Karnataka High Court
Case BriefsHigh Courts

   

Karnataka High Court: Hemant Chandangoudar J. quashed the FIR against accused 5 being the woman who had illicit relations with the husband of the complainant, for the offence punishable under Section 498-A Penal Code, 1860 (‘IPC').

An FIR was filed by R2, being the legally wedded wife of accused 1 (‘the husband') for the offence punishable under Section 498-A, 506, 504 and 34 of IPC and Section 3 and 4 of Dowry Prohibition Act, 1961. The FIR was filed against accused 1 to 4 being family members of the husband and accused 5 being the woman alleged of having illicit relations with the husband.

Counsel for accused 5, in this case being the petitioner, submitted that the allegation made against the petitioner does not constitute the commission of the offences alleged and therefore, the registration of the FIR for the aforesaid offences was impermissible.

The Court noted that the only allegation against the petitioner — accused 5 is that she is having an illicit relationship with the accused 1 who is the husband of the respondent 2- complainant. Thus, the Court held that “this allegation does not constitute the commission of the offences alleged against the petitioner — accused 5 and in the absence of any essential ingredients so as to constitute the commission of the said offences, registration of the FIR against accused 5 is without any substance.”

[Shilpa SC v. State of Karnataka, Criminal Petition No. 2743 of 2017, decided on 02-06-2022]


Advocates who appeared in this case :

Nagaraj G., Advocate, for the petitioner;

S. Vishwamurthy, Advocate, for R1;

Babu Reddy, Advocate, for R2.


*Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Rajasthan High Court: Pushpendra Singh Bhati J. modified the impugned order and enhanced the compensation to Rs 75000/- (for wife) and Rs 25000/- (for son).

The facts of the case are such that the marriage was solemnized and a son was born out of the said wedlock. It was further submitted that, on account of the alleged disharmony the wife left her matrimonial home and came back to India along with the son. Thus, the wife filed an application against the husband under Section 125 CrPC before the Court, which was allowed vide the impugned order, while awarding the monthly maintenance to the wife and the son . The petitioner-husband (respondent herein) preferred the petition against the order seeking quashing and setting aside of the said order. The petitioner-wife (respondent herein) preferred instant revision petition challenging the order praying for enhancement of monthly maintenance.

It was submitted that the wife is earning Rs 85, 000/- per month and staying at Hyderabad, and thus, competent to earn her own livelihood, while the husband does not oppose the maintenance granted to the son vide the impugned order. Counsel also submitted that the wife deserted the husband of her own sweet and free will, and thus, she is not entitled to any kind of maintenance.

The Court relied on Supreme Court judgment in Rajnesh v. Neha, (2021) 2 SCC 324, even if the wife is earning, then also she is entitled to the determination of maintenance, in accordance with the lifestyle of her husband in the matrimonial home.

It was submitted that the sustenance does not mean and cannot be allowed to mean a mere survival, and the lifestyle at Hyderabad, where the wife alongwith her son is presently residing, is very costly, and the son is also going in a good and reputed school at Hyderabad, the expenditure whereof is also too high. Thus, even if the wife is earning something, then also she is entitled to claim the necessary and adequate maintenance from her husband.

It was noted that the husband himself took divorce; therefore, the charge of desertion cannot become a ground so as to enable the husband to disqualify the wife from claiming the amount of monthly maintenance, in any manner whatsoever.

This Court finds that the husband is earning about Rs.12,00,000/- per month and the wife is earning Rs.85,000/- per month, and therefore, a very reasonable capacity of the husband to pay the maintenance should be 1/12th of his income, which shall take care of the husband’s claim for the high cost of living in the USA.

The Court thus held “the amount of monthly maintenance as awarded by the learned court below, vide the impugned order dated 30.08.2018, to the wife and the son, is enhanced to Rs.75000/- (for wife) and Rs. 25000/- (for son).”[Neha Mathur v. Arvind Kishore, 2022 SCC OnLine Raj 943, decided on 26-05-2022]


 Appearances

For Petitioner(s): Mr Parvej Moyal (for wife)

For Respondent(s): Mr Shadan Farasat a/w Mr Harshit Bhurani (for husband)


Arunima Bose, Editorial Assistant has reported this brief.

Gauhati High Court
Case BriefsHigh Courts

Gauhati High Court: While addressing a matter with regard to maintenance of wife, Rumi Kumari Phukan, J., expressed that, the statutory right of a wife of maintenance cannot be bartered, done away with or negatived by the husband by setting up an agreement to the contrary.

Petitioner has challenged the judgment passed by the Sub-Divisional Judicial Magistrate, in a case filed by the petitioner/wife under Section 125 of the CrPC, rejecting her prayer for maintenance by the impugned judgment.

Factual Background


After three months of the marriage of petitioner/wife and respondent/husband, the family members of the respondent started to torture the petitioner, both physically and mentally and demanded 5 lakhs dowry but as she could not fulfil their demand, the respondent abused the petitioner.

Petitioner also stated that the sister-in-law of the respondent also used to abuse the petitioner by using filthy language, assaulting her by pulling her hair and preventing her from talking to her husband.

On being aggrieved with husband’s behaviour, the petitioner lodged an FIR which was registered but on assurance of the family members of the respondent that they won’t harass her in future, the case was compromised, and she was allowed to stay at her parental house for the completion of her studies. Though the respondent never provided any maintenance, nor contacted her and since the petitioner had no income it became difficult for, her to bear the daily expenses.

In view of the above-said grievances, a petition under Section 125 CrPC was filed.

Husband’s Counsel submitted that there was no irregularity in the order so passed by the trial Court in as much as the petitioner herself resided in the parental house, admittedly by making an agreement that during her stay, her maintenance will be borne by her parents.

Analysis and Decision


High Court noted that the uncorroborated testimony of the 1st party and her witnesses established the fact that the 1st party was subjected to torture in her matrimonial house which gave her sufficient ground to live separately from the 2nd party.

The Bench noted that the respondent/husband in his cryptic written objection had not narrated any detail as to under what circumstances, the petitioner began to reside in the parental house and as to why the FIR was also against him and imply it was stated that the matter had been settled between the parties.

In Court’s view, such evasive denial on the part of the husband indicated that he had not taken proper care of his wife, while she was in her parental house.

Since after filing of the FIR, she began to reside in her parental house and that does not itself absolve the respondent/husband to provide maintenance to his wife, even though her parent might have maintained her.

On perusal of the facts and circumstances of the case, it was found that the petitioner had entered into marriage at her tender age, while she was a college-going student and due to some household conflict, the relation between the parties turned sour, as a result of which she returned to her parental house and also filed an FIR.

High Court expressed that,

“…the statutory right of a wife of a maintenance cannot be bartered, done away with or negatived by the husband by setting up an agreement to the contrary. Such an agreement in addition to it being against public policy would also be against the clear intendment of this provision. Therefore, giving effect to an agreement, which overrides this provision of law, that is, Section 125 of Cr.P.C. would tantamount to not only giving recognition to something, which is opposed to public policy, but would also amount to negation of it.”

In the present matter, the respondent/husband could not prove that he had no sufficient means to discharge his obligation and that he did not neglect or refused to maintain his wife, whereas the petitioner had been able to prove that there was neglect on the part of the respondent.

Therefore, the trial Court’s decision was set aside, and a fresh Judgment will be passed in the instant case. [Bulbuli Saikia v. Jadav Saikia, 2022 SCC OnLine Gau 820, decided on 17-5-2022]


Advocates before the Court:

Advocate for the Petitioner: MR. A DUTTA

Advocate for the Respondent: MR. K K BHATRA

Case BriefsHigh Courts

Punjab and Haryana High Court: In a matter with regard to mental cruelty, the Division Bench of Ritu Bahri and Ashok Kumar Verma, JJ., observed that, even if the husband and wife were staying together and the husband stopped talking to the wife, it would cause mental cruelty and a spouse staying away by sending vulgar and defamatory letters or notices by initiating a number of judicial proceedings could make the life of other spouse miserable.

Appellant-wife came up in the present appeal against the decision of the Family Court by the respondent-husband under Section 13 of the Hindu Marriage Act, 1955 seeking dissolution of marriage by a decree of divorce was allowed and he had been granted a divorce.

As per the husband, when he filed a petition under Section 13 of the HMA, the behaviour of the respondent was very cruel, barbaric, rude and crude towards the respondent from the very beginning.

It was stated that, the wife had tried to take forcible possession of the agricultural land owned and possessed by the respondent and a civil suit against the appellant was pending in the District Courts, Karnal.

Further, it was alleged that the appellant was living in adultery with some person in the year 2012 and she forcibly turned out the respondent along with his four children from the house.

When the marriage of the husband and wife was fixed by the respondent, husband had requested the appellant to join the marriage, but she taunted that she had no concern with the respondent and his children.

In view of the above, a divorce petition was filed.

Analysis, Law and Decision

High Court expressed that, even if husband and wife are staying together and the husband does not speak to the wife, it would cause mental cruelty and a spouse staying away by sending vulgar and defamatory letters or notices or filing complaints containing indecent allegations or by initiating a number of judicial proceedings can make the life of other spouse miserable.

The Bench stated that in the present case, after the acquittal in the FIR and dismissal of the domestic violence complaint, enough mental cruelty had been caused to the husband.

Hence, the appellant’s counsel was unable to point out any illegality or infirmity in the impugned judgment.

In view of the above, the appeal was dismissed. [Harbans v. Joginder Pal, 2022 SCC OnLine P&H 1101, decided on 6-5-2022]


Advocates before the Court:

Mr. Avtar Singh Sandhu, Advocate, for Mr. A.S. Rai, Advocate, for the appellant-wife.

Mr. R.S. Budhwar, Advocate, for the respondent-husband.

Case BriefsHigh Courts

Bombay High Court: Vibha Kankanwadi, J., held that, if a husband files a divorce petition that cannot be taken as an act of cruelty.

The informant, who was the wife of the applicant contended that the applicant had demanded 10 tolas of gold and high-quality furniture, at the time of the marriage. Further, it was stated that the parents-in-law had opposed the marriage since the day of marriage and started harassing her. They even used to give pinching words regarding non-payment of dowry.

Adding to the above, it was stated that the mother-in-law used to give messages to the applicant stating that informant is ugly looking girl and thereupon applicant started mentally harassing her.

Due to some medical condition, the informant had to leave her service and once she came back to India, the father-in-law started saying that since she was now unable to ring money by taking up service, she should bring amount of Rs 50,00,000 from her parents, otherwise she should give divorce to the applicant. In 2021, she was assaulted and driven out of the house.

Applicant had approached the Additional Sessions Judge; however, the application of the husband had been rejected and it was stated that the divorce petition have been considered. Further, it was stated that if the divorce petition would not been filed there was every possibility of patch up. However, the husband went one step ahead by filing a divorce petition and the said amount to cruelty.

It was stated that the nature of the applicants was aggressive, and they had treated the informant with cruelty. Further, it was added that if the applicants were enlarged on bail, there was strong possibility of tampering the prosecution witnesses.

Analysis and Decision

High Court expressed that,

“Filing of divorce petition by the husband cannot be taken as an act of cruelty or a ground for rejecting the anticipatory bail.”

Further, the Court stated that, certain articles valuable as well as general articles of the informant were stated to be with the applicant. In fact, she could get it under the provisions of Domestic Violence Act, it need not be seized.

In Joginder Kumar v. State of U.P., (1994) 4 SCC 260, it was observed that there should be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified.

It also to be noted that Courts should not get carried away with the desire of a party to see the other behind bars. The said may be sometimes to settle the personal score and, therefore, the Courts should be on guard as to whether really the arrest is necessary. Only prima facie case against the person is also not a criterion to be looked into. 

“…not only the police officer but also the learned Sessions Judge or Additional Sessions Judge dealing with an application under Section 438 of the Code of Criminal Procedure should question ‘why arrest’, ‘is it really require’, ‘what purpose it will serve’, ‘what object it will achieve’.”

The above was stated in view of the Supreme Court decision in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.

In view of the above, the application was allowed. [Anmol Madhukar Divekar v. State of Maharashtra, 2022 SCC OnLine Bom 1056, decided on 6-5-2022]


Advocates before the Court:

Mr. M.L. Muthal, Advocate for the applicant

Mrs. V.N. Patil-Jadhav, APP for the respondent

Case BriefsHigh Courts

In the Split verdict on Criminalisation of Marital Rape Exception (MRE), the Division Bench of Delhi High Court pronounced a 393-Pages Judgment, wherein the Justices Rajiv Shakdher and C. Hari Shankar while disagreeing with each other on various issues, very significantly pointed out the issue if  “NEW OFFENCE”.

Let’s break it down


In the opinion of Justice Rajiv Shakdher, on striking down MRE, no new offence would be created and for the said, following reasons were laid down:

  • Since the stated object of the rape law is to protect women from sexual abuse of the worst kind, there is no perceivable rationale for granting impunity to an offending husband in the context of marital rape. Thus, if MRE is exercised, all that would happen is, it would extend the ambit of Section 375 IPC to even offending husbands.
  • If the ingredients of the offence has been changed, then a new offence/new crime would have been created. All that would happen if MRE is truck down is that the offending husband would fall within the ambit of the offence.
  • Reading down, filling gaps (casus omissus) and/or excising parts of an offending provision contained in a statute is a legitimate judicial tool employed by courts for severing what is unconstitutional and retaining that which is construed as lawful.
  • MRE seeks to ring-fence the offender based on his marital relationship with the accused.
  • What is principally punished under the criminal law is the act of omission or commission, as etched out in the IPC. The penal law is act/omission centric and, in most situations, is neutral to who the perpetrator of the crime is.

The ratio of the judgment of the House of Lords in R v. R  in Justice Shakdher’s opinion was squarely applicable, both for the proposition that striking down MRE does not create a new offence and that if such step is taken, the Court need not leave the matter to the legislature.


 Justice C. Harishankar’s Opinion


The proscription on Courts creating an offence by judicial fiat operates as a restraint even on the exercise of the power to strike down a legislative provision as unconstitutional, said Justice Shankar.

  • Judges sitting in courts cannot, on the basis of arguments of Counsel, howsoever persuasive, create offences, or pass judgements which would result in an act, otherwise not an offence, being rendered an offence.
  • A court cannot legislatively stipulate the punishment for the offence. If the Court is not empowered to prescribe punishments, equally, the Court cannot, by its order, convert an act which, prior thereto, was not an offence, into an offence.

[RIT Foundation v. Union of India, 2022 SCC OnLine Del 1404, decided on 11-5-2022]

Case BriefsHigh Courts

Delhi High Court: In a split verdict the Division Bench of Rajiv Shakdher and C. Hari Shankar, JJ., laid down their opinion on “Should a husband be held criminally liable for raping his wife who is not under 18 years of age?”

“Women in most parts of the world are treated as individuals, free to enter into contracts in their own right but when it comes to sexual communion with their husbands, their consent counts for nothing.”

–Justice Rajiv Shakdher

Whether or not Exception 2 Section 375 of the Penal Code, 1860 should remain on the statute?

 Remarks before pronouncing the ruling

I must state, with all humility at my command, that as I began to pen this judgment, the enormity of its impact on the society was not lost on me. I do not lay claim to being the repository of all wisdom that must be brought to bear in dealing with a sensitive issue that I am to rule on. 

— Justice Rajiv Shakdher

Whether Marital Rape Exception should be struck down?

Those wanting to strike down Exception 2 to Section 375 IPC, also seek striking down of Section 376B which concerns sexual intercourse by a separated husband with his wife, albeit, without her consent.

Further, prayer to strike down Section 198B of the Code of Criminal Procedure, 1973 which prohibits a Court from taking cognizance of an offence punishable under Section 376B IPC except upon satisfaction of facts which constitutes the offence once a complaint is lodged by the wife against her husband was also filed.

Analysis, Law and Decision

Justice Rajiv Shakdher’s Opinion

Constitutional Viability of classification between married and unmarried women in the context of Article 14

Justice Rajiv Shakdher expressed that there can be no doubt that the legislature seeks to punish offenders who are guilty of committing rape, the said principle is the bedrock on which Section 375 IPC was founded.

Further, it cannot be doubted that there is a differentia between married, separated, and unmarried couples.

Marital Rape Exception grants impunity to an offender based on his relationship with the victim.

In Justice Shakdher’s opinion, the classification was unreasonable and manifestly arbitrary as it seemed to convey that forced sex outside marriage is “real rape” and that the same act within marriage is anything else but rape.

Sex-worker has been invested with the power to say “no”; by the law; but not a married woman.

In a gang rape involving the husband of the victim, the co-accused will face the brunt of the rape law; but not the offending husband only because of his relationship with the victim. A married woman’s ability to say “no” to sexual communion with her husband when he is infected with a communicable disease, or she is herself unwell finds no space in the present framework of rape law. Thus, the rape law as it stands at present is completely skewed insofar as married women are concerned.

Hence, in his view MRE, violates the equality clause contained in Article 14 of the Constitution and MRE with one stroke deprives nearly one-half of the population of equal protection of the laws.

The immediate deleterious impact of the provisions of MRE is that while an unmarried woman who is the victim of the offence of rape stands protected and/or can take succour by taking recourse to various provisions of the IPC and/ the Code, the same regime does not kick-in if the complainant is a married woman.

Conjugal expectation

Conjugal expectations, though legitimate during the subsistence of a joyful marriage, cannot be put at par with unbridled access and/or marital privilege claimed by the husband vis-à-vis his wife disregarding the circumstances which obtain at the given point in time as also her physical and mental condition.

Non-consensual sexual intercourse is not labelled as “rape” to save the institution of marriage

Justice Shakdher agreeing with Karuna Nundy, Advocate stated that sexual assault which falls within the four corners of Section 375 of the IPC needs to be labelled as rape irrespective of whether it occurs within or outside the bounds of marriage.

Invasion of Private Space 

The prosecution of the offending husband for a rape offence would result in invading the private space of a married couple is nothing but an attempt to keep the law at bay even when a heinous crime such as rape has occurred within what some would refer to as “sacrosanct” space.

In Justice Shakdher’s opinion, the above was morally suspect and legally untenable.

The attempt to keep away the law even when a woman is subjected to forced sex by her husband, by demarcating private and public space is to deny her the agency and autonomy that the Constitution confers on her.

Gathering evidentiary material would be difficult

In the opinion of Justice Shakdher, the difficulty in collecting evidentiary material should not be the reason for keeping an offending husband who subjects his wife to forced sex out of the purview of the substantive rape law.

New Offence 

To strike down MRE, would create a new offence, is misconceived for the following reasons:

(i) Firstly, the offence of rape is already defined in the substantive part of Section 375 of IPC. The sexual acts which are described in Clauses (a) to (d) of Section 375 constitute rape if they fall within any of the seven circumstances alluded to in the said provision. There are two exceptions provided in Section 375 and, thus, those who come within the ambit of the exception cannot be prosecuted for the offence of rape. The first exception concerns a circumstance where the woman undergoes a medical procedure or intervention. The second exception (which is the exception under challenge) concerns the act of sexual intercourse or sexual acts which involve a man and his wife who is not under 18 years of age. The exception clearly subsumes the main provision without providing a determining principle or rationale as to why husbands who have subjected their wives to forced sex should not face the full force of the rape law. Since the stated objective of the rape law is to protect women from sexual abuse of the worst kind i.e., rape, there is no perceivable rationale for granting impunity to an offending husband in the context of marital rape. Thus, if MRE is excised, all that would happen is, it would extend the ambit of Section 375 to even offending husbands.

(ii) Secondly, a new offence/new crime would perhaps have been created if the ingredients of the offence had changed. [See People v. Liberta] It is no one’s case that the ingredients of the offence have changed; all that would happen if MRE is struck down is that the offending husband would fall within the ambit of the offence.

iii) Thirdly, reading down, filling gaps (casus omissus) and/or excising parts of an offending provision contained in a statute is a legitimate judicial tool employed by courts for severing what is unconstitutional and retaining that which is construed as lawful. [See C.B. Gautam v. Union of India (1993) 1 SCC 78; Navtej Singh Johar; and Harsora v. Harsora.]

(iv) Fourthly, MRE (Exception 2 to Section 375 of the IPC) seeks to ring- fence the offender based on his marital relationship with the accused. The main provision is neutral to the relationship that may or may not subsist between the offender and the victim. Thus, a person who is a stranger or is in a live-in relationship with the victim can be prosecuted for the offence of rape. As a matter of fact, the legislature pursuant to the Criminal (Amendment) Act, 2013 has brought within the sway of rape law (Section 375) even separated husbands by inserting Section 376B in Chapter XVI of the IPC; a provision which is challenged by the petitioners on different grounds.

(v) Fifthly, what is principally punished under the criminal law is the act of omission or commission, as etched out in the IPC.

MRE violates Article 21 of the Constitution

The fact that the rapist is the husband of the victim does not make the act of sexual assault any less injurious, degrading or dehumanizing.

“Irrespective of who the perpetrator is, forced sex mars the woman-victim physically, psychologically and emotionally.”

 “Non-consensual sex in marriage is an antithesis of what matrimony stands for in modern times i.e., the relationship of equals.”

MRE violates Articles 15 and 19(1)(a) of the Constitution

Continuance of MRE, violates Article 15 of the Constitution since it triggers discrimination against women based on their marital status. The said exception impairs and abstain the power to negotiate contraception, to protect themselves against sexually transmissible disease and to seek an environment of safety, away from the clutches of her abuses.

MRE is violative of Article 19(1)(a) of the Constitution as it violates the guarantee given by the Constitution concerning freedom of expression, amongst others, to married women who are citizens of this country.

Separated husbands

Since Justice Shakdher concluded that granted impunity to offending husbands under the MRE is violative of Articles 14, 15, 19(1)(a) and 21 of the Constitution, the class which comprises separated husbands would also necessarily have to be dealt with as any other rapist.

“…separated husbands would suffer the same punishment, as prescribed for any other rapist under Section 376(1) of the IPC, as that would be the logical sequitur of striking down MRE.”

Conclusion

(i) That the impugned provisions [i.e. Exception 2 to Section 375 (MRE) and Section 376B of the IPC as also Section 198B of the Code], insofar as they concern a husband/separated husband having sexual communion/intercourse with his wife (who is not under 18 years of age), albeit, without her consent, are violative of Articles 14, 15, 19(1)(a) and 21 of the Constitution and, hence, are struck down.

(ii) The aforesaid declaration would, however, operate from the date of the decision.

(iii) The offending husbands do not fall within the ambit of the expression “relative” contained in Section 376 (2)(f) of the IPC and, consequently, the presumption created under Section 114A of the Evidence Act will not apply to them.

(iv) Certificate of leave to appeal to the Supreme Court is granted under Article 134A(a) read with Article 133(1)(a)&(b) of the Constitution as the issue involved in this case raises a substantial question of law which, in my opinion, requires a decision by the Supreme Court.

Justice Shakdher concluded that Exception 2 to Section 375 and Section 376B of the IPC as well as Section 198B of the Code of Criminal Procedure (CrPC), as they relate to husband or separated husband having sexual intercourse with his wife without her consent, are violative of Articles 14, 15, 19(1)(a) and 21 of the Constitution and therefore deserve to be struck down.

Justice C. Hari Shankar’s Opinion

Justice Shankar stated that it is not to judge whether non-consensual sex within marriage ought, or ought not, to be punished or, if it is, to opine appropriate punishment that should visit the perpetrator of the act.

Re: Article 14

Justice Shankar stated that the act of sex, when it takes place between parties who are joined by marriage, declares the impugned Exception, is in no case rape.

“Applying the “intelligible differentia” test, the impugned Exception would, therefore, infract Article 14 only if the relationship of marriage, between the man and woman involved in the act, does not provide any intelligible differentia having a rational nexus to the object sought to be achieved by the impugned Exception.”

The ‘institution of marriage’, and the intelligible differentia that results

Petitioners completely failed to note the uniqueness of marriage as an institution, its peculiar demographics and incidents, and the emotional, psychological, social and other complex equations that exist between a wife and a husband.

“Between a husband and wife, who spend their days and nights together, living in a house which, by the dint of their joint effort, they make a home, there exists a bond which defies, and indeed transcends, all known and identifiable parameters.”

Further, Justice Shankar added that, there can be no comparison, whatsoever, between the relationship between a husband and a wife, with any other relationship between man and woman. It is for this reason that there is an enforceable legal right – which even Ms Nundy acknowledged – of each party in a marriage, to cohabit with, and for the consortium of, the other.

Petitioner’s counsel completely failed to accord to the marital relationship, the status and importance it deserves.

“Marriage is an institution which epitomizes, at the highest level, the most sublime relationship that can exist between man and woman.”

In this relationship, given its unique character and complexity, the legislature has, advisedly, felt that no allegation of “rape” has place. Sex between a wife and a husband is, whether the petitioners seek to acknowledge it or not, sacred. In no subsisting, surviving and healthy marriage should sex be a mere physical act, aimed at gratifying the gross senses. The emotional element of the act of sex, when performed between and wife and husband, is undeniable. The marital bedroom is inviolable. A legislation that seeks to keep out, from the parameters of such a relationship, any allegation of ‘rape’, in my view, is completely immune to interference.

—Justice Shankar

In his view, introducing, into the marital relationship, the possibility of the husband being regarded as the wife’s rapist if he has, on one or more occasions, sex with her without her consent, would be completely antithetical to the very institution of marriage.

Adding to the above observation, it was expressed that,

“Marriage, unquestionably, does not entitle a husband to coerce his wife into sex, if she is not inclined. The impugned Exception does not, however, either expressly or by necessary implication, confer, on the husband in a marriage, an entitlement to insist on sex with his wife, against her willingness or consent.”

 “The expectation of sex of the husband, with his wife is, therefore, a legitimate expectation, a healthy sexual relationship being integral to the marital bond.”

Elaborating further, Justice Shankar remarked that, any assumption that a wife, who is forced to have sex with her husband on a particular occasion when she does not want to, feels the same degree of outrage as a woman raped by a stranger, is not only unjustified, but ex facie unrealistic.

Stating that, if the legislature, decided to treat non-consensual sex by a man with a woman, where the woman is a stranger, as rape, and non-consensual sex by a husband with his wife, as not rape, Justice Shakdher was unable to subscribe to the submission that the distinction violates Article 14 of the Constitution of India.

Re. the argument that the impugned Exception creates “three classes of victims”

In the case of an act of non-consensual sex between a husband and wife, there is no societal ramification whatsoever, unlike in the case of a woman raped by a stranger, as the act takes place within the privacy of the marital bedroom and, more empirically, because the man and the woman are married.

Conjugal right v. Conjugal expectation

The impugned Exception does not, either directly or by necessary implication, state that, by reason of marriage, a husband has a right to have sex with the wife against her will or consent. All that it says is that, if he does so, he, unlike a stranger committing such an act, cannot be treated as a rapist. There is a clear intelligible differentia between the two situations, stated Justice Shankar.

“The impugned Exception does not seek, directly or indirectly, to enforce a non-enforceable conjugal right, or even a conjugal expectation.”

Justice Shankar elaborated its observation stating that, the impugned Exception, applies to subsisting and surviving marriages, where the husband and wife are together, and not separated.

“In a subsisting, and surviving, marriage, where the husband and wife are staying together and cohabiting, if the legislature feels that an allegation of rape – and, consequently, the chance of the husband being called a rapist – should find no place even if, on one occasion or the other, the wife is compelled to have sex with the husband without willingness or consent, can it be said that the legislature acts unconstitutionally?”

In Justice Shankar’s opinion, this Court cannot approach the issue before it with a view of pronouncing on whether non-consensual sex within marriage ought to be punished, or not, and, if it feels that it should, find a way of doing so. That is exclusively the province of the legislature.

Consent and the ‘effect doctrine’

In Court’s opinion, there was nothing in the impugned Exception which obligated a wife to consent to having sex with her husband, wherever he so requests. It does not even obliquely refer to consent, or want of consent.

Conclusion

(i) the petitioners’ case is premised on a fundamentally erroneous postulate, for which there is no support available, either statutory or precedential, that every act of non-consensual sex by any man with any woman is rape,
(ii) the impugned Exception does not violate Article 14, but is based on an intelligible differentia having a rational nexus with the object both of the impugned Exception as well as Section 375 itself,
(iii) the impugned Exception does not violate Article 19(1)(a),

(iv)  the impugned Exception does not violate Article 21,

(v)  none of the indicia, on which a statutory provision may  be struck down as unconstitutional, therefore, can be said to exist, and

vi) in such circumstances, the Court cannot substitute its subjective value judgement for the view of the democratically elected legislature, hence challenges laid by the petitioners to the constitutional validity of Exception 2 to Section 375 and Section 376B of the IPC, and Section 198B of the Cr PC, have to fail.

Lastly, Justice Shankar concurred with the opinion of Justice Shakdher in his decision to grant certificate of leave to appeal to the Supreme Court as the present matter involved substantial questions of law.[RIT Foundation v. Union of India, 2022 SCC OnLine Del 1404, decided on 11-5-2022]


Advocates before the Court

….. Petitioner
Ms Karuna Nundy with Mr Mukesh Sharma and Mr Raghav Awasthy,

….. Respondent
Mr Tushar Mehta, SG and Mr Chetan Sharma, ASG with Ms Monika Arora, CGSC along with Mr Vinay Yadav, Mr Amit Gupta, Mr Akshya Gadeock, Mr Rishav Dubey, Mr Rajat Nair, Mr Sahaj Garg and Mr R.V. Prabhat, Advs.

for UOI.
Mr Rajshekhar Rao, Sr. Advocate/Amicus Curiae with Mr Karthik Sundar, Ms Mansi Sood and Ms Sonal Sarda, Advs.
Ms Rebecca M. John, Sr. Adv. As Amicus Curiae with Mr Harsh Bora, Ms Praavita Kashyap, Mr Chinmay Kanojia, Mr Pravir Singh and Ms Adya R. Luthra, Advs.
Mr Amit Lakhani and Mr Ritwik Bisaria as Intervenors for Men’s Welfare Trust.

W.P.(C) 5858/2017 & CM No.45279/2021

… Petitioner
Mr Colin Gonsalves, Sr. Adv. With Ms. Olivia Bang, Ms Sneha Mukherjee, Ms Mugdha and Ms Aimy Shukla, Advs

….. Respondents

Mr Ruchir Mishra, Mr Sanjiv Kumar Saxena, Mr Mukesh Kumar Tiwari and Mr Ramneek Mishra, Advs. for UOI. Mr Gautam Narayan, ASC, GNCTD with Ms Nikita Pancholi, Adv.

Mr Rajshekhar Rao, Sr. Advocate/Amicus Curiae with Mr Karthik Sundar, Ms Mansi Sood and Ms Sonal Sarda, Advocates.

Ms Rebecca M. John, Sr. Adv. As Amicus Curiae with Mr Harsh Bora, Ms Praavita Kashyap, Mr Chinmay Kanojia, Mr Pravir Singh and Ms Adya R. Luthra, Advs.

Mr R.K. Kapoor, Advocate for applicant in CM 19948/2016.

W.P.(C) 6024/2017

…Petitioner

Ms Karuna Nundy, Ms Ruchira Goel, Mr Rahul Narayan, Mr Nitish Chaudhary, Ms Ragini Nagpal, Ms Muskan Tibrewala, Mr Utsav Mukherjee and Mr Shashwat Goel, Advs.

…. Respondent
Mr Chetan Sharma, ASG with Mr Anil Soni, CGSC along with Mr Devesh Dubey, Mr Vinay Yadav, Mr Amit  Gupta, Mr Akshya Gadeock, Mr Rishav Dubey, Mr Sahaj Garg and Mr R.V. Prabhat, Advs. for UOI.
Mr Rajshekhar Rao, Sr. Advocate/Amicus Curiae with Mr Karthik Sundar, Ms Mansi Sood and Ms Sonal Sarda, Advocates.
Ms Rebecca M. John, Sr. Adv. As Amicus Curiae with Mr Harsh Bora, Ms Praavita Kashyap, Mr Chinmay Kanojia, Mr Pravir Singh and Ms Adya R. Luthra, Advs.

W.P.(CRL) 964/2017

…… Petitioner

Mr Sahil Malik, Adv.

….. Respondents Ms Nandita Rao, ASC for State.

Mr Rajshekhar Rao, Sr. Advocate/Amicus Curiae with Mr Karthik Sundar, Ms Mansi Sood and Ms Sonal Sarda, Advocates.

Ms Rebecca M. John, Sr. Adv. As Amicus Curiae with Mr Harsh Bora, Ms Praavita Kashyap, Mr Chinmay Kanojia, Mr Pravir Singh and Ms Adya R. Luthra, Advs.


Read More:

Split Verdict on Criminalisation of Marital Rape Decision: One strikes down the exception, one upholds [Report to be updated]

Husband owns wife’s body after marriage: What is holding back India to criminalise this misogyny?

Case BriefsHigh Courts

Allahabad High Court: Brij Raj Singh, J., while discussing the matter with regard to providing maintenance to a wife, noted that the Court below had made observations on being influenced by factual aspects which were not proved.

The instant revision was preferred to set aside the decision of the Family Court in a criminal case under Section 125 of the Criminal Procedure Code and to direct the OP to pay at least Rs 10,000 as monthly maintenance.

Background

The wife submitted that she was married to OP 1 prior to 40 years and out of the wedlock three children were born. The OP 2 had provided maintenance to her till 1983, but thereafter it was stopped by him. Further, she stated that she was dependent on her brother who used to provide financial assistance but suddenly had gone missing. She had filed the application as she has no source of income, and hence needed maintenance from her husband.

Point Wise Discussion

  • Revisionist stated that the OP 2 had performed second marriage and had deserted her, but the said fact was not dealt with by the lower Court and the finding had been recorded that she was unable to show why she was living separately.
  • The fact that some property was sold by the revisionist and out of that money she was maintaining her children, could not be inferred that the revisionist had lost her opportunity for grant of maintenance under Section 125 CrPC.
  • The finding that revisionist was unable to state as to whether her children were literate or illiterate or how much they were educated, would be a perverse finding for determination of maintenance under Section 125 CrPC.
  • The court below has further recorded a finding that all the three children were settled by her; thus, she was having means to sustain herself. If some income was received by her out of sold property, it does not mean that she would sustain throughout life.
  • The court below has further recorded a finding that the opposite party 2 stated the fact that revisionist had illicit relation with Ram Singh @ Manjeet Singh and the said fact was not denied by her. The said finding is also perverse because statement of fact cannot be relied on because it will have serious repercussions unless it is proved.

In Court’s opinion, the lower Court had rejected the application without application of mind, hence the matter was remanded to the Court below to take a fresh decision. [Krishna Devi v. State of U.P., 2022 SCC OnLine All 303, decided on 4-5-2022]

Case BriefsDistrict Court

Saket Courts, Delhi: While addressing a maintenance matter, Anuj Agrawal, Additional Sessions Judge-05, expressed that, it can not be believed that a person who was capable of supporting a family by getting married, would all of a sudden become devoid of all sources of income.

A complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 was filed by the respondent/wife against the appellant/husband on the ground that she had been subjected to domestic violence by the husband and his father. The said complaint was accompanied with an application under Section 23 of the DV Act seeking interim maintenance, which was disposed of by the Trial Court.

Analysis, Law and Decision

The Court stated that while fixing interim maintenance, Court has to take a prima facie view of the matter and need not critically examine the claims of parties regarding their incomes and assets because for deciding the same, the evidence would be required.

“…an aggrieved person cannot be rendered to lead a life of a destitute till completion of trial.” 

The Bench expressed that for computing the maintenance, a test had been laid by the Supreme Court in Jasbir Kaur Sehgal v. District Judge, Dehradun, (1997) 7 SCC 7.

Wife Well Qualified

The Court while citing the Supreme Court decision in Rajnesh v. Neha, 2020 SCC OnLine SC 903 reiterated that,

The Courts have held that if the wife is earning, it cannot operate as a bar from being awarded maintenance by the husband.

Husband’s Income

In the present matter, the respondent/wife claimed that the monthly income of the respondent was Rs 1.5 lakhs, however, the said claim of the respondent/wife was not supported by any material on record.

The Bench stated that it came on record that the appellant/husband was a well-qualified person having qualification of BUMS and was in the profession of ‘Hakim’, hence even is his income was NIL, but his earning capacity could not be lost sight of.

Further, the Court added that, it could not be believed that a person who was capable of supporting a family by getting married, would all of a sudden become devoid of all sources of income. Hence, the Trial Court’s approach while assessing the monthly income of the husband was correct.

Settled Law

A wife is entitled to the same status and lifestyle that she was enjoying prior to severing the relationship.

Therefore, interim maintenance has to be commensurate with her needs as well as the income of her husband.

On finding no impropriety in the impugned order, the appeal filed by the husband stood dismissed. [Amjad Ali v. Sufia Chaudhary, 2022 SCC OnLine Dis Crt (Del) 13, decided on 5-5-2022]

Case BriefsHigh Courts

Allahabad High Court: Rahul Chaturvedi, J., noted that a lady soon after coming to know that her husband got married in clandestine way with some other lady, committed suicide.

The deceased during her lifetime, lodged an FIR against the husband and all his family members under Sections 323, 494, 504, 506, 379 of the Penal Code, 1860 with the allegation that her husband was already married with some other lady and having two children from her and without divorcing her, rather without disclosing the said fact, he got married with the deceased.

Further, after enticing the informant, who was married lady again solemnized marriage with the consent of both.

The family members after getting to know the above-stated started misbehaving, torturing and abusing her and made her life miserable, the atrocities crossed all the limits when her husband under the pressure of his family members virtually deserted her and kept a new lady.

After lodging the FIR, the deceased consumed some poisonous substance on the same day.

In view of the above circumstances, the deceased took the extreme step by consuming some poisonous substance and committed suicide.

Analysis and Decision

In the present matter, the husband of the deceased was going to marry third time.

High Court opined that the FIR for all the practical purposes could be considered as her dying declaration as the deceased herself was the author of the FIR. After lodging the FIR, she committed suicide just the next day after its lodging.

“No Indian lady is ready to share her husband at any cost. They are literally possessive about their husband.” 

“It would be biggest jolt for any married woman that her husband is being shared by some other lady or he is going to marry some other lady.”

In view of the above, Bench stated that it would be impossible to expect any sanity from them.

High Court found the husband to be the main culprit, and to be tried for the offence under Section 306 IPC.

Bench directed the trial Court to frame the charge as early as possible and initiate the trial of the accused persons. [Sushil Kumar v. State of U.P., 2022 SCC OnLine All 279, decided on 7-4-2022]


Advocates before the Court:

Counsel for Revisionist :- Shailesh Kumar Tripathi

Counsel for Opposite Party :- G.A.

Case BriefsHigh Courts

Delhi High Court: In a matter of dissolution of marriage, the Division Bench of Vipin Sanghi, ACJ and Jasmeet Singh, J., expressed that husband and wife together can deal with any situation, if one gets weak or breaks, the whole crashes down.

Husband preferred an appeal under Section 19 of the Family Courts Act, 1984 to quash and set aside the judgment passed by the Family Court.

On grounds of continuous acts of cruelty, the divorce petition was preferred by the wife and the family Court had allowed the said petition against the husband by the impugned judgment.

Husband stated that the issues which require adjudication in the present matter are as follows:

(i) Whether the Family Court was right in striking off the defence of the appellant?

(ii) Whether the respondent/wife was able to prove the charge of cruelty with cogent evidence against the appellant/husband before the Family Court?

Analysis and Discussion


High Court noted while rejecting the plea of the husband that fresh documents cannot be filed at the stage of evidence and are required to be filed along with a reply or written statement.

Order 8 Rule 1A (1) of Civil Procedure Code, 1908 (hereinafter referred to as CPC) mandates the defendant to file the documents in his possession at the time of filing the written statement. In case the defendant fails to file such documents at the time of presenting the written statement, then the same shall not be allowed to be received in evidence on behalf of the defendant.

Section 14 of the Family Courts Act, 1984 empowers the Family Court to receive any evidence, whether or not the same is relevant or admissible under the Indian Evidence Act if, in its opinion the same would assist it to deal effectually with the dispute before it. 

The Bench stated that, the appellant failed to comply with various orders of this Court, as well as of the Supreme Court, and the Family Court qua payment of the maintenance and preferred to indulge in frivolous litigations instead of paying the outstanding maintenance amount. The appellant was directed by this Court to deposit the maintenance amount.

In Court’s opinion, the Family Court was justified in striking off the defence of the appellant.

High Court cited the Supreme Court’s decision in V. Bhagat v. D. Bhagat, (1994) 1 SCC 337, wherein it was dealing with the divorce petition filed by the husband which he amended later from adultery to cruelty.

The Family Court in the present matter had granted divorce to the respondent under Section 13(1)(ia) of the HMA solely relying on the ground of “mental cruelty‟.

Remarking that “Husband and wife are two pillars of the family”, High Court held that, when one pillar gives up and puts all the burden on the other pillar, then it cannot be expected that one pillar will single-handedly hold the house together.

Hence, Court upheld the observation of the Family Court on noting that the husband had put the entire burden on the wife to manage the house, her job, and look after the children and he failed to discharge his duties as a husband and especially as a father.

Lastly, the High Court found that the bond between the parties has irretrievably broken down and wife was subjected to repeated harassment by the husband. Therefore, the wife had well established the ground of mental cruelty by the husband in light of Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511.

In view of the above, the present appeal was dismissed. [Sunil Kumar Sharma v. Preeti Sharma, 2022 SCC OnLine Del 1263, decided on 2-05-2022]


Advocates before the Court:

For the Appellant:

Md. Azam Ansari, Advocate with Mr Ashfaque Ansari, Advocate

For the Respondent:

Mr Gaurav Goswami with Mr Tarun Goomber and Mr Pankaj Mendiratta, Advocates

Case BriefsHigh Courts

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

Factual Matrix


A criminal petition was filed seeking to set aside the decision by Family Court.

Instant petition had been filed against the order of the Additional Principal Judge filed by the respondent under Section 125 of the CrPC, whereby the Additional Principal Judge granted maintenance.

Petitioner impugned the order dated 31-7-2020, which enhanced the maintenance amount.

Analysis, Law and Decision


In the present matter, the maintenance order was challenged on the grounds of cruelty, adultery, desertion without reason as well as the fact that the wife was capable enough of maintaining herself.

Various Supreme Court and High Court decisions have established the position of payment of maintenance holding that the ground of cruelty does not disentitle the wife of her right to maintenance. In fact, in cases where divorce is granted on the ground of cruelty, Courts have awarded permanent alimony to the wife.

Hence,

Ground of cruelty and harassment do no stand ground for non-payment of the maintenance amount.

The Bench expressed that the codified law and judgments of various High Courts settle the position with respect to the bar of adultery for grant of maintenance in favour of the wife.

Law mandates that in order to extract the provision under Section 125(4) CrPC the husband has to establish with definite evidence that the wife has been living in adultery, and one or occasion acts of adultery committed in isolation would not amount o ‘living in adultery’.

The Bombay High Court decision in Pandurang Bakru Nathe v. Leela Pandurang Nathe, 1997 SCC OnLine Bom 264 made an observation with regard to the provision under Section 125(4) CrPC was relied on by the Court.

Another decision of the Kerala High Court in Sandha v. Narayanan, 1999 SCC OnLine Ker 64 was also relied on.

High Court found that the law as interpreted by the High Courts, evinces that only continuous and repeated acts of adultery and/or cohabitation in adultery would attract the rigours of the provision under Section 125(4) CrPC.

The petitioner could not establish prima facie that the respondent was living in adultery, hence the respondent was not entitled to any maintenance.

Concluding the matter, Court declined to allow the instant petition, since the petitioner had failed to show any ground for challenging the order under the revisional jurisdiction of this Court.

Therefore, Bench did not find any cogent reason to interfere with the impugned order and judgment. [Pradeep Kumar Sharma v. Deepika Sharma, 2022 SCC OnLine Del 1035, decided on 13-4-2022]


Advocates before the Court:

For the Petitioner:

Annu Narula, Vishal Singh, Ravi Kumar and Shiva Chauhan, Advocates

For the Respondent:

Shamikh, Advocate

Kerala High Court
Case BriefsHigh Courts

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

This Court noted that the sad plight of the functioning of the Family Court often is portrayed before this Court by challenging the orders invoking Article 227 of the Constitution. Further, the Court stated that the purpose of restricting the challenge to the final order has been lost as the Family Court is more engrossed in passing interim orders focusing on rights, obligations or disputes rather than focusing on the parties before them.

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

Question for Consideration


Foundational function of the Family Courts in India


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

Answering the said question in negative, the Court elaborated stating that, no doubt judges of Family Courts have to be impartial or neutral, but proceedings or processed are not ordained to be away or aloof from making enquiry to find the truth of the real dispute.

What was the claim in the present matter?

The claim was with regard to the realization of patrimony and recovery of gold ornaments.

On suspecting collusive effort between the husband and wife as against the father and mother of the husband, Family Court ordered an enquiry.

The crux of the present petition was to counter the action of the second respondent who was the father of the husband, who revoked the settlement deed executed in favour of the husband.

A combined reading of Sections 9, 10 and 14 would clearly bring out the point that the Family Court is not the mirror of an ordinary Civil Court.

Bench elaborated that, what is essential in a dispute before the Family Court is that the Family Court is only to devise a procedure for a fair conclusion of the proceedings.

Further, the Family Court is given complete freedom in devising a fair procedure for the speedy resolution of disputes before the said Court.

High Court also added that, to find out the truth, the Family Court does not require the consent of the parties. If fairness is reflected in any of the approaches, such an approach is clothed with legal protection.

In the Delhi High Court’s decision of Kusum Sharma v. Mahinder Kumar Sharma, 2015 SCC OnLine Del 6793, the power of the Family Court was considered to elicit the truth and observed that it is the duty of the Court to ascertain the truth regarding the true income of the parties and to pass appropriate orders.

With respect to the present matter, the Bench observed that the Family Court was justified in passing order to find out the truth through public officials.

Hence, the Court found no reason to interfere with the impugned order as no jurisdiction error was committed by the Family Court and the order was consistent with the power.

Therefore the original petition was dismissed.[Nisha Haneefa v. Abdul Latheef, 2022 SCC OnLine Ker 1556, decided on 15-2-2022]


Advocates before the Court:

For the Petitioner:

BY ADVS.

           D.KISHORE

           SMT.MEERA GOPINATH

           SRI.R.MURALEEKRISHNAN (MALAKKARA)

For the Respondent:

BY ADVS.

           SRI.M.V.RAJENDRAN NAIR

           SMT.M.A.ZOHRA

Bombay High Court
Case BriefsHigh Courts

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

Petitioner-Wife on being aggrieved by the order of the Civil Judge approached this Court.

Respondent-husband had filed Hindu Marriage Petition claiming for grant of permanent alimony from the petitioner-wife at the rate of Rs 15,000 per month. The said application was filed under Section 25 of the 1955 Act, wherein it was pleaded that since the respondent-husband had no source of income and on the contrary, the petitioner-wife had acquired the educational qualification of M.A., B.Ed and was serving at Shri Datta Mahavidyalaya, Talni, Taluka Hadgaon.

It was stated that, in order to encourage the wife to obtain the degree, the husband managed the household affairs, keeping aside his own ambition.

Respondent-husband pleaded that he suffered humiliation and harassment in the marital relationship as the petitioner-wife, with a malafide and dishonest intention, filed petition that the respondent was neither doing any job, nor does he possess any moveable or immovable property or had any independent income.

Respondent-husband claimed maintenance of Rs 15,000 per month from the wife.

Analysis, Law and Decision

High Court expressed that a conjoint reading of Sections 24 and 25 of the Hindu Marriage Act, 1955 would reveal that both the sections in the Act of 1955 are enabling provisions and confer a right on the indigent spouse to claim maintenance either pendente lite or in the nature of permanent alimony and maintenance.

The words applied in Section 25 of the Act of 1955 permit any court exercising jurisdiction under this Act, i.e. under Sections 9 to 13, at the time of passing any decree or at any time subsequent thereto, on an application made to it, by either of the spouse pay to the applicant for her/his maintenance, either gross sum or monthly or periodical sums for not exceeding the life of the applicant, having regard to the income and the other property, etc.

Bench clarified that the term used “at any time subsequent thereto” cannot be made redundant, by giving constricted meaning to the words “wife or husband”.

Sub-sections (2) and (3) of Section 25 are indicative of the fact that if at the time of decree, an application is made or at any subsequent time of the passing of the decree, an application is made, claiming maintenance by either of the spouse, the Court is empowered to grant the claim, which is just and proper and the payment can be secured if necessary, by creating charge on the immovable property of the respondent.

Further, the Bench added that Section 25 is not only restricted to a decree of divorce, but the decree can also be for restitution of conjugal rights under Section 9, the decree can also be for judicial separation under Section 10, or the decree can also be for divorce under Section 13 or the decree can also be for a divorce by mutual consent under Section 13B.

Additionally, the Court expressed that,

Scope of Section 25 of the Act of 1955 cannot be constricted by not making it applicable to a decree of divorce being passed between the husband and wife.

Lastly, the High Court remarked that,

“Since Section 25 has to be looked upon as a provision for destitute wife/husband the provisions will have to be construed widely so as to salvage the remedial intailments.”

“…the application for interim maintenance filed under Section 24 of the Act of 1955, has been rightly entertained by the learned Judge and the husband has been held entitled to interim maintenance while the proceedings under Section 25 are pending.”

In view of the above impugned order were upheld and the petitions were dismissed. [Bhagyashri v. Jagdish, 2022 SCC OnLine Bom 694, decided on 26-2-2022]


Advocates before the Court:

Mr S.S. Thombre for the petitioner.

Mr Rajesh Mewana for respondent 1.

Case BriefsHigh Courts

A man is a man; an act is an act; rape is a rape, be it performed by a man the “husband” on the woman “wife”

Karnataka High Court: M Nagaprasanna J. dismissed and disposed of WP Nos. 48367 of 2018, 12976 of 2017, 10001 of 2018 and partly allowed 50089 of 2018.

Factual Background

The facts of the case, as according to the narration of the victim, clearly indicates as to how brutally the petitioner used to have sex, anal sex with the complainant/wife in the presence of his daughter who was 9 years old at that point in time and later used to touch the private parts of the daughter and also indulged in sexual acts against the daughter. The complaint was filed by the victim wife and the charge sheet was filed by the Police for offences punishable under Sections 498A, 376, 354, 506 of the Penal Code, 1860 i.e. IPC and Section 5(m) and (l) of the Act. The petitioner, on filing of the final report, filed an application under Section 216 of the Criminal Procedure Code i.e. Cr.P.C seeking a prayer to drop the first charge framed under Section 376 of the IPC, as the offence would not get attracted in the case of the petitioner who is the husband of the complainant which was rejected by the Sessions Court in terms of its order dated 16-10-2018. Thus the petitioner knocked the doors of the instant Court in the subject petition in the garb of calling in question the Constitutional validity of clauses of presumption under Sections 29 and 30 of POCSO Act.

Issues:

(i) Whether cognizance being taken against the petitioner-husband for offence punishable under Section 376 of IPC is tenable in law?

(ii) Whether the allegation against the petitioner for other offences is tenable in law?

(iii) Whether the prosecution notwithstanding the presumption under Sections 29 and 30 of the Act has to prove the foundational facts beyond all reasonable doubt?

(iv) Whether the designated Court to try the offences under the Act has jurisdiction to try both the offences under the IPC and the Act in the facts of this case?

(v) Whether charge sheet against the petitioner should be altered to include addition of the offence punishable under Section 377 of IPC?

(vi) Whether proceedings under the POCSO Act against the petitioner need to be interfered with?

Issue 1

History of Section 375 Penal Code, 1860

The genesis of Section 375 of the IPC and its exception has its roots in the Code propounded by Macaulay in 1837. It is Macaulay’s Code that becomes the basis for the Indian Penal Code of 1860, which governs the penal provisions even as on date with certain changes on certain occasions. Exception to Section 375 has existed in the IPC since the time of its enactment by the British in the year 1860. Exception-2 then was guided by the laws that were existent in all the countries where the British had their foot on. They were several decades ago. It was founded and remained on the premise of a contract in the medieval law that husbands wielded their power over their wives. In the Victorian era women were denied the exercise of basic rights and liberties and had little autonomy over their choice. Their statuses were nothing beyond than that of materialistic choices and were treated as chattels.

Post Republic, India is governed by the Constitution. The Constitution treats woman equal to man and considers marriage as an association of equals. The Constitution does not in any sense depict the woman to be subordinate to a man. The Constitution guarantees fundamental rights under Articles 14, 15, 19 and 21 which are right to live with dignity, personal liberty, bodily integrity, sexual autonomy, right to reproductive choices, right to privacy, right to freedom of speech and expression. Under the Constitution, the rights are equal; protection is also equal.

Justice JS Verma Committee: Recommendations

79. We, therefore, recommend that:

i. The exception for marital rape be removed.

ii. The law ought to specify that:

a. A marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation;

b. The relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity;

c. The fact that the accused and victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape.

80.We must, at this stage, rely upon Prof. Sandra Freedman of the University of Oxford, who has submitted to the Committee that that “training and awareness programmes should be provided to ensure that all levels of the criminal justice system and ordinary people are aware that marriage should not be regarded as extinguishing the legal or sexual autonomy of the wife”.

Section 375 of the IPC came to be amended with effect from 10-05-2013 after introduction of Criminal Law Amendment Bill before the Parliament, pursuant to the constitution of J.S.Verma Committee for suggesting amendments to criminal law.

The Exception to pre-amendment reads as follows:

“Exception.—Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

The Exception to post-amendment reads as follows:

Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

 The Court thus remarked, “a woman being a woman is given certain status; a woman being a wife is given a different status. Likewise, a man being a man is punished for his acts; a man being a husband is exempted for his acts. It is this inequality that destroys the soul of the Constitution which is Right to Equality. The Constitution recognizes and grants such equal status to woman as well.”

The Court observed that the Code practices discrimination. Under the Code every other man indulging in offences against woman is punished for those offences. But, when it comes to Section 375 of IPC the exception springs. Thus, the expression is not progressive but regressive, wherein a woman is treated as a subordinate to the husband, which concept abhors equality.

Therefore, the situation now emerges is equality pervades through the Constitution, but inequality exists in the Code qua – Exception-2 to Section 375 of the IPC.

The Court held “I find no error committed by the learned Sessions Judge in taking cognizance, framing the charge under Section 376 of the IPC and also rejecting the application to drop the said charge.”

Issue 2

The Court held “Other offences alleged against the petitioner, the ones punishable under Sections 498A, 354, 506 of the IPC are clearly brought out in the complaint and in the charge sheet. This is again a matter of trial” 

Issue 3

The Court relied on GS Venkatesh v. State of Karnataka, (2020) 3 KCR 2276 wherein it was observed “In a case where an offence is committed against a child, having regard to the very nature of the offence where it is difficult for the prosecution to prove the facts and circumstances in which the offence had taken place, the Act has cast the burden on the accused to prove the facts within his knowledge as it is easier for the innocent accused to produce evidence contrary to the case proved by the prosecution. This is called reverse burden whereby the burden is shifted to the accused to disprove the facts established by the prosecution. The question of discharging the reverse burden by the accused would arise only when the initial burden cast on the prosecution is discharged to the satisfaction of the Court. Therefore it follows that without the proof of basic facts constituting the offence charged against the accused, the accused cannot be called upon to disprove the case of the prosecution.”

The Court thus held the prosecution has to prove the foundational facts beyond all reasonable doubt and cannot rest its case on preponderance of probability, merely because the statute imposes reverse burden upon the accused on proving innocence in place of the prosecution proving the guilt.

Issue 4

The Court relied on judgment Vivek Gupta v. CBI, (2003) 8 SCC 628 and held “I am of the considered view that the trial that is now sought to be held before the POSCO Court by the Sessions Judge can also try the offences alleged under the Code. Therefore, the point that has arisen for consideration is answered against the petitioner.” 

Issue 5

The Court observed and held that the finding that when the allegations made against the husband attracts Section 376 of the IPC and a charge is also framed in respect of the said offences, question of considering the request to frame a charge under Section 377 of the IPC does not arise, is erroneous. The allegations clearly make out an offence punishable under Section 377 of the Code which deals with unnatural sex. Therefore, the order under challenge is to be set aside allowing the application filed by the prosecution under Section 216 of the Cr.P.C. with a direction to the trial Court to frame the charge for the offence punishable under Section 377 of the IPC as well.

Issue 6

The Court held Allegations against the petitioner-husband for offences punishable under the POCSO Act for alleged sexual acts on the daughter cannot be interfered with. It is yet again a matter of trial.”

[Hrishikesh Sahoo v. State of Karnataka, 2022 SCC OnLine Kar 371, decided on 23-03-2022]


Appearances:

For petitioner: Mr. Hashmath Pasha and Mr. Ranjan Kumar

For respondent: Mrs. Namitha Mahesh., R D Renukaradhya, Mr. Madanan Pillai, and A D Ramananda


Arunima Bose, Editorial Assistant ahs reported this brief.

Case BriefsHigh Courts

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

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

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

Background


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

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

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

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

Analysis and Decision


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

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

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

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

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

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


Advocates before the Court:

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

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

Case BriefsHigh Courts

Rajasthan High Court: Dinesh Mehta, J.,  dismissed the petition.

The facts of the case are such that the petitioner and the respondent, who got married on 17-02-1976, have been living separately since 1986. The instant petition was filed under Section 482 Criminal Procedure Code i.e. CrPC challenging order dated 06-01-2022, whereby the Gram Nyayalay, Aspur, District Dungarpur partly allowed the application for interim maintenance filed by the respondent (wife) and directed the petitioner to pay a sum of Rs 5,000/- per month as interim maintenance.

Counsel for the petitioner submitted that the present petition under Section 125 of CrPC that has been filed in the year 2021, is clearly an abuse of the process of law. It was further submitted that the Court has treated petitioner’s income to be Rs 1,00,000/- whereas his return of income tax shows that his income is approximately Rs 40,000/- per month.

The Court observed that an order under Section 125 of CrPC is in the nature of interim maintenance and husband, who admittedly earns Rs 40, 000/- per month cannot be absolved of his obligation to pay interim maintenance, merely because the respondent – wife has chosen to file the application after 36 years of marriage.

The Court held “This Court does not find any reason to interfere in the present petition, particularly when the petitioner has failed to point out any jurisdictional error or apparent error on the face of record and when a meagre sum of Rs.5,000/- has been ordered to be paid.”

[Chandrakant Jain v. Veermati Jain, S.B. Criminal Misc(Pet.) No. 986/2022, decided on 11-03-2022]


Appearances:

For Petitioner(s): Mr. Mohit Singhvi

For Respondent(s): Mr. Mahipal Bishnoi


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsDistrict Court

Saket Courts, New Delhi: Sonu Agnihotri, Additional Sessions Judge – 03, addressed a matter, wherein a wife using improper means procured the information of bank accounts of father-in-law and mother-in-law but it was noted that her intention was not dishonest.

A criminal revision under Section 397/399 of the Code of Criminal Procedure was preferred by the accused against the impugned order passed by the Metropolitan Magistrate whereby the order of framing of charge under Section 72A of the IT Act and Section 409 of Penal Code, 1860 was passed against the accused.

Complainants were the father-in-law and mother-in-law of the petitioner and due to issues between their son and daughter-in-law, the son left the company of his wife and started living at his matrimonial home.

Petitioner had filed a complaint under Section 12 of the PWDV Act against the son of the complainant wherein she sought maintenance from her husband.

It was stated that 12 Court proceedings have been pending between the petitioner and son of the complainants with regard to matrimonial disputes.

Vide the impugned order, the charge had been ordered to be framed against the petitioner under Section 72A of the IT Act and Section 409 of Penal Code, 1860

Analysis, Law and Decision

Section 72 A of the Information Technology Act provides as:

Punishment for disclosure of information in breach of lawful contract. -Save as otherwise provided in this Act or any other law for the time being in force, any person including an intermediary who, while providing services under the terms of lawful contract, has secured access to any material containing personal information about another person, with the intent to cause or knowing that he is likely to cause wrongful loss or wrongful gain discloses, without the consent of the person concerned, or in breach of a lawful contract, such material to any other person, shall be punished with imprisonment for a term which may extend to three years, or with fine which may extend to five lakh rupees, or with both.

Section 409 IPC:

Criminal breach of trust by public servant, or by banker, merchant or agent.—Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 

Further, Section 405 IPC defines Criminal Breach of Trust.

Whether Section 72 of the IT Act will be attracted in the present case?

Petitioner was the daughter-in-law of the complainants who was working with ICICI Bank and as per the case of prosecution, petitioner while misusing her position accessed bank accounts and FDR details of complainants with ICICI Bank and used the said details in an application filed before MM in a complaint filed by her under provisions of Domestic Violence Act.

Complainants further alleged that the petitioner in connivance with ICICI Bank jeopardized the safety and security of property and person of the complainants who were senior citizens.

Though the allegations were against both the petitioner and ICICI Bank, surprisingly, the charge-sheet was silent about any investigation made qua role of higher officials of ICICI Bank.

In Court’s opinion, without proceeding against ICICI Bank was obligated to maintain secrecy regarding the financial information of the complainants, the petitioner could not have solely proceeded.

It was noted that the petitioner used her ID to access the financial information of the complainants.

High Court expressed that,

Manner of bringing the information before Court of law may not be morally right but it cannot be said by this act of petitioner that, petitioner caused or intended to cause any wrongful loss to petitioners or to cause wrongful gain to herself as merely by disclosing this information, no pecuniary benefit is stated to have been received by petitioner and if any maintenance or any other amount is granted by Court of law, that cannot be termed to be wrongful gain to petitioner.

 In view of the above observation, the petitioner’s act did not fall within the definition of wrongful gain or wrongful loss as defined under Section 23 of the Penal Code, 1860.

The second limb of ingredients of an offence under Section 72 A of the IT Act was that the petitioner was in breach of lawful contract divulged financial information of complainants to any other person.

Bench stated that, breach of lawful contract if any was made by ICICI Bank and not by the petitioner directly. So, the act of the petitioner does not satisfy the ingredients of the offence under Section 72A of the IT Act.

With respect to framing of charge under Section 409 IPC is concerned, the commission of a criminal breach of trust by the banker is a must.

As per Section 405 IPC, it requires entrustment of property or with any dominion over property coupled with dishonest misappropriation or conversion to one’s use that property or disposal of the property in violation of the direction of law prescribing the mode in which such trust is to be discharged or of any legal contract, expressed or implied which the person has made touching discharge of such trust or willfully suffers any other person so to do.

In the instant case, the petitioner was not directly entrusted with property which was bank accounts and FDR information pertaining to complainants. Hence no dishonest misappropriation or conversion to petitioner’s use of the information pertaining to complainants bank accounts by use of same in judicial proceedings, as by bringing the said information before the Court she wanted to bring before the conduct of complainants’ son

There can not be said to be any dishonest use or disposal of information pertaining to bank accounts of complainants and their FDRs.

Therefore, in view of the above discussion, it was noted that the trial court failed to meet the parameters of the law and required the impugned order to be set aside. [Chavi Anurag Goyal v. State, Criminal Revision No. 19 of 2021, decided on 24-2-2022]

Case BriefsHigh Courts

Chhattisgarh High Court: The Division Bench of Goutam Bhaduri and Rajani Dubey, JJ., expressed that,

“If the husband keeps another lady; gives shelter to her; and proceeds to have child with the said lady and for that reason if the first wife has to leave the matrimonial home because of physical and mental torture meted out to her it cannot be presumed as a desertion on the part of wife.”

Husband was rejected decree of divorce on the ground of desertion by the Family Court’s order, but the said decision has been challenged.

Factual Matrix

Husband/Appellant was married to respondent/wife prior to 26 years from the filing of the suit. He submitted that for the last 25 years the wife had been living in the village and had deserted him without any lawful cause, in view of which he was entitled to get a divorce decree.

Whereas, the wife pleaded that she was subjected to physical and mental torture, she also added that the husband kept one lady as his wife and asked the wife to go away and stay at her parental village.

Analysis

It was noted that the appellant came to know on 10-1-2014 that the respondent’s name i.e. his wife is recorded in the service book though she left him 25 years back and was residing at a different place.

Wife submitted that the husband had kept one concubine, which led to the family dispute and forced the respondent to stay at her parental village along with her three children, she maintained the stand that she had not deserted the husband and because of the fact that she was mentally and physically tortured she was forced to stay separately.

Another pleading was that in proceedings under Section 125 CrPC an amount of Rs 500 was granted towards her maintenance.

The Bench remarked, when the marriage was solemnized 26-27 years back and three children were born thereafter, how it can be presumed that the wife deserted the husband for 25 years i.e. immediately after marriage.

Husband also admitted the fact that he kept Urmila as second wife and out of that relationship he was blessed with two children.

Therefore, it was clear that during the subsistence of the first marriage, husband kept another lady as his wife and as per the provisions of the Hindu Marriage Act, 1955 keeping another lady during subsistence of first marriage is illegal, however, Court denied to deliberate on the said issue.

Decision

High Court held that the wife was subjected to mental and physical cruelty and was forced to leave her matrimonial home as the husband had kept one concubine, hence the said was a reasonable cause for the wife to stay at the village of her parents though she was not intending to do so and hence the same cannot be stated that the desertion was made by the wife.

In Court’s opinion, no ground for desertion was made out by the husband, therefore the lower Court’s decision warranted no interference. [Uttamram v. Kayaso Bai, 2022 SCC OnLine Chh 255, decided on 7-2-2022]


Advocates before the Court:

For Appellant Mr. Parag Kotecha, Advocate

For Respondent Mr. Sachin Singh Rajput, Advocate

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: Stating that, in the moment of anger spouses almost forgot about the two children who were hardly three years old at the time of incident, the Division Bench of Sadhana S. Jadhav and Prithiviraj K. Chavan, JJ., found that the case of a husband killing wife with a knife was a case of culpable homicide not amounting to murder.

Court also remarked that,

“The mother died, and the father was thrown to the gallows by his own act.”

In the present matter, appellant was convicted under Section 302 of the Penal Code, 1860 and sentenced to life imprisonment and a fine of Rs 1,000 by the lower Court. On being aggrieved with the same, present appeal was filed.

Background

Pravin Khimji Chavan had visited Police Station with blood-stained clothes on his person and informed PW2 that he suspected the character of his wife and on that count due to quarrel he killed his wife by assaulting her with a knife.

The informant led the police to his house and upon entering the house they saw the dead body of his wife in a pool of blood with injuries all over the body.

It was submitted that the accused has seen a stranger leaving his house hurriedly on 23-4-2011 and on inquiring about the same, his wife lost temper and started abusing him. Later she started creating ruckus and brought a knife while directing it towards his husband. Handing over the knife to husband, she started challenging him to show as to whether he had the courage to assault her and that was the juncture when the husband lost his mental balance resulting into mounting assault with the knife.

After the above episode, he went to the police station and informed them of the said incident.

Analysis, Law and Decision

High Court noted that the present matter was a case of custodial death.

Open and Shut Case

The Bench found that at the time of the incident, the accused, as well as the deceased, had consumed alcohol. It was true that the Police had not investigated the statement of accused, as if to say that it was an open and shut case.

In the accused’s view, he maintained his cool for quite sometime, however, he lost it when she brought the knife from the kitchen and provoked him to hurt her if he could.

The Court stated that “Probably the chauvinism in him had risen.”

Further, the deceased wife expressed disgust and abhorrence at his very manliness and had forgotten for a moment that he was the father of their two daughters.

The Bench stated that it is rightly said that,

“If you are patient in one moment of anger, you will escape hundred days of sorrow.”

High Court remarked that, 

“The statement of the accused recorded by the police would show that he was left with a feeling of mortification. According to him, he was left with a wounded pride, which resulted in the brutal death of his wife.”

Elaborating further, the Court expressed that in a very alternative case wherein murder of the wife at the hands of the husband was the subject, it was in a moment of the grave and sudden provocation by the wife resulting in husband violently attacking the wife.

“There is physical violence, there is sexual violence, however, this sort of physical violence is less seen amongst women even in a moment of anger and in all probabilities, it is the mother in a woman which supersedes her element of physical violence.”

In view of the facts and circumstances of the case, High Court expressed that the Indian Penal Code would define the above act not as murder but as culpable homicide not amounting to murder, as the offence was committed in a heat of passion, but the accused had acted in a cruel and unusual manner.

Therefore, appeal was partly allowed and the conviction of the appellant for the offence punishable under Section 302 IPC was quashed and set aside and the appellant was convicted for the offence punishable under Section 304(I) of the IPC with imprisonment for 10 years. [Pravin Khimji Chauhan v. State of Maharashtra, 2022 SCC OnLine Bom 309, decided on 15-2-2022]


Advocates before the Court:

Ms. Farhana Shah, Advocate for the Appellant.

Mr. Arfan Sait, APP for the Respondent – State.