissed and appeal which was filed aggrieved by the judgment and order of the Principal Judge, Family Court whereby the suit of the plaintiff-husband (respondent herein) for dissolution of marriage was decreed.

The marriage of Rajesh Gaur (plaintiff-respondent) was solemnized with Anita Gaur (defendant-appellant) as per Hindu customs and ceremonies on 12-05-1999 after which they shifted to Mumbai where the plaintiff-respondent was running his business. Two children were also born out of wedlock. On 3-06-2014, husband (plaintiff-respondent) instituted a suit under Section 13 of the Hindu Marriage Act against the wife (defendant-appellant) seeking a decree of divorce on the ground of cruelty. He had alleged that about five years ago there was a sudden change in the behavior of his wife and the valuable articles, jewellery, cash, etc. started missing from the house. Further, he alleged that 2-3 years thereafter, he had started receiving telephone calls of crooked persons asking him either to return the money else he would be abducted. On being asked the plaintiff-respondent confessed to him that she had borrowed money on interest @ 10 percent per month and she also had purchased ornaments and clothes on credit. After getting continuous threats of abduction and capture of his flat the defendant-appellant fearing for his life and liberty decided to come back to Dehradun along with his wife; thereafter a Panchayat was held in the village in which the defendant-appellant admitted her mistakes in writing but even after that quarrels and scenes had become common on several occasions and it was impossible for the plaintiff-respondent to continue to live with the defendant-appellant. The defendant-appellant however in the written statement denied the allegations of the plaintiff-respondent but admitted borrowing money amounting to Rs. 10,00,000 for household expenses, payment of school fees, etc. She also submitted that she was being badly harassed by the plaintiff-respondent; and that she made a complaint in the Women Cell and also lodged a case under Section 494, Penal code, 1860 against him. After examining the evidence the court decreed the suit for divorce holding that the reasons stated for instituting the suit and the acts alleged by the plaintiff against his wife qualified to come under the category of cruelty.

The Court while dismissing the appeal affirmed the order of the Family Court explaining that the word “cruelty’ was not defined under the Act and it could be physical or mental. The Court relied on various judgments of the Supreme Court like in Praveen Mehta v. Inderjit Mehta, (2002) 5 SCC 706, where it was held that “Mental cruelty cannot be established by direct evidence and it is necessarily a matter of inference to be drawn from the facts and circumstances of the case.” In Raj Talreja v. Kavita Talreja, (2017) 14 SCC 194 the Court had held that “cruelty can never be defined with exactitude.’ The Court also stated that the plaintiff-respondent failed to substantiate the allegations which she had made against the plaintiff-respondent. The Court consequently held that:

“All these acts and conduct, in our considered view, constitute cruelty. Further, as is evident, it was not a solitary instance of cruelty on the part of the defendant-appellant. The defendant-appellant indulged in repeated acts of cruelty and misbehavior with her husband.”[Anita Gaur v. Rajesh Gaur, 2020 SCC OnLine Utt 503, decided on 24-08-2020]


Suchita Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Kerala High Court: Shircy V., J. allowed the transfer petition of the petitioner’s matrimonial dispute cases to the Family Court most convenient for her to appear before.

In the present case, the petitioner who resides with her minor child at her paternal home approached the Court seeking to transfer her matrimonial dispute cases to the Family Court in the district where she currently resides.

The Court while evaluating the facts and circumstances of the case took note of her hardships and the inconvenience she has to undergo while travelling up and down to the Family Court where her cases are pending. The Court further emphasised that such hardships were not uncommon especially amongst women who are aggrieved by such disputes.

Therefore, the Court laid stress on taking a lady’s convenience to travel while considering transfer petitions in the future too.[Valsala Nisha v. Rajesh Soman Nair, 2020 SCC OnLine Ker 3184, decided on 11-08-2020]

Case BriefsHigh Courts

Delhi High Court: Anup Jairam Bhambhani, J., while addressing a matrimonial dispute, observed that,

“the only criterion or test under Section 14 of Family Courts Act for a Family Court to admit, evidence is it’s subjective satisfaction that the evidence would assist it to deal effectually with the dispute.”

Divorce petition was filed by the husband/respondent on 26th September, 2012 seeking dissolution of marriage on the ground of cruelty under Section 13(1)(ia)of the Hindu Marriage Act, 1955.

As evidence, husband filed a Compact Disc (CD) in which he had recorded how the wife was talking a friend of hers about the husband’s family which clearly was derogatory, defamatory and constituted cruelty.

Recording of ‘private’ conversation without the knowledge or consent of wife is in breach of her fundamental right to privacy.

Wife while objecting to the said evidence stated that since the evidence comprised in the CD was collected in breach of her fundamental right to privacy, the same is not admissible in a court of law.

She further argued that a person is entitled to criticise someone and not share the criticism with the world; and that a person has a right to all thoughts and behavioural patterns within one’s zone of privacy.

Additionally it has been urged that the husband’s action of surreptitiously and clandestinely recording the wife’s telephone conversation with her friend also amounts to an offence under Section 354-D of the Penal Code 1860, whereby the very act of recording such conversation is a criminal offence, punishable in law.

