Case BriefsHigh Courts

Bombay High Court: Nitin W. Sambre, J., while addressing a petition with regard to grant of maintenance held that under Section 19 of the Hindu Adoption and Maintenance Act, 1956 wife has every right to claim the maintenance after the death of the husband from the estate inherited by her father-in-law.

Facts

Late Bhupinder was married to respondent 1. Respondent 2 was born out of the said marriage.

Mother of Respondent 1 died in the year 2016 and her father died in 2017. She submitted that she has no independent source of earning and she and her son are completely dependent on the earnings of the petitioner.

In view of the above, respondent 1 preferred the proceedings under Section 19 and 22 of the Hindu Adoption and Maintenance Act, 1956 for grant of maintenance of Rs 1,50,000 per month to petitioner 1 and Rs 50,000 to petitioner 2.

Family Court had allowed granted maintenance of Rs 40,000 per month to respondent 1, whereas Rs 30,000 per month to respondent 2.

Hence the present petition was filed.

Analysis and Decision

Section 19 of the Hindu Adoption and Maintenance Act, 1956 contemplates that the wife has every right to claim the maintenance after the death of the husband from the estate inherited by her father-in-law, ie. the present petitioner.

Proviso to Sub-Section (1) of Section 19 contemplates that the respondent has to demonstrate that she on her own is unable to maintain herself.

Thus, it is in the above-stated eventuality that she can claim maintenance from the estate of her husband, still, fact remains that the said burden can be discharged by respondent1 at an appropriate stage.

Further, the court stated that the maintenance awarded to the respondent 1 to the tune of Rs 40,000 and to respondent  2, grandson of Rs 30,000 appears to be justified, considering the income drawn by the petitioner.

High Court stated that it cannot see any material illegalities to infer that the impugned order runs contrary to the scheme of Section 19 of the Act. Hence no case for interference will be made out in the present petition. [Sardool Singh Sucha Singh Mathroo v. Harneet Kaur, WP (ST) No. 4054 of 2020, decided on 07-09-2020]

Case BriefsHigh Courts

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

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

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


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Case BriefsHigh Courts

Allahabad High Court: Dr Kaushal Jayendra Thaker, J., decided upon the prayer of protection being sought by a boy and girl living together on their own free will as husband and wife with threats and harassment.

The present matter is in regard to seek a direction upon the respondents to not interfere in the petitioner’s married life and the protection of their lives has also been sought.

Serious Danger to Life

Petitioners claimed that they are adults and living together on their own free will, though they are being threatened and harassed by the private respondent and his other family members.

Family Honour

Further, the petitioners added that they are living as husband and wife and have apprehension that private respondent can eliminate them for the honour of his family.

They seek protection as their lives may be endangered.

Decision

Bench stated that the present petition is to be disposed of in terms of the Rules of the Court.

Court referred to the decisions of the Supreme Court in Gian Devi v. Superintendent, Nari Niketan, Delhi, (1976) 3 SCC 234; Lata Singh v. State of U.P., (2006) 5 SCC 475; and Bhagwan Dass v. State (NCT of Delhi), (2011) 6 SCC 396 and observed that the law has been settled by the Supreme Court that,

“…where a boy and a girl are major and they are living with their free will, then, nobody including their parents, has authority to interfere with their living together.”

Therefore, petitioners are at liberty to live together and no person shall be permitted to interfere in their peaceful living.

Petitioners shall approach the police authority concerned in case of any disturbance of their peaceful living.

In view of the above, the petition was disposed of. [Priyanka v. State of U.P., Writ-C No. 13345 of 2020, decided on 03-09-2020]

Case BriefsHigh Courts

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

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

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

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


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Case BriefsHigh Courts

Bombay High Court: A Division Bench of Ujjal Bhuyan and Milind N. Jadhav, JJ., while addressing an issue with regard to the appointment of a guardian for a person who is lying in the state of coma, held that,

“…the wife can be said to be best suited to be the guardian of her husband who is under a state of incapacity or disability on account of being in a comatose condition or vegetative state.”

State of Comatose

Petitioner’s husband is in a state of comatose with no signs or prospects of revival. Petitioner has two sons one of whom is a minor and a dependent mother-in-law to look after.

With the mounting medical bill and other household expenses, petitioner in a state of helplessness has approached this Court invoking its writ jurisdiction for relief.

