High Court Round UpLegal RoundUp

110 Reports from 20 High Courts


Allahabad High Court


  • Money Laundering

For money launderers “jail is the rule and bail is an exception”

While addressing a matter with regard to anticipatory bail, Krishan Pahal, J., observed that, Money Laundering being an offence is economic threat to national interest and is committed by the white-collar offenders who are deeply rooted in society and cannot be traced out easily.

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  • Right to Approach the Court

Person whose case is based on falsehood has no right to approach the Court

Expressing that Courts of law are meant for imparting justice, Sanjay Kumar Singh, J., observed that more often the process of Court is being abused by unscrupulous litigants to achieve their nefarious design.

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  • Bail

Cogent and clinching evidence found regarding conversion of deaf and dumb students to Islam; Bail denied

The Division Bench of Brij Raj Singh and Ramesh Sinha, JJ. dismissed a criminal appeal which was filed under Section 21 (4) of the National Investigation Agency Act, 2008 of refusal of bail to the appellant.

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Unity of India is not made of bamboo reeds which will bend to the passing winds of empty slogans; foundations of our nation are more enduring: All HC while granting bail to Kashmiri Students

Expressing that Students travelling freely to different parts of the country in the quest for knowledge is the true celebration of India diversity and a vivid manifestation of India’s unity, Ajay Bhanot, J., stated that it is the duty of the people of the hosting State to create enabling conditions for visiting scholars to learn and to live the constitutional values of our nation.

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Andhra Pradesh High Court


  • Arms Act

Will carrying of toy gun in public attract S. 25 of Arms Act? Bail granted to a man giving stills as a hero with an air gun in a cinema theatre

“…the offences punishable under Sections 290, 506(2) IPC are bailable in nature. As regards the offence punishable under Section 25 of the Arms Act, 1959, is concerned, the pistol which was seized from the possession of A-1 is an air gun. It is a toy gun.”

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  • Wilful Negligence

No offence made out under POA Act against bank officials who misplaced the house documents and title deeds of a claimant as FIR does not show wilful Negligence by a public servant

The Court after perusing Section 3(1) (v) and 3(2) (vii) and Section 4 of POA, Act, which deals with punishment for neglect of duties it is clear that these cannot be made applicable to the facts in issue. Section 3(2)(vii) postulates a situation where a person being a public servant commits any offence under this section i.e., Section 3(2) shall be punishable with imprisonment for a term which shall be less than one year but which may extend to the punishment provided for that offence. 

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  • Vakalat and Written

Signatures on the Vakalat and the Written Statement cannot be considered as signatures of comparable and assured standard for want of expert opinion under S. 45 Evidence Act

Ninala Surya, J., decided to not interfere with the impugned order and dismissed the civil writ petition.

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Bombay High Court


  • Child Marriages

Child marriages will have to be stopped and no person can be allowed to take advantage of any such situation

Vibha Kankanwadi, J., expressed that Child marriages are hazardous to the social fabric of this Country.

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  • Decorum of Court

Advocate to maintain dignity & decorum of Court, no room for arrogance and no license to intimidate Court

Anuja Prabhudessai, J., expressed that an advocate as an Officer of the Court is under an obligation to maintain the dignity and decorum of the Court. There is no room for arrogance and there is no license to intimidate the Court, make reckless accusations and allegations against a Judge and pollute the very fountain of justice.

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  • Compassionate Appointment

Can legal heir of deceased employee be granted compassionate appointment, who took voluntary retirement due to being medically unfit?

Ravindra V. Ghuge, J., decides a matter as to whether the benefit of compassionate appointment can be granted to the legal heir of the employee, who took voluntary retirement and was never certified as being medically unfit to perform any work, though the reason for opting for retirement was a serious medical condition.

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  • Religious Verses

Declaration of reciting religious verses at someone’s residence: Act of breaching personal liberty of another person?

Stating that, “Great power comes with greater responsibility”, the Division Bench of Prasanna B. Varale and S.M. Modak, JJ., expressed that, the expectation of responsible behaviour or responsible conduct from those persons who are active in public life cannot be an extra expectation but would be a basic expectation.

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  • Eviction

Son not expected to brand his aged father a ‘swindler’ or allege that aged parents have lost mental balance

In a matter wherein, the parents sought eviction of their sonRohit B. Deo, J., expressed that,

“In the conservative Indian society, a son is not expected to brand his aged father a ‘swindler’ or then allege that the aged parents have lost mental balance.”

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  • Arbitration and Conciliation Act

Can mere filing of proceedings under S. 7 IBC be treated as an embargo on Court exercising jurisdiction under S. 11 of Arbitration & Conciliation Act?

A very interesting question was considered by G.S. Kulkarni, J., the question being, whether mere filing of a proceeding under Section 7 of the Insolvency and Bankruptcy Code, 2016 would amount to an embargo on the Court considering an application under Section 11 of the Arbitration and Conciliation Act, 1996, to appoint an arbitral tribunal?

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  • Land Acquisition

For determining land acquisition compensation, market value, if any, specified in Stamp Act for registration of Sale Deed and/or Agreement of Sale has to be considered

The Division Bench of S.V. Gangapurwala and Vinay Joshi, JJ., expressed that only because 83% of the property for the project is acquired, it would be egregious not to apply the provision of the statute for determination of compensation.

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  • Pension

If service of an employee at his superannuation is less than ten years, then previous temporary or officiating service needed to be counted for qualifying service for pension

The Division Bench of R.D. Dhanuka and S.G. Mehare, JJ., expressed that, for condoning the interruption in service, the total service pensionary benefit in respect of which will lost should not be less than five years duration, excluding one or two interruptions.

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  • Partition

In a suit for partition, the heads of all the branches are necessary parties

Mangesh S. Patil, J., decided on the following questions for consideration:

  • Whether in a suit for partition and possession of the field all the sharers and co-partners are necessary parties?
  • Whether suit for partition and possession is bad for non-joinder of necessary parties and therefore ought to have been dismissed?
  • Whether in the circumstances of the case, the observation regarding non-joinder of necessary parties, made by the appellate court, are proper?

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  • Maintenance

Can filing of a maintenance proceeding, a criminal case for harassment be said to be sufficient to jump to a conclusion that wife intended to harass husband and his relations?

In a matter of matrimonial discord, Mangesh S. Patil, J., expressed that, when admittedly, for whatever reason, there was a marital discord and the wife had started residing with the infant child at her parental house barely within three years of her marriage, it cannot be expected of her not to prosecute whatever rights and remedies she has under the law.

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  • “No Confidence”

If directly elected Sarpanch acts in a manner rendering functioning of Panchayat at a standstill, would member of panchayat get right to move motion of ‘no confidence’?

Stating that in the democratic setup, the will of the majority is the rule, the Division Bench of S.V. Gangapurwala and Shrikant D. Kulkarni, JJ., held that if the directly elected Sarpanch fails to call the meetings of the Panchayat or acts in a manner rendering the functioning of the Panchayat at a standstill, the member of the Panchayat would certainly get a right to move a motion of no confidence.

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  • Motor Accident Case

Determination of a just compensation cannot be equated to be a bonanza

Addressing a dispute with regard to the percentage of permanent disability and determination of compensation, Shrikant D. Kulkarni, J., remarked that determination of a just compensation cannot be equated to be a bonanza.

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  • Society

Can minority members of a Society act against will of majority members and foist delay in commencement of redevelopment work of Society?

Observing that, a developer who has been appointed by the Society and who is eager to proceed with the redevelopment, was in some manner left baffled and dragged into litigationG.S. Kulkarni, J., held that, non-cooperating members cannot foist a delay on the builder and the society in the commencement of the redevelopment work resulting in the project costs being increased every passing day.

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  • Abortion

Past pregnancy can be determined on account of permanent changes in the body of a woman

While addressing a matter, wherein the accused who was a doctor charged for raping a minor stated that there was not any proof that the girl ever conceived or had undergone any abortion, M.G. Sewlikar, J., expressed that, Medical science is so advanced that now a days past pregnancy also can be determined on the basis of changes in the body of a woman on account of pregnancy.

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  • Custody of Child

Non-custodial parent cannot be deprived of his right to spend quality time and enjoy company of children

Anuja Prabhudessai, J., expressed that the children also have the right to love and affection from both parents as well as grandparents as it is essential for the personal development and overall well-being of the children.

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  • Partnership Act

Every partner is liable, jointly with all other partners and also severally for all acts of firm done while he is a partner: Is it true?

Expressing that, a firm is not a legal entity, N.J. Jamadar, J., held that a partnership firm is only a collective or compendious name for all the partners.

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  • Constitutional Validity of S. 29A of Consumer Protection Act

Whether absence of President of State Commission or District Forum for reasons beyond control is sufficient for striking down S. 29A as unconstitutional?

Stating that, the Courts cannot examine the constitutional validity if a situation created by impugned legislation is irremediable, the Division Bench of V.M. Deshpande and Amit B. Borkar, JJ., addressed a matter wherein the constitutional validity of Section 29A of the Consumer Protection Act, 1986 has been challenged.

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  • Lawyer-Client Relationship

Lawyer-client relationship is a fiduciary one; any act which is detrimental to legal rights of clients’ needs to be punished

Stating that it is the duty of every Advocate to uphold professional integrity so that citizens can legally secure justicethe Division Bench of V.M. Deshpande and Amit B. Borkar, JJ., expressed that, professional misconduct refers to its disgraceful conduct not befitting the profession concerning the legal profession, which is not a business or trade and therefore, it must remain decontaminated.

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  • Sale Deed

Whether a natural guardian having executed sale-deed of property of a minor in favour of a third party and thereafter repurchased part of it, can be prosecuted for offences under Ss. 420, 467, 468, 471 of IPC that too, after more than 35 years from date of attaining majority by minor?

The Division Bench of V.M. Deshpande and Amit Borkar, JJ., expressed that a transaction by a natural guardian of a minor with respect to his immovable properties is valid till a Court strikes it down.

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  • Muslim Personal Law

Under Muslim Personal law, can Family Court dissolve the marriage of a couple?

The Division Bench of V.K. Jadhav and Sandipkumar C. More, JJ., addressed whether Family Court under Muslim Personal Law (Shariat) Application Act, 1937 read with Section 7(1)(b) Explanation (b) of the Family Courts Act, 1984 declare the matrimonial status of a wife and husband.

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  • Competition Commission of India

Competition Commission of India not to take any coercive actions against Asianet, Disney and Star India until 8th June

The Division Bench of G.S. Patel and Madhav J. Jamdar, JJ., directed the Competition Commission of India not to take any coercive actions against Asianet Star Communications Private Limited, Disney Broadcasting and Star India.

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  • Alimony

Whether the husband is entitled to claim alimony under Section 25 of the Hindu Marriage Act, 1955?

Bharati Dangre, J., held that provision of maintenance/permanent alimony being a beneficial provision for the indigent spouse, Section 25 can be invoked by either of the spouse, where a decree of any kind governed by Sections 9 to 13 has been passed and marriage tie is broken, disrupted or adversely affected by such decree of the court.

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  • Properties

Daughters and widow of a deceased would inherit properties of deceased as tenants in common or joint tenants?

Mangesh S. Patil, J., expressed that, by virtue of Section 19 of the Hindu Succession Act, it has been explicitly made clear that if two and more heirs succeed together to the property and in the estate, they take the property as tenants in common and not as joint tenants.

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Calcutta High Court


  • Departmental Proceedings

DGP directed to initiate departmental proceedings against Police Officers; CID to take over investigation

Rajasekhar Mantha, J. while adjudicating a case involving serious offences under Section 365, 354B and other provisions of IPC directed the Director General of Police, West Bengal to initiate appropriate departmental proceeding against the ASI, Arnab Chakraborty and any other person that he may feel was responsible for misleading the Court further handing over the investigation to CID, West Bengal.

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  • Policy Decisions

Policy decisions of State not to be disturbed unless found to be grossly arbitrary or irrational; prayer for extension of lease rejected

Shampa Sarkar, J. decided on a petition which was filed for a direction upon the respondents 7 and 8 to cancel and/or quash the notice dated April 6, 2022, with regard to handing over the possession of the ferry ghat to the Pradhan of the Mahanandatola Gram Panchayat, upon expiry of the lease of the petitioner.

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  • Currency Notes

There are many known heroes and unsung heroes, if everybody starts making such a claim there will not be an end; Petition for printing Netaji’s picture on currency notes dismissed

The Division Bench of Prakash Shrivastava, CJ. and Rajarshi Bharadwaj, J. dismissed a petition which was filed by the petitioner with the plea that having regard to the contribution of Netaji Subhas Chandra Bose in the freedom struggle, his picture should be printed on the Indian currency.

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  • Arbitration and Conciliation Act

Scope of S. 9 of A&C Act cannot be extended to enforcement of award or granting fruits of award to award holder as an interim measure; application dismissed

Ravi Krishan Kapur, J. dismissed an application which was filed under Section 9 of the Arbitration and Conciliation Act, 1996 (‘the Act’) wherein liberty to withdraw a sum of Rs 4,11,89,759/- deposited by the award debtor, State of West Bengal, with the Registrar, Original Side of this Court upon furnishing of appropriate security was sought.