Family Court’s opinion on the CD as evidence:

“This court is of the opinion that the conversation between the respondent and her friend, wherein, she has allegedly spoken about the petitioner/ his family and the status of the matrimonial life would, certainly assist the court in effectively deciding the dispute between the parties. Such a piece of evidence is certainly relevant.”

One of the earliest, leading decisions on the question of admissibility of tape-recorded conversations is Regina v. Maqsud Ali, (1966) 1 QB 688 where a secretly tape-recorded conversation was the only incriminating piece of evidence implicating the accused persons for murder.

Analysis and Conclusion

While a litigating party certainly has a right to privacy, that right must yield to the right of an opposing party to bring evidence it considers relevant to court, to prove its case.

Since no fundamental right under our Constitution is absolute, in the event of conflict between two fundamental rights, as in this case, a contest between the right to privacy and the right to fair trial, both of which arise under the expansive Article 21, the right to privacy may have to yield to the right to fair trial.

In High Court’s opinion,

Legislature could not have enunciated it more clearly than to say that the Family Court “may receive as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872.”

“…What credence, value or weightage is to be given to the evidence so received is discretionary upon the judge, when finally adjudicating the dispute.”

Without at all denigrating the importance of ethical and moral considerations, in the opinion of this court, to say that a Family Court should shut-out evidence at the very threshold on the basis of how it is collected, would be

(i) in breach of Section 14 which unequivocally expresses the intention of the Legislature ;

(ii) in breach of settled principles of evidence ; and

(iii) in breach of the enunciation by the Supreme Court that though the right to privacy is a fundamental right, it is not absolute and must be placed in the context of other rights and values.

Bench further observed that, in most cases that come before the Family Court, the evidence sought to be marshalled would relate to the private affairs of the litigating parties.

Thus, if Section 14 is held not to apply in its full expanse to evidence that impinges on a person’s right to privacy, then Section 14 may as well be effaced from the statute.

In context of the present matter, Court stated that conversation between the wife and her friend, which is the subject matter of recording on the CD, in which she is alleged to have spoken about the husband and his parents, would be a ‘relevant fact’ as understood in law, upon a combined reading of Sections 5, 7 and 8 of the Evidence Act. To that extent therefore, the contents on the CD are relevant for purposes of the divorce proceedings.

Though Court added to its conclusion that, if the right to adduce evidence collected by surreptitious means in a marital or family relationship is available without any qualification or consequences, it could potentially create havoc in people’s personal and family lives and thereby in the society at large.

While law must trump sentiment, a salutary rule of evidence or a beneficent statutory provision, must not be taken as a license for illegal collection of evidence.

In view of the above, no infirmity is found in Family Court’s decision. [Deepti Kapur v. Kunal Julka, 2020 SCC OnLine Del 672 , decided on 30-06-2020]

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]

Case BriefsHigh Courts

Bombay High Court: While deciding the instant custody matter, S.C. Gupte, J., held that as per the provisions of Section 6 of Hindu Minority and Guardianship Act, 1956, it is a mother who is the natural guardian of an illegitimate child (whether boy or girl) and a father’s claim only comes in second to mother’s.

As per the facts of the instant case, the dispute revolved around the custody of a minor son of the petitioner and the respondent, born out of wedlock. The petitioner (biological father) via his counsel Aditya Pratap, challenged the Order passed by the Family Court, Pune which had awarded the custody to the respondent (biological mother). The petitioner contended that the respondent has cut-off his access to the child and that she is mentally and emotionally unfit to take custody of the child. The petitioner further submitted that the respondent intends to take away the boy to New Zealand; hence she has applied for visa. The respondent via her counsel Abhishek Pungliya, contended that the petitioner had abandoned her during her pregnancy; refused to acknowledge their marriage which allegedly took place in 2009. The respondent also claimed that the petitioner inflicted physical and mental torture upon her so that the child may get miscarried. The respondent further submitted that since his birth and till date, it is the respondent alone who has brought up the child. It was pointed out that the child suffers from autism spectrum disorder; hence he has always been under exclusive care of the respondent whereas the petitioner never had any affection or association with the child. Regarding the respondent’s relocation to New Zealand, it was submitted that both the mother and the child are the citizens of New Zealand and since the country is free from the current Covid-19 pandemic, hence it is a safe haven for her son.

Perusing the contentions of the parties and the Order given by the Family Court, the Court observed that the petitioner could not sufficiently establish the mental instability of the respondent, as the materials presented by him does not establish the respondent’s unsoundness of mind, prima facie. Deliberating upon the validity of the Order passed by the Family Court, the Bench noted that the Family Court had correctly taken into account all the relevant circumstances and materials on record; its view is certainly a possible view, which a Court of law might well take.

The impugned Order has fairly and adequately addressed prima facie merits of the case as also the question of balance of convenience. Regarding the petitioner’s claims, the Court noted that he denied any matrimonial relationship between himself and the respondent, and thereby, legitimacy to the minor child. The child, who is a special child, has been taken care of and looked after by the respondent mother ever since his birth. It is therefore the mother who has an indefeasible legal right to his natural guardianship over the petitioner. [Dharmesh Vasantrai Shah v. Renuka Prakash Tiwari, 2020 SCC OnLine Bom 697 , decided on 09-06-2020]