Case BriefsHigh Courts

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

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

Substantial Question of Law:

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

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

Issue in the present matter was:

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

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

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

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

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

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

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

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

Provisions of Law

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

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

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

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

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

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

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

Doctrine of enrichment

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

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

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


Advocates before the Court:

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

Case BriefsHigh Courts

Jammu & Kashmir and Ladakh High Court:  Rajnesh Oswal, J., dismissed the petition seeking quashment of the criminal challan for the offences under sections 448 and 427 RPC pending before the Trial Court. The Bench expressed,

“…the respondent 3, being the husband of the purchaser of the property has every right to look after and protect the property of his wife and it cannot be said that the respondent 3 is absolutely stranger and has got no locus standi to lodge FIR.”

The brief facts of the case were that respondent 3 and his wife were raising claim over the plot of the petitioner. It was submitted that the wife of respondent 3 filed a suit for permanent prohibitory injunction with regard to her plot against the petitioner and the Trial Court had directed the parties to maintain status quo.

The allegation against the petitioner was that in order to grab the property of the wife of respondent 3, he had trespassed into the plot of the land and broke the boundary wall, gate and room causing loss of 30,000. Pursuant to which a case was registered against him under Sections 448 and 427 RPC. The petitioner assailed the charges on mainly three grounds; civil dispute had been converted into a criminal dispute, plea of alibi and no locus standi of respondent 3.

Contesting the argument of the petitioner that he was not present on the date of occurrence on the spot and was rather present in his office at J&K Bank Branch, Rangreth, the respondent submitted that false ground had been put forth by the petitioner with regard to his absence on the spot on the date of occurrence as he had manipulated the record being the Senior Officer of the Bank. The respondent contended in a contempt petition filed for violating the Trial Court’s order to maintain status co, the petitioner had not made a plea of alibi.

Noticing that it was not the case of the petitioner that one act/transaction had given rise to civil as well as criminal dispute rather, it was evident that during the pendency of the suit between the contesting parties, the petitioner had been alleged to have committed the offence of trespass, the Bench rejected the petitioner’s contention that civil dispute had been converted into a criminal dispute for being without substance.

The second contention raised by the petitioner was that he was not present on spot at the date of occurrence. Relying on the Supreme Court’s decision in Rajendra Singh v. State of U.P., (2007) 7 SCC 378, the Bench stated,

“The petitioner can no doubt raise the plea of alibi but the same is required to be proved like any other fact and cannot be considered as a gospel truth and relied upon by this Court while adjudicating upon the petition under section 482 CrPC.”

Lastly, rejecting the third contention that respondent 3 had no locus standi to lodge the FIR, the Bench stated that the contention was misconceived as respondent 3 being the husband of the purchaser of the property had every right to look after and protect the property of his wife and it could not be said that the respondent 3 was absolutely stranger and had no locus standi to lodge FIR. Accordingly, the petition was dismissed. [Sheikh Nasser Ahmed v. State of J&K, 2021 SCC OnLine J&K 518, decided on 28-07-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: Ajay K. Gandotra, Advocate and Sugandha Sawhney, Advocate

For the State of J&K: Aseem Sawhney, AAG, L. K. Sharma, Sr. Advocate with Mohit Kumar, Advocate

Case BriefsSupreme Court

Supreme Court: A Division Bench of S. Abdul Nazeer and Krishna Murari, JJ. refused to interfere in the judgment passed by the Gujarat High Court whereby the appellants (husband and mother-in-law of the deceased) were found guilty of committing cruelty to the deceased and abetting suicide committed by the deceased. Noting that although the prosecution failed to adduce any direct evidence to establish that accused abetted deceased into committing suicide, the Supreme Court observed:

“Admittedly, in the case at hands, the evidence clearly establishes the offence of cruelty or harassment caused to the deceased and thus the foundation for the presumption [under Section 113-A of the Evidence Act] exists. Admittedly the appellants have led no evidence to rebut the presumption.”

It was prosecution’s case that the accused husband constantly asked the deceased to bring Rs 25,000 from her father. On her failure to do so, the accused husband started frequently beating the deceased, and the accused mother-in-law used to pick up quarrel with her on the pretext that she neither knew how to cook nor did any household work properly. The deceased committed suicide by consuming poison at her matrimonial home for the sole reason that she was unable to bear continuous mental and physical cruelty meted out to her by the appellants in a short span of 8 months of her marriage.

The trial court convicted the appellants for offences punishable under Section 498-A (cruelty to women) and Section 306 (abetment of suicide) of the Penal Code, 1860. On appeal, the High Court confirmed the judgment of the trial court. Aggrieved, the appellants approached the Supreme Court.

At the outset, the Supreme Court noted that Section 113-A of the Evidence Act, provides for presumption as to abetment of suicide by a married woman within seven years of marriage, by her husband or any of his relative. Section 113-A reads thus: “When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband”. Further, the Explanation added to Section 113-A of the Evidence Act clearly provides that ‘cruelty’ shall have the same meaning as in Section 498-A IPC.

Considering first the offence under Section 498-A IPC, the Court noted the consistent evidence of witnesses who were related to the deceased. The Court opined that most often the offence of subjecting the married woman to cruelty is committed within the boundaries of the house which in itself diminishes the chances of availability of any independent witness. It was observed:

“The evidentiary value of the close relatives/interested witness is not liable to be rejected on the ground of being a relative of the deceased. Law does not disqualify the relatives to be produced as a witness though they may be interested witness.”

The Court found that the witnesses (family members) though related to the deceased, were natural witnesses. Their evidence was consistent without any material contradiction and inspired confidence. Thus, from the evidence of prosecution witnesses, the Court concluded it was proved that the deceased was harassed with a view to meet unlawful demand of Rs 25,000. The Court held that the prosecution was successful in proving the charge of cruelty under Explanation (b) of Section 498-A IPC.