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  • Rape

Lady IPS Officer directed to investigate in the recent matter of 4 rape cases in the villages

The Division Bench of Prakash Shrivastava, CJ. and Rajarshi Bharadwaj, J. took up a petition and directed Damayanti Sen, IPS presently working as Special Commissioner of Police to Kolkata Police to investigate in the matter of rape cases at village Nehalpur, Nandipara, incident on Dol Purnima and English Bazar.

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  • Indian Forest Act

Court orders release of vehicles confiscated under the Indian Forest Act with unprecedented observations

Rabindranath Samanta, J. allowed a criminal revision petition which was filed aggrieved by the order of Magistrate wherein he had rejected the prayers made by the petitioners for return of two vehicles which were seized by the Deputy Ranger (Beat Officer), Bamonpokhari Range Office of the Forest Range, Kurseong Forest Range, Darjeeling

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  • GST Act

The interest of revenue has been safeguarded; Order of detention against the State upheld in matter of GST Act

The Division Bench of T. S. Sivagnanam and Hiranmay Bhattacharyya, JJ., dismissed an appeal and connected application which was filed by the State against  the order of detention passed by the authority detaining two trucks containing consignment of steel and other products in WPA 17611 of 2021 dated: 07-12-2021 wherein petitioner was the wife of late Mohit Madhogoria, who was a registered dealer under the provisions of the W.B.V.A.T. Act presently under the GST Act.

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Chhattisgarh High Court


  • Legislation

Whenever substantive obligation/rights/ interests are impaired/adversely affected through any piece of subordinate legislation, then its source must be traced within express provisions in four corners of parent enactment

“…the very object and reason behind framing of the Pharmacy Act, 1948 was to ensure that only persons with a minimum standard of professional education should be permitted to practice the profession of pharmacy.”

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  • Unlawful Detention

Writ of habeas corpus is a writ of right, it is not a writ of course; a prima facie case of unlawful detention must be made

The writ of habeas corpus is an effective means of immediate release from the unlawful detention, whether in prison or in private custody. Physical confinement is not necessary to constitute detention. Control and custody are sufficient. For issuance of a writ of habeas corpus, the applicant must show a prima facie case of unlawful detention of the subject.

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  • Section 304 B of Penal Code, 1860

An order of acquittal is not to be set aside lightly; Chh HC observes in a case where daughter in law committed suicide in unnatural circumstances

The Court after perusing evidence and facts observed that the finding of the Trial Court that the prosecution has failed to prove that soon before the death of the deceased she was subjected to cruelty on account of demand of dowry is totally based on the evidence available on record.

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  • Will

Daughters also entitled for getting equal share in the property inherited by their parents; Court reiterates and allows appeal deciding validity of will

Narendra Kumar Vyas, J. allowed an appeal filed by the defendants setting aside the judgment and decree by the Trial Court whereby trial Court had decreed the suit filed by plaintiff/respondent 1, dismissed the counter claim filed by appellants/defendants 1 to 3.

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  • Criminal Trial

Criminal trial and confiscation proceedings may run simultaneously; Once the information of confiscation proceeding under S. 52 (e) Indian Forest Act is given to DM, Trial Magistrate has no power over it

“…a bare reading of Section 52, Indian Forest Act, 1927 makes it clear that Forest Officer has power to confiscate the vehicle and the Competent Authority after giving show cause notice to the petitioner.”

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  • Abduction

If a girl runs away voluntarily without any persuasion, can boy with whom she eloped be held responsible for abducting the girl?

Deepak Kumar Tiwari, J., held that, when the accused has not played any active role or persuaded the victim and the victim voluntarily left the protection of her parents and having capacity to know her action, no offence of abduction is made out.

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Delhi High Court


  • Maintenance

Husband with sufficient means, is obligated to maintain wife and children?

In a maintenance matter, Subramonium Prasad, J., expressed that, if a husband has sufficient means, he is obligated to maintain his wife and children and not shirk away from his moral and familial responsibilities

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  • Rule of Law

Whether absence of rule of law or utter disregard for the same propels a country towards inevitable ruin?

Expressing that, attempts to circumvent or undermine judicial decisions need to be viewed seriously in order to ensure that the functioning of our country is unhindered, especially during turbulent times, Subramonium Prasad, J., held that,

“It is only the rule of law which not only cements the civilised functioning of a country, but also drives a country towards progress and development.”

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  • Framing of Charge

Does framing of charge means that accused is guilty or does it imply that accused may be guilty?

“The beauty of procedural law lies in the stages and remedies available during the course of a criminal proceeding.”

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  • Levy of Liquidated Damages

 If a contract comprises, several components awarded to different contractors, would it be inapposite to blame contractor that was last in completing work for loss suffered on account of delay in completing Project?

While reiterating the law on award of liquidated damages, Vibhu Bakhru, J., expressed that, where a contract comprises, several components awarded to different contractors, it is inapposite to blame the contractor that is last in completing the work for loss suffered on account of delay in completing the Project.

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  • Arbitration Agreement

Rule of priority in favour of arbitrators is counterbalanced by Courts’ power to review existence and validity of arbitration agreement

“Once a valid arbitration agreement exists between the parties, the issue whether the petitioner is entitled to any relief in the absence of a third party to the agreement or that third party is required to be impleaded in the proceedings, is covered by the Doctrine of Competence-Competence and it will be for the Arbitrator to decide the said issue.”

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  • PC & PNDT Act

Can Court take cognizance of complaint filed by single-member Appropriate Authority for offences under PC&PNDT Act, 1994?

Mukta Gupta, J., held that, the Metropolitan Magistrate/ Judicial Magistrate of the first class is competent to take cognizance and try the offence punishable under the PC&PNDT Act on the complaint of an Appropriate Authority or any officer authorised on this behalf by the Central Government or the State Government or the Appropriate Authority under sub-Section (1) of Section 28 of the Pre-Conception and Pre Natal-Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.

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  • Jurisdiction

Can power under S. 482 CrPC be exercised where allegations are required to be proved in Court of law?

Rajnish Bhatnagar, J., expressed that the Court in the exercise of its jurisdiction under Section 482 CrPC cannot go into the truth or otherwise of the allegations made in the complaint or delve into the disputed question of facts.

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  • Recusal of Judge

When a Judge recuses without reasons, can a litigant or third party intervene, comment or enquire?

Asha Menon, J., held that, when a Judge recuses, no litigant or third party has any right to intervene, comment or enquire. The recusal has to be respected, whether a reason has been spelt out in detail or not.

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  • Adultery

Only continuous and repeated acts of adultery and/or cohabitation in adultery would attract rigours of provision under S. 125(4) CrPC

While addressing a matter with regard to a wife’s right to maintenance Chandra Dhari Singh, J., expressed that, only continuous and repeated acts of adultery and/or cohabitation in adultery would attract the rigours of the provision under Section 125(4) CrPC.

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  • Civil Contempt

Disobedience of an order of Court, if permitted, will result in striking at root of rule of law

Whether the third party can be absolved from contempt if they are informed that their conduct would violate the Court order, Subramonium Prasad, J., reiterated the well-settled position that though broadly a person who is not a party to the proceedings cannot be proceeded against for violation of the order, but a third party cannot seek to absolve themselves if they are informed about the fact that their conduct amounts to a violation of the Court and that despite the information, they choose to willfully flout the mandate of the Court.

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  • Denial of Sex

Whether denial of sex can qualify as “exceptional depravity” under S. 14 of the Hindu Marriage Act and allow waiver of one-year mandatory period?

Noting that, Section 14 of the Hindu Marriage Act intends to discourage the couples from breaking the sacred bond of marriage in haste, the Division Bench of Vipin Sanghi, ACJ and Jasmeet Singh, J., held that, a mandatory one year period granted under Section 14 of the Act, encourages couples to cool down, and give a rethink to preserve their marriage.

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  • Bail

Person accused of defrauding Government: Will Del HC grant bail to the accused?

Prateek Jalan, J., grants bail to a person who was alleged to cause fraudulent transactions and loss to the government.

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Cocoon of protection, afforded by a bail order insulates suspect and he could thwart interrogation reducing it to futile rituals

Asha Menon, J., expressed that, personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.

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  • Arbitration and Conciliation Act

Scope of examination under S. 11 of A&C Act is confined to existence of arbitration agreement or does it extend to adjudicating nature of contract as well?

Vibhu Bakhru, J., held that whether claims are barred by limitation is a mixed question of fact and law and is required to be examined by the Arbitral Tribunal.

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Whether an award passed under S. 34(4) of the A&C Act is a fresh award for the purpose of S. 34 of the Act?

Vibhu Bakhru, J., allowed an amendment application seeking amendment of a petition filed under Section 34 of the Arbitration and Conciliation Act.

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  • Infringement

Red Bull v. Sting | Injunction application against Pepsico’s tagline “STIMULATES MIND ENERGIZES BODY”: Whether Pepsi has committed infringement?

Amit Bansal, J., observed that the taglines of ‘Red Bull’ and ‘Sting’ are descriptive and laudatory in nature.

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  • Scholarship Advertisement

If an advertisement regarding scholarship was published in Urdu language, can it be presumed that it was targeted at students belonging to a particular community only?

The Division Bench of Manmohan and Dinesh Kumar Sharma, JJ., expressed that just because the scholarship advertisement was published in the Urdu language, does not mean that it was targeted at students belonging to a particular community only.

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  • COVID-19

Can Delhi High Court direct State for payment of ex gratia compensation of Rs 1 Crore to families whose members died due to COVID-19?

The Division Bench of Vipin Sanghi, ACJ and Navin Chawla, J., held that this Court cannot direct payment of ex gratia compensation of Rs 1 Crore to families whose members died due to COVID-19.

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  • Physical relations on Promise to Marry

 Long term relationship with intent of marriage ended on hostile terms, would it be covered under S. 376(2)(n) IPC?

Noting that the Trial Court failed to perform its duty and rendered a mechanical order, Subramonium Prasad, J., set aside the trial Court’s order in a matter wherein, a woman had alleged that she was subjected to physical relationship with a boy on a false promise of marriage.

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  • Political Clearance

Judges required to seek political clearance qua private visits abroad: Did Del HC strike down Ministry of External Affairs’ Office Memorandum requiring the same?

The Division Bench of Rajiv Shakdher and Jasmeet Singh, JJ., strikes down the OM dated 13-7-2021, to the extent it requires Judges of the Supreme Court and the High Court to seek political clearance qua private visits abroad.

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  • Natural Justice

Refusal of a trade mark without even affording a hearing would be contrary to fundamental tenets of natural justice

Prathiba M. Singh, J., expressed that, refusing trade mark without even affording a hearing would be contrary to the fundamental tenets of natural justice.

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  • LOC issued against Rana Ayyub

Infringement of Human Rights and restraint of her freedom of speech and expression?

While expressing that a LOC is a coercive measure to make a person surrenderChandra Dhari Singh, J., noting that the petitioner had appeared on each and every date before the Investigating Agency when summoned, quashed the LOC issued against Rana Ayyub.

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  • Arbitration and Conciliation Act

Vibhu Bakhru, J., forms an arbitration tribunal to adjudicate the matter with regard to use the brand name/trademark “Hero”.

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  • Custodial Interrogation

Father of deceased accuses brother-in-law for her suicide: If chargesheet has already been filed, is there any need of custodial interrogation?

Chandra Dhari Singh, J., decides a bail matter wherein a woman was alleged to have committed suicide due to harassment and dowry demands by in-laws.

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Gujarat High Court


  • Reinstatement of Employee

Court directs reinstatement of employee alleged of corruption charges; termination order quashed

Biren Vaishnav, J. allowed a petition which was filed challenging the order of termination passed by the respondent – authority, by which, the services as Assistant Motor Vehicle Inspector, Class-III of the petitioner has been terminated on the ground of lodging of an FIR under Sections 7, 8, 12, 13(1)(D) and 13(2) of the Prevention of Corruption Act.

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  • Bail

First step of turning him into a hardcore criminal will be sending him behind bars; Court allows bail

A.S. Supehia, J. allowed a bail application in connection with FIR filed for the offences under Sections 363, 366, 376(2)(n), 376(3) of the Penal Code, 1860 as well as Sections 4, 6, and 12 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

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  • Custody of Children

Mother alleged to have extra-marital affair, will father be granted custody of children?

Ashok Kumar C. Joshi, J., denied granting child custody to father, wherein the mother was alleged to have extra-marital affairs.

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Himachal Pradesh High Court


  • COVID-19

PIL filed by an advocate for grant of stipend to her as well other Advocates, who have not completed 3 years of practice on account of Covid-19; HP HC directs to approach State Bar

A Division Bench of Mohammad Rafiq CJ. and Jyotsna Rewal Dua JJ. disposed of the petition and directed to approach State Bar Council.

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Jharkhand High Court


  • Natural Justice

Principles of natural justice required to be followed and cannot be waived out depending upon quantum of punishment; Reiterated mandate of natural justice in blacklisting cases

The Court remarked that the cardinal principle of natural justice is mandatory to be followed in a case where any adverse decision/action is being taken against one or the other. The issuance of notice means that the person against whom any adverse action proposed to be taken, is required to be provided with the opportunity of hearing.

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Jammu and Kashmir and Ladakh High Court


Advocates are officers of Court and deserve same respect and dignity as is being given to Judicial and Presiding Officers of Courts

Sanjay Dhar, J., expressed that, there may be stray incidents where the advocates have resorted to levelling allegations against the Judicial Officers in order to seek transfer of their cases from one Court to another to suit their convenience, but then this cannot be generalized.

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  • Maintenance

Minor seeks maintenance but issue of her paternity is in question: Will J&K and Ladakh HC grant maintenance amidst the dispute?

“…grant of maintenance to a minor child should be the paramount consideration for a Magistrate dealing with a petition under Section 125 CrPC, but when the paternity of a child is seriously disputed and there is no prima facie material to suggest that the respondent happens to be the father of the child, it would not be prudent for a Magistrate to fasten the respondent with the liability of maintaining the child.”

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Kerala High Court


  • Sexual Assault

In the guise of applying makeup, a bridal make up artist alleged sexually assaulted several women: Can he be granted anticipatory bail?

Gopinath P., J., granted bail to the bridal make up artist who was alleged to have sexually assaulted several women in the guise of applying make up.

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  • Media Trial

Can media be given right to speculate on outcome of one going investigations or Court proceedings or criminal trials?

While addressing the matter with regard to the media trial, Mohammed Nias C.P., J., expressed that, half-truths and misinformation cannot be the basis of publications or telecast.

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  • Alimony

Can children claim any amount under the head of permanent alimony under S. 25 of the Hindu Marriage Act?

Observing that trauma in a marital discord is common to both parties, the Division Bench of A. Muhamed Mustaque and Sophy Thomas, JJ., expressed that as per Section 25 of the Hindu Marriage Act, while awarding permanent alimony and maintenance, the husband’s income and other property, if any, and the income and property of the wife, conduct of the parties and other circumstances are to be taken into account.

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  • Consensual Sex

Can promise to marry a married woman be legally enforceable wherein she voluntarily formed sexual relations with a man?

Dr Kauser Edappagath, J., addressed a matter wherein a married woman voluntarily had sex with her former lover.

Read full report here…

  • Maintenance Tribunal

Whether power of Maintenance Tribunal under Senior Citizen Act is circumscribed to ordering of monthly allowance?

In a matter, wherein a senior citizen has approached the Court with her grievance with respect to her son, Murali Purushothaman, J., expressed that,

“When the Senior Citizen or parent who has earnings makes an application to the Maintenance Tribunal contending that her right to earning is obstructed by the son who has statutory obligation to maintain the parent, the Maintenance Tribunal has to ensure that the Senior Citizen or parent is able to maintain herself from her earnings.”

“To care for those who once cared for us is one of the biggest honours.”

Read full report here…

  • Family Court

Do Family Courts have to remain as a neutral umpire of the real dispute between the parties?

Expressing that, Family Court has been functioning in like manner of an ordinary Civil Court, the Division Bench of A. Muhamed Mustaque and Sophy Thomas, JJ., remarked that, family courts have to be impartial or neutral.

Dissatisfaction with the administration of justice in the Family Courts is writ large on the face of many orders challenged before this Court.

Read full report here…


Karnataka High Court


Mere suspicion is not enough to prosecute the petitioner for offence punishable under S. 370 of the IPC for human trafficking; Kar HC observes in a case where AIO caught 3 Indian nationals on suspicion

The Court after perusing complaint, charge sheet and Section 370 of the IPC observed that the petitioner had indulged himself in human trafficking and thus the soul of the provision is exploitation.

Read full report here…

  • Election

Kar HC quotes “The Vajpayee led NDA–Government was toppled for want of one vote” and Benjamin Franklin while deciding a case of a returning candidate whose election was set aside

“…A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election.”

Read full report here…

  • Solid Waste Management

PIL filed seeking to shift the location identified for setting up solid waste management; directions issued

A Division Bench of Ritu Raj Awasthi CJ. and S. R Krishna Kumar JJ. issued directions regarding setting up of solid waste management units after expert opinion from concerned authorities.

Read full report here…

  • A&C Act

Kar HC deals whether an international commercial arbitral award rendered outside India between the parties who have no connection to India can be enforced in India

“…a foreign award under a New York Convention has been given a special status. India being a signatory to the said New York Convention it is required that all countries which are signatories to the New York Convention enable execution of a foreign arbitral award rendered in a reciprocating country in the event of a property against which the arbitral award is sought to be enforced is situated within the jurisdiction of that particular country.”

Read full report here…

  • Dishonour of Cheque

Kar HC decides contours of law in a classic case where cash of Rs 2 crore was borrowed as hand loan and a cheque obtained for the repayment of the same got dishonoured

The Court observed that the Act was amended by the Amendment Act of 2018 and Section 143A came to be inserted. The purport of the amendment is that the Court may in certain circumstances award interim compensation which shall not exceed 20% of the amount of the cheque and such interim compensation can be permitted to be withdrawn in terms of the said amendment.

Read full report here…


Madras High Court


  • Tax Liability

If an assessee under stress of investigation, signs a statement admitting tax liability and makes a few payments, can it lead to self-ascertainment?

Merely because an assessee has, under stress of investigation, signed a statement admitting tax liability and has also made a few payments as per the statement, cannot lead to self-assessment or self-ascertainment.

Read full report here…

  • Two-Finger Test

Ban the practice of two-finger test on victims of sexual offences by medical professionals

Stating that two-finger test cannot be permitted to be continued, the Division Bench of R. Subramanian and N. Sathish Kumar, JJ., directed the State Government to ban the practice of two-finger test on victims of sexual offences by the medical professionals.

Read full report here…

  • Co-parcenary Right

Are Coparcenary rights taken away by Hindu Succession Act?

Anand Venkatesh, J., addressed a matter with regard to coparcenary rights of sons and daughters

Read full report here…

  • Legal Profession

Law Officers perform their duties without profit motive and with a service mentality for a nominal fee as compared to their lucrative private practice

Expressing that, Legal profession is a noble profession, and it is the lawyer, who plays a predominant role in securing every citizen life and personal liberty fundamental and statutory rights ensured by the ConstitutionM. Govindaraj, J., observed that, Law Officers perform their duties without profit motive and with a service mentality for a nominal fee as compared to their lucrative private practice.

Read full report here…

  • Law of Limitation

Exercise of power of discretion if made excessively, it would defeat the purpose and object of law of limitation; Courts not to travel beyond permissible extent

Expressing that, Power of discretion is to be exercised to mitigate the injustice if any occurred to the litigantsS.M. Subramaniam, J., remarked that,

“Litigations/appeals are expected to be filed within the period of limitation as contemplated under the Statutes. Rule is to follow limitation. Condonation of delay is an exception. Exceptions are to be exercised discreetly, if the reasons furnished are genuine and acceptable.”

Read full report here…


Madhya Pradesh High Court


  • Live-in Relationships

Live-in relationships are engulfing ethos of Indian society, and promoting promiscuity and lascivious behavior, giving further rise to sexual offences

Subodh Abhyankar, J., expressed that, the bane of live-in-relationship is a by-product of the Constitutional guarantee as provided under Article 21 of the Constitution of India.

Read full report here…

  • Divorce

Woman is considered half of her husband and thus completes him. While a man is also considered incomplete without a woman; Appeal for divorce dismissed

“Based on Hindu law, marriage is a sacred tie and the last of ten sacraments that can never be broken. Also, it is a relationship that is established by birth to birth. Also, it is not only considered as sacred but it is also a holy union. The main objective of marriage is to enable a woman and a man to perform their religious duties. Along with this, they also have to beget progeny. Based on ancient writings, a woman is considered half of her husband and thus completes him. While a man is also considered incomplete without a woman.”

Read full report here…

  • Criminal Proceeding

Criminal proceeding maliciously instituted with an ulterior motive for wrecking vengeance deserves to be quashed; Court allows petition by husband

Rajeev Kumar Shrivastava, J. allowed a petition which was filed to quash FIR for offence under Sections 498-A, 506, 34 of IPC and other subsequent proceedings initiated therefrom.

Read full report here…

  • Bail

Warning issued to Additional Session Judge for granting bail on caste and bias

Vivek Agarwal, J. allowed a bail application issuing a warning to First Additional Session Judge, Maihar, District Satna to be more cautious and judicious in his approach in future so that image of the judiciary can be saved and allegations of casteism and bias are not allowed to be levied so to tarnish collective image of judiciary.

Read full report here…

  • Mental Cruelty

Mental cruelty inflicted by the wife over her husband through her conduct a valid ground for divorce; Court allows appeal

The Division Bench of Sheel Nagu and Anand Pathak, JJ., allowed an appeal which was preferred under Section 19 of the Family Court Act, 1984 against the judgment and decree dated 27-03- 2019 passed by the Link Family Court whereby the application preferred by the appellant/applicant/husband under Section 13(1)(iA) of Hindu Marriage Act, 1955 had been rejected.

Read full report here…

  • Dishonour of Cheque

Whether dishonour of cheques could have only given a cause of action to register an FIR for an offence under S. 420 IPC?

The Court stated it is a well-settled principle of law that the general law will not prevail over the Special Law as enshrined in the maxim generalia specialibus non derogant.

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Orissa High Court


  • Dishonour of Cheque

Ori HC considers whether any difference exists between a case where default is committed and prosecution immediately launched and where prosecution is deferred till cheque presented again gets dishonored for second or successive time?

R K Pattnaik, J. dismissed the petition and held that the ground on which the petition is raised is misconceived and therefore, cannot be sustained.

Read full report here…


Rajasthan High Court


  • Sexual Assault

Ex–fiancée levelled charges of sexual assault to harass and destroy present married life of the boy; Raj HC issues notice and directs police to neither harass nor arrest him

Dinesh Mehta, J., issues notice and directs police to neither harass nor arrest the petitioner boy.

Read full report here…

  • Bail

Raj HC granted temporary bail for a period of 15 days to enable the appellant to perform Kanyadaan on daughter’s marriage

A Division bench of Manindra Mohan Srivastava, CJ. and Madan Gopal Vyas J. allowed the application and granted bail for a period of 15 days.

Read full report here…

  • Mining Operations

PIL filed seeking permit for gypsum mining in the districts Shriganganagar and Haumangarh; Raj HC observes citizen does not have any vested right to carry on mining operations, absolute right lies with State

A Division Bench of Farjand Ali J and Sandeep Mehta JJ.  directed that as and when the gypsum mining operations are opened in Sriganganagar and Hanumangarh districts, the petitioners shall not be entitled to apply for mining licenses for this purpose in either of these two districts.

Read full report here…

  • Maintenance of Senior Citizens

Ill-treatment meted out to respondent-mother, expelled from her own house, allegations of mental, physical and social abuse; Raj HC directs petitioner-son to vacate the house with his family

The Court observed that Maintenance and Welfare of Parents and Senior Citizens Act, 2007 was enacted by the Legislature in the background that the traditional norms and values of the Indian Society are lost due to withering of the joint family system as a large number of elderly are not being looked after by their family, particularly the widowed women, who are forced to spend their twilight years all alone and are exposed to emotional neglect, lack of financial support and are rather treated as a waste.

Read full report here…

  • Right to Procreation

Raj HC reiterated “Right to Procreation survives during incarceration” and “is traceable and squarely falls within the ambit of Article 21 of our Constitution; Parole granted

The Division Bench of Farjand Ali and Sandeep Mehta, JJ. allowed the petition and granted parole after considering the religious philosophies, cultural, sociological and humanitarian aspects, coupled with the fundamental right guaranteed by the Constitution of India.

Read full report here…


Punjab and Haryana High Court


  • Duration of Marriage

Short duration of marriage cannot be the only ground to disallow organ transplant by spouse; writ petition allowed

 Raj Mohan Singh, J., contemplated the present petition and ruled that a short duration of marriage is absolutely no ground to deny an organ transplant.

Read full report here…

  • Mental Cruelty

Unworkable Marriage | Wife makes unfounded, indecent and defamatory allegations against husband to his senior officers, destroying his career & reputation: Mental Cruelty or not?

Expressing that, Matrimonial cases are matters of delicate human and emotional relationshipthe Division Bench of Ritu Bhari and Ashok Kumar Verma, JJ., expressed that, the Court no doubt should seriously make an endeavour to reconcile the parties, yet, if it is found that the breakdown is irreparable, then divorce should not be withheld.

Read full report here…

  • Voice Sample

S. 65-B (4) of the Evidence Act does not mention the stage of furnishing the certificate for admissibility; Court directs to give voice sample

Avneesh Jhingan, J., entertained a petition under Section 482 CrPC where the petitioner was aggrieved by the directions of the Chief Judicial Magistrate for giving voice samples.

Read full report here…


Telangana High Court


  • Employees State Insurance Act

Exhausting the remedy available for appeal is the rule and entertaining a writ petition is an exception

G Radha Rani, J., disposed of the petition and directed the petitioner to approach the EI Court under Section 75 of the ESI Act by filing an appropriate application.

Read full report here…


Tripura High Court


  • POCSO

Offence under S. 8 of the POCSO Act not been established beyond reasonable doubt; Court acquits man of POCSO charges

Arindam Lodh, J. partly allowed an appeal which was filed against the judgment and order of conviction whereby and whereunder the appellant has been found guilty for committing an offence punishable under Section 8 of the POCSO Act and sentenced him to suffer Rigorous Imprisonment for 3 years for the said offence and also found guilty under Section 448 of IPC and sentenced to suffer Rigorous Imprisonment for 1 year for the said offence.

Read full report here…

Statement of the victim show exaggerations and improved versions; Court reduces sentence in POCSO matter

Arindam Lodh, J. partly allowed an appeal which was filed challenging the judgment of conviction and order of sentence passed by Special POCSO judge wherein the appellant had been convicted under Section 10 of the POCSO Act, 2012 and sentenced to suffer rigorous imprisonment for 5 years and to pay a fine of Rs 20,000/- with default stipulation and further convicted under Section 451 IPC and sentenced him to suffer simple imprisonment for 6 months and to pay fine of Rs. 5000 with default stipulation.

Read full report here…


Sikkim High Court

State directed to ensure immediate escalation of progress of work of repairing of NH-10; meeting called to chalk out the immediate course of action before monsoon arrival

The Division Bench of Biswanath Somadder and Meenakshi Madan Rai, JJ. took up the PIL in order the peruse the status report concerned with the damaged roads and highways in the State.

Read full report here…

  • Missing Children

Directions issued for tracing out the missing children in the State; CCTV’s installed in police stations

The Division Bench of Biswanath Somadder, CJ. and Meenakshi Madan Rai, J. issued certain directions in the matter of a PIL concerning missing children in the State.

Read full report here…

Case BriefsHigh Courts

Delhi High Court: Noting that, Section 14 of the Hindu Marriage Act intends to discourage the couples from breaking the sacred bond of marriage in haste, the Division Bench of Vipin Sanghi, ACJ and Jasmeet Singh, J., held that, a mandatory one year period granted under Section 14 of the Act, encourages couples to cool down, and give a rethink to preserve their marriage.

Appellant/wife preferred the present appeal under Section 19 of the Family Courts Act, 1984 to quash and set aside the decision passed by the Family Court. Family Court had dismissed the divorce petition by the impugned Judgment which was preferred by the appellant/wife and petitioner 2/husband under Section 13B of Hindu Marriage Act, 1955 for dissolution of marriage by a decree of divorce by mutual consent.

The appellant and respondent hardly lived together as husband and wife and had no children born out of wedlock.

Further, it was noted that due to temperamental differences, the parties started living separately.

The parties had filed the petition under Section 13B (1) along with an application under the proviso to Section 14 of the Act, for leave to present the petition before the expiry of the cooling-off period of one year from the date of marriage.

The appellants sought to satisfy the requirements of the proviso to Section 14, by stating that there was denial of sex from both sides which led to a situation of “exceptional hardship”/ “exceptional depravity”.

Analysis, Law and Decision


Applicability of the proviso to Section 14 to a divorce under Section 13B of the Act

As per Section 13B (1) parties are provided with an option of a divorce based on mutual consent of the parties subject to the fulfilment of three conditions/grounds:

  • Parties have been living separately for a period of 1 year or more;
  • Parties have not been able to live together;
  • They have mutually agreed that the marriage should be dissolved.

The first condition specifies the period to be elapsed before filing the petition. Further, Section 13B (2) provides for another period of 6 months which must elapse before proceeding with the second motion. However, the period mentioned in sub-section (2) is not a subject matter of dispute in the present case.

In the present matter, the controversy was regarding the period of one year specified in sub-section (1). The appellant had sought the waiver of the said period by resorting to the proviso to Section 14 of the Act.

As per Section 14, no petition for divorce must be entertained by the Court before a period of 1 year from the date of marriage.

Only on two counts, the condition laid under Section 14 could be relaxed:

  • There is exceptional hardship
  • There is exceptional depravity

The Supreme Court’s decision in Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746, was relied on to contend that the period under Section 13B(1) is merely directory, and not mandatory.

Bench agreed with the view taken by this Court in Sankalp Singh v. Prarthana Chandra, 2013 SCC OnLine Del 855, that the period of one year stipulated in Section 13B (1) may be waived provided a case of “exceptional hardship” or “ exceptional depravity” is made out before the Court.

Section 14 of the Hindu Marriage Act provides a window for reconsideration and reconciliation and is an acknowledgement that temperamental differences between the parties could be addressed with time and must not become a reason for breaking off marriage.

High Court observed that,

The mandatory one year period granted under Section 14 of the Act, encourages couples to cool down, and give a rethink to preserve their marriage.

Adding to the above analysis, Court stated that the proviso to Section 14 is applicable to petitions filed for divorce, equally under Section 13 and under Section 13B.

A divorce on the ground of “mutual consent” is premised on freewill or free consent of both the parties. Formation of free consent is not expected to be an instantaneous process, and the requirement of minimum period ensures that the consent is backed by patient thought and consideration of all the pros and cons of the relationship.

Whether non-indulgence of a married couple in sexual activity, owing to temperamental difference, could be regarded as so “exceptional” so as to attract immediate dissolution of the marriage, without even waiting for 1 year period which contemplates an opportunity of reconciliation?

Answering the above question in negative, the Court expressed that, if there are serious, temporal or behavioral issues between a married couple, it is nothing but expected that they would not be maintaining a healthy conjugal relationship.

A mere incompatible marital relationship, or one which has irreconcilable differences due to temporal or behavioral differences would not, in itself, lead to the causing of exceptional depravity by either of the parties to the other. 

Mere denial of sex by one, or both the parties to the other, cannot be described as an act of exceptional depravity.

The denial of sex by one spouse to the other, or by both of them to each other may certainly constitute “hardship”, but it cannot be said to be “exceptional hardship” under Section 14(1) of HMA. 

High Court held that denial of cohabitation in a marriage cannot be regarded as “exceptional hardship” or “exceptional depravity”, it could not call for waiver of a mandatory period of one year which is to be waived as a matter of exception, and not as a matter of rule.

Additionally, the Court remarked that denial of a conjugal relationship, or non-consummation due to temperamental/behavioural differences can only be aground for divorce, under cruelty.

Hence, the appeal was rejected and Family Court’s order was upheld. [Rishu Aggarwal v. Mohit Goyal, 2022 SCC OnLine Del 1089, decided on 18-4-2022]


Advocates before the Court:

For the appellant:

Mr. Rajesh Aggarwal, Mr. Mridul Aggarwal & Ms. Deeksha Aggarwal, Advocates (both for appellant as well as respondent).

For the respondent:

Mr. Rajesh Aggarwal, Mr. Mridul Aggarwal & Ms. Deeksha Aggarwal, Advocates (both for appellant as well as respondent).

Mr. Preetesh Kapur, Amicus Curiae.

Case BriefsHigh Courts

Kerala High Court: Observing that trauma in a marital discord is common to both parties, the Division Bench of A. Muhamed Mustaque and Sophy Thomas, JJ., expressed that as per Section 25 of the Hindu Marriage Act, while awarding permanent alimony and maintenance, the husband’s income and other property, if any, and the income and property of the wife, conduct of the parties and other circumstances are to be taken into account.

Wife and children of the respondent had filed under Sections 10,24 and 25 of the Hindu Marriage Act and under Sections 18, 20(1)(d) and 26 of the Protection of Women from Domestic Violence Act, for judicial separation, permanent alimony, compensation and injunction.

Factual Matrix


The matrimonial life of the 1st respondent was miserable due to the cruel nature and behavourial problems of the appellant. She was treated like a slave and the appellant has no love or affection for her.

In view of the above, the wife shifted to her parent’s house along with her children and since 2011, both of them have been living separately.

Further, it was stated that the husband sought divorce from the 1st respondent after branding her as a mental patient. Though the wife sought a decree for judicial separation, permanent alimony, compensation for physical and mental torture since she didn’t want her children to be known as the children of a divorcee.

Though the appellant/respondent opposed the petition and denied the allegations.

Family Court found that 1st respondent/wife was entitled to a decree for judicial separation, monthly separation, maintenance of Rs 20,000, compensation of Rs 5 lakhs and injunction prohibition the appellant from alienating the schedule property. The minor children were also awarded monthly maintenance of Rs 15,000.

Analysis, Law and Decision


High Court observed that the Family Court exercising jurisdiction under the Hindu Marriage Act, at the time of passing any decree, can order a gross sum or such monthly periodical sum towards maintenance and support for a term not exceeding the life of the applicant.

Further, as there was no evidence to show that, the 1st respondent is having her own job and income to maintain her, going by Section 25 of the Hindu Marriage Act, on passing a decree for judicial separation under Section 10 of the Hindu Marriage Act, she was entitled to ask for permanent alimony either as a gross sum or monthly/periodical sum.

Bench expressed that,

Only the wife/husband is entitled for permanent alimony as per Section 25 of the Hindu Marriage Act, and the children will not get any amount under that head.

 High Court stated that in order to pay monthly maintenance to the children at the rate of Rs 15,000 was to be set aside reserving their right to approach the Family Court with a separate petition for enhancement of maintenance if they propose to do so.

Noting the financial capacity and potential of the appellant as a highly professional and the properties and buildings owned by him, Court found it just and proper to award a lump sum amount of Rs 30 lakhs as permanent alimony instead of the monthly maintenance of Rs 20,000 ordered by the Family Court.

Lastly, the Bench held that, Section 25 of the Hindu Marriage Act specifically says that, the permanent alimony and maintenance ordered under that Section may be secured, if necessary, by a charge on the immovable property. So, the injunction order granted by the Family Court was against the spirit of Section 25 of the Hindu Marriage Act.[P.V.G. Menon v. Anjana Menon, 2022 SCC OnLine Ker 1479, decided on 24-3-2022]


Advocates before the Court:

For the Appellant/Respondent:

By Adv. Sri Srinath Girish

For the Respondents/Petitioners:

By Adv. Sri K.P. Balasubramanyan

High Court Round UpLegal RoundUpTribunals/Regulatory Bodies/Commissions Monthly Roundup

7 Interesting Picks of the Week Gone by.


Under Muslim Personal law, can Family Court dissolve the marriage of a couple? Bom HC elaborates

The Division Bench of V.K. Jadhav and Sandipkumar C. More, JJ., addressed whether Family Court under Muslim Personal Law (Shariat) Application Act, 1937 read with Section 7(1)(b) Explanation (b) of the Family Courts Act, 1984 declare the matrimonial status of a wife and husband.

Read full report here…


Judges required to seek political clearance qua private visits abroad: Did Del HC strike down Ministry of External Affairs’ Office Memorandum requiring the same? Read decision

The Division Bench of Rajiv Shakdher and Jasmeet Singh, JJ., strikes down the OM dated 13-7-2021, to the extent it requires Judges of the Supreme Court and the High Court to seek political clearance qua private visits abroad.

Read full report here…


Signatures on the Vakalat and the Written Statement cannot be considered as signatures of comparable and assured standard for want of expert opinion under S. 45 Evidence Act

The petitioner/defendant filed written statement contending that the suit promissory note is a forged document and his signatures were forged. At the evidence stage, the petitioner filed an interim application under Section 45 of the Indian Evidence Act, 1872 to send a promissory note to the handwriting expert by receiving specimen writings in the four promissory notes which are annexed to the said application and to receive his specimen signatures in the open Court along with the vakalatnama and written statement for comparison. The respondent/plaintiff filed counter and opposed the said application.

Read full report here…


Law Officers perform their duties without profit motive and with a service mentality for a nominal fee as compared to their lucrative private practice: Madras HC

Expressing that, Legal profession is a noble profession, and it is the lawyer, who plays a predominant role in securing every citizen life and personal liberty fundamental and statutory rights ensured by the ConstitutionM. Govindaraj, J., observed that, Law Officers perform their duties without profit motive and with a service mentality for a nominal fee as compared to their lucrative private practice

Read full report here…


Mother alleged to have extra-marital affair, will father be granted custody of children? Guj HC decides

Ashok Kumar C. Joshi, J., denied granting child custody to father, wherein the mother was alleged to have extra-marital affairs.

Read full report here…


If a girl runs away voluntarily without any persuasion, can boy with whom she eloped be held responsible for abducting the girl? Chh HC explains

Deepak Kumar Tiwari, J., held that, when the accused has not played an active role or persuaded the victim and the victim voluntarily left the protection of her parents and having the capacity to know her action, no offence of abduction is made out.

Read full report here…


Promotional activity for IPL not covered under ‘Business Auxillary Service’; Anil Kumble not liable to pay Service Tax

The Coram of P. Anjani Kumar (Technical Member) and P. Dinesha (Judicial Member) allowed appeals against the order of First Appellate Authority which upheld the demand for service tax by the adjudicating authority.

Read full report here…

Case BriefsHigh Courts

Bombay High Court: The Division Bench of V.K. Jadhav and Sandipkumar C. More, JJ., addressed whether Family Court under Muslim Personal Law (Shariat) Application Act, 1937 read with Section 7(1)(b) Explanation (b) of the Family Courts Act, 1984 declare the matrimonial status of a wife and husband.

The applicant/accused sought to quash an FIR for the offences punishable under Sections 498(A), 323, 504, 506 of the Penal Code, 1860 on the ground that the parties arrived at an amicable settlement.

Applicant’s counsel submitted that applicant-husband and respondent 2-wife got separated by mutual consent and hence approached the Family Court for declaration of their matrimonial status in terms of provisions of Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 read with Section 7(1)(b) Explanation (b) of the Family Courts Act, 1984.

Family Court had allowed the petition and declared their status as they were no more husband and wife in terms of the mutual agreement between them. Further, it was agreed between the parties that the applicant-husband shall pay an amount of Rs 5 lakhs to respondent 2 as the amount for future maintenance in total.

Respondent 2 submitted that she was not interested in prosecuting the applicant.

Analysis, Law and Decision

In the present matter, in terms of provisions of Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, all the questions about the property, marriage, dissolution of marriage including talaq, illa, zihar, lian, khula and mubaraat, maintenance, dower, guardianship gifts, trusts and trust properties and wakfs the rule of decision in cases where the parties are Muslims shall be considered as per the provisions of Muslim Personal law (Shariat).

Section 7 of the Family Courts Act, 1984, prescribes jurisdiction, in terms of Section 7(1), Explanation (a) and (b), suit for a declaration as to the validity of a marriage or as to the matrimonial status of any person can also be a subject matter before the Family Court.

Therefore, Family Court had rightly applied the provisions of the Muslim Personal Law (Shariat) Application Act, 1937 to the parties before this Court and hence declared the status of marriage as no more in existence by mutual consent.

While concluding the matter, the Bench allowed the criminal application. [Shaikh Taslim Shaikh Hakim v. State of Maharashtra,  2022 SCC OnLine Bom 757, decided on 29-3-2022]


Advocates before the Court:

Mr. Shaikh Wajeed Ahmed, Advocate for the applicant. Mr.S.S. Dande, APP for the respondent/State. Mr. Samir Shaikh, Advocate for respondent No.2.

Case BriefsHigh Courts

Delhi High Court: While addressing a matter surrounding the issue of cruelty by wife, the Division Bench of Vipin Sanghi, ACJ and Dinesh Kumar Sharma, J., expressed that,

“It has repeatedly been held that accusations of unchastity or extra marital relationship is a grave assault on character, status, reputation as well as health of the spouse against whom such allegations were made.”

Appellant invoked this Court’s jurisdiction under Section 19 of the Family Courts Act, 1984 assailing the impugned judgment whereby Family Court granted a decree of divorce in favour of respondent/husband under Section 13(1)(ia) of the Hindu Marriage Act, 1995.

Background


Husband had filed a divorce petition on the ground of cruelty and on the basis of the same, Family Court had granted divorce decree.

Husband’s allegations were with regard to wife’s lifestyle, attitude and strange behaviour towards his parents.

Appellant/wife in her defense stated that she was tortured and harassed by her in-laws on account of their dowry demands and father-in-law had also sexually assaulted her. She added that the husband used to force her to commit suicide, for which she had filed a complaint.

In furtherance to the above, the appellant stated that she wanted to continue with the matrimonial alliance, and thus she filed the petition under Section 9 of the HMA.

Analysis and Decision


In Court’s opinion, the Family Court had correctly appreciated the evidence and rightly found that the appellant by making unfounded allegations amounting to character assassination against the husband inflicted mental cruelty upon the husband.

Further, the Court expressed that, accusations of unchastity or extra marital relationship causes mental pain, agony suffering and tantamount to cruelty.

The allegations of extra marital affairs in relationship are serious allegations, which have to be made with all seriousness. The tendency of making false allegations has to be deprecated by the Courts.

While concluding the matter, the High Court held that there was no material on the record to upset or set aside the order of the Family Courts.

The marriage is solemn relation and it’s purity must be maintained for a healthy society.

In view of the above, the matter was dismissed. [Jyoti Yadav v. Neeraj Yadav, 2022 SCC OnLine Del 795, decided on 21-3-2022]


Advocates before the Court:

For the Petitioner: Mr Rajeev Pratap Singh, Adv. with appellant in person.

For the Respondent: Ms Zubeda Begum, Ms Sana Ansari and Ms Ishita Mohanty, Advocates

Case BriefsForeign Courts

District Court Appeal (Family Division): Debbie Ong, J., while granting joint custody of a child to mother and father held that the mother cannot unilaterally decide on the matter of the child’s citizenship.

In the present matter, the mother raised following issues:

(a) whether the Court had erred in law in dismissing the mother’s application for sole custody, care and control of the Child with restricted and supervised access to the Father;

(b) whether the Court had erred in law and in fact by refusing to make orders directing or ordering that in the event that the Child’s application for Singapore citizenship has been withdrawn or cancelled, or rendered unsuccessful by reason of any act or omission by the Father to complete the application process, that the Father be ordered to re- apply for the Child’s Singapore citizenship and to do all that is necessary to make the said application within 7 days from the date of this Order; and

(c) accordingly, whether the Court erred in law and in fact by not making the orders for relief sought for by the mother.

This Court expressed that there appeared to be some confusion with respect to the concepts of custody and care and control. The District Judge found that there were no fresh events that gave rise to a genuine or actual dispute in respect of the child’s citizenship.

As per the decision in CX v. CY,              where there is no actual dispute between the parents over any major issues relating to the child’s upbringing, the court may make a no custody order and without the said order, both the parents remain responsible for the upbringing of the child and should continue parents responsibility over the child.

Where there have been attempts by one parent to exclude the other from the child’s life, the court can also make a joint custody order that has the psychological effect of reminding parties that the other parent has an equal say in significant matters.

Further, the Court opined that there is no legal principle that a care and control order can only be made if there are disputes over the upbringing of the child.

It was noted that the parties did not agree on the matter of the Child’s citizenship – the Mother would like the Child to obtain Singapore citizenship, while the father does not wish to apply for Singapore citizenship for the Child.

In view of the above discussion, the Bench opined that a joint custody order would be appropriate in the present matter and the said will make it clear that neither parent can unilaterally decide on matters of importance in relation to their child.

Father expressed his desire at the hearing that he may pursue shared care and control or more access when he would be able to afford a lawyer in future.

Court on noting that the mother had been the main caregiver of the child since the parties separated in June 2020, mother should be given sole care and control of the Child.

Further, the Bench added that the father should have the opportunity to build a relationship with the Child and should have reasonable access to the Child.

Did the court err by refusing to direct that the father be ordered to apply for the Child’s Singapore citizenship?

The intentions and plans of an intact family before the marriage breaks down may no longer be the same after the breakdown. The relationships have changed. Many personal decisions will have to be made to cope with life after breakdown.

 Bench held that whether a child should be raised in country x or country y are personal decisions.

High Court expressed that it is not in the position to, and should not, assess and compare the sufficiency of systems and quality of life of the various countries.

“Some parents of children with Singapore citizenship relocate and give up Singapore citizenship for personal reasons, which could, for example, be a belief that the education system in Singapore is too stressful for their children. Other parents think Singapore is a safe country with an excellent education system and choose to make Singapore their home. These are personal decisions.”

Lastly, the Court held that it does not find any provision in law that accords the Child the constitutional right to an application for Singapore citizenship.  It is the parent with Singapore citizenship who can make such applications.

Hence, the DJ did not err by refusing to direct that the father be ordered to apply for Singapore citizenship for the Child.

In view of the above appeal was dismissed. [VLI v. VLJ, [2022] SGHCF 8, decided on 10-3-2022]

Case BriefsHigh Courts

Delhi High Court: Expressing that the Family Court’s decision was based on optimism and hope rather than the actual factual matrix of the case, the Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., while addressing a matter wherein matrimonial dispute occurred between the parties, observed that,

“..a decree of judicial separation can be rescinded by the same court; but a decree of divorce can be reversed only by a judicial order: either in review or in appeal. If it is passed ex parte, it may be recalled on an application being made for that purpose.”

“Judicial separation and divorce are completely different reliefs– granted on the same grounds–as contained in Section 13 (1), and in the case of a wife, also on any of the grounds specified in sub-Section (2) of Section 13 of the Hindu Marriage Act,1955.”

Appellant-husband filed the matrimonial application challenging decision passed by the Family Court wherein the relief of judicial separation was granted instead of the relief of divorce-as had been sought by the appellant.

On the other hand, the respondent-wife filed a matrimonial application challenging the findings referred by the Family Court against the respondent in the said decision.

Family Court had opined that the respondent-wife was guilty of matrimonial misconduct and was what was asked by her family members, without applying her independent mind. Respondent was also advised by the Court to think again, independently, without any pressure of her family members, in order to settle and re-establish her matrimonial home.

Analysis, Law and Decision

Whether the finding of cruelty returned by the Family Court against the respondent-wife calls for interference?

High Court stated that it was difficult for them to accept the respondent’s version that she was thrown out of her matrimonial home, or that the members of the appellant’s family tried to take her life – in respect whereof there was no complaint or evidence, is difficult for us to accept.

Bench found the allegations of demand of dowry by the appellant or his family members not to inspire the confidence and the same remained unsubstantiated.

Further, the Supreme Court decisions in Mangayakarasi v. M. Yuvaraj, (2020) 3 SCC 786 and Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, were referred.

As per a statement of the father of the respondent, it was him who forbade the appellant from coming to his house or making any calls. Hence, the onus shifted on the respondent to show her intent and the effort that she made to re-join the company of the appellant. No evidence on record was there to show any effort made by respondent.

No doubt in the credibility of the witnesses was found who were from the appellant’s side and tried to repair the matrimonial bond of the parties. They even endeavoured to help the parties to live together and solve their differences. Their evidence was corroborated by documentary evidence viz the statement made by the respondent’s own father in the appellant’s suit and the lack of intent to resume cohabitation exhibited by the respondent.

Court expressed that the respondent’s attitude, reluctance and obstinacy to join the appellant despite his, his relatives and friends’ effort to bring her back amounted to cruelty. In fact, it was noted that the respondent-wife left the matrimonial home for no reason and levelled false allegations.

The appellant did not get married to the respondent to lead a bachelor’s life. He got married in the hope, and with the expectation, of leading a happy and fulfilling married life. The respondent, by not joining him, has denied him conjugal satisfaction. He has been denied the companionship that he would have been legitimately and rightfully hoping to experience with the respondent.

By the Family Court’s decision, the respondent-wife was asked to give her marriage another chance and think independently of her family members. However, there was no positive move on the part of the respondent.

In view of the above discussion, the respondent-wife perpetrated mental cruelty upon the appellant, and nothing remained in the said marriage.

Legality of the relief granted by the Family Court of judicial separation to the appellant, instead of a decree of divorce

As per the scheme of the Hindu Marriage Act, 1995 the ambit and the scope of the Judicial Separation and Divorce is qualitatively different.

“Judicial Separation is a completely different relief that the aggrieved spouse may seek against the other, under Section 10 of the Hindu Marriage Act.”

High Court remarked that,

“While judicial separation does not end the matrimonial relationship and the marriage is preserved – after a declaration is made establishing the matrimonial misconduct by the other spouse, and it entitles the aggrieved spouse/petitioner to deny conjugal relationships to the other spouse/respondent, a decree of Divorce puts an end to the jural relationship of marriage between the parties, thus liberating them from their marital bond.”

Another, significant observation is that the parties cannot remarry during the period of judicial separation, since the status of marriage subsists. Whereas, once a decree of divorce is granted, parties are free to remarry once the statutory period of appeal expires and there is no restrain passed by a competent court against remarriage.

With regard to the explanation of the concept of Judicial Separation, the Supreme Court decision in Hirachand Srinivas Managaonkar v. Sunanda (2001) 4 SCC 125, was cited.

Elaborating the analysis, in view of the present facts, this Court opined that the Family Court’s decision in ordering the judicial separation instead of Divorce was faulty.

It is not for the Court to decide to substitute the relief sought by the petitioner who has approached the Court.

Can the family Court grant any other relief instead of the one sought?

 “The powers of the Family Court to change the nature of the relief sought is absent. The Family Court cannot be heard to tell the petitioner before it, what is “good” for him/her. It may render its advice to the parties when the matter is pending before it, but when it comes to adjudication, the Family Court is bound to bear in mind the relief sought by the petitioner.”

Another stark observation of this Court was that, the Family Court expected the respondent to come out of the influence of her brother and father, and resume cohabitation with the appellant, but, on the other hand, failed to appreciate that the respondent cannot seek to resume cohabitation with the appellant, when the decree of Judicial Separation was operating against her, unless the appellant consented.

Appellant had clearly expressed his intention of ending the relationship. Family Court should have realized that if the respondent had been unable to come out of the influence of her family members for the last 13 years, there was very little likelihood of her doing so in the near future.

Hence, in view of this Court, the relief of Divorce could not have been denied to the husband, once the ground of cruelty was established under Section 13(1)(ia) of the Hindu Marriage Act.

“…parties were living separately for 12 years now, and the marriage was completely broken.”

The adamance of the wife in regard to refusal to cohabitate with the appellant over the last 12 years showed this Court that there was nothing remaining in their marriage.

Therefore, the family Court’s decision was set aside in so far as it granted a decree of judicial separation to the husband. [Vinay Khurana v. Shweta Khurana, 2022 SCC OnLine Del 517, decided on 18-2-2022]


Advocates before the Court:

For the Appellant: Appellant-in-person

For the Respondent: Naman Joshi, Guneet Sidhu, Advocate with respondent -in-person

Case BriefsHigh Courts

Jharkhand High Court: Anubha Rawat Choudhary, J., held that right to claim maintenance must date back to the date of filing the application since the period during which the maintenance proceedings remained pending is not within the control of the applicant.

The facts of the case were such that the Family Court had allowed the application filed under Section 125 of the Criminal Procedure Code, 1973 and directed the opposite party to pay an amount of Rs 1500 per month to the petitioner from the date of passing of the judgement and had further directed to pay Rs 5,000 lump sum as litigation cost and had also directed the opposite party to make payment of monthly allowance on or before 10th day of each month of English calendar.

By an order dated 31-01-2020, the High Court had refused to interfere with the quantum of maintenance. However, the notice was issued on the point regarding effective date of grant of maintenance whether it should have been from the date of passing of the impugned judgement or from the date of filing of the maintenance application.

The petitioner relied upon the judgement of the Supreme Court in Rajnesh v. Neha, (2021) 2 SCC 324, to submit that the law had been well-settled that in a case of maintenance, the maintenance is to be awarded from the date of filing of the application since the period during which maintenance proceeding remained pending, is not within the control of the applicant.

In the above mentioned case, the Supreme Court had issued direction to bring about uniformity and consistency in the orders passed by all courts by directing that maintenance be awarded from the date on which the application was made before court concerned, and the right to claim maintenance must date back to the date of filing the application since the period during which the maintenance proceedings remained pending is not within the control of the applicant.

In the backdrop of above, the High Court held that the impugned order was not sustainable in law to the extent it directed payment of monthly maintenance from the date of judgement, and consequently, the Bench modified by holding that the petitioner would be entitled for the payment of monthly allowance as fixed by the Family Court from the date of filing of application; i.e. 22-09-2014.

Since, the entire arrears of maintenance for 88 months till January, 2022 came to Rs 1,32,000 and by including litigation expenses, it became 1,37,000; the respondent was directed to remit the arrears of maintenance and litigation expenses amounting in monthly instalment of Rs 10,000 each with effect from 10-02-2022 along with the current monthly maintenance amount for each month in the bank account of the petitioner through RTGS mode. [Rinki Kumari v. Kundan Kumar, 2022 SCC OnLine Jhar 22, decided on 07-01-2022]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: Arjun N. Deo, Advocate

For the Respondent: Vikas Kumar, Advocate

Case BriefsHigh Courts

Punjab and Haryana High Court: Lisa Gill, J., held that to permit a spouse to record conversations with an unsuspecting partner and to produce the same in a court of law, to be made the basis of deciding a petition under Section 13 of the Act cannot be permitted.

Order of the Family Court

The instant revision petition had been file by the petitioner-wife against the order of the Family Court whereby the husband of the petitioner, respondent herein, had been allowed to prove the Compact Disc pertaining to conversation between him and the wife subject to the condition of its correctness.

A petition was filed by the petitioner’s husband under Section 13 of the Hindu Marriage Act, 1955 for seeking divorce on the ground that his wife had been treating him with cruelty. With an intention to expedite the proceedings, the respondent-husband had moved an application seeking permission to submit his supplementary affidavit by way of examination-in-chief along with CD and transcriptions of conversations so recorded in the memory cards/chips of the respective mobile phones.

The said application was allowed by the Family Court observing that the husband was allowed to prove the CD pertaining to the conversations between him and his wife subject to the condition of correctness and that strict principles of evidence are not applicable to the proceedings before the Family Court by virtue of Sections 14 and 20 of the Family Court Act.

Are Recordings of Private Conversation between Husband and Wife permissible as Evidence?

The petitioner contended that the evidence sought to be led by the husband was completely beyond pleadings, therefore, absolutely impermissible as the said CD’s were a clear cut infringement and downright invasion of the her privacy thus a violation of Article 21 of the Constitution, as the conversations had been recorded without her knowledge and consent.

The petitioner argued that the Family Court had given a complete go bye to Section 65 of the Evidence Act, 1882 because if recording had been done through a mobile phone, CD’s of the recording and transcripts thereof in any case, could not be accepted as evidence thereof. Moreover, there was non-compliance of Section 65-B of the Act, 1882.

Right to Privacy v/s Recordings of Personal Conversation as Evidence

Admittedly, there was no mention of the conversations recorded by the husband between the years 2010 to 2016 in the said petition. It was thus evident that the husband was well aware of these conversations which could very well have formed part of the pleadings at the very outset, but clearly did not find mention. Furthermore, there was no averment regarding these conversations in the amended petition or even in the affidavit tendered in examination-in-chief. Therefore, the Bench opined that the CD’s in question could not be permitted in evidence.

Opining that acceptance of the CD in question would amount to a clear breach of fundamental right of the petitioner-wife i.e., right to privacy, as had been held the Supreme Court in People’s Union for Civil Liberties v. Union of India, (1997)1 SCC 301. Furthermore, the Bench said,

“It cannot be said or ascertained as to the circumstances in which the conversations were held or the manner in which response elicited by a person who was recording the conversations, because it is evident that these conversations would necessarily have been recorded surreptiously by one of the parties.”

In Tripat Deep Singh v. Paviter Kaur, 2018 (3) RCR (Civil) 71, it was held that conversations between husband and wife in daily routine cannot be made the basis of or considered for deciding a petition under Section 13 of the Act. Reference to Section 122 of the Evidence Act, had been succinctly dealt with by the Rajasthan High Court in Vishal Kaushik v. Family Court, 2015 SCC OnLine Raj 445, wherein the Court had heal that,

“The exception to privileged communication between husband and wife carved out in Section 122 of the Indian Evidence Act, which enables one spouse to compel another to disclose any communication made to him/her during marriage by him/her, may be available to such spouse in variety of other situations, but if such communication is a tape recorded conversation, without the knowledge of the other spouse, it cannot be, admissible in evidence or otherwise received in evidence.”

Verdict

Keeping in view the factual matrix of the case, the Bench opined that it could not be said the Family Court is not bound by strict rules of evidence and is at liberty to accept the CD in evidence which is a clear cut infringement of the right of privacy of the wife.

Therefore, acceptance of the CD by the Family Court was held to be unjustified and the impugned order was set aside. The application filed by the respondent-husband for submitting the said CD was dismissed and the instant revision petition was allowed. The Family Court was directed to take steps for expeditious disposal of the petition filed under Section 13 of the Act, preferably within six months. [Neha v. Vibhor Garg, CR No. 1616 of 2020, decided on 12-11-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner-wife: Rajan Bansal, Advocate

For the Respondent-husband: Sumeet Goel, Sr. Advocate with Anubhav Bansal, Advocate

Case BriefsHigh Courts

Kerala High Court: The Division Bench of A.Muhamed Mustaque and Sophy Thomas held that the District Court cannot entertain petition to appoint guardian of the person of the minor child, however power to appoint guardian of the property of the minor is well within the jurisdiction of the District Court. The Bench clarified, the fact that a court cannot appoint a guardian of the person, is no bar for appointing a guardian of the property.

The original petition was filed by the mother of minor girl Nivedya, against the respondent, who was the father of the minor and husband of the petitioner for declaring her as the guardian of the person and property of the minor. Plaint schedule property was owned by the maternal grandmother of the minor child, and it was settled in her favour as per a settlement deed. Due to strained marital relationship, the couple were living separately and the minor was staying with her mother.

The respondent-husband had challenged the jurisdiction of the Family Court on the ground that the District Court did not has any jurisdiction, as the entire right of the District Court, by virtue of the Guardian & Wards Act, has been taken over by the Family Court as per Section 7 (1) explanation (g) of the Family Courts Act, 1984.

The District Court, after hearing the rival contentions, found that, when custody of the property of a minor is involved, the jurisdiction is with the District Court and so, that court has jurisdiction to entertain that O.P. It was this finding of the District Court which was being challenged by the instant appeal.

The appellant-respondent submitted that prior to their divorce, his mother executed a settlement deed in favour of his minor child, reserving life interest for the appellant-respondent in the property and the house situated therein. Moreover, he had filed a petition before Family Court for getting custody of the minor child and it was still pending.

The Bench observed that Section 7 of the Family Courts Act, 1984, lays down that a family Court shall have, and exercise all jurisdiction exercisable by any District Court or any subordinate civil Court under any law in respect of suits and proceedings of the nature referred to in the Explanation which, inter alia, includes, according to clause (g), a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor. Section 8 of the Act specifically says that where a family Court has been established for any area, no District Court or any subordinate civil Court referred to, shall, in relation to such area, have or exercise any jurisdiction in respect of such suits or proceedings referred to, in the Explanation which includes clause (g). However, considering the above provision, the Bench stated,

“But, when the question involved relates to appointment of guardian in respect of the property of minor, the Family Court has no jurisdiction, as that dispute is not coming under explanation (g) to Section 7(1)”.

Hence, the Bench held that since the Family Court has no jurisdiction to entertain a petition for guardianship of the property of the minor, no doubt, the jurisdictional District Court has to entertain that petition. Further, Section 7 of the Guardian & Wards Act, 1980 empowers the jurisdictional District Court to appoint a guardian of the person or property or both of a minor or to declare a person to be such a guardian, if the court is satisfied that, it is for the welfare of the minor. So, as far as the dispute between parties to an erstwhile marriage regarding guardianship of the person, or the custody of, or access to their minor child, the Bench held that the jurisdiction of the District Court is taken away by the Family Court.

Consequently, with regard to the impugned proceedings of the District Court, the Bench held that there was not illegality or impropriety to warrant the Court’s interference and the District Court can proceed with the original petition for appointing guardian for the property of the minor, and not for the person of the minor. [K.S. Narayana Elayathu v. Sandhya, 2021 SCC OnLine Ker 6231, decided on 22-12-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Appellant: Paul K. Varghese, Advocate

For the Respondent: C.R. Reghunathan, Advocate

Case BriefsDistrict Court

Family Court, Ahmednagar: Netra A Kank, J., allowed a petition granting a decree of divorce by mutual consent to the petitioners.

The instant petition was filed by the petitioners for mutual divorce as per Section 13-B of the Hindu Marriage Act.

Factual Matrix

Marriage of the petitioners took place on 12-8-2009 and resided together till 1-1-2020. Due to the dispute between the petitioners, petitioner 2 started residing separately from petitioner 1.

Relatives of the petitioners tried to resolve the dispute, but the same was not resolved and due to the dispute, the petitioner did not cohabit and petitioner 1 filed PA No. 46 of 2021 against petitioner 2 for restitution of conjugal rights.

In view of the above parties sought divorce.

The matter was initially referred to the counsellor for settlement and as per the counsellor reconciliation was not possible and both of them agreed to divorce by mutual consent.

Points for consideration:

Whether petitioners 1 and 2 are entitled to divorce by mutual consent as per provisions of Section 13-B of the Hindu Marriage Act?

Analysis, Law and Decision

In the present matter, several affidavits were filed by the petitioners to show that several efforts of reconciliation between the petitioners were made but the same was not possible. The Bench noted that as per the affidavits, petitioners were agreeable to divorce by mutual consent.

Court also observed that petitioner 2 had waived all her rights of present and future maintenance from petitioner 1. Parties also agreed that the son and daughter of the parties shall be in the custody of petitioner 1 ad petitioner 2 would have the rights to take children for overnight access for two days every week.

Hence, petitioners were entitled to divorce by mutual consent. [X v. Y, Petition F – 250 of 2021, decide don 30-11-2021]


Advocates before the Court:

Mayur P. Salunke and Ajinkya P. Salunke, Advocates


Additional Reading:

Husband and Wife separated for more than 1 year. Will 6 months period be waived, if divorce is sought mutually under S. 28 of Special Marriage Act? Pune Family Court decides

Case BriefsHigh Courts

Delhi High Court: While addressing a matter with regard to maintenance to wife, Subramonium Prasad, J., held that the fact that the wife is capable of earning is no ground to deny interim maintenance to her. Many a times wives sacrifice their career only for the family.

Instant petition was filed by an Indian Army colonel to set aside the order passed by Family Court wherein the Court passed an order under Section 125 CrPC directing the petitioner to pay monthly maintenance of Rs 33,500 to the respondent.

Revisionist Petitioner submitted that there were glaring inconsistencies that were in the order as a result of suppression of facts made by the respondent. He contended that the respondent was disqualified from being given maintenance as she was in an adulterous relationship and was living in adultery with an army senior of the petitioner.

Further, he submitted that the respondent and her paramour were having an affair behind his back and the paramour was known to the couple as a family friend from the time they had gotten married in 2002.

Adding to the above, it was submitted that Section 125(4) CrPC was attracted which stated that a person living in adultery would not be eligible for claiming maintenance from her separated spouse.

Petitioner submitted that the respondent was disqualified from receiving maintenance on the ground that she was employed as a teacher previously and was making a living. Respondent had an earning capacity and could maintain herself without the financial support of the petitioner as sanctioned by law.

Submission of the respondent’s maintenance claim was to be decided in accordance with the Army Order, the same would be decided by the Army Officials of the Armed Tribunal and the jurisdiction exercised by the Family Court was wrong and improper. Hence, the entire proceedings before the family court were null and void.

Petitioner lastly submitted that the respondent had suppressed the fact that she was capable of earning.

Analysis, Law and Decision

While analyzing the matter, High Court noted that the material on record disclosed that the children were with the petitioner from 2015 and hence the respondent was not entitled to two shares and Trial Court ought to have granted Rs 14, 615 per month as interim maintenance to the respondent.

Bench expressed that the petitioner’s contention that he was covered by the Army Order and therefore trial court fixing maintenance was contrary does not hold water.

It cannot be said that the Army Order would override the provisions of Section 125 Cr.P.C and that the Army personnel are covered only by the Army Order and that Section 125 Cr.P.C would not apply to Army Personnel.

 With regard to the contention of the wife living in adultery, she raised a very interesting counter-argument that one incident of adultery cannot lead to a conclusion that she is living in adultery.

Court referred to the decision dated 22-8-2020 regarding custody of children to the father which did not conclusively prove that the wife committed adultery or was living in adultery.

Examining the above contention further, High Court stated that it will not go into the issue of whether the wife is living in adultery or not.

The Bench added that if it was conclusively proved that the respondent was living in adultery and was not entitled to maintenance at all, the trial court could pass appropriate order for the return of the maintenance amount if it deemed it fit and keeping in mind the object of Section 125 CrPC was to prevent vagrancy and destitution of a deserted wife.

Hence, revision petition was allowed in part and the petitioner was directed to pay a sum of Rs 14, 615 as interim maintenance to the wife.

“This Court is not inclined to disturb the portion of the impugned order which has directed the petitioner herein to pay a sum of Rs 9,000/- per month to the respondent herein w.e.f. date of filing of the petition till December, 2016.”

In view of the above, a revision petition was allowed in part. [Col Ramnesh Pal Singh v. Sugandhi Aggarwal, 2021 SCC OnLine Del 5497, decided on 21-12-2021]


Advocates before the Court:

For the Petitioner: Petitioner-in-person

For the Respondent: Respondent -in-person

Case BriefsHigh Courts

Delhi High Court: Yashwant Varma, J., delved into the subject of the role of a Family Judge while deciding petitions which come before him/her. The High Court in the instant petition directed the Family Court to consider the petition filed for maintenance under Section 24 of the Hindu Marriage Act.

Background

Present petition was preferred challenging the decision of the Family Court.

First Order of the lower court had accorded visitation rights to the respondent, the second order provided for the system of the father being able to communicate with the child via a video call.

The Court was informed that on account of a medical affliction, the respondent was not in a position to take advantage of the rights of visitation physically and that the ends of justice would thus warrant the system of video calls being continued to enable the father to continue interaction with the child and thus participate in his upbringing.

In view of the above two orders, the Court had provided for fixation of an interim maintenance to be paid at a rate of Rs 15,000 and on one occasion payment of an additional sum of Rs 10,000 was also directed.

Question for Consideration

Validity of two orders passed by the Family Judge and whether the issue of interim maintenance or otherwise is liable to be decided by the High Court in writ petition even before parties have had the liberty and the occasion to lead appropriate evidence in order to enable the Family Judge to arrive at what would be a just maintenance which would be payable.

Analysis, Law and Decision

With regard to the latter question as stated above, Court opined that the principal jurisdiction with regard to the above stood conferred on the family judge.

It is the primary responsibility and function of the Family Judge to consider and decide as to what would constitute a fair maintenance, interim or otherwise, which should be fixed for the upkeep and upbringing of the minor child.

Whether Family Judge was justified in law in refusing to take up the application under Section 24 of the Act in the absence of a written statement filed.

Court noted that the family judge failed to assign any valid reason or allude to any circumstance which may have impeded its ability and authority to decide the said issue irrespective of whether a written statement had been filed or not.

A written statement, as a foundational precept, is a pleading dealing with the merits of the dispute. The insistence on the filing of a written statement and an application for maintenance being taken up for consideration only thereafter cannot possibly be recognized to be an inviolable rule.

Petitioner’s assertion was that she had no source of income and that she was facing financial constraints to look after the needs of the minor. It is not the case of the respondent that he was contributing to the expenses required for the wellbeing of the minor prior to the intervention of this Court.

Bench stated that the respondent failed to weigh into consideration that he too is a parent and thus obliged in law to contribute equally to meet the needs of the child.

Role of Family Judge

The Family Judge is supposed to perform a special and unique role under the Act. That Court, unlike others in the hierarchy of the judicial system does not merely preside over adversarial litigation. It also has to proactively engage with parties and act as a facilitator and mediator.

the provisions of Order VIII Rule 1 of the Civil Procedure Code are liable to be recognised as operating in absolute terms only where a particular statute may provide for consequences of a failure to adhere to the time frame prescribed for filing of a written statement.

As per the decision of Nidhi Banga v. Mohinder Bir Singh, 2014 SCC OnLine Del 7628, establishes that the Court essentially reiterated the underlying importance of Section 24 and of the obligation placed upon the Family Court to determine the payment of maintenance.

Family Court has failed to record even rudimentary reasons in support of its ultimate decision to defer decision on the application under Section 24 in the absence of a written statement being filed.

Court opined that the impugned orders would merit being set aside and the matter being remitted to the Family Judge who may take up the application for grant of interim maintenance as made under Section 24 and dispose of the same in accordance with law and upon due consideration of all objections that may be taken and evidences led by respective parties.

The ends of justice would also warrant the interim arrangement as made out by this Court and reflected in the above two orders of family court to be continued subject to following conditions:

  1. While the respondent would continue to pay interim maintenance of Rs 15,000/- as was fixed by this Court in its initial order of 2nd February, 2021, since presently, the respondent is unable to exercise the rights of visitation physically, the arrangement of an interactive session being put in place via a video call on a daily basis is liable to be continued.
  2. The Court further reserves the right of the respondent to reassert his right of physical visitation as and when his medical condition does so permit.

Hence, the above petition stands allowed and the matter shall stand remitted to the concerned principal Judge who shall take up the application as made by the petitioner under Section 24 for consideration. [Esha Dhir v. Sparsh Dhir, 2021 SCC OnLine Del 5163, decided on 29-11-2021]


Advocates before the Court:

For Petitioner:

Mr. Yakesh Anand, Ms. Sonam Anand, Ms. Deepshikha Sansanswal, Mr. Akshay Thakur, Advs.

For Respondent:

Mr. Pratap Singh Parmar, Adv.

Case BriefsHigh Courts

Kerala High Court: The Division Bench of A. Muhamed Mustaque and Kauser Edappagath, JJ., issued detailed guidelines for Family Courts for speedy disposal of petitions seeking the judicial endorsement of extra-judicial divorce.

The unilateral extrajudicial divorce under Muslim Personal law is complete when either of the spouse pronounce/declare talaq, talaq-e-tafweez or khula, as the case may be, in accordance with Muslim Personal Law. So also extrajudicial divorce by mubaarat mode is complete as and when both spouses enter into mutual agreement. The seal of the Court is not necessary to the validity of any of these modes of extra judicial divorce.

The instant petition questions the scope and nature of enquiry to be undertaken by the Family Court in a petition filed u/s 7(d) of the Family Courts Act, 1984 to endorse an extrajudicial divorce under the Muslim Personal Law and to declare the marital status of the parties to the marriage.

The petitioner was the wife of the respondent, and both the parties were Muslims. The respondent divorced the petitioner by pronouncing talaq in accordance with Muslim Personal Law. However, the petitioner disputed the legal validity of the pronouncement of talaq and filed a petition in the Family Court for restitution of conjugal rights.

Thereafter the respondent filed original petition at the Court below to declare the marital status of the petitioner and the respondent on the ground that the marriage had been dissolved by pronouncement of talaq. The petitioner appeared at the Court below on 13-09-2021. The court below adjourned the case to 10-11-2021. However, due to application filed by the respondent to advance hear the case and it was advanced to 25-09-2021 and was later adjourned to 28-09-2021. The case was taken for judgment to 30-09-2021. The grievance of the petitioner was that she was not given proper opportunity by the Court below to contest the original petition on merits.

Reliance was placed by the Court on the decision in X v. Y, 2021 (2) KHC 709 wherein it had been held that the Family Court in exercise of the jurisdiction under Explanation (d) of S.7 of the Act is competent to endorse an extrajudicial divorce to declare the marital status of a person. It was made clear in the said judgment that in the matter of unilateral dissolution of marriage invoking khula and talaq, the scope of enquiry before the Family Court is limited and 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. In the matter of mubaraat, the Family Court shall declare the marital status without further enquiry on being satisfied that the dissolution was affected on mutual consent. It was observed that such matter shall be disposed treating it as uncontested matter without any delay by passing a formal order declaring the marital status. It was further held that if any person wants to contest the effectiveness of khula or talaq, it is open for such person to contest the same in appropriate manner known under the law.

In the above backdrop, the Bench stated,

The endorsement of extrajudicial divorce and consequential declaration of the status of the parties by the Family Court invoking S.7(d) of the Act is contemplated only to have a public record of the extrajudicial divorce. Hence, detailed enquiry is neither essential nor desirable in a proceeding initiated by either of the parties to endorse an extrajudicial divorce and to declare the marital status.

Therefore, the Bench held that the Family Court has to simply ascertain whether a valid pronouncement/declaration of talaq or khula was made and it was preceded by effective attempt of conciliation. In the case of khula, it has to be further ascertained whether there was an offer by the wife to return the “dower”. No further enquiry as in the case of an adversarial litigation like chief examination and cross-examination of the parties are not at all contemplated in such proceedings.

In the light of above, the Bench proceeded to formulate the following guidelines to be followed by the Family Court in a petition filed u/s 7(d) of the Act to endorse an extrajudicial divorce under Muslim Personal Law and to declare the marital status of the parties to the marriage:

  1. On receipt of the petition, the Family Court shall issue notice to the respondent.
  2. After service of summons or appearance of the respondent, the Family Court shall formally record the statement of both parties. The parties shall also be directed to produce talaq nama/khula nama (if pronouncement/declaration is in writing)/mubaarat agreement.
  3. On prima facie satisfaction that there was valid pronouncement of talaq, khula, talaq-e-tafweez, or valid execution of mubaarat agreement, the Family Court shall proceed to pass order endorsing the extrajudicial divorce and declaring the status of the parties without any further enquiry.
  4. The enquiry to be conducted by the Family Court shall be summary in nature treating it as an uncontested matter.
  5. The Family Court shall dispose of the petition within one month of the appearance of the respondent. The period can be extended for valid reasons.
  6. If any of the parties is unable to appear at the Court personally, the Family Court shall conduct enquiry using video conferencing facility.

Accordingly, the Bench directed the Court below to record the statement of the parties, and pass final orders in the light of the observations made in this judgment. [ASBI.K.N v. HASHIM.M.U, 2021 SCC OnLine Ker 3945, decided on 12-10-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: Advocate C.Dilip Anushka Vijayakumar, Advocate P.N.Vijayan Nair and Advocate R.Pradeep

For the Respondent: Advocate Alexander Joseph Akhilasree Bhaskaran

Case BriefsHigh Courts

Punjab and Haryana High Court: G. S. Sandhawalia, J., allowed the application for waiving off the mandatory period of six months for divorce by mutual consent.

The instant petition had been filed by the petitioners i.e. Wife and husband who were aggrieved by the order of the Family Court, whereby their application for waiving off the mandatory period of six months had been rejected.

The petitioners submitted that they had sought divorce by mutual consent and their joint statement was recorded under Section 13-B of Hindu Marriage Act on the ground that husband was residing abroad in Houston TX (USA) since 2019. The parties were living separately since then and three children, which were borne out of the wedlock remained with the husband. Therefore, it was submitted by the parties that the mandatory period of six months be waived off.

Reliance was placed by the Family Court on the decision of the Supreme Court in Amandeep Singh v. Harveen Kaur, (2017) 8 SCC 746, wherein it had been held that, “where there are no chances of reconciliation, six months period cannot be waived off except in exceptional circumstances and the parties are thus aggrieved by the impugned order.”

Observing that the couple had settled the matter and were mature to the extent that first petitioner was 34 years old and petitioner 2 was 35 years of age and had been blessed with 3 children; moreover, it was not disputed that the husband was also staying abroad for the last more than two years and they had even settled regarding the children; the Bench opined that in such circumstances, further waiting period would only prolong the proceedings and it was a fit case to exercise the jurisdiction of the Court in waiving off the mandatory period of six months.

The Bench opined that the judgment in Amandeep Singh’s case had not been appreciated in its real sense by the Family Court. The relevant portion of the said judgment reads as under:-

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

Accordingly, the impugned order was set aside. The Family Court concerned was directed to take up the application again and dispose of the main case within a period of 10 days.[Sukhjeet Kaur v. State of Punjab, 2021 SCC OnLine P&H 1606, decided on 16-08-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

Counsel for the Petitioners: Mohd. Salim, Advocate

Case BriefsHigh Courts

Bombay High Court: The Division Bench of S.S. Shinde and Abhay Ahuja, JJ., reiterated the observation of Supreme Court in Gian Singh v. State of Punjab, (2012) 10 SCC 303, while quashing an FIR registered for offences under Sections 498(A), 406, 504, 323, 34 of the Penal Code and Sections 3, 4 of the Dowry Prohibition Act, on the ground of matter being resolved amicably.

Factual Matrix

Due to differences between the husband and wife, they sought a divorce and a petition was filed before the Family Court, Bandra which was later converted into mutual consent divorce petition under Section 13-B of the Hindu Marriage Act, 1955.

High Court stated that considering the fact that a matrimonial dispute which sought to be amicably resolved, the Court deemed it appropriate to seek guidance from the Supreme Court decision in Gian Singh v. State of Punjab, (2012) 10 SCC 303, wherein it was observed that:

“…the criminal cases having overwhelmingly and pre-dominatingly civil favour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affrmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.”

Bench added that the present matter involved offences arising out of matrimony and was basically private in nature and the parties sought to resolve their entire dispute and due to the compromise between them, the possibility of conviction would be remote and bleak and continuation of criminal case would lead to great prejudice or injustice.

Therefore, in view of the above discussion, petition was allowed while allowing the below prayer clause:

“a. That this Hon’ble Court be pleased to quash and set aside the FIR No.256 of 2019, registered by Vikhroli Police Station at Mumbai, under Sections 498(A), 406, 504, 323, 34 of Indian Penal Code, and 3, 4 of Dowry Prohibition Act dated 19.06.2019 and Criminal Case No.959/PW/2020 and pending before Ld. 31st Metropolitan Magistrate’s Court at Vikhroli, Mumbai, and further be pleased to discharge the Petitioners from C.C. No.256 of 2019 under Sections 498(A), 406, 504, 323, 34 of Indian Penal Code, and 3, 4 of Dowry Prohibition Act.” 

Petition was disposed of in the above terms. [Yuvraj Raman Jadhav v. State of Maharashtra, 2021 SCC OnLine Bom 780, decided on 1-06-2021]


Advocates before the Court:

Ms. Anushka Shreshtha for the Petitioners.

Mr.J.P. Yagnik, APP for the Respondent-State.

Mr. Jayesh Bhosle for Respondent No.2.

Mr. Yuvraj R. Jadhav – Petitioner No.1 present through V.C.

Mrs. Madhuri Jadhav (maiden name–Madhuri Sawant)-Respondent No.2 present through V.C.

Case BriefsHigh Courts

Punjab and Haryana High Court: The Bench of Arun Monga, J., allowed waiver statutory period of 6 months for dissolution of marriage and granted divorce to the couple entrapped in an irretrievably broken marriage.

The petitioners had approached the Court under Article 227 of Constitution for setting aside the impugned order of the Family Court whereby application for waiver of the statutory period of 6 months filed in a joint petition under Section 13-B of the Hindu Marriage Act, had been dismissed, being not in consonance with the guidelines laid down by Supreme Court in case of  Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746. The marriage of the parties was solemnized in 2001 according to Hindu Rites and Ceremonies. The parties had two children, one son who unfortunately died. While the daughter was married and was living in a matrimonial home. Due to temperamental differences, the parties had been living separately since December, 2015.

Since there were no chances of reconciliation, therefore, the parties filed a joint petition for the dissolution of their marriage by way of mutual consent, under Section 13-B of HMA. All the disputes regarding permanent alimony etc. were settled and a sum of Rs. 2 lakhs (out of the settled amount of Rs.5 lakhs) was paid by petitioner 2 to petitioner 1. Hence, both the parties had moved an application for waiver of statutory period of six months, which had been dismissed by the Family Court.

The petitioners argued that the Court below had not rightly appreciated the facts and circumstances of the case while not waiving the period of 6 months. It was contended that they had consented to part their ways and were being unnecessarily asked to wait for another six months.

In the light of the above, the Bench opined that the marriage of the petitioners had broken down irretrievably and there was no possibility of any reconciliation between them. Therefore, the order of the Court below in insisting the parties to wait for another six months for the second motion hearing, was totally uncalled for. Holding that the marriage between the parties had irretrievably broken and now they had decided to part their ways, so that they both have an opportunity to live their lives in the manner they like, hence, insistence of the Court below to wait to another six months would result in adding to their woes. Consequently, the revision petition was allowed and the impugned order was set-aside. The Family Court was directed to entertain the petition filed by the petitioners by waiving off six months period and proceed with the petition in accordance with law.[Sunita v. Yogesh Kumar, 2021 SCC OnLine P&H 1057, decided on 19-04-2021]


Kamini Sharma, Editorial Assistant ahs reported this brief.


Appearance before the Courts by:

For the Petitioner: Adv. Amit Choudhary

Case BriefsHigh Courts

Madras High Court: The Division Bench of T. Raja and G. Chandrasekharan, JJ., while upholding the decision of Court below stated that for 12 long years the wife did not appear for any proceedings to disprove the allegations of husband and crucial allegations such as assaulting husband on his vital part of the body are included which were never denied by the wife, then how can the parties be made to live together.

Present appeal was directed against the decision of the Family Court dissolving the marriage between the parties.

Counsel for the appellant/wife argued that the trial court without taking into account the contents of various exhibits and contents of cross-examination of the respondent/husband gave a finding of guilt of cruelty meted out to respondent/husband that could not be sustained as the same was a result of erroneous appreciation of entire materials available before the Court below.

It was also submitted that the husband had fabricated certain documents to evade the payment of maintenance. Due to which the wife had to file a number of proceedings for which the appellant could not be demoralized giving a stamp of inflicting cruelty upon her husband.

Issues that arose in the present matter were as follows:

  • Whether the failure on the part of the appellant/wife to participate in the divorce proceedings before the Court below would amount to accepting the allegations made by the respondent/husband as true?
  • When the respondent/husband has filed the petition for divorce under Section 13(1)(ia) of the Hindu Marriage Act, on the refusal of the appellant/wife either to appear in the witness box to state her own case on oath or not offering herself to be cross examined by the other side, whether the Court below is legally justified in drawing an adverse presumption that the case set up by the appellant/wife is not correct, under Section 114-Illus.(g) of the Evidence Act?

High Court’s Analysis and Finding

Bench stated that since the wife had raised counter-allegations, it was her duty and obligation to appear before the Court below and substantiate the same by disproving the allegations made by the respondent/husband by seriously participating in the enquiry.

It was rightly submitted by the counsel for the husband that when the divorce petition was pending from 2007 till 2019, for almost a period of 12 long years appellant/wife had chosen to filed 13 interlocutory applications but it is not known why she did not choose to appear before the Court below to take part in the enquiry.

Secondly, when the wife filed a case against the respondent under Sections 498(A), 406, 323, 504 & 506 of IPC, for which a trial of 9 long years was held, after which the husband and his parents were acquitted, it is unknown why the appellant devoted time to project a false case but did not appear for the enquiry before the Court below to disprove the allegations made by the husband.

Thirdly, she had also filed a case of domestic violence and for maintenance.

High Court stated that when she had boycotted the proceedings before the Court below, where she had the advantage of examining and cross-examining the respondent, she could not have come to this Court.

Bench referred to Order VIII Rule 5(1) of the Code of Civil Procedure, as per which every allegation of fact in the plaint, if not denied specifically or by necessary implication, the same shall be taken to be admitted as against the person who failed to deny the same.

Conjoint reading of Order XVI, Rule 20, Order XV, Rule 4, Order XVI, Rule 20 and Order XXII, Rule 4 of CPC shows that where any party to a suit pending in Court refuses to give evidence or to produce any document then and there in his/her possession or avoid the Court willfully, the Court can pronounce judgment or make such order against that party on the ground that he or she failed to prove the case.

High Court referred to the Supreme Court decision in Mohinder Kaur v. Sant Paul Singh, (2019) 9 SCC 358, wherein it was held that a party to the suit who does not appear in the witness box to state his own case on oath and does not offer himself to be cross examined by the other side, would suffer a presumption, because the case set up by hi would not be genuine, natural or honest and real one.

12 Long Years and No Appearance

Further, in the present matter, Court’s opinion was that when the appellant/wife deliberately and willfully boycotted the proceedings before the Court below for 12 long years due to not having any evidence, she cannot approach this Court with this appeal since the same will not be maintainable.

A very crucial allegation made by the husband was that the wife had assaulted him on his vital part of the body and the same was not even denied by the wife in the counter affidavit.

In view of the above-said allegation and no denying of the same by the wife, it is clear that the wife not only caused mental cruelty but also physical cruelty upon the husband.

“…when the parties are all fighting for more than 14 long years, they cannot be made to live together.”

Unclean Hands

Family Court of Mumbai found that the appellant came to the Court with unclean hands since in the proceeding regarding maintenance she did not show that she was working and having a source of income.

The above order became final, this Court found no justification in this appeal.

High Court found no infirmity or error in the decision of the Family Court and hence upheld the same. [Narayanee v. S. Karthik,  2021 SCC OnLine Mad 2080, decided on 24-03-2021]


Advocates before the Court:

For Appellant: Dr K Santhakumari

For Respondent: J. Saravanavel

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., while addressing a revision petition in regard to maintenance of wife, held that

Magazine covers are not sufficient evidence to demonstrate that the respondent /wife can sustain herself.

Instant revision petition is against the Family Court’s decision directing the husband to pay maintenance at the rate of Rs 17,000 per month to the wife.

The daughter of husband and wife in the present matter passed away in the year 2010 and at present, they have two major adult sons who are well settled.

Parties have been living separately since the year 2012. Wife filed the petition under Section 125 CrPC for grant of maintenance stating that she was treated with cruelty and was thrown out of the house in the year 2012 and she was unable to sustain herself, hence required maintenance from the husband.

It was stated that the husband was earning an income of Rs 50,000 from the post of Head Constable and also had some agricultural land from which he was earning an income.

Wife claimed Rs 25,000 per month as maintenance.

Husband submitted that the wife was a working lady earning handsomely. Adding to this he stated that she participates in Jagrans and does TV Serials and was in a position to take care of herself. Both the parties filed their respective affidavits of income.

Counsel for the petitioner submitted that as per the Statement filed by the wife under Section 165 of the Evidence Act, she herself stated that she was doing modelling and it was for her to establish that income earned by her was so less that she couldn’t maintain herself.

Petitioners counsel also presented certain magazine covers and newspaper articles to establish that the respondent was employed and capable of maintaining herself.

Bench stated that law laid down by Supreme Court decision in Rajnesh v. Neha, (2021) 2 SCC 324, indicates that proceedings under Section 125 CrPC have been enacted to remedy/reduce the financial suffering of a lady, who was forced to leave her matrimonial house, so that some arrangements could be made to enable her to sustain herself.

It is the duty of the husband to maintain his wife and to provide financial support to her and their children. A husband cannot avoid his obligation to maintain his wife and children except if any legally permissibly ground is contained in the statutes. 

Court noted that in the present matter, petitioner relied only on the statement given by the respondent/wife under Section 165 Indian Evidence Act. In the said statement she clearly mentioned her employment adding that her income was very low on which her sustenance was difficult.

In view of the above position, the onus to show how much the respondent/wife was earning shifts on the petitioner to show that it was enough for her sustenance. But petitioner failed to bring any evidence.

Court reiterated the Supreme Court’s position that newspaper clippings, etc. are not evidence.

 It was noted that the petitioner was working as an ASI and both the children were well settled, and he was not under any obligation to maintain his children but the wife.

On asking about divorce, it was stated that the petitioner’s children did not want him to take divorce from his wife, hence it becomes the moral and legal obligation of the husband to maintain his wife.

Bench while dismissing the revision petition held that no material was placed on record to show that respondent/wife was able to sustain herself. [Jaiveer Singh v. Sunita Chaudhary, 2021 SCC OnLine Del 1488, decided on 05-04-2021]


Advocates before the Court:

For the Petitioner: Neerad Pandey, Advocate

For the Respondent: D.K. Sharma, Advocate