Petitioners Counsel is Kenny Thakkar, for respondent 1 the counsel is A.D. Yadav, S.S. Panchpor, Assistant Government Pleader for respondent 2.

Since the petitioner’s husband is in a comatose condition he is unable to use his intellect, converse and sign various documents. Accordingly, the petitioner is required to act as his guardian so as to safeguard the business and other interests of the husband and also to look after her family.

Banks

Banks refused the petitioner to put her signature in place of her husband, rather the petitioner was advised to approach the competent court to get herself appointed as the guardian.

Next Friend/Guardian

Petitioner’s counsel submitted that by virtue of being the wife, the petitioner is in the best position to act as his husband who is in a comatose state for the last two years with no signs of revival as his guardian.

On a query by the Court on what basis she was invoking writ jurisdiction of the Court, petitioners counsel submits that there is no statutory provision relating to the appointment of a guardian of a person who is in a state of coma or lying in a vegetative state. Therefore, a writ court exercising jurisdiction under Article 226 of the Constitution of India would be in the best position to grant relief to the petitioner.

Analysis and Decision

Bench cited the Supreme Court decision in Aruna Ramchandra Shanbaug v. Union of India, (2011) 4 SCC 454 and stated that patients in a coma have a complete failure or the arousal system with no spontaneous eye-opening and are unable to be awakened by application of vigorous sensory stimulation.

When a person is in coma or in a comatose condition or in a vegetative state, it cannot be construed that such a person is physically challenged person or a mentally challenged person as is understood under the relevant statutes. Nor such a person can be construed to be a minor for the purpose of appointment of a guardian.

 Relevant statutes relating to the appointment of a guardian, such as the following would not be applicable to persons lying in a comatose condition or in a vegetative state:
  • The Guardian and Wards Act, 1980;
  • Mental Health Act, 1987 (repealed);
  • The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999;
  • Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (repealed);
  • Mental Health Care Act, 2017; and
  • Rights of Persons with Disabilities Act, 2016

“…at present, there is no legislation in India relating to the appointment of guardians to patients lying in comatose or vegetative state.”

Court observed that conceptually the wife can be said to be best suited to be the guardian of her husband who is under a state of incapacity or disability on account of being in a comatose condition or vegetative state.

In regard to the present matter bench stated that in today’s world a stray case of foul play cannot be ruled out, it will be wrong on the Court’s part to take such a jaundiced view of any claim made by a wife to the guardianship of her husband who is lying in a vegetative state.

Further reverting back to the Supreme Court decision in Aruna Ramchandra Shanbaug v. Union of India, (2011) 4 SCC 454, Court had observed that the idea behind the doctrine of “parens patriae” is that if a citizen is in need of someone who can act as a parent, who can make decisions and take some other action, sometimes the State is best qualified to take on this role.

“When the High Court exercises jurisdiction under Article 226 of the Constitution of India, it does so to further the cause of justice. To provide justice or discharge ex debito justiciae is the raison d’ etre of the courts. The Latin expression ex debito justitiae literally means a debt of justice; on account of justice; a claim, the refusal of which would involve an injustice, and therefore, one which justice owes it to the claimant to recognize and allow.”

Hence, Court in view of the facts and circumstances of the cases held that it will be reasonable to grant relief to the petitioner. However, it is also essential that there should be some kind of monitoring of the functioning of the petitioner as guardian albeit for a limited duration to ensure that guardianship is being used for the benefit of the person who is in a vegetative state.

Therefore, Member Secretary of Maharashtra State Legal Services Authority either through officials of the said authority or through a legal aid counsel or through a paralegal volunteer shall monitor the functioning of the petitioner as guardian.

In view of the above, petition was disposed of. [Rajni Hariom Sharma v. Union of India, 2020 SCC OnLine Bom 880, decided on 27-08-2020]

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Sahidulla Munshi and Subhasis Dasgupta, JJ., upheld the conviction of accused-husband under Section 498-A IPC for the offence of cruelty to woman and under Section 302 for the murder of his wife. At the same time, the Court acquitted the accused-mother-in-law of the charge under Section 302 for murder while maintaining her conviction under Section 498-A IPC.

Present appeal was filed against the judgment and order of conviction and sentence passed by Additional Sessions Judge wherein accused/ appellants were convicted under Sections 498 A, 302, 34 of Penal Code, 1860.

Factual Scenario

Deceased in the present matter being the second daughter of the de-facto complainant/father was put to suffer death in her in-laws’s house by hanging.

After visiting to her in-law’s house, deceased victim was put to suffer cruelty, oppression and ill-treatment by her in-law’s members, including her accused husband for her black complexion.

Deceased was frequently abused and threatened by her in-laws .

The in-law’s members while causing ill-treatment upon victim made her understand just three days after her marriage for staying in a cow shed, expressing their dissatisfaction on the ground of her black complexion.

Deceased victim reported everything to her parents about the torture and cruelty, she received in her in-law’s house, when she visited her paternal house on several occasions.

Deceased’s father after persuading her to withstand such torture inflicted upon her, for her future benefit upon realisation of weak financial condition of her father.

Later, de-facto complainant/father of the deceased was informed by his on in law that the victim daughter had been put to suffer death by hanging.

Decision & Analysis

Court observed that the cause of inflicting torture was the black complexion of deceased victim which lead the in-law’s members of the victim including her accused husband to cause physical cruelty upon her.

Victim received threat from in-law’s members for her husband’s second marriage after driving her out from matrimonial home. So long victim remained alive and visited her paternal house, she expressed her extent of torture and cruelty inflicted upon her by her in- law’s members, and all the times the de-facto complainant persuaded his daughter to return to her in-law’s house for her future prospect, keeping in view the poor condition of de-facto complainant/father.

On observing the above, Court stated that causing cruelty to deceased victim for her black complexion even after her marriage by the in-law’s members would definitely attract Section 498 A/ 34 IPC against the in law’s members including husband.

Whether the victim suffered homicidal or suicidal death?

Autopsy Surgeon stated categorically in his evidence that if any person is pressed by telephone chord on his throat, then there could be ligature mark, as he found in the instant case, which might have caused the death of deceased victim.

Thus, noticing such continuous ligature mark Autopsy Surgeon opined in absence of poison in the viscera of deceased that it was a case of homicidal death, and ante-mortem in nature.

Whether non-production of weapon in a murder trial will lead to rejection of testimony of autopsy surgeon or not?

Court on noting the facts and circumstances along with the evidence stated that it is an established fact that there was an unnatural death of deceased in the in-laws’s house of the deceased victim after 7 months of her marriage.

Sufficient evidence was placed to show that the victim received oppression, ill- treatment, torture, cruelty in her in-law’s house by her in-law’s members for her black complexion.

Accused husband having failed to offer any explanation for the injuries caused to his wife, the failure would lead to the conclusion that the death of the deceased had occurred in the custody of accused husband as they both shared the same room after marriage.

Non-production of offending weapon in the absence of any explanation may be an error or latches on the part of prosecuting agency, but such error or omission would not itself discard the testimony of Autopsy Surgeon.

Hence, facts and circumstances would thus unerringly point to the guilt of accused husband/appellant for causing homicidal death to deceased/wife by strangulation for his non-satisfaction over the black complexion of his wife, which led to give birth his motive to cause death of his wife.

Commission of cruelty upon the deceased though proved against the mother-in-law under Section 498A read with Section 34IPC, but she should not have been held convicted for causing homicidal death of deceased victim under the behest of Section 302/34 IPC. on the simple ground that death of the victim was held in her matrimonial home.

Bench modified the conviction and sentence of accused mother-in-law under Section 498 A/34 IPC and deserves to be favoured with an order of acquittal for offence under Section 302/34 IPC.

Thus, the appeal was dismissed and accused mother-in-law be set free from correctional authority forthwith upon completion of sentence awarded against her under Section 498A/34 IPC.[Mazidul Miah v. State of W.B., 2020 SCC OnLine Cal 1077 , decided on 25-06-2020]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J. dismissed a criminal revision petition filed against the order of the trial court whereby charge under Section 498-A (husband or relative of husband of a woman subjecting her to cruelty) IPC was framed against the petitioner.

Petitioner was married to the deceased who committed suicide on the very next day of their first marriage anniversary. FIR under Sections 306 (abetment of suicide) and 498-A was registered against the petitioner at the behest of the mother of the deceased. An alleged suicide note was found which was verified to be written in the handwriting of the deceased. The trial court discharged the petitioner of the offence under Section 306 holding that the said suicide note exonerated him as it states that the deceased was taking the steps voluntarily. However, it was found that the allegations levelled by the mother and brothers of the deceased that the petitioner maltreated the deceased and committed physical and mental cruelty were specific and therefore framed a charge under Section 498-A against him.

Senior Advocate Harish Salve contended that as the trial court found insufficient material to proceed under Section 306, on the same analogy, there was insufficient material to even frame a charge under Section 498-A.

Relying on the Supreme Court decisions in Girdhar Shankar Tawade v. State of Maharashtra, (2002) 5 SCC 177 and Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618, the High Court reiterated that charges under Sections 306 and 498-A IPC are independent of each other and acquittal of one does not lead to acquittal of the other. It was observed: “Though, there may be an overlap with regard to cruelty being meted out to the deceased in both the Sections, however, the degree of cruelty to constitute abetment under Section 306 IPC would be of higher than the degree of harassment and cruelty to constitute an offence under Section 498-A IPC. It cannot be held that because petitioner has been discharged of an offence under Section 306 IPC, it would automatically lead to a discharge of the offence under Section 498-A IPC.”

In the present case, it was found that there was sufficient material on record to give rise to grave suspicion against the petitioner for framing a charge under Section 498- IPC. Thus, finding no infirmity in the impugned order, the petition was accordingly dismissed.[Kaushal Kishore v. State (NCT of Delhi), 2019 SCC OnLine Del 8713, decided on 28-05-2019]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Sudhanshu Dhulia and R.C. Khube, JJ. entertained an appeal filed against the impugned judgment and order passed by Family Court, which rejected the petition under Section 13 of Hindu Marriage Act, 1955 filed by the appellant.

Facts which gave rise to appeal were that marriage was solemnized in 2010 as per the Hindu rites and rituals. The appellant and respondent were living together after the marriage in appellant’s parental house along with appellant’s mother and child. The appellant contended that soon after, the respondent started to intimidate him for selling the house and shift to Delhi and live separately. It is also alleged by the appellant that the respondent stared to threaten him to commit suicide if her demands were not fulfilled. The appellant-accused respondent of attempting to commit suicide and assaulting his mother because of her unfulfilled demands. The appellant tried to convince the respondent but she refused to fulfill her marital duties, and in 2012, in the absence of the appellant, she left her matrimonial home. After which the appellant filed an application under Section 9, during the hearing the respondent appeared before the Court and made a statement regarding going back to her husband. It was also contended by the appellant, that parties stayed together for some time at Haridwar as per the compromised reached between the parties but even then, the respondent refused to consummate marital relations. And since two years both were living separately.

The learned counsel for the appellant Tapan Singh, submitted that despite of the order of Court the respondent was not fulfilling the marital duties. She treated appellant’s mother with utmost disrespect which amounted to cruelty. He also submitted that the behaviour of the alleged respondent towards appellant is humiliating and disrespectful before other relatives, which also caused mental stress to the respondent. Under the drastic circumstance appellant filed for divorce under Section 13(1)(ia) and (ib) of HMA, 1955, as the respondent deserted him for a period of 2 years.

The learned counsel for the respondent Syed Jafri, submitted that an FIR was lodged against the appellant under Sections 406 and 498-A IPC. Further, a mutual divorce application was rejected by the Family Court since both the parties were unable to arrive at consent. The learned Family Court dismissed the divorce petition filed by the appellant as well the petition filed by the respondent under Section 26 of the Hindu Marriage Act.

The Court rejected the contentions of the appellant for relief under Section 13 (1)(ib) as the period of desertion was not proved beyond the statutory limit for divorce. But the ground of cruelty was considered by the Court and it relied upon the judgment of Delhi High Court in, Rajinder Bhardwaj v. Anita Sharma, AIR 1993 Delhi 135, where it was held that if the wife physically assaults the mother-in-law and abuses her, it will amount to cruelty. It also addressed the issue related to behavior of the respondent towards appellant which was alleged disrespectful, and held, “Disrespectful and disparaging remarks by the respondent wife against the appellant-husband would amount to cruelty under Section 13(1) (i-a) of the Act as laid down in Santana Banerjee v. Sachindra Nath Banerjee, 1989 SCC OnLine Cal 257’’.

The Court considered the facts and circumstances of the case and stated that living separately of the parties for a long time, public insult, an embarrassment to the appellant, agony, and humiliation suffered by the appellant, charging the appellant with false allegations amount to cruelty by the respondent towards her husband. The respondent wife is living separately for the last five years and presently staying at Delhi with a son born from the wedlock of the parties. Held, “relationship between the parties had deteriorated to the extent that there was no possibility of any reconciliation. Their relationship had reached to the point from where there appears no possibility of harmonious conjugal relationships or their being living together as husband and wife and discharging the matrimonial duties. This itself amounts to a cruelty, if allowed to continue.” The appeal was allowed and the marriage was dissolved.[Sheenu Mahendru v. Sangeeta, 2019 SCC OnLine Utt 376, decided on 23-05-2019]

Case BriefsHigh Courts

Bombay High Court: The Bench of M.G. Giratkar, J., partly allowed a criminal revision application by modifying the maintenance amount being provided to the wife in respect of the husband’s pension.

In accordance, the present case, the learned counsel of applicant/husband, P.K. Mishra, submitted that before retirement, the husband was getting the salary of Rs 1, 53,000 per month and after retirement, his pension was Rs 72,000 per month. Further, it was stated that the husband was not in a position to pay Rs 30,000 per month as maintenance to his wife, the reason being an exorbitant amount. He added that “As per Section 11 of the Pensions Act, 1871, the pension cannot be attached.”

Hence, the High Court on considering the facts and circumstances of the case stated that maintenance amount at Rs 30,000 per month granted by learned Magistrate appears to be exorbitant. Pending disposal of domestic violence proceedings before learned Magistrate, at this stage amount of Rs 20,000 per month towards interim maintenance appears to be proper. “Maintenance allowance granted to wife cannot be considered as debt – She is not a creditor hence exemption under Section 11 cannot be granted to husband.” Also, pensions can be attached to recover the amount of maintenance.  Therefore,

  • The criminal revision application is partly allowed.
  • Order of interim maintenance is maintained. However, the amount at Rs 30,000 per month is modified.
  • Instead of Rs 30,000 per month, the applicant shall pay Rs 20,000 per month towards interim maintenance to his wife during the pendency of D.V. Act proceedings.
  • The order of attachment of pension is hereby quashed and set aside subject to the applicant/husband clears all arrears of maintenance within a period of one month.

In view of the above, the criminal revision application stands disposed of. [Bhagwant v. Radhika, 2019 SCC OnLine Bom 607, Order dated 05-04-2019]

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Delhi High Court: A Bench of Jyoti Singh and G.S. Sistani, JJ. dismissed an appeal filed against the order of the family court rejecting the appellant-wife’s application for grant of maintenance pendente lite under Section 24 of the Hindu Marriage Act, 1951.

The parties married to each-other in June 2012 and had been living separately since September of that year. The wife was living in Gurgaon and the husband was in Singapore. The husband sought a decree of nullity of marriage under Section 12(1)(a) and (c), pending which the wife filed the application under Section 24 claiming pendente lite maintenance of Rs 2.50 lakhs per month along with litigation expenses. The same was rejected by the family court. Aggrieved thereby, the wife filed the present appeal.

The High Court noted that the wife was well educated and earning a monthly salary of around Rs 1.25 lakhs. On the other hand, the husband was also at a senior position in a reputed company in Singapore and was earning about Rs 13 lakhs per month. Noting all the facts and discussing the law on the subject, the Court was of the view that the impugned order does not need interference. Observing that the cost of living as per the standards of the country where the husband is employed is to be considered, the Court stated, “We cannot agree with the contention of the appellant that merely because the respondent is earning in ‘dollars’ she is entitled to the maintenance claimed by converting his salary in dollars into Indian rupees. We agree with the respondent that his expenditure being in dollars, the salary being in dollars is a fact which cannot be overemphasized.”

Being satisfied that wife’s earnings were sufficient to maintain herself, it was stated, “The provisions of this section (Section 24) are not meant to equalize the income of the wife with that of the husband but are only to see that when divorce or other matrimonial proceedings are filed, either of the party should not suffer because of paucity of source of income and the maintenance is then granted to tie over the litigation expenses and to provide a comfortable life to the spouse. Where, however, both the spouses are earning and have a good salary, merely because there is some salary difference cannot be a reason for seeing maintenance.”

In light of the above discussion, the wife’s appeal was dismissed as being devoid of merits.[KN v. RG, 2019 SCC OnLine Del 7704, dated 12-02-2019]

Case BriefsHigh Courts

Kerala High Court: The Division Bench of A.M. Shaffique and A.M.Babu, JJ. dismissed an appeal against the judgment of Family Court directing the husband to pay an amount of Rs 2,25,000 to his wife.

In the present case, the appellant and respondent were a married couple. The grievance of the respondent-wife was that at the time of her marriage she was given 25 sovereigns of gold ornaments which was appropriated by the appellant for his business purpose. But, appellant-husband denied the allegation of having appropriated any of her gold ornaments. The Family Court decreed return of respondent’s ornaments. Aggrieved thereby, the instant appeal was filed.

The appellant submitted that being from a poor family, respondent did not have the capacity to purchase any gold ornaments. Therefore his family had purchased the ornaments from a gold merchant. But the same was returned to merchant later since they did not have enough money to pay for it. However, later he vacillated from his statement and contended that the ornaments were imitation gold. Respondent argued that if the ornaments were imitation gold, then, in that case, the appellant’s contention that the ornaments were returned to the seller, itself was wrong.

The Court noted that though specific details regarding appropriation of gold ornaments had not been given by the respondent-wife; but she had specifically stated in her petition that her gold ornaments were taken and invested for appellant’s business purpose. It was opined that as far as a wife is concerned when her husband demands gold ornaments for his business it may not be possible for her to refuse. Therefore, there was every reason to believe the version of the respondent in view of contradictory contentions taken by appellant. In view thereof, no infirmity was found in the impugned order.[Muraleedharan Pillai v. Ambili Chellappan, 2019 SCC OnLine Ker 688, Order dated 22-02-2019]

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Bombay High Court at Goa: C.V. Bhadang, J., allowed a petition filed by the husband and quashed trial court’s order whereby it had partly allowed the wifes’ application filed under Section 20 of the Protection of Women from Domestic Violence Act, 2005.

The wife, along with her minor son, filed a domestic violence petition against the husband. By its order, the trial court partly granted the application in terms of Section 20 directing the husband to pay a monthly maintenance of Rs 5,000. Subsequently, the wife appealed to the additional sessions judge who partly allowed the appeal by enhancing the maintenance to Rs 7,000. Aggrieved, thereby the husband filed the revision petition.

Agha Iftikhar, Advocate for the husband submitted that there was no finding of any act of domestic violence being committed by the petitioner against the wife. It was further submitted that such a finding was a sine qua non for the trial court to grant any relief under the Act. On the other hand, A.D. Bhobe, Advocate appearing for the wife fairly did not dispute the above-said submission.

The High Court took note of the submissions made by the husband that he shall continue to pay Rs 5,000 per month for a limited period for the wife and minor son. Resultantly, the Court allowed the petition and quashed the impugned order. However, it was left open for the wife to take recourse to any other remedy as may be available under law. The husband was directed to pay a monthly sum of Rs 5,000 for a period of six months. [Vijayanand Dattaram Naik v. Vishranti Vijayanand Naik, 2019 SCC OnLine Bom 314, dated 13-02-2019]

Case BriefsHigh Courts

Delhi High Court: Sunil Gaur, J. allowed a petition filed by petitioner (wife) for striking off respondent’s (husband) defence in proceedings pending under the Protection of Women from Domestic Violence Act, 2005.

Earlier, the trial court vide its order dated 2-3-2017 had dismissed the wife’s application for striking off husband’s defence observing that non-payment of maintenance/arrears of maintenance cannot be a ground to do so. Aggrieved thereby, the wife preferred the present petition.

Jatin Sehgal, Adhirath Singh and Raymon Singh, Advocates appeared for the wife. On the other hand, the husband was represented by Laksh Khanna, Advocate who supported the trial court’s order.

The High Court noted that the respondent was in arrears of Rs 9,00,000 towards payment of maintenance to the wife. Furthermore, the Appellate Court vide its order dated 14-7-2017 evolved an equitable solution whereby husband’s employer was to deduct Rs 50,000 from his salary every month and pay that sum directly to the wife. Out of this, Rs 25,000 was to be the current monthly maintenance amount, and remaining Rs 25,000 were to be adjusted against the arrears. However, this order was not complied with by the husband.

In view of such facts and circumstances, the Court found that the husband’s failure to clear arrears of maintenance in terms of the Appellate Court’s order justified striking off his defence. Consequently, the wife’s application was allowed. [Swati Kaushik v. Ashwani Sharma, 2019 SCC OnLine Del 7133, dated 11-2-2019]

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Bombay High Court: The Bench of Mangesh S. Patil, J. dismissed a revision petition filed against the order of Additional Sessions Judge rejecting petitioner’s application under Section 319 CrPC for adding husband and in-laws of the deceased co-accused.

Petitioner was the father of the deceased– Sumitra. Sumitra was found murdered with a bullet injury on her head. An FIR was lodged and criminal law was set into motion. It was alleged that Sumitra came to know about the illicit relationship between her sister-in-law and brother-in-law Vilas as a consequence of which he murdered Sumitra. At the conclusion of the investigation, Vilas was chargesheeted in the crime. The petitioner was examined as the first witness. It was thereafter, that he submitted an application under Section 319 CrPC to array Sumitra’s husband and in-laws as co-accused. The application was rejected by the trial Judge. Aggrieved thereby, the petitioner was before the High Court.

K.H. Surve, Advocate for the husband and in-laws submitted that petitioner moved the application without any basis relying on whatever material was collected by the Investigating Officer.

The High Court stated, “power under Section 319 is to be invoked under special circumstances where during the course of trial some additional evidence comes on record which reveals involvement of some more persons in commission of the crime.” Referring to Hardeep Singh v. State of Punjab, (2014) 3 SCC 92, the Court observed that power under Section 319 can be exercised by trial court at any stage of the trial provided there is some “evidence” which is interpreted to mean material brought before the court during the trial. Material collected by IO during inquiry can be utilised to corroborate such evidence. In the present case, no such additional material or evidence came on record during the trial so as to reveal complicity of husband and in-laws in the crime. Resultantly, the petition was dismissed. [Vishwambhar v. State, 2019 SCC OnLine Bom 9, dated 03-01-2019]

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Patna High Court: A Division Bench comprising of Ravi Ranjan and Madhuresh Prasad, JJ. while hearing a criminal writ petition filed by husband seeking habeas corpus for his wife, ruled that the writ could not be issued if the wife did not want to go back to her matrimonial home.

In the instant case, the petitioner-husband filed a writ seeking habeas corpus for his wife who had left him. On the date of hearing, the petitioner’s wife entered an appearance before the court along with her parents and submitted that the petitioner had assaulted due to which she had left her matrimonial home. She further submitted that she did not wish to go back to her matrimonial house along with the petitioner.

The Court noted the submissions of petitioner’s wife and held that since petitioner’s wife had already been produced before the Court, a writ of habeas corpus could not be issued to the petitioner. On that holding, the writ petition was dismissed.[Virat Arya v. State of Bihar,2018 SCC OnLine Pat 1987, decided on 01-11-2018] 

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Delhi High Court: A Division Bench comprising of G.S. Sistani and Jyoti Singh, JJ. dismissed an appeal against the judgment of Family Court whereby it had decreed a divorce petition filed by the husband on grounds of cruelty by the wife.

The parties got married in 2006. A divorce petition was filed by the husband in 2009 alleging various instances of cruelty by the wife along with allegations that she was ill-tempered, stubborn, quarrelsome and insensitive towards the husband and his parents. On the basis of the evidence adduced by the parties, the Family Court granted a decree of divorce in favour of the husband on grounds of cruelty by the wife. Aggrieved thereby, the wife preferred the instant appeal.

While adjudicating, the High Court referred to a Supreme Court decision in Narendra v. K. Meena, (2016) 9 SCC 455. It was noted that the Family Court reached a conclusion that wife tied a dupatta around her neck and threatened him to commit suicide as the husband refused to seek separation from his parents. She also wrote a suicide note which was proved. In view of the Court, repeated attempts to commit suicide by the wife amounted to extreme cruelty especially when she tried to implicate the husband guilty of abatement. Finding no infirmity in the judgment passed by the Family Court, the High Court dismissed the appeal. [Kusum v. Gurcharan  Singh,2018 SCC OnLine Del 12576, decided on 15-11-2018]

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Uttaranchal High Court: A Division Judge Bench comprising of Sharad Kumar Sharma and Sudhanshu Dhulia, JJ. declared that denial of cruelty by the lower court was erred on illogical interpretations.

The appellant has appealed against the orders of the family court on the denial for the grant of divorce and permanent alimony under Section 25 of the of Hindu Marriage Act. She has claimed that respondent under the influence of alcohol misbehaved with her by inflicting mental cruelty along with his absence both as a husband and father with the appellant and her child. She also pleaded an attempt to force sodomy upon her by the respondent.

The Court stated that inferences were drawn from facts which in itself cannot be taken as a proof against the statements of the appellant and thus was not an analogical and judicial inference rendered by the lower court. Also in the written statement the respondent had not specifically denied his act of misbehaving in an intoxicated condition. The most important point for consideration was that sodomy was something a wife would never plead against the husband to allege cruelty and therefore shall be weighed substantially. Accordingly, the act of cruelty stood established plus the appellant was also granted the permanent alimony.[Suman Lata Panwar v. Ajay Singh, F.A. No. 77 of 2013, order dated 15-11-2018]

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Delhi High Court: A Division Bench comprising of G.S. Sistani and Jyoti Singh, JJ. dismissed an appeal filed against the order of the Family Judge whereby the appellant-husband was directed to pay a sum of Rs 15, 000 per month as maintenance to his wife.

The respondent-wife had filed an application under Section 24 of the Hindu Marriage Act, 1955 seeking maintenance from her husband. The Family Judge decided the quantum of maintenance as above to be paid by the husband to the wife. Aggrieved thereby, the husband filed the instant appeal. It was contended by the appellant that the Family Court did not properly appraise the facts and documents as submitted by him. It was averred that he was barely earning Rs 10,000 per month and therefore the Family Judge was not right in awarding the abovementioned amount as maintenance.

The High Court perused the record and was of the view that the pleas taken by the appellant about his income were not believable. Similarly, for his plea regarding the salary earned by the respondent was not supported by evidence. The Court referred to Jasbir Kaur v. District Judge, Dehradun, (1997) 7 SCC 7 wherein it was held that “considering the diverse claims made by the parties one inflating the income and the other suppressing, an element of conjecture and guess work does enter for arriving at the income of the husband. It cannot be done by any mathematical precision.” It was observed that in family matters, there is a tendency of spouses no to disclose their correct and true income; the present case was no different. In such view of the matter, it was held that the quantum of maintenance as calculated by the Family Judge suffered from no infirmity. Therefore, the appeal was dismissed. [Bhuvneneshwar Sachdeva v. Kavita Sachdeva,2018 SCC OnLine Del 12415,dated 29-10-2018]

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Karnataka High Court: A Single Judge Bench comprising of Ravi Malimath, J. allowed a writ petition filed under Article 227 of the Constitution of India against an interim maintenance order on account of it being arbitrary against the husband.

The respondent filed an application under Section 24 of the Hindu Marriage Act in order to seek interim maintenance for which the petitioner was directed to pay Rs 5000 per month against which this writ petition was filed.

The petitioner contended that his only source of earning was a photostat machine shop and thus the amount awarded was too excessive for him. He brought into consideration the financial position of the respondent which comprises of her owning various landed properties in the State as well as she had a four-wheeler to her possession along with the fact that she was a practicing advocate.

The Court agreed with the petitioner that taking into account the low income of the petitioner against a considerably higher income of the respondent, the maintenance awarded was far too excessive. Accordingly, the amount was reduced to Rs 3000 per month.[Rachayya v. Bhagyalaxmi,2018 SCC OnLine Kar 1821, order dated 05-06-2018]

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Delhi High Court: A Single Judge Bench comprising of R.K. Gauba, J. dismissed a criminal petition filed under Section 482 CrPC for quashing of criminal proceedings against the petitioners under the Protection of Women from Domestic Violence Act, 2005.

The respondents had invoked the provision contained in Section 12 of the Act against one Lalit Mohan Joshi, husband of Respondent 1, since deceased. The provision was also invoked against family members (present petitioners) of the husband. The petitioners approached the Court seeking quashing of the said proceedings on the grounds, inter alia, that they were senior citizens, the allegations against them were small and bald, no case of domestic violence was properly brought out, intention of the respondent was to cause harassment and to gain wrongful possession of their property.

The High Court, at the outset, observed that to say the least, the petition was wholly misconceived. Questions of facts cannot ordinarily, and in absence of evidence of unimpeachable character to the contrary, be properly inquired into or adjudicated upon in jurisdiction under Section 482 CrPC. Reference in this connection was made to Rajiv Thapar v. Madan Lal Kapoor, (2013) 3 SCC 330. Furthermore, it was observed that the fact of death of the husband cannot result in the criminal proceedings coming to an end. After all, allegations were also made against the petitioners who were related to the respondents by marriage or birth. The Court held that the claim of the respondents for compensation for the injuries suffered as a result of alleged acts of domestic violence could not be brushed aside; it would need to inquired into and adjudicated upon in accordance with law. The petition was, thus, dismissed. [Vijay Laxmi v. Madhu Joshi, Crl. MC No. 4352 of 2015, dated 06-09-2018]