Next, the question that fell for consideration was that the prosecution having successfully established the charge of cruelty as laid down in Explanation (b) of Section 498-A IPC and also the fact that the deceased committed suicide by consuming pesticide within seven years of marriage, whether the accused could also be held guilty for the offence punishable under Section 306 IPC with the aid of Section 113-A of the Evidence Act.

The Court noted that the prosecution failed to adduce any direct evidence to establish that the accused abetted deceased into committing suicide. The prosecution placed reliance on Section 113-A of the Evidence Act to establish the charge of abetment against the accused. Relying on its earlier order in Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618, the Court concluded that to attract the applicability of Section 113-A of the Evidence Act, three conditions are required to be fulfilled: (i) the woman has committed suicide; (ii) such suicide has been committed within a period of seven years from the date of her marriage; (iii) the accused had subjected her to cruelty.

In the instant case, all the three conditions stood fulfilled. The deceased committed suicide within a period of seven years from the date of her marriage and accused had subjected her to cruelty, as it was confirmed that prosecution was successful in proving the charge of cruelty under Section 498-A IPC.

The Court said that it is no doubt correct that the existence and availability of the above said three circumstances are not to be invoked like a formula to enable the presumption being drawn and the presumption is not an irrebuttable one. However, in the instant case, the evidence clearly established the offence of cruelty or harassment caused to the deceased and, thus, the foundation for the presumption existed. Admittedly, the appellants led no evidence to rebut the presumption.

In such view of the matter, the Supreme Court held that the trial court, as well as the High Court, committed no illegality in holding that the appellants abetted suicide of the deceased. The appeals were therefore dismissed. [Gumansinh v. State of Gujarat, 2021 SCC OnLine SC 660, decided on 3-9-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Bombay High Court: Manish Pitale, J., expressed while addressing the present application that,

“Second marriage cannot come within the definition of domestic violence.”

By the instant application, applicants sought quashing of criminal proceedings filed by sole respondent under the provisions of the Protection of Women from Domestic Violence Act, 2005.

Further, the applicants also prayed for setting aside the orders passed by the Court of Judicial Magistrate.

Applicant 1 got married to the sole respondent and soon after the marriage, there was matrimonial discord between the two, because of which, applicant 1 filed a divorce proceeding on the ground of cruelty.

The divorce decree granted was confirmed upto the Supreme Court and the rejection of the application for restitution of conjugal rights filed by the respondent also stood confirmed.

Bench stated that the contentions raised on behalf of applicant 1 on ground of cruelty were accepted by all the Courts and hence the said findings attained finality.

Question for consideration:

  • Whether respondent is entitled to rely upon incidents pertaining to the same time period and relatable to the allegation and contentions raised to claim that she had suffered domestic violence at the hands of the applicants, as defined under the DV Act.
  • Whether the act of applicant 1 preforming a second marriage after the grant of divorce decree can be said to be an act of domestic violence under the provisions of the DV Act?
  • Whether the proceedings initiated by respondent under provisions of the DV Act can be said to be an abuse of process of law?

Analysis, Law and Decision

High Court stated that on perusal of Sections 12 to 23 of the D.V. Act, respondent has indeed raised the very issues and contentions that she had relied upon during the initial round of litigation pertaining to the divorce petition filed by applicant 1 and application or restitution of conjugal rights filed by respondent.

Hence, respondent cannot be permitted to reiterate the same by filing application under the provisions of the DV Act, 3 months after the Supreme Court dismissed her Special Leave Petition and confirmed the findings rendered by the Family Court and this Court on identical issues.

Second Marriage

 Court rejected the contention that the second marriage performed by applicant 1, after grant of divorce decree amounted to domestic violence.

Section 3 of the D.V. Act defines ‘domestic violence’ in an elaborate manner and it refers to physical abuse, sexual abuse, verbal abuse, emotional abuse and economic abuse. This is in the context of a domestic relation shared between the aggrieved person and respondent.

Family Court granted divorce on the ground of cruelty cannot eb denied in the present matter.

Merely because applicant 1 performed second marriage cannot come within the definition of domestic violence under Section 3 of the D.V. Act.

The manner in which the proceedings were sought to be initiated under the provisions of DV Act was nothing but an abuse of process of law.

Court noted that the respondent appeared to be interested in initiating and continuing the proceedings as a tool of harassment against the applicants.

Prayers pertaining to monthly maintenance, compensation, residence order, etc., have all been made of the contentions raised in the earlier round of litigation.

In view of the above background, High Court held that continuance of the proceedings would amount to permitting abuse of the process of law, hence the same cannot be permitted. [Bhushan v. Nilesha Bhushan Deshmukh, Criminal Application (APL) No. 164 of 2017, decided on 9-08-2021]


Advocates before the Court:

S.A. Mohta, Advocate for applicants

Case BriefsSupreme Court

Supreme Court: A Division Bench comprising of Hemant Gupta and A.S. Bopanna, JJ. reversed the conviction of the accussed−appellant who was convicted for the murder of her husband’s first wife and their children. The Supreme Court held that the chain of circumstantial evidence was not complete, and gave her benefit of doubt.

The Scene

The appellant was married to one Gulab, who was already married to Mandabai (deceased). Gulab and Mandabai had two children, one son and a daughter. The appellant, her husband, the deceased, the children, appellant’s parents-in-law, and their servant, all lived together in one house. The prosecution’s case was that on the intervening night of 2nd and 3rd August 2006, at about 2:30 to 3:00 am, an incident of fire occurred at their house and it was engulfed into flames. The appellant who was also in the house, came out unscathed. Mandabai and her daughter rushed out of the house with burn injuries, while her son burnt to death inside the house. Appellant’s husband and mother-in-law were not present, while her father-in-law was sleeping outside the house who woke up in confusion, instructed the servant to call a jeep, and shifted Mandabai and her daughter to hospital. Unfortunately, both Mandabai and her daughter died on the next day due to burn injuries.

Conviction and Appeal

Appellant’s father-in-law lodged a complaint and implicated her. She was then prosecuted. The Sessions Court found her guilty and convicted her under Sections 302 (Punishment for murder) and 436 (Mischief by fire) IPC. On appeal preferred by the appellant, the Bombay High Court reappreciated the evidence and discarded the alleged extra-judicial confession made by the appellant to her father-in-law and further disbelieved the evidence of the father-in-law which was relied on by the Sessions Court. However, in the ultimate analysis, the High Court concluded that the appellant was guilty and her appeal was accordingly dismissed. Aggrieved, the appellant approached the Supreme Court.

Discussion and Observations          

The Supreme Court was of the opinion that there is no doubt that if the incident that occurred, if caused by someone with intention to cause death, is certainly gruesome and unpardonable. However, in the instant case where the appellant was proceeded against mainly based on extra-judicial confession alleged to have been made to her father-in-law, and the said evidence of the father-in-law having been disbelieved by the High Court as not trustworthy, the issue would be as to whether the chain of circumstances to convict the appellant was complete.

The Supreme Court extracted the reasons assigned by the High Court and found that it held the appellant guilty more on preponderance of probability rather than reaching a conclusion beyond reasonable doubt. The High Court’s reasoning was based on conjectures and surmises. The sole circumstance noted by the High Court was that the burnt frock of the deceased daughter of Mandabai was sent for chemical analysis and kerosene residue were detected on it. In that circumstance, the High Court held that kerosene was used for setting Madabai’s daughter on fire.

The Supreme Court was of the view that even if the such chemical report is accepted, there was nothing on record to connect that the appellant was responsible for sprinkling kerosene or for kerosene to have come in contact with the frock of Mandabai’s daughter. Further, in her declaration to the police after the incident, Mandabai herself disclosed there was a kerosene lantern in the house. Evidence indicated that diesel used for tractor was also kept in the house. Therefore, it could not be said beyond doubt that it was not an accident but the appellant had set fire by sprinkling kerosene. Following the law laid down in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, the Court reiterated that:

“The position of law is well settled that the links in the chain of circumstances is necessary to be established for conviction on the basis of circumstantial evidence.”

The Court further observed that mere suspicion would not be sufficient, unless the circumstantial evidence tendered by the prosecution leads to the conclusion that it “must be true” and not “may be true”. Reliance was placed on Devilal v. State of Rajasthan, (2019) 19 SCC 447.

The Court found that the Session’s Court as well as the High Court had made suspicion the reason for convicting the appellant without there being any strong basis. It was reiterated that:

“The suspicion, however strong, cannot take place of proof.”

It was noted that there were equal circumstances which raise a doubt whether the appellant could be held guilty only because she was not injured in the incident. The Court said that natural human conduct is that when there is any incident or accident, the immediate reaction is to get away from the scene and save oneself. The Court was of the view that if in the middle of the night, for whatever reason, there was fire and if the appellant had woken up and noticed it a little earlier, the natural conduct was to run out of the house instead of going into the house which was burning, to check on the other inmates. It was observed:

“It takes a person a lot of courage or be overdriven with compassion to get back into the house to save somebody else and not doing so may be considered morally wrong for not coming to aid of fellow human being in distress, but cannot be a circumstance to hold a person guilty of a crime which is as serious as murder unless the other circumstances in the chain point to the accused so as to lead to an irresistible conclusion of being guilty.”

The Court also noted that Mandabai who came out alive and lived for a day did not blame or suspect anybody including the appellant. Her declaration was clear that the house caught fire and she and her children were caught in the fire. She did not state that the fire set on her spread to the house. Further, it was an admitted fact that the servant also lived in the same house, but he too was not injured. Hence, the Court held:

“Therefore, not being injured alone cannot be held as a circumstance to hold one guilty of having set fire to the house.”

Next, according to the High Court, appellant’s motive behind the crime was that her husband executed a document of maintenance out of certain property in favour of Mandabai a day before his second marriage with the appellant. The Supreme Court found itself unable to accept this. The marriage between the appellant and his husband had been registered after an arrangement for maintenance for the first wife, Mandabai, which is a normal thing in such circumstances and it could not be held as a strong motive for the alleged crime.

Lastly, on the point of appellant’s failure to explain the reason for eruption of fire in view of the obligation to explain under Section 106 (Burden of proving fact especially within knowledge) of the Evidence Act, 1872, the Court held that appellant’s obligation to explain would have arisen only if there was any other evidence to the effect that the appellant was already awake and was outside even before the fire erupted.

Thus, in totality of facts and circumstances of the case, the Court was of the opinion that the appellant was entitled to be acquitted as the benefit of doubt weighs in her favour. Accordingly, the judgment of the High Court affirming conviction and sentence ordered by the Sessions Court was set aside. [Parubai v. State of Maharashtra, 2021 SCC OnLine SC 566, decided on 10-8-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Calcutta High Court: Bibek Chaudhuri, J., expressed that, voluntary presents given at or before or after the marriage to the bride or the bridegroom, as the case may be, of a traditional nature, which are given not as a consideration for marriage but out of love, affection on regard, would not fall within the mischief of the expression ‘dowry’ made punishable under the Dowry Prohibition Act.

Appellants were convicted for committing an offence under Sections 498-A and 304-B Penal Code, 1860.

It was submitted that the de facto complainant would give a gold chain to the appellants within 6 months of the marriage of his daughter Soma with Netai Ghosh (appellant 1). immediately after marriage, the appellants started abusing Soma with filthy language. The same was conveyed by the daughter to the de facto complainant and other paternal relations. Soma’s husband also physically assaulted her.

Demand of Dowry

Later, de facto complainant came to know that his daughter Soma died consuming poison and according to him Soma committed suicide failing to bear physical and mental torture on demand of dowry inflicted upon her.

Trial judge held the appellant guilty for committing offence under Section 498A and 304B of the Penal Code, 1860.

In the instant case, the marriage of Soma was solemnized only before 44 days of her unnatural death.

Analysis and Decision

In a case of cruelty and dowry death, direct evidence is hardly available, and it is the circumstantial evidence and the conduct of the accused persons to be taken into consideration.

In the present matter, it was alleged in the FIR that the mother-in-law of the deceased used to abuse the deceased with filthy language as her father failed to give a gold chain at the time of the marriage

Allegation of cruelty and unnatural death of the deceased was made by the defacto complainant only after the death of the deceased.

Further, it is significant to note that the de facto complainant did not state in the FIR as well as in course of his evidence that the accused persons demanded dowry as a consequence of marriage.

Definition of expression “dowry” contained in Section 2 of the Dowry Prohibition Act, 1961 cannot be applied merely to the “demand” of money, property or valuable security made at or after the performance of marriage. 

Elaborating more on the concept of dowry, it was expressed that under Section 4 of the Act, mere demand of dowry is not sufficient to bring home the offence of an accused.

Any demand of money, property or valuable security made from the bride or her parents or other relatives by the bridegroom or his parents or other relatives or vice versa would fall within the mischief of “dowry” under the Act where such demand is not properly referable to any legally recognized claim and is relatable only to the consideration of marriage.

 It was noted that there was absolutely no evidence that prior to her death the witnesses being PW1, PW2, PW4 and PW5 and others try to settle the alleged dispute between the parties during the lifetime of Soma.

As per the evidence Soma was ill-tempered, therefore, if at any incident of quarrel broke between the appellants and Soma, her nature was not such that she would silently digest the allegations made against her.

Since trial Judge failed to consider the above circumstances while holding the accused persons guilty and prosecution failed to prove the cause of death of the deceased, High Court set aside the decision of trial court. [Netai Ghosh v. State of West Bengal, 2021 SCC OnLine Cal 1938, decided on 21-06-2021]


Advocates before the Court:

For the Petitioner: Younush Mondal, Adv.

For the State: Swapan Banerjee, Adv., Suman De, Adv.

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., refused to grant relief to the petitioner against orders of the lower court restraining him from dispossessing the respondent from the subject property and also directing him to pay monthly maintenance to her.

Factual Matrix

Respondent had filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005. It was stated that the respondent met petitioner in the year 2009 when she was already married. In the year 2014 after obtaining divorce, the respondent got married to the petitioner.

It is further stated that the petitioner in order to induce respondent to marry him did not disclose his marital status to her. Though petitioner executed a Marriage Agreement to how his genuineness and responsibility towards the respondent and her child from a prior marriage.

Respondent was subjected to physical and mental abuse by the petitioner. Hence, respondent had filed an FIR against the petitioner. Respondent also sought a restraining order from being evicted from the rented accommodation.

Analysis, Law and Decision

High Court expressed that DV Act is meant to provide for the rights of women to secure housing.  The Act also provides for the right of a woman to reside in her matrimonial home or shared household, whether or not she has any title or rights in such home or household.

What does the aggrieved have to show?

Aggrieved person has to show that the aggrieved person and the respondent (man) lived together in a shared household.

Marriage Deed was filed which recorded that after the marriage parties will reside together as husband and wife and will be faithful towards each other. There were photographs of the petitioner and respondent that gave the impression that the parties were living together as husband and wife and had married each other.

As per the school record of the child, petitioner was the father of the child. Copies of the bank accounts were filed wherein the petitioner has been shown as a nominee of the account held by the respondent.

High Court noted that the couple held themselves out in the society as being akin to spouses which fact was evident from marriage-cum-agreement deed, affidavits, the school records of the child and the bank statements of the respondent.

In the present matter, respondent was told that the wife of the petitioner was on dialysis and that she would die soon.

Petitioners’ contention was that he had not entered into any rental agreement and the agreements, affidavits and the photographs produced by the respondent were not genuine.

Bigamous and Adulterous Relationship?

Bench expressed that question as to whether the respondent herein has been duped by the petitioner or whether she was a party to an adulterous and bigamous relationship or not and whether her conduct would not entitle her to any protection under the DV Act can be determined only after the evidence is led.

Metropolitan Magistrate, after the evidence led, had concluded that the respondent was not entitled to the protection of the DV Act and hence shall return the respondent the amount received by her as interim maintenance.

High Court held that the matter be heard by the trial court and should be decided finally within a period of 1 year. [Parveen Tandon v. Tanika Tandon, 2021 SCC OnLine Del 3044, decided on 7-06-2021]


Advocates before the Court:

For the Petitioner: Utkarsh and Anshu Priyanka, Advocates.

For the Respondent: Kamal Anand, Advocate

Case BriefsHigh Courts

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

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

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

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

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

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

Wife claimed Rs 25,000 per month as maintenance.

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

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

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

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

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

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

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

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

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

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

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


Advocates before the Court:

For the Petitioner: Neerad Pandey, Advocate

For the Respondent: D.K. Sharma, Advocate

Case BriefsHigh Courts

Madras High Court: T. Raja, J., in the present matter while considering the long separation of parties for almost a quarter-century, granted a decree of divorce by dissolving the marriage between the parties.

Factual Matrix

In the present matter, appellant was married to the respondent and a male child was born out of wedlock. During the pregnancy of respondent, it was alleged that even after doctor’s advise, the respondent/wife had not taken proper care. Ultimately, the respondent delivered a handicapped male child.

Further, it was also alleged that from the date of marriage, the respondent was adamantly raising disputes and quarrels even for cohabitation due to which the appellant was subjected to mental agony.

Although the appellant tolerated all the unlawful activities of the respondent on the belief that she would change her attitude in due course, no improvement thereon had occurred.

No Response for 7 long years

Respondent later left the matrimonial house and never came back even after a lot of requests and visits by the appellant and his parents. When there was no response from the respondent for 7 long years and thereby deserted the appellant, petition was filed before the Family Court seeking divorce on the ground of cruelty and desertion under Section 13(1)(i—a) and (i—b) of the Hindu Marriage Act to dissolve the marriage between the appellant and respondent.

Respondent had sought restitution of conjugal rights under Section 9 of the Hindu Marriage Act. Trial Court concluded that husband, wanted to get rid of the special child and mother and no cruelty was caused by the respondent/wife and no desertion was accused of the simple reason that only the appellant has taken both the respondent with the son by car to her parental house and left them there with the promise that he would come and take them back. But he did not turn up to take them back to the matrimonial home.

When the lower appellate court came to the conclusion that no case of cruelty or desertion was made out, aggrieved thereby, the present appeal was filed by the appellant raising the following substantial questions of law:

  • Whether the appellant/husband is entitled to divorce on the ground of cruelty and desertion and whether the respondent/wife is entitled to the relief of restitution of conjugal rights?
  • Whether the Courts below have properly applied the law of evidence as the question of proof of cruelty and desertion can always be decided only on oath?
  • Whether the finding of the lower appellate Court in putting the blame on the appellant in not taking care of the spastic child is not contrary to the evidence available on record?

Analysis, Law and Decision

Bench expressed that a human problem can be properly resolved by adopting a human approach and applying the same ratio in the cases on hand, when the parties are living separately for 25 long years, not to grant a decree of divorce would be disastrous for the parties.

Adding to the above, Court stated that preservation of a ruined marriage is totally unworkable, as this would be a source of misery for the parties. During the pendency of the matters, the parties declined to accept the proposal for re-union.

Therefore, when the parties were living separately for 25 long years and the mediation efforts were undertaken also proved to be of no avail, this Court following the decision of the Supreme Court in Naveen Kohli v. Neelu Kohli, 2006 (2) CTC 510, Bench decided to dissolve the marriage between the parties.

Moving forward, Court being aware and conscious of the fact that the interest of the respondent needs to be safeguarded, elaborated that Section 25 of the Hindu Marriage Act states that at the time of the passing of any decree or at any tie subsequent, on an application made to it, may order one party to pay the monthly sum as maintenance to other party.

Since the appellant had been paying a sum of Rs 10,000 per month to the wife as maintenance without any default and taking care of his son with the assistance of a helper by paying from his pension bearing in mind that the appellant is a retired Bank Officer, this Court directs the appellant to continue to pay the said sum of Rs.10,000/- per month as maintenance to the respondent without fail.

Lastly, the wife was granted visitation rights and the matter was disposed of in view of the above terms. [V. Ramasamy v. L. Priya, 2021 SCC OnLine Mad 1674, decided on 26-04-2021]


Advocates before the Court:

For Appellant: Mrs K.Sumathi

For Respondent: Mr E.Raj Thilak

Case BriefsHigh Courts

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Advocates before the Court:

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

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

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Arindam Sinha and Suvra Ghosh, JJ. confirmed a decree of divorce passed in favour of the husband by the trial court on grounds of cruelty by the wife. The instant appeal, dismissed by the High Court, was preferred by the wife against the judgment of the trial court.

Backdrop and Factual Matrix

The husband filed for divorce against the wife on grounds of cruelty, alleging that she made false allegations against him of having illicit relations with other women as well as their own daughter. The trial court found that no cogent proof of illicit relationship was forthcoming from the wife which could prove the allegations made by her against the husband. Therefore, the trial court held it amounted to cruelty against the husband under Section 13(i)(i-a) of the Hindu Marriage Act, 1955; and granted a decree of divorce in favour of the husband.

Contentions ─ Wife

The wife argued that the allegation of cruelty was erroneously held to be proved against her. She submitted that the persons named were not produced as witness. Extreme financial hardship had prevented her from fully participating at the trial, but that by itself did not justify finding in the trial court’s judgment and decree that the allegation of cruelty was proved against her.

Contentions ─ Husband

The husband submitted that the suit was filed in year 2004. Dilatory tactics were adopted by the wife. He gave evidence and was cross-examined, which could not shake his evidence. Such unshaken testimony was corroborated by their daughter. The daughter was married and living happily in her matrimonial home. Grave and serious allegations against him were made regarding carrying on with several women, including, their daughter. This part of the evidence was also corroborated by the daughter. The daughter took to the witness box and corroborated unshaken testimony of the husband, and therefore the wife did not cross-examine her, nor turn up to give evidence and be cross-examined. In such circumstances, further corroboration was not required and the Court below correctly appreciated the evidence to find cruelty inflicted on him.

It was further submitted that he had allowed the wife to stay in his flat and is regularly paying her enhanced permanent alimony. Eighteen years of separation had happened and there should not now be reversal of the trial court’s judgment and decree. He relied on the Supreme Court decision in Adhyaatmam Bhaamini v. Jagdish Ambala Shah, (1997) 9 SCC 471.

Law, Analysis and Decision

The High Court analysed the facts and allegations in two parts. Firstly, the allegations were regarding the wife having taken up a 9 am to 9 pm job, after which she became very ill. The husband, in his evidence, stated that he put pressure on the wife to leave the job. On the other hand, the wife said that the husband forced her to work on a sales office to earn money to meet family expenses. On examining the record, it appeared to the High Court that the wife took up the job, after which she fell ill, and the husband caused her to leave the job. Therefore, the wife’s account on this point was disbelieved by the Court.

Secondly, the allegation against the wife was that in July-August 2003, she visited the husband’s office, informing the Committee of Housing about him maintaining illicit relationship with their daughter. As a consequence, members of the Committee came to their residence. The wife admitted that on one occasion, she went to her husband’s office, but only to meet him. She did not meet allegations regarding her approaching the Committee members.

The allegations of the husband against the wife, were corroborated by their daughter in her evidence-in-chief. Although some statements in her affidavit were hearsay. The Court opined that:

There are some statements in her affidavit-in-chief, which are hearsay. The parts of her affidavit that can be attributed to be her evidence is in corroboration of what her father said in the petition, his affidavit-in-chief and from the Box, in cross-examination.”    

 On a complete analysis, the High Court held that the wife made reckless allegations against the husband, amounting to cruelty. The Court was convinced that there is no scope of interference in the trial court’s judgment and decree. The appeal was fount without any merit and was therefore dismissed. [Radha Majumder v. Arun Kumar Majumder, 2021 SCC OnLine Cal 1398, decided on 23-03-2021]


Advocates who appeared in this case:

Mr. Pradip Kumar Roy

Ms. Shraboni Sarkar … for appellant wife

Mr. Debabrata Acharyya

Mr. Sital Samanta … for respondent-husband

Case BriefsHigh Courts

Madras High Court: V. Bhavani Subbaroyan, J., while addressing a very significant issue with respect to a divorce being sought, expressed that:

“…concept of marriage in the present generation has been taken very lightly and even for trivial issues, divorce is filed, and marriage is broken.”

Wife filed the present petition against the petition filed by the Husband before the Family Court. The husband’s petition was filed on the ground that the wife was suffering from Polycystic Ovarian Syndrome (PCOS) and was not fit for cohabitation or to give birth to a child.

Husband also filed an interlocutory application seeking for an amendment to include the provision of law from 12(1)(a) and 12(1)(a) and (c). The said petition seeking for amendment was pending before the Family Court for decision.

Petitioners Counsel, S.P. Arthi submitted that PCOS disorder is an endocrine system disorder that affects the capacity of reproduction in women, and which is totally distinct and different from claiming to be impotence.

As per the contention of counsel for the petitioner, the said claim made by the husband was absolutely incorrect and the said usage of terminology of impotency against the wife could not be sustained and on the said ground striking off the petition was sought.

Analysis, Law and Decision

Bench noted the categorical allegation placed by the husband with regard to the issue of PCOS in the wife due to which the husband sought a divorce.

High Court expressed that:

The term ‘PSOS’ by itself cannot be termed as ‘impotency’. Impotency is different and unable to give birth to a child is different, owing to various physical and mental reasons.

 On careful consideration of the contentions placed on record, it was clear that the husband did not plead the wife’s inability to give birth to a child as ‘Impotency’, but he sought annulment of marriage on the reason that there was no cohabitation and wife could not bear a child. He also submitted that the wife did not cooperate for cohabitation owing to her medical condition, as she was almost 25 days on her menstrual cycle.

Marriage being a bondage between men and women as husband and wife, it not only limits to a biological needs and desires, but also as a companion in life caring forward to the next generation through their children.

Elaborating more in respect to the present set of facts and circumstances, Bench added that Family Courts have increased in numbers to cater to the demand of intolerant couple, who are unmindful of the institution of marriage, break the relationship on unimaginable trivial reasons.

As per the pleadings placed, nowhere the husband used the word connoting impotency towards his wife. He mainly approached with the complaint that the wife could not bear a child for two reasons:

  • No Cohabitation
  • Suffering from ‘PCOS’ due to which wife suffers from improper menstrual cycle.

Legitimate Expectation?

Bench expressed that it is the husband’s legitimate expectation to live with his wife and have cohabitation and bear children and if the same is not achieved owing to some physical or mental problems, it is quite logical that either of the parties will approach the Court for seeking a divorce.

Except for some case wherein the couple are understanding and come forward with the life issue-less or even go for adoption, however, the same has to be proved by the person claiming that his or her partner is incapacitated to give or bear the child.

Petitioner/Wife could not show the husbands averments to be illusive.

Hence, High Court did not find any grounds seeking for the intervention of this Court under Article 227 of the Constitution of India with regard to striking off the petition.[ Annapoorani v. S. Ritesh,  2021 SCC OnLine Mad 1079, decided on 16-03-2021]

Case BriefsHigh Courts

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

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

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

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

Analysis, Law and Decision

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

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

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

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

Divorce Decree

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

Family Court

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

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

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

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

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

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

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


Advocates before the Court:

Counsel for the petitioner Sri. T.R. Harikumar

Counsel for the respondent Sri. Sharan Shahier.

Case BriefsHigh Courts

Tripura High Court: S.G. Chattopadhyay, J., elaborated on the aspect of economic abuse in term of Section 3 of the Protection of Women from Domestic Violence Act, 2005.

Factual Matrix

Wife had presented an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005, wherein she referred to several incidents of domestic violence against her husband.

Further, she alleged that her husband subjected her to harassment and torture for dowry and since she was unable to meet his demand, she was physically assaulted by her husband on various dates. Gradually he developed an extramarital affair. When the wife raised a protest against his conduct he assaulted her.

Trial Court found the wife to be entitled to a protection order, residence order and monetary relief, respondents were directed to make payment of Rs 2000/- per month as rent for accommodation to the aggrieved and further payment of Rs 15,000/- per month as monetary relief in the form of maintenance.

Additional Sessions Judge also partly allowed the appeal of the husband, his mother, brother and sister, by which the husband was solely proved to have committed domestic violence upon his wife and others were discharged from the liabilities.

In the present revision petition, husband has challenged the impugned judgment of the Additional Sessions Judge.

Core Issue agitated by the husband’s counsel:

Relief under the DV Act had been provided to the wife in absence of any proof of domestic violence.

Under Section 12 of the DV Act only the aggrieved person or a protection officer appointed under the DV Act or any other person on behalf the aggrieved person may present an application to the magistrate seeking one or more reliefs under this Act.

Allegation of domestic violence is a sine qua non for pursuing a petition under the DV Act.

Further, Court observed that under Section 3 of the DV Act which defines domestic violence, ‘economic abuse’ is a form of domestic violence.

Section 3 relates to ‘economic abuse’ which includes deprivation of all or any economic financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise.

Bench held that in the present matter, wife is obviously legally entitled to maintenance allowance from her husband who is a government employee since she made a good case of justifying why she was living separately.

Denial of maintenance to wife would definitely cause ‘economic abuse’ within the meaning of Section 3 of the Domestic Violence Act, therefore no infirmity in the impugned judgment was found.

Court directed that the monetary relief shall be paid by the husband by depositing the same in the wife’s savings bank account. The Family Court will determine the mode of payment of the outstanding arrear till 31-01-2021 after issuing notice to the parties and hearing them in person.

If the husband fails to pay the arrear, the same shall be deducted from his salary and paid to the wife.

In view of the above. Petition was dismissed. [Ramendra Kishore Bhattacharjee v. Madhurima Bhattacharjee, 2021 SCC OnLine Tri 79, decided on 10-02-2021]


Advocates for the parties:

For the Appellant: Mr B. Deb, Adv.

For the Respondent: Mr S. Debnath, Addl. PP Mr Raju Datta

Case BriefsHigh Courts

Kerala High Court: Mary Joseph, J., while addressing an issue of maintenance under Section 125 of Criminal Procedure Code, 1973, expressed that the said provision does not say that wife, children or parents who are at the mercy of the parents, grandparents or relatives are not entitled to get monthly maintenance or else in the case of a wife, children or parents who are neglected and surviving at the mercy of other near relatives are not entitled to get maintenance.

Respondents in the present matter had sought for enhancement of the sum ordered originally by the Family Court as monthly maintenance which was ordered at the rate of Rs 1,000 but the petitioner defaulted in payment after some time.

Revision petitioner contended that he was physically handicapped and that the eldest of the children being employed and financially affluent were maintaining the respondents. Hence, due to being devoid of any means of livelihood he submitted that he was not liable to maintain the respondents.

Petitioner had proved before the Family Court that the respondent was remarried and respondents contention that he had no means and therefore was not liable to pay maintenance to the petitioners could not be accepted for the sole reason that he got married secondly and begotten children.

Muslim Personal Law is self-contained of the obligation of the husband to maintain his wife by providing her with food, clothing and lodging. In the Code, a legal recognition is given to the right of a deserted wife, son/daughter, and parents who are unable to maintain themselves.

Section 125 CrPC specifically provides that wife, children or parents unable to maintain themselves are entitled to receive monthly maintenance from a male who holds status respectively with reference to them as husband, father or son.

Bench held that the Husband cannot be exonerated from his legal obligation to maintain on the ground that deserted or neglected ones are surviving somehow or else being maintained by someone.

Hence, the Family Court rightly appreciated the evidence and passed the impugned orders modifying the monthly maintenance payable to the petitioner justly and reasonably. [Mohammedkunhi v. Safura, 2021 SCC OnLine Ker 407, decided on 04-01-2021]

Case BriefsHigh Courts

Bombay High Court: The Division Bench of A.S. Chandurkar and N.B. Surawanshi, JJ., upheld the decision of the family court.

Present appeal was filed under Section 19 of the Family Courts Acts, 1984 by the appellant-husband, in view of his petition being dismissed by the Family Court for judicial separation and in the alternative for a decree of divorce on cruelty and desertion ground.

According to the husband, he was Mangalik as per his horoscope and hence was in search of a girl who was having a Mangalik horoscope. As per the girl’s biodata, she was depicted as Mangalik.

After her marriage with the appellant she started living in the joint family of her husband where she usually used to stay aloof. Further, it has been stated that she avoided giving her educational certificates on the pretext that they were lost.

On receiving her educational certificates from her father, the husband was shocked to know her actual date of birth therefore she was Non-Mangalik. She had even failed BA-II.

The wife left the matrimonial house at midnight without informing anyone and during the search, she was found with her brother and brother in law who were taking her to her maternal home.

The husband along with his family members went to bring the wife back, but her parents refused to send her and also threatened to involve them in a false case. According to the husband, the wife lodged false complaint on that day.

Husband alleged that the wife caused mental and physical harassment to the husband. He, therefore, contended that the wife deserted him on account of false complaint lodged by the wife and the husband from time to time.

Due to the continuous torture by the wife, the life of the husband had become miserable. He was not in a position to concentrate on his work due to continuous harassment by the wife. The husband, therefore, lost all the hopes that the smooth relations between him and wife were possible. Hence, he filed the petition seeking divorce on the ground of cruelty and desertion.

Wife while declining all the above allegations claimed that she was ready to cohabit with the husband and hence prayed for the dismissal of the petition filed by the husband.

Family Court dismissed the petition of the husband, hence the husband preferred the present appeal.

Analysis, Law and Decision

Points for determination:

  1. Whether the appellant is entitled for decree of divorce?
  2. Whether the learned Family Court dismissing the petition of husband is legally correct?

Bench noted in the cross-examination of the appellant that he admitted that prior to his marriage there were negotiations as well as internal talks and his sister had inquired about the education of the respondent as well as her family background. The appellant also admitted that he married the respondent as he liked her. He also stated that he did not take decision in his life on the basis of horoscope. The marriage was performed after verifying the background, houses and all the details of both the families. His father in his evidence admitted that the horoscopes of the appellant and the respondent were not tallied. Further, he deposed that he did not have any document to show that the appellant was a Mangalik. He even admitted that at the time of marriage the age of the appellant was beyond marriageable age.

Hence, all these admissions belie the case of the appellant that there was cheating on the part of the respondent and her parents at the time of settlement of marriage.

In view of the above, Bench observed that there was no fraud played by the wife or her family.

Appellant failed to make out a case of fraud and even if it is assumed that there was misrepresentation in respect of the date of birth, it does not affect the matrimonial relations between the appellant and the respondent, as the appellant failed to prove that he was Mangalik and he intended to marry the girl having Mangalik Yog.

Father of appellant, admitted that for initial two years of the marriage, there was no dispute between the appellant and the respondent in respect of age difference as well as the respondent being non-mangalik. According to the respondent, the ill-treatment started only after the appellant got government job.

Therefore, evidence laid by the respondent did not spell out cruelty caused by the respondent to him.

With regard to Desertion, Court noted that as per the evidence led by the respondent she was beaten and her sister and her husband saw the marks of beating on her person. After they left, she was again beaten and threatened with life. Apprehending danger to her life, she had to take shelter in the house of neighbour Shri Gordey. From there, she called her parents and her brother, sister Kiran, her husband and others took her from the house of Shri Gordey to her parent’s house

Further, there was no material that depicted that the appellant tried to bring the respondent back for cohabitation.

 “…since the appellant attributed cheating and fraud to the respondent and her parents, it is not possible to believe that he tried to bring the respondent back for cohabitation.”

Therefore, family court rightly appreciated the evidence on record and appellant failed to prove cruelty and desertion on the part of respondent-wife.

In view of the above discussion. The appeal against the family court’s decision was dismissed. [Kartik Narayan Dhawle v. Vaishali Kartik Dhawle, 2021 SCC OnLine Bom 241, decided on 23-02-2021]


Advocates who appeared before the Court:

B.R. Hindustani, Advocate holding for A.N. Ansari, Advocate for the appellant,

S.N. Thengari, Advocate for the respondent.

Case BriefsHigh Courts

Bombay High Court: Revati Mohite Dere, J., while addressing a very significant issue of assault, expressed that:

“There is imbalance of gender roles, where wife as a homemaker is expected to do all the household chores.”

Factual Matrix

Appellant was married to Manisha (deceased) and they both used to reside with the appellant’s mother.

According to the prosecution, the appellant was suspecting Manisha’s character as a result of which, there used to be frequent quarrels between them.

On 19-12-2013, Manisha was leaving the house without preparing tea on account of which, there was an exchange of words between the appellant and the deceased. Since the appellant was suspecting Manisha’s character and as she refused to make tea for the appellant, it was alleged that the appellant had given a blow on Manisha’s head from behind, with a hammer.

Further, it was alleged that the said incident was witnessed by Rohini, the appellant and Manisha’s daughter.

Prosecution submitted that after Manisha was assaulted, the appellant gave her a bath, wiped the bloodstains from the spot and thereafter took Manisha to Vitthal Hospital.

At the time when Manisha was admitted, her uncle visited, during that time appellant informed Manisha’s uncle that he had assaulted Manisha. Hence a complaint was lodged and a charge sheet was filed against the appellant for the offence punishable under Sections 302 and 201 of the Penal Code, 1860.

Sessions Judge convicted the appellant for the above-stated offences.

Analysis, Law and Decision 

High Court observed that on the day of the incident on being refused tea, the appellant assaulted Manisha with a hammer, but in Court’s opinion:

“…deceased-Manisha, by refusing to make tea for the appellant, by no stretch of imagination, can be said to have offered grave and sudden provocation for the appellant to assault her, much less, such a brutal assault.”

Bench also observed that:

“…a wife is not a chattel or an object.”

Cases as the present one, reflect the imbalance of gender – skewed patriarchy, the socio-cultural milieu one has grown up in, which often seeps into a marital relationship.

While making very essential observations, Bench quoted from a study, ‘The Man Who Mistook His Wife For Chattel’ by Margo Wilson and Martin Daly:

“by `proprietary’, we mean first that men lay claim to particular women as songbirds lay claim to territories, as lions lay claim to a kill, or as people of both sexes lay claim to valuables. Having located an individually recognizable and potentially defensible resource packet, the proprietary creature proceeds to advertise and exercise the intention of defending it from rivals. Proprietariness has further implication, possibly peculiar to the human case, of a sense of right or entitlement”. 

Medieval notion of the wife being the property of the husband to do as he wishes, unfortunately, still persists in the majority mindset. Nothing but notions of patriarchy.

Bench refused the appellant counsel’s argument the deceased by refusing to make tea for the appellant offered grave and sudden provocation.

In view of the present set of circumstances and arguments, Court stated that appellant not only assaulted his wife, but also after assaulting her, he wasted precious and crucial time by wiping the blood from the spot and bathing Manisha before taking her to hospital, if the deceased would have been rushed to the hospital, her life could have been saved.

Therefore, Court found no infirmity in the impugned judgment and dismissed the present appeal.[Santosh Mahadev Atkar v. State of Maharashtra, 2021 SCC OnLine Bom 248, decided on 02-02-2021]


Advocates who appeared before the Court:

Sarang Aradhye for the Appellant

V. Gavand, A.P.P for the Respondent–State

Case BriefsHigh Courts

Bombay High Court: The Division bench of A.S. Chandurkar and Pushpa V. Ganediwala, JJ., upheld the family court’s finding that “the behaviour and the conduct of the husband of making wild and unsubstantiated allegations resulted in causing mental cruelty to the wife.”

Factual Matrix

Appellant and the respondent were married since 2008 and a child was born out of the said wedlock. Appellant and his family started ill-treating the respondent. Respondent was driven away from her matrimonial home, after all, her gold articles were taken away.

In view of the above, she proceeded to file a case under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights.

The above proceedings were however withdrawn and later, wife filed a petition seeking divorce on the grounds of cruelty and desertion. She alleged that the appellant and his family members were ill-treating the respondent physically and mentally. Respondent approached the Mahila Cