Case BriefsHigh Courts

Punjab and Haryana High Court: The Division Bench of Ritu Bahri and Arun Monga, JJ., held that marriage with minor is valid if no attempt is made to declare the same invalid once the child turns 18.

The brief facts of the present case were that at the time of marriage in 2009, the respondent-wife was of the age 17 years, 6 months and 8 days. Both the parties continued to live together and cohabited as husband and wife till 31-08-2017 and a male child namely Manas was born out of the wedlock, who had been living with the appellant-husband since 2017.

The grievance of the appellant was that the Family Court had dismissed the petition filed under Section 13-B of Hindu Marriage Act, 1955 for divorce by mutual consent by holding that the marriage of the parties was not a valid marriage as the respondent (wife) had not completed the age of 18 years as per the mandate of Section 5(iii) of the Hindu Marriage Act, 1955. The Family Court had referred to a judgment passed by the Madras High Court in Prema Kumari v. M. Palani, 2011 SCC OnLine Mad 1815, and held that parties were required to get their marriage nullified as per Section 13(2)(iv) of the Hindu Marriage Act.

Opinion and Analysis

Section 13(2)(iv) is reproduced as under:-

13-(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground- (iv) that her marriage (whether consummated or not) was solemnised before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years. The girl who has attained 15 years of age and has got married can seek dissolution of marriage before she attains the age of 18 years by filing a petition under Section 13(2)(iv) of the Hindu Marriage Act.

Differentiating the judgment relied by the Family Court, the Bench stated that the wife was not 15 years of age and could not invoke the provisions of Section 13(2)(iv) of the Hindu Marriage Act and had she been 15 years of age, she could have invoked the provisions only when she attains the age of 18.

In Lajja Devi v. State, 2012 SCC OnLine Del 3937, the Delhi High Court had observed that  a marriage contracted with a female of less than 18 years or a male of less than 21 years, would not be a void marriage but voidable one, which would become valid if no steps are taken by such “child” within the meaning of Section 2(a) of the Prohibition of Child Marriage Act, 2006 seeking declaration of this marriage as void.

In the present case, after marriage both the parties continued to live together till 2017 and the respondent (wife) wife had not chosen to file a petition for getting her marriage void before turning major, therefore, the Bench held that the Family Court had wrongly dismissed the petition as when the couple made a petition under Section 13-B of Hindu Marriage Act, 1955, the respondent-wife was major and the marriage was valid.

Accordingly, the appeal was allowed and the impugned order was set aside. The decree of divorce under Section 13-B of the Hindu Marriage Act, 1955 was granted to the parties. [Yogesh Kumar v. Priya, FAO 855 of 2021, decided on 26-08-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Appellant: Gitanjali Chhabra, Advocate

For the Respondent: Raman B.Garg, Advocate

Case BriefsHigh Courts

Delhi High Court: Amit Bansal, J., reversed the order of the trial court as it dismissed the application filed by the petitioner under Section 26 of the Protection of Women from Domestic Violence Act only on the basis that it had been filed towards execution of maintenance already granted.

Instant petition was filed under Article 227 of the Constitution of India impugning the decision of Additional District Judge-I, whereby the application filed by the petition wife under Section 26 of the Protection of Women and Domestic Violence Act, 2005 was dismissed.

Petitioner wife had filed a suit under the Hindu Adoptions and Maintenance Act, 1956 as an indigent person, claiming maintenance before the Court. Family Court had granted maintenance @ Rs 10,000 per month. Petitioner wife stated that she was not paid the stated amount by her husband, hence she filed execution proceedings before the Family Court.

Later, a civil suit was filed by the respondent-husband against the petitioner wife seeking damages of Rs 20,00,000 along with an interest and for pendente lite and future interest in the account of malicious prosecution.

The suit was premised on the discharge of the respondent-husband in a criminal complaint lodged by the petitioner wife against the respondent-husband under Sections 498A and 406 of the Penal Code, 1860.

Further, the petitioner wife filed an application under Section 26 of the DV Act in the said civil suit seeking a direction to respondent-husband to pay the sum of Rs 10,000 as interim maintenance and R 1 lakh towards litigation expenses.

Though Trial Court dismissed the above application.

Analysis, Law and Decision

In Court’s opinion, petitioner wife would be entitled to invoke the provisions of Section 26 read with Section 20 of the Domestic Violence Act to seek monetary relief including maintenance, which would be in addition to the maintenance granted to her vide the Family Courts Order.

Supreme Court in its decision Rajnesh v. Neha, (2021) 2 SCC 324, observed in light of the question of overlapping jurisdictions for grant of maintenance that Section 20(1)(d) of the DV Act makes it clear that the maintenance granted under the DV Act would be in addition to an order of maintenance under Section 125 of the Code of Criminal Procedure, 1973 (Cr.PC) and any other law for the time being in force. It was observed by the Supreme Court that the legislative mandate envisages grant of maintenance to wife under various statutes. There is no bar to seek maintenance both under the DV Act and Section 125 of the Cr.PC or the Hindu Marriage Act, 1955 or the Hindu Adoption and Maintenance Act, 1956.

Therefore, impugned order by the trial court was clearly erroneous inasmuch as it dismissed the application filed by the petitioner wife under Section 26 of the DV Act only on the basis that it has been filed towards execution of the maintenance already granted to the petitioner wife vide the order dated 28th March, 2018. The Trial Court has failed to appreciate that the aforesaid application was an independent remedy invoked by the petitioner wife under the provisions of the DV Act.

Hence, the impugned order was set aside. Matter was remanded back to the trial court. [Mamta Bhardwaj v. Vinod Kumar Bharadwaj, 2021 SCC OnLine Del 4841, decided on 29-10-2021]


Advocates before the Court:

For the Petitioner:

L.K. Singh with Saira Parveen, Advocates

For the Respondents:

Sanjeev Salhan, Advocate

Case BriefsHigh Courts

Madhya Pradesh High Court: S.A. Dharmadhikari, J., decided in the matter of the petition which was filed challenging the order passed by Additional Principal Judge to the Court of Principal Judge, Family Court, whereby the application filed by the petitioner and respondent under section 13-B of HMA for waiving off cooling period in the light of judgment passed by the Hon’ble Supreme Court in the case of Amardeep Singh v. Harveen Kaur, AIR 2017 SC 4417, had been rejected.

Counsel for the petitioner submitted that the petitioner and the respondent got married according to Hindu, rites and customs and as their marriage was not successful, therefore, they decided to obtain a decree of divorce, hence, they had jointly filed an application u/S. 13B of HMA for grant of divorce by mutual consent. It was stated that since both of them have decided to seek divorce and to live separately, therefore, pendency of the divorce petition for more than six months would seriously affect the future of both therefore, in the light of judgment delivered by the Apex Court in the case of Amardeep Singh, the cooling off period of six months may be waived off adding that there is no possibility of compromise between the parties in future.

Court reiterated the extract from the Amardeep Singh judgment,

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

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

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

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

iv) The waiting period will only prolong their agony.”

The Court finally decided to waive off the cooling period of six months’ as provided under Section 13-B of the HMA and directed it to be placed before the family court for consideration.

[Pankaj Rajput v. Kirti Rajput, 2021 SCC OnLine MP 1858, decided on 07-10-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Punjab and Haryana High Court: The Division Bench of Ritu Bahri and Arun Monga, JJ., held that in case of child marriage, the marriage is voidable not void and a petition for nullity under Section 13(2)(iv) could only be filed if she-wife had got married at the age of 15 that too only before she attains the age of 18.

Background

The brief facts of the present case were that at the time of marriage i.e. on 27-02-2009, the appellant (husband) was major being of the age of 23 years, 5 months and 10 days the respondent (wife) was of the age of 17 years, 6 months and 8 days. Both the parties continued to live together and cohabited as husband and wife till 31-08-2017 and had a male child out of the wedlock. The child had been living his father since 2017.

Findings of the Family Court

The grievance of the appellant was that the Family Court had dismissed his petition filed under Section 13-B of Hindu Marriage Act, 1955 for divorce by mutual consent. Relying on the decision of Madras High Court in Prema Kumari v. M. Palani, 2013 (6) RCR (Civil) 2953, the Family Court held that the marriage was not a valid one as the respondent (wife) had not completed the age of 18 years as per the mandate of Section 5(iii) of the Hindu Marriage Act, 1955, therefore the parties were required to get their marriage nullified as per Section 13(2)(iv) of the Hindu Marriage Act.

Section 13(2)(iv) is reproduced as under:-

13-(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground- (iv) that her marriage (whether consummated or not) was solemnised before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.

The girl who has attained 15 years of age and has got married can seek dissolution of marriage before she attains the age of 18 years by filing a petition under Section 13(2)(iv) of the Hindu Marriage Act.

Analysis and Reasoning

Differentiating the judgment relied by the Family Court, the Bench stated that the wife was not 15 years of age and could not invoke the provisions of Section 13(2)(iv) of the Hindu Marriage Act. Had she been 15 years of age, she could have invoked the provisions only before she attains the age of 18. Referring to the Delhi High Court’s decision in Lajja Devi v. State, 2012 (4) R.C.R. (Civil) 821, wherein the Delhi High Court while referring to Sections 5(iii), 11 and 12 of Hindu Marriage Act, 1955 and Sections 2 and 3 of the Prohibition of Child Marriage Act, 2006, observed that if a marriage contracted with a female of less than 18 years or a male of less than 21 years, it would not be a void marriage but voidable one, which would become valid if no steps are taken by such “child” within the meaning of Section 2(a) of the Prohibition of Child Marriage Act, 2006 seeking declaration of this marriage as void.

Since both the parties continued to live together and cohabited as husband and wife since 2009 till 2017 and the respondent-wife had not chosen to file a petition for declaring her marriage void their marriage became a valid one, for all intents and purposes, when they made a petition under Section 13-B of Hindu Marriage Act, 1955, the respondent-wife was major and the marriage was valid. Hence, the Bench held that the Family Court had wrongly dismissed the petition filed under Section 13-B of Hindu Marriage Act, 1955 and a petition for nullity under Section 13(2)(iv) could only be filed if she-wife had got married at the age of 15 that too only before she attains the age of 18.

Verdict

In the light of the above, the appeal was allowed and the impugned decision was set aside. The decree of divorce under Section 13-B of the Hindu Marriage Act, 1955 was granted to the parties. [Yogesh Kumar v. Priya, FAO-855 of 2021, decided on 26-08-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

Ms. Gitanjali Chhabra, Advocate for the appellant.

Mr. Raman B.Garg, Advocate for the respondent

Case BriefsHigh Courts

Bombay High Court: Addressing a matter pertaining to the widow’s right of inheritance on the property of the deceased husband, S.M. Modak, J., observed that,

Both wife and mother will have an equal share in light of Section 24 of the Hindu Succession Act, which was in existence at the time of the dispute.

Substantial Question of Law:

Whether a widow can claim the estate of the husband after re-marriage?

High Court referred to the decision of Supreme Court in Kasturi Devi v. Deputy Director of Consolidation, AIR 1976 SC 2595. In the said decision, “the effect of re-marriage on her right to claim share in the property” was considered, though the status of the woman in the said decision was not of a widow but of a mother. Hence the claim pertained for inheritance not as a widow but as a mother. To this issue it was held that there won’t be any effect on her share of inheritance from a son even after she re-married.

Issue in the present matter was:

What is the effect on widow’s right of inheritance (not in the property of a son) on the property of the deceased husband?

Deceased was married to respondent 1 and the present appellant is the mother of the deceased.

It was stated that deceased had nominated his wife for the dues that he was entitled to from the Indian Railways, though it came on record that the deceased and wife were not living together due to the existence of a dispute between them.

After the death of the husband, defendant-wife re-married.

In view of the above events, the plaintiff claimed dues from Indian Railways and informed Indian Railways about the re-marriage of defendant. On non-provision of marriage certificate, the employer disbursed the dues in favour of the wife.

Trial Court favoured the plaintiff and decreed the suit in toto.

Hence, Indian Railways was directed to pay all the due to the plaintiff, though the Appellate Court recognized the share of defendant and directed the employer to disburse the amount to plaintiff and defendant.

Appellate Court’s decision has been challenged before this Court.

Provisions of Law

It was stated that the dues of employer are nothing but the self-acquired property of the deceased and as per Hindu Succession Act, Section 24, the widow loses rights if she remarries on the date when succession opens. It is also true that the said Section was omitted from the Act o 1956 w.e.f 9th September, 2005.

Since the deceased had expired on 19-04-1991, so we have to see what the position in force at that time was. Section 24 was in existence at that point of time, hence as per the said provision, whether it can be said that defendant can be excluded from succeeding the property of the deceased?

Section 14 of the Act of 1956 makes the female Hindu being absolute owner if she possessed the property. Whereas Section 24 of the said Act disinherits the widow if she re-marries.

A very pertinent fact that was noted by the Bench was that, if the widow had not re-married when the succession opened, the disqualification under Section 24 of the Act of 1956 wouldn’t be applicable.

Defendant-Sunanda re-married in May, 1991 (i.e. after opening of succession on 19-04-1991).

Furthermore, the Court stated that since the plaintiff and defendant were class 1 heirs, they were entitled to get equal share in the property of the deceased and as contemplated under Section 10 of the Act of 1956, the widow and the mother of the intestate takes one share each.

Therefore, both the wife and mother were entitled to get 50% from the property of the deceased.

Doctrine of enrichment

Since the wife is not solely entitled to get the whole amount, she was bound to return 50% of the amount to the plaintiff.

Respondent 1 was to refund the amount with 6% interest.

Appeal was disposed of in view of the above discussion. [Jaiwantabai v. Sunanda, Second Appeal No. 144 of 2007, decided on 23-08-2021]


Advocates before the Court:

Shri Ved Deshpande h/f Shri A.S. Mardikar, Senior Advocate for the Appellant Shri J.B. Gandhi, Advocate for Respondent 1.
Shri N.P. Lambat, Advocate for Respondent 2.

Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J., held that,

“…relegating parties to customary Courts when they themselves admit that they are following Hindu customs and traditions would be antithetical to the purpose behind enacting a statute like the HMA, 1955.”

Question for Consideration:

Applicability of the Hindu Marriage Act, 1955, in respect of the parties who belonged to the Meena community in view of the exclusion under Section 2(2) of the HMA,1955.

Petitioner and respondent sought divorce under Section 13-1(ia) of the HMA, 1955.

An FIR was lodged by the Respondent under The Protection of Women from Domestic Violence Act, 2005 as also an application seeking maintenance, under Section 125 of The Code of Criminal Procedure, 1973.

In the divorce petition, since the respondent did not appear, she proceeded ex-parte. However, after she was permitted to participate by the Supreme Court, she filed an application under Order VII Rule 10 and Order VII Rule11 of the Code of Civil Procedure, 1908 before the family court.

In the said application respondent sought for rejection of the divorce petition, on the ground that the provisions of the HMA, 1955 do not apply to the parties, on the ground that the provisions of the HMA do not apply to the parties concerned as they are members of a notified Scheduled Tribe in Rajasthan, and hence the HMA, 1955 would not be applicable to the case of the said parties in view of Section 2(2) of the HMA, 1955.

Family Court held that the provisions of the HMA, 1955 do not extend to the Meena community, which was a notified Scheduled Tribe. The said order was under challenge in the present petition.

Analysis, Law and Decision

Bench noted that the case of the wife was that the Meena community was covered by the exclusion under Section 2(2) of the HMA.

Divorce petition under Section 13-1(ia) of the HMA was dismissed by the trial court on the basis of the exclusion in Section 2(2) of the HMA, 1955. The trial court had not conducted the trial in the petition or considered the evidence in the matter, but summarily dismissed the petition simply on the ground that since the parties belong to the Meena Community, the provisions of the HMA, 1955 would not be applicable.

Court noted that the parties have since inception pleaded that they belong to the Meena community, however, their marriage was solemnized according to Hindu rites and ceremonies, and they follow Hindu customs.

Respondent-wife had admitted that:

(i) that the marriage was conducted as per the “Hindu Riti Riwaz”

(ii) that the marriage was effected by following the “Saptapadi”

(iii) that the marriage was conducted in front of `Agni’ – fire.

Whether in view of the above facts, parties ought to be governed by the provisions of the HMA or should they be relegated to procedures of the Meena tribe?

The word `Hindu’ is not defined in any of the statutes. It is in view of the fact that there is no definition of Hindu, that the Supreme Court has held in Labishwar Manjhi  v. Pran Manjhi, (2000) 8 SCC 587, that if members of Tribes are Hinduised, the provisions of the HMA, 1955 would be applicable.

Further, the High Court expressed that the manner in which the marriage had been conducted in the present matter and the customs being followed by the parties show that as in the case of Hindus, the marriage is conducted in front of the fire. The Hindu customary marriage involves the ceremony of Saptapadi which has also been performed in the present case. The various other ceremonies, as is clear from the marriage invitation are also as per Hindu customs.

Hence,

If members of a tribe voluntarily choose to follow Hindu customs, traditions and rites they cannot be kept out of the purview of the provisions of the HMA, 1955.

Adding to the above, High Court also stated that nothing was placed before the Court to show that the Meena community Tribe had a specialized Court with proper procedures to deal with the issues.

Therefore, if the Court has to choose between relegating parties to customary Courts which may or may not provide for proper procedures and safeguards as against codified statutes envisioning adequate safeguards and procedures, this Court is inclined to lean in favour of an interpretation in favour of the latter, especially in view of the binding precedent of the Supreme Court.

Divorce Proceedings

Court held that if proper tribal customs were not established or the following of Hindu customs or rites was admitted by the parties, there was no reason to hold that the provisions of the HMA, 1955 would not apply. 

The trial court erred in noting the admissions of Respondent-wife which led to the incorrect conclusion. 

Courts have been repeatedly confronted with the conflicts that arise in personal laws

Bench remarked that persons belonging to various communities, castes, and religions, who forge marital bonds, struggle with such conflicts. It is with the hope of bringing uniformity and to eliminate these struggles and conflicts, that the Supreme Court way back in 1985, in Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556 observed:

“…A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so.”

In Jordon Diengdeh v. S.S. Chopra, (1985) 3 SCC 62, the Supreme Court observed in the context of dissolution of marriage between a couple wherein the wife belong to the Naga Tribe and the husband was a Sikh by religion that Article 44 of the Constitution needs to be implemented in its letter and spirit.

Need for a Uniform Code has been again echoed by the Supreme Court in ABC v. State (NCT of Delhi), (2015) 10 SCC 1.

Lastly, the Court concluded stating that the need for a Uniform Civil Code as envisioned under Article 44, has been reiterated from time to time by the Supreme Court. Cases like the present one repeatedly highlight the need for such a Code – ‘common to all’, which would enable uniform principles being applied in respect of aspects such as marriage, divorce, succession etc., so that settled principles, safeguards and procedures can be laid down and citizens are not made to struggle due to the conflicts and contradictions in various personal laws.

The hope expressed in Article 44 of the Constitution that the State shall secure for its citizens Uniform Civil Code ought not to remain a mere hope.

The Supreme Court had, in 1985 directed that the judgment in Jordon Diengdeh v. S.S. Chopra, (1985) 3 SCC 62, to be placed before the Ministry of Law to take appropriate steps. However, more than three decades have passed since then and it is unclear as to what steps have been taken in this regard till date.

In view of the above discussion, the appeal was allowed.[Satprakash Meena v. Alka Meena, 2021 SCC OnLine Del 3645, decided on 7-07-2021]


Advocates before the Court:

For the Petitioner: F.K. Jha, Advocate

For the Respondent: Abhinav Gupta and Nitesh Ranjan, Advocates

Case BriefsHigh Courts

Bombay High Court: Sandeep K. Shinde, J., addressed a petition with regard to waiving the cooling period.

Whether the minimum period of 6 months stipulated under Section 13-B(2) of the Hindu Marriage Act, 1955 for a motion of passing for a decree of divorce on the basis of mutual consent is mandatory or can be relaxed in any exceptional situations?

In the instant petition, it was submitted that the wife had instituted the proceedings under Section 125 of the Code of Criminal Procedure, 1973 and under the Domestic Violence Act, 2005.

Later, wife withdrew the proceedings and the husband filed a petition under Section 9 of the Hindu Marriage Act. The said prosecution was also settled.

Husband and Wife instituted a petition for dissolution of marriage by mutual consent and moved an application for waiving cooling period for 6 months. But the said application was rejected by the Civil Judge on the ground that efforts were not made for mediation to reunite the parties.

Trial Court relied on the Supreme Court decision in Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746, wherein the Court dealing with the matter, if a case was made out to waive statutory period under Section 13-B(2), it can do so after considering the following:

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

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

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

(iv) waiting period will only prolong their agony.”

In view of the non-fulfilment of (ii) condition, trial court declined to waive the cooling period.

As per the parties, they were referred to mediation and after the same, parties decided to get separated.

High Court in view of the facts and circumstances of the case, held that the statutory period, contemplated under Section 13-B(2) of the Hindu Marriage Act was waived.

Hence, the petition was allowed and disposed of. [Pritam Vijaykumar Dargad v. Sujata Pritam Dargad, 2021 SCC OnLine Bom 983, decided on 3-07-2021]


Advocates before the Court:

Mr. Rathi Swapnil S., Advocate for Petitioner.

Mr. S.S. Gangakhedkar, Advocate for Respondent / Sole.

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

Allahabad High Court: Vikas Kunvar Srivastav, J., addresses whether a minor girl on attaining majority can ratify the agreement of marriage that she had entered into when she was a minor? The legality of such an agreement tested.

Instant petition was moved on behalf of ‘Sadhna Kumari’ aged about 18 years through her next friend. Next friend allegedly the husband aged about 19 years.

OPs 4 and 5 (Parents of Petitioner Sadhna Kumari) with whom petitioner’s unlawful detention was complained.

Next Friend pleaded that the detenue petitioner Sadhna Kumari and next friend Shekhar were legally wedded and living as husband and wife since after an agreement purported to be of marriage.

Analysis and Decision

Bench noted that the petitioner’s counsel failed to show material averment as to the ‘solemnization of marriage’. Its date, place and time so as to establish the wedding of the petitioner and her next friend the alleged husband.

‘Agreement’ dated 31-07-2020 was pleaded as the basis of legal authority of the next friend to seek habeas corpus of petitioner Sadhna Kumari.

Purpose of Writ

It is to facilitate the next friend to cohabit with petitioner without interruption of anyone else, even the parents of Sadhna Kumari (OPs 4 and 5) with whom she is presently residing.

Legality of Agreement dated 31-07-2020

As per the High School Examination certificate, Sadhna Kumari’s date of birth was 17-03-2003. In view of the stated material fact, the ‘agreement’ purported to be of marriage when allegedly executed by the petitioner Sadhna Kumari on 31-7-2020 she was a minor aged about 17 years and 4 months, therefore, at the relevant date of agreement despite the alleged agreement of her consent to cohabit with Shekhar Pandey, the next friend as husband and wife, she could not be supposed to give valid consent in law.

A criminal case has been registered against the next friend on the complaint of the petitioner’s mother.

Agreement of which either party to it is a minor- Legal Status 

Agreements which are made enforceable in law are provided under the Indian Contract Act, 1872. Section 11 of the Indian Contract Act states that:

“every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind and is not disqualified from contracting by any law to which he is subject.”

 It is pertinent to keep in mind the age of the majority which capacitates a person to contract.

Since petitioner’s date of birth was 17-03-2003, she was undoubtedly on the date of ‘agreement’ dated 31-07-2020 a minor.

As per the definitions given in Child Marriage Restraint Act, 1929 and Juvenile Justice (Care and Protection of Children) Act, 2015 such a person has termed a child.

Court stated that the petitioner was a minor as well as a child also when she allegedly entered into the agreement to marry on 31-7-2020. Further, she was party to an agreement of marriage.

An agreement must not be opposed to law. The law applicable to petitioner being a Hindu, is “The Hindu Marriage Act, 1955”.

Section 5 (iii) of the said Act provides the marriageable age, according to which the marriage may be solemnized between any two Hindus, if the following conditions are fulfilled: –

“(iii) the bride groom has completed the age of twenty one years and the bride, the age of eighteen years at the time of the marriage.”

High Court held that The Hindu Marriage Act, 1955 and The Indian Contract Act, 1872 the petitioner had no legal capacity and competence to enter into the agreement to marry with Shekhar. Court added that even Shekhar was not of marriageable age under the law.

India Law states that in marriage where either the woman is below the age of 18 years or the man is below the age of 21 years, such marriage, if solemnized by the guardians becomes voidable under Section 5 of the Hindu Marriage Act at the instance of minor. He has option to ratify the marriage also.

 In the present matter, marriage was being claimed as an agreement to cohabit as husband and wife by virtue of an agreement dated 31-07-2021. Hence, the question was – whether on attaining the majority age a minor was competent to ratify his/her agreement executed in the age of minority?

Legal Position to address the above question:

(i) contract with minor is void and no legal obligation can ever arise on him/her therein,

(ii) the minor party cannot ratify the contract upon attaining majority unless the law specifically allows this, and

(iii) no court can allow specific permission of a contract with minor because it is void altogether.

When a contract is entered on behalf of lawful authority of a minor then only the option is available attaining majority to minor either to ratify or to rescind the contract entered by the person having lawful authority on his behalf.

Therefore, in view of the above discussion, the agreement dated 31-7-2020 of which one of the parties namely petitioner Sadhna Kumari a minor, is void, as the same is in violation of Sections 11 and 23 of the Indian Contract Act, 1872.

Elaborating its conclusion, High Court added that agreement dated 31-7-2020 purporting to be of marriage and consent to cohabit together, cannot be given effect so as to issue notice to opposite parties for the production of the petitioner in court for the purpose of recording her desire to ratify her alleged agreement to marry/consent deed, for the reason of the same being a void agreement.

Bench while dismissing the petition stated that this decision shall not impede the petitioner to enter into marital relations with a person of her choice on attaining marriageable age through a lawfully solemnized marriage or otherwise. [Sadhna Kumari v. State of U.P., 2021 SCC OnLine All 276, decided on 15-04-2021]


Advocates before the Court:

Counsel for the Petitioner: Janardan Singh

Counsel for the Respondent: G.A.

Case BriefsHigh Courts

Calcutta High Court: Shampa Sarkar, J., expressed that Hindu Marriage Act is a gender-neutral provision and further expressed the scope of maintenance.

In the present revisional application, the issue was with respect to the wife being aggrieved with the quantum of maintenance.

Wife had filed an application under Section 24 of the Hindu Marriage Act and maintenance pendente lite @Rs 30,000 per month and Rs 75,000 as litigation cost was prayed.

Wife was aggrieved that the lower court allowed 1/5th of the husband’s income as maintenance pendente lite and considering the husband’s income as Rs 60,000, Court proceeded to grant an amount of Rs 12,000 as maintenance.

Hindu Marriage Act provides for the rights, liabilities and obligations arising from a marriage between two Hindus.

Sections 24 and 25 make provisions for providing maintenance to a party who has no independent income sufficient for his or her support and necessary expenses. This is a gender-neutral provision, where either the wife or the husband may claim maintenance. The pre-requisite is that the applicant did not have independent income which is sufficient for his or her support during the pendency of the lis.

Justice Krishna Iyer’s decision of Supreme Court in Captain Ramesh Chander Kaushal v. Veena Kaushal, (1978) 4 SCC 70 was referred to regarding the object of maintenance laws.

Supreme Court’s decision in Rajnesh v. Neha, (2021) 2 SCC 324 discussed the criteria for determining the quantum of maintenance and the relevant factors to be taken into consideration in order to quantify the amount. The object behind granting maintenance is to ensure that the dependent spouse was not reduced to destitution or vagrancy on account of failure of the marriage and not as a punishment to the other spouse.

In the instant case, wife’s potential to earn may exist as she had a post-graduate degree but as per the evidence, it appeared that she had been out of employment Since May, 2014. Records revealed that the husband had been appointed at a salary of Rs 23,000. It was expected that in the intervening period, husband’s income must have gone up by at least 3 times.

Supreme Court noted that some guesswork could not be ruled out estimating the income when the sources or correct sources are not disclosed. Hence, Trial Court rounded the figure at Rs 60,000 as the expected income of the husband at present.

Bench considered it prudent to award Rs 20,000 to the wife as maintenance pendente lite.

Bench dismissed Mr Chatterjee’s contention that wife should be directed to disclose her present income and file the affidavit of assets.

Further, the Court stated that in the absence of any evidence on the part of the husband, this Court is of the opinion that taking into consideration the criteria as laid down by several judicial precedents on the subject from time to time, Rs 20,000/- as maintenance pendete lite per month is just and proper.

High Court modified the impugned order to the above extent. It was directed that the current maintenance shall be paid with effect from April, 2021 within 20th of the month.  Thereafter on and from May 2021 the maintenance shall be paid within 15th of every month as directed by lower court.[Upanita Das v. Arunava Das, C.O. No. 4386 of 2019, decided on 09-04-2021]


Advocates before the Court:

For the Petitioner: Mr Srijib Chakraborty and Ms Sudeshna Basu Thakur

For the Opposite Party: Mr Aniruddha Chatterjee and Mr Sachit Talukdar

Case BriefsHigh Courts

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

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

Analysis

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

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

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

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

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

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

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


Advocates for the parties:

For Appellant: G. Saravanabhavan

For Respondent: S. Xavier Felix

Case BriefsHigh Courts

Himachal Pradesh High Court: Jyotsna Rewal Dua, J., disposed of a petition while granting liberty to the parties to move an appropriate application seeking relaxation of the period prescribed under Section 28(2) of the Special Marriage Act 1954.

The parties were husband and wife and their marriage was solemnized as per Roman Catholic Rights and Rituals at Shimla on 15-02-2009, after some marriage discord developed between them they had been living separately w.e.f. 18-03-2018.Petition for dissolution of marriage by a decree of divorce by mutual consent under Section 28 of Special Marriage Act, 1954 was filed by the parties before the learned District Judge (Family Court) who had granted them six months statutory period to ponder over their decision-qua-divorce and the matter had been ordered to be listed on 5-06-2021. It was submitted that they had explored all possibilities of reconciliation but failed and therefore prayed that the statutory period of six months deserved to be relaxed.

The Court explained that the above question of relaxing the stipulated six months came before the Supreme Court in the case of Amardeep Singh v. Harveen Kaur, (2017)8 SCC 746 and after tracing the legal journey the Court had held that period mentioned in Section 13B (2) was not mandatory but directory. It shall be open to the Court to exercise its discretion in facts and circumstances of each case, where there was no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.

The Court disposed of the petition by granting liberty to the parties including the petitioner to move an appropriate application seeking relaxation of the period prescribed under Section 28(2) of the Special Marriage Act 1954.[Naveen Kumar Dass v. Reena Kumari, 2021 SCC OnLine HP 225, decided on 08-02-2021]


Suchita Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J., dismissed an application filed under Section 24 of the Hindu Marriage Act on finding no interest in the same by the wife.

Petitioner filed a divorce petition under Section 13(1)(ia) of the Hindu Marriage Act, 1955, seeking divorce from his wife. To which Family Court granted a decree of divorce to dissolve the marriage. However, on the same date, a notice was issued in the application under Section 24 of the Hindu Marriage Act, Family Court called for the detailed affidavits to be filed as to the expenditure, assets and liabilities of both the Petitioner and Respondent.

The above-said application has been challenged.

Bench noted from the Family Court’s decision that the respondent did not contest the divorce petition at all. Respondent’s defence was struck off and cross-examination of the petitioner was also of a limited nature.

Further, the Court added that since the respondent did not set out any substantial defence and the decree of divorce was granted without contest, respondent didn’t seem to be interested in pressing the application under Section 24 of the Act, which is meant for interim maintenance pendente lite.

 While concluding with the decision, Court expressed that the legal position is that a Section 24 application under the Act can survive beyond the dismissal of the main proceeding for grant of divorce, in respect of the period till the dismissal of the said petition.

Adding to the above, bench stated that the decision in Rita Mago v. V.P. Mago, 20(1981) DLT 103 may no longer be good law.

Hence, Bench concluded that in view of the above facts and circumstances the respondent doesn’t seem to be interested in pursuing the application under Section 24 for interim maintenance, therefore the said application was dismissed. [Apurva Anand v. Chanchal Niranjan, CM (M) 426 of 2020 and CM Appl. 20237 of 2020, decided on 29-01-2021]


Advocates for the parties:

Petitioner: Dr Aman Hingorani and Himanshu Yadav, Advocates

 Respondent: None

Banking and Negotiable InstrumentsHigh Court Round UpLegal RoundUp

In our series of 2020 wrap-ups, let’s revisit and take a dive at some of our stories on family laws and how different High Courts dealt with the same involving some very significant rulings.

We have listed down Case briefs under sub-categories, of our coverage under the Family Law and its allied provisions.


Allahabad High Court

Custody of Minor

In minor’s custody case, where child is below 5 years of age, mother is preferred, but is there any exception to it? All HC explains

[Meenakshi v. State of U.P., 2020 SCC OnLine All 1475, decided on 02-12-2020]

If a natural guardian faces criminal charges relating to death of spouse, can custody of children or visitation rights be granted? All HC discusses

[Shaurya Gautam v. State of U.P., 2020 SCC OnLine All 1372, decided on 10-11-2020]

Decree of Eviction against Son

Can daughter-in-law be evicted without seeking decree of eviction against the son under S. 2(s) of Domestic Violence Act? All HC answers

[Sujata Gandhi v. S.B. Gandhi, 2020 SCC OnLine All 763, decided on 12-06-2020]


 Bombay High Court

Alimony

If the wife is earning something for livelihood, can the same be a ground to refuse alimony under S. 24 of Hindu Marriage Act? Read Bom HC’s ruling reiterating SC’s decision

[Arpana Vijay Manore v. Dr Vijay TukaramManore, 2020 SCC OnLineBom 3925, decided on 09-12-2020]

Bigamy

Person committing offence under S. 494 IPC, must have married another woman or man during subsistence of his or her first marriage; Bom HC invokes power under S. 482 CrPC to meet ends of justice

[Rekha v. State of Maharashtra, 2020 SCC OnLineBom 291, decided on 13-02-2020]

 Cooling-off Period

Can “cooling-off period” under S. 13-B(2) of Hindu Marriage Act be waived? Legal position discussed in a case of pregnant woman

[Kovelamudi Kanika Dhillon v. Kovelamudi Surya Prakash Rao,  2020 SCC OnLineBom 2054, decided on 26-10-2020]

 Cruelty to Woman

Abuse of S. 498-A IPC by making vague allegations and roping in family members of husband: Courts to carefully scrutinize allegations

[Shabnam Sheikh v. State of Maharashtra, 2020 SCC OnLineBom 1752, decided on 15-10-2020]

“Easy to accuse somebody of ill-treatment after someone dies, but not wise to convict somebody based on general statements”: Bom HC holds every cruelty is not an offence under S. 498-A IPC

[State of Maharashtra v. Shri Balu Ravji Abhang, 2020 SCC OnLineBom 307, decided on 20-02-2020]

Family members should not be dragged without specific evidence against them, otherwise, S. 498-A IPC is unfortunately misused as a weapon, says Bom HC

[State of Maharashtra v. Ashok, 2020 SCC OnLineBom 331, decided on 26-02-2020]

 Custody of Minor

Welfare of child as paramount consideration: Bom HC gives custody to father of minor for mother not being able to take care of the child

[Sashanka v. Prakash, 2020 SCC OnLineBom 3497, decided on 27-11-2020]

Domestic Violence & Jurisdiction of Courts

Does Family Court has jurisdiction to entertain an application for relief under Ss. 18 to 22 of DV Act? Read what Bom HC held

[Hitesh Prakashmalji Mehta v. Aashika Hitesh Mehta, 2020 SCC OnLineBom 983, decided on 28-09-2020]

Second Marriage

Performing second marriage during pendency of an appeal is a breach under S. 15 of HMA, but would it amount to civil contempt? Bom HC analyses

[Kanchan v. Prashant Manikrao Bagade, 2020 SCC OnLineBom 911, decided on 08-09-2020]

 Unmarried Daughter (Maintenance)

Whether unmarried daughter who is major by age, entitled to claim maintenance from father till her marriage? Bom HC explains law in light of Hindu Adoption & Maintenance Act

[Sanjay J. Phagnekar v. State of Maharashtra, 2020 SCC OnLineBom 3382, decided on 23-11-2020]

Widowed Daughter-in-Law (Maintenance)

Can a widowed daughter-in-law claim maintenance from the estate inherited by her father-in-law? Law explained

[Sardool Singh Sucha Singh Mathroo v. Harneet Kaur, 2020 SCC OnLineBom 927, decided on 07-09-2020]

 Wife having Independent Source of Income (Maintenance)

[S. 125 CrPC] Wife cannot be denied maintenance on ground of having a source of income: Restated by Bom HC

[Sanjay Damodar Kale v. Kalyani Sanjay Kale, 2020 SCC OnLineBom 694, decided on 26-05-2020]


Calcutta High Court

Child Marriages

Alarming rise of child marriages during lockdown has given a strong impression that they may be in garb of child trafficking; Police to investigate

[Contagion of COVID-19 Virus in Children, In Re., 2020 SCC OnLine Cal 1066, decided on 25-06-2020]

 Harassment over Complexion

Harassment by in-laws for woman’s black complexion is cruelty under S. 498-A IPC; Husband convicted for murdering wife over her black complexion

[Mazidul Miah v. State of W.B., 2020 SCC OnLine Cal 1077, decided on 25-06-2020]


Chhattisgarh High Court

Alienation of Property by Alleged Wife

Whether alienation of property by an alleged wife of a deceased is void? Chh HC analyses position in light of ‘Customs’ under Hindu Marriage Act

[Anirudh Prasad Kamal Sen v. Dashmat Bai Suryavanshi, Second Appeal No. 93 of 2009, decided on 28-08-2020]

Cause of Action

In a matrimonial dispute, cause of action can arise several times, even if the dispute is settled and case has been withdrawn

[Harsha Dewani v. Ashutosh Gupta, 2020 SCC OnLineChh 149, decided on 10-08-2020]


Delhi High Court

Adultery

Adultery can only be committed after marriage, allegation of having relationship before marriage cannot be a ground of adultery; Divorce petition dismissed

[Vishal Singh v. Priya, 2020 SCC OnLine Del 638, decided on 12-06-2020]

Affidavit of Assets, Income and Expenditure

Del HC updates Affidavit of Assets, Income & Expenditure to be filed at threshold of matrimonial disputes; Issues modified directions [Detailed Report: Read Directions]

[Kusum Sharma (5) v. Mahinder Kumar Sharma, 2020 SCC OnLine Del 931, decided on 6-8-2020]

Cruelty & Desertion

Del HC analyses “A typical case that showcases as to what would amount to cruel behaviour on part of one spouse to utter detriment of other”

[Venkatesh Narasimhan v. V. Sujatha, 2020 SCC OnLine Del 571, decided on 01-05-2020]

Divorce Proceedings

Husband citizen and domicile of USA, Can he raise objections on divorce proceedings filed by wife in India? Del HC decrypts the law in light of catena of SC decisions

[Karan Goel v. Kanika Goel, 2020 SCC OnLine Del 1319, decided on 12-10-2020]

 Impotency

Is making false allegation of impotency by wife against husband a ground for decree of divorce? Del HC determines

[Kirti Nagpal v. Rohit Girdhar, 2020 SCC OnLine Del 1466, decided on 20-11-2020]

Maintenance

If interim maintenance by wife has already been secured under Domestic Violence Act, will application under S. 125 CrPC be maintainable? Del HC answers

[Rani v. Dinesh, Crl. Rev. P. 1091 of 2019 and Crl. M.A 13677 of 2020, decided on 02-12-2020]

Matrimonial Disputes

Del HC reiterates SC’s position on “duty of the Courts to encourage genuine settlements of matrimonial disputes”

[Harish Kumar v. State, 2020 SCC OnLine Del 1635, decided on 04-12-2020]

 Remedy against Custody Orders

“No exception to remedy against orders of custody under Domestic Violence Act”: Del HC dismisses S. 482 CrPC petition in view of S. 29 DV Act

[Srisha Dinav Bansal v. Rajiv Bansal, 2020 SCC OnLine Del 764, decided on 20-07-2020]

Right to Privacy versus Right to Fair Trial

[S. 14 of Family Courts Act] In a contest between right to privacy and right to fair trial, both of which arise under expansive Art. 21, right to privacy may have to yield to right to fair trial

[Deepti Kapur v. Kunal Julka, 2020 SCC OnLine Del 672, decided on 30-06-2020]

Second Marriage & Custody of Children

Second marriage of a mother is by itself not sufficient to deprive her of custody of her biological child

[Faisal Khan v. Humera,  2020 SCC OnLine Del 572, decided on 1-5-2020]

Settlement Deed affecting Children’s Right to Maintenance

Is it lawful for a wife to agree to a settlement deed in the process of dissolution of marriage wherein she settles that her minor children will not claim maintenance in future? Court explains

[Vashno Jaishwal v. State (NCT of Delhi), 2020 SCC OnLine Del 1504, decided on 20-11-2020]


Gauhati High Court

 Conjugal Life

Refusal to wear “sakha and sindoor” is clear intention that a hindu wife is unwilling to continue conjugal life: Divorce decreed to husband

[Bhaskar Das v. Renu Das, 2020 SCC OnLineGau 2954, decided on 19-06-2020]

 Maintenance

If a woman is divorced, will her status as a wife entitling her to maintenance under S. 125 CrPC change? Read Gau HC’s position

[Bijoy Seal v. Sefali Seal, 2020 SCC OnLineGau 4024, decided on 30-09-2020]

Special Marriage Act

If a marriage is first solemnised under the Special Marriage Act and later upon conversion to Islam, marriage is again solemnised under Mohammedan Law: Which law will prevail for dissolution of marriage? Gau HC to consider

[Md Makfur Rahman v. Malina Deb Barman, 2020 SCC OnLineGau 4645, decided on 23-04-2020]


Gujarat High Court

Permanent Alimony to a Muslim Woman

Will permanent alimony granted to a Muslim woman be conditional to her remarriage? Detailed report untangling significance of ‘Permanent Alimony’ & ‘Periodical Maintenance’

[Tarif Rashidbhai Qureshi v. Asmabanu, 2020 SCC OnLineGuj 711, decided on 19-03-2020]

Special Marriage Act

If marriage is registered under Special Marriage Act, is it necessary for the couple to take recourse of same law to sever ties permanently? Guj HC elucidates in a custody matter

[Chavda Twinkle v. State of Gujarat, 2020 SCC OnLineGuj 1167, decided on 17-07-2020]


Himachal Pradesh High Court

Ancestral Property

Can wife claim maintenance under S. 12 of the Protection of Women from Domestic Violence Act, 2005 over ‘ancestral property’ of the husband? HP HC explains

[Kubja Devi v. Chhape Ram,  2020 SCC OnLine HP 1829, decided on 05-10-2020]


Jharkhand High Court

Desertion

‘Desertion’ has to be wilful and voluntary for a valid ground for divorce under S. 13 of Hindu Marriage Act, 1955; Legal principle “No one can take a benefit of his own fault” applied

[Sanjay Kumar v. Suman Kumari, 2020 SCC OnLineJhar 773, decided on 08-09-2020]


Karnataka High Court

Cruelty to First Wife

Though Shariat permits a Muslim man to practise polygamy, but would that amount to cruelty to first wife? Kar HC explains concept of Marital Cruelty

[Yusufpatel v. Ramjanbi, MFA No. 201154 of 2018 (FC), decided on 17-08-2020]


 Kerala High Court

Convenience & Welfare of Children over Wife

In matrimonial matters preference is to be given to convenience and welfare of children over wife: Ker HC dismisses application for transfer of case

[Nimi v. Ajith M.T., 2020 SCC OnLine Ker 4313, decided on 09-10-2020]

Cruelty

Wife’s persistent effort to separate husband from family amounts to cruelty: Divorce granted in favour of husband

[Ranjith P.C. v. Asha Nair. P, 2020 SCC OnLine Ker 1751 , decided on 20-05-2020]

 Dowry

Is there a limitation period for wife to claim property entrusted to in-laws given in form of dowry? Ker HC answers

[Sheela K.K. v. N.G. Suresh, 2020 SCC OnLine Ker 4240, decided on 24-09-2020]

 Suppressing Material Facts & Marriage

If a wife obtains husband’s consent for marriage by suppressing material facts like cardiac ailments, would that amount to fraud? Ker HC explains whether marriage can be declared null & void

[Ajitha v. Harshan, Mat. Appeal No. 734 of 2012, decided on 25-09-2020]

 Transfer Petitions related to Matrimonial Disputes

While considering transfer petitions related to matrimonial disputes, the convenience of wife is to be preferred over the convenience of husband; Ker HC reiterates

[Kavitha v. Gopakumar, 2020 SCC OnLine Ker 6098, decided on 30-11-2020]


Madras High Court

Customary Divorce

Can plea of customary divorce be considered as a valid defence while departmental proceeding for bigamy is initiated? Madras HC considers scope of defence under Service Rules

[Sudalaimai v. Deputy Inspector General of Police, WP (MD) No. 17504 of 2014, decided on 09-09-2020]

 Illegitimate Child [Maintenance]

Is an illegitimate child entitled to maintenance under S. 125 CrPC? Madras HC reiterates legal position

[Pachaimuthu v. Minor Vishanthini, 2020 SCC OnLine Mad 2677, decided on 01-10-2020]

Limitation Period for Domestic Violence Complaints

Limitation provided under CrPC is applicable to complaints under Domestic Violence Act: Madras HC rejects complaint filed after lapse of 1 yr 10 months

[N. Prasad v. Harithalakshmi, 2020 SCC OnLine Mad 1767, decided on 20-07-2020]

 Void Marriage

What is the essential condition for validity of any marriage? Detailed Report highlighting legality of marriage of a girl below 18 years of age

[Prakash v. State, Crl. A. No. 334 of 2014, decided on 30-11-2020]


Orissa High Court

Rights of a “lady” in Same-sex Couple Relationship

Same-sex couple have a right to live together outside wedlock; Rights of a woman enshrined in Protection of Women from Domestic Violence Act, 2005 to apply on the “lady” in the relationship

[Chinmayee Jena v. State of Odisha, 2020 SCC OnLine Ori 602, decided on 24-08-2020]


Punjab & Haryana High Court

Sapinda Prohibition

Whether partners falling in sapinda prohibition under HMA can stay in a live-in relationship? Parties argue while hearing in anticipatory bail

[Akhilesh v. State of Punjab,  2020 SCC OnLine P&H 2058, decided on 19-11-2020]

Section 498-A IPC, a weapon?

Disgruntled wives use provisions of S. 498-A IPC as a weapon rather than shield: P&H HC

[Amarjit Kaur v. Jaswinder Kaur, 2020 SCC OnLine P&H 577, decided on 15-05-2020]

 Voidable Marriage

In case a marriage is solemnized in violation of age restriction, marriage is only voidable

[Deepak Kumar v. State of Haryana, 2020 SCC OnLine P&H 759 , decided on 15-06-2020]


Rajasthan High Court

Theory of Homicidal Death

Allegation of woman set ablaze in view of dowry demand dismissed; Prosecution theory of homicidal death sheer exaggeration; finds Raj HC

[Gopal v. State of Rajasthan, DB Criminal Appeal No. 799 of 2014, decided on 06-08-2020]


 Telangana High Court

Harassment or Cruelty

For invoking S. 304-B IPC, harassment or cruelty caused to a woman should have happened “soon before her death”

[Surender Singh v. State of A.P., 2020 SCC OnLine TS 874, decided on 06-07-2020]


Tripura High Court

Dissolution of Marriage of ST Couple

Will Hindu Marriage Act have application on a couple belonging to Scheduled Tribe notified under the Constitution for purpose of dissolution of marriage? Tripura HC explains

[Rupa Debbarma v. Tapash Debbarma, 2020 SCC OnLine Tri 425, decided on 09-09-2020]

Irretrievable Breakdown of Marriage

What amounts to irretrievable breakdown of marriage? Tripura HC discusses in a case where the couple lived apart for 13 continuous years

[Aparna Dey v. Alok Dey, 2020 SCC OnLine Tri 411, decided on 09-09-2020]

Lived like a Wife [Maintenance]

“Woman who lived like wife, cannot be deprived of maintenance”: Tripura HC grants maintenance to woman who “lived like wife” for 10 yrs

[Sri Bibhuti Ranjan Das v. Gouri Das, 2020 SCC OnLine Tri 280, decided on 07-07-2020]


Uttaranchal High Court

Medical Examination of Wife in Divorce Proceedings

Wife not eligible for medical examination of whether she can conceive or not during Divorce proceedings; Utt HC allows appeal

[Rashmi Gupta v. YogeshBabu, 2020 SCC OnLineUtt 339, decided on 01-07-2020]

 Mental Cruelty

Mental cruelty is no less than physical cruelty, wife causing mental cruelty to husband valid ground for dissolution of marriage; Utt HC dismisses appeal

[Anita Gaur v. Rajesh Gaur, 2020 SCC OnLineUtt 503, decided on 24-08-2020]


Also Read:

2020 Wrap Up — Flashback of Stories on Consumer Cases

Case BriefsHigh Courts

Delhi High Court: Anu Malhotra, J., dismissed the petition in view of the dispute being settled mutually.

The instant petition sought quashing of an FIR registered under Sections 498A/406/34 of the Penal Code, 1860 submitting to the effect that a settlement has since been arrived at between the parties.

State did not oppose the quashing of FIR which was apparently emanated due to a matrimonial discord which has been resolved by the dissolution of the marriage between the parties vide a decree of divorce through mutual consent under Section 13 B (2) of the Hindu Marriage Act, 1955.

Respondent 2 had stated that she arrived at the settlement with petitioners without any duress, pressure or coercion from any quarter, hence Court considered it appropriate to put a quietus to the litigation between the parties and for the maintenance of peace and harmony between the parties in view of the observations of the Supreme Court decision in Gian Singh v. State of Punjab, (2012) 10 SCC 303 and Jitendra Raghuvanshi v. Babita Raghuvanshi, (2013) 4 SCC 58, wherein it was held that:

“… it is the duty of the courts to encourage genuine settlements of matrimonial disputes, particularly, when the same are on considerable increase. Even if the offences are non-compoundable, if they relate to matrimonial disputes and the Court is satisfied that the parties have settled the same amicably and without any pressure, we hold that for the purpose of securing ends of justice, Section 320 of the Code would not be a bar to the exercise of power of quashing of FIR, complaint or the subsequent criminal proceedings.

16. There has been an outburst of matrimonial disputes in recent times. They institution of marriage occupies an important place and it has an important role to play in society. Therefore, every effort should be made in the interest of the individuals in order to enable them to settle down in life and live peacefully. If the parties ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law, in order to do complete justice in the matrimonial matters, the courts should be less hesitant in exercising their extraordinary jurisdiction. It is trite to state that the power under Section 482 should be exercised sparingly and with circumspection only when the Court is convinced, on the basis of material on record, that allowing the proceedings to continue would be an abuse of process of court or that the ends of justice require that the proceedings ought to be quashed….”

(emphasis supplied)

Hence, in view of the above, the Court directed for quashing of the FIR and disposed of the petition.[Harish Kumar v. State, 2020 SCC OnLine Del 1635, decided on 04-12-2020]


Advocates who appeared before the Court:

For the petitioners: Naveen Kumar Bansal, Advocate with petitioners in person.

For the Respondents: Sanjeev Sabharwal, APP for State with SI Maninder Maan Piyush Pahuja, Adv for R-2 with R-2 in person.

Case BriefsHigh Courts

Delhi High Court: Anu Malhotra, J., addressed a matter wherein the husband and wife reach a settlement and the wife agrees to a clause wherein her minor daughter would also not be liable to claim anything against the petitioners.

In the instant application, petitioners have been stated to be under judicial custody, Vaibhav Jaiswal was alleged under Section 376 of Penal Code, 1860 and under POCSO Act, 2012.

Other petitioners were alleged to have committed offences under Sections 498 A, 406 and 34 of IPC.

The above-stated FIR was sought to be quashed in light of a settlement arrived between the petitioners and respondent 2 and that the marriage between the petitioner 1 and respondent 2 has been dissolved.

Respondent 2 affirmed the factum of the settlement arrived between her and petitioner 1.

Bench stated that in view of the above there appears no reason to disbelieve that the statement made by respondent 2 that she has arrived at a settlement with petitioners was made of her own accord.

Hence, all the proceedings against the petitioners are quashed.

However, in regard to the settlement deed, it was observed that under clause 7 states as follows:

“It is agreed between the parties that the above settlement is with respect to all claims of wife past, present, future, alimony, stridhan, maintenance, executions, articles property etc. and neither she nor her relatives shall claim anything from husband or from his family members in future for herself or on behalf of Child/children.”

Court stated that it is essential to observe that respondent 2 gave up all the rights of the minor child Vaishanvi qua the petitioners.

But the above could not have been done so in light of the Supreme court decision in Ganesh v. Sudhi Kumar Shrivastava, Civil Appeal Nos. 4031-4032/2019 arising out of SLP (C)  Nos. 32868-32869/2018, a verdict dated 22.4.2019 adhered to by this Court in Rakesh Jain  v. State, Crl. MC No. 2935 of 2019.

Hence, the minor child would be entitled to seek her claims against the petitioners and respondent 2 qua maintenance or otherwise in accordance with the law. [Vashno Jaishwal v. State (NCT of Delhi), 2020 SCC OnLine Del 1504, decided on 20-11-2020]

Case BriefsHigh Courts

Punjab and Haryana High Court: Arvind Singh Sangwan, J., observed that the marriage of first cousins is not permissible as per the prohibited sapinda under the Hindu Marriage Act.

In the instant petition, anticipatory bail has been sought wherein an FIR under Sections 363, 366A of the Penal Code, 1860 was registered.

C.S. Rana, Advocate for the petitioner submitted that the petitioner had filed a criminal writ petition, bearing CRWP-6856-2020, along with Jyoti seeking protection of their life and liberty.

The said criminal writ petition was summoned and as per the memorandum of parties, Jyoti was stated to be 17 years of and both of them the girl and the boy were stated to be in a live-in-relationship.

A representation was also made on 01-09-2020, in which Jyoti stated that her parents had love and affection for their sons but she was ignored by them, hence she decided to love with the petitioner.

State Counsel while opposing the anticipatory bail application raised the following objections:

  • Jyoti is a minor aged about 17 years, therefore her parents got the FIR registered as Jyoti and Akhilesh are stated to be the first cousins since their fathers are real brothers, hence the stated fact was concealed by the petitioner. The minor girl and boy fall in the prohibited sapinda under the Hindu Marriage Act and cannot perform marriage with each other.

Once the petitioner and Jyoti are prohibited from performing marriage with each other, there is no question of their being in any live-in-relationship, which is per se immoral and not acceptable in society.

On perusal of the above, Bench held that since the present petitioner even in the present petition did not disclose the fact that he is the first cousin of Jyoti and therefore, the submission in the present petition that as and when she attains the age of 18 years, they will perform marriage is also per se illegal.

Matter was adjourned to 11-01-2021.[Akhilesh v. State of Punjab,  2020 SCC OnLine P&H 2058, decided on 19-11-2020]

Case BriefsHigh Courts

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

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

CRUELTY

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

IMPOTENCY

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

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

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

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

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

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

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

DECISION

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

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

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

Next Question:

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

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

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

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

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

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

ALLEGATIONS MADE IN PLEADINGS

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

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

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

Bench also observed that,

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

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

Bench held that,

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

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

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

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


Advocates for the parties:

Appellant: Manish Sharma, Ninad Dogra and Jigyasa Sharma

Respondent: Prabhjit Jauhar

Op EdsOP. ED.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

iv) the waiting period will only prolong their agony.

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

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

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

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

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

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

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

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

*                                 *                       *

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

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

*                          *                *

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

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

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

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

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

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

  1. Contempts not punishable in certain cases.—

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

[1] The Hindu Marriage Act, 1955

[2] (1991) 2 SCC 25

[3] (2011) 5 SCC 234

[4] (2004) 8 SCC 229 

[5] (1971) 1 SCC 619

[6] (2005) 12 SCC 1

[7] 1990 SCC OnLine Ker 13 

[8] (2009) 10 SCC 415

[9] (2017) 8 SCC 746

[10] (2001) 1 SCC 516

[11] (1998) 4 SCC 409  

[12] (2003) 11 SCC 1

[13] 2004 SCC OnLine Kar 226

[14] (2006) 11 SCC 114

[15] (2016) 3 SCC 619

[16] 2010 SCC OnLine Del 1962

[17] 2012 SCC OnLine Del 2445

[18] 2018 SCC OnLine Del 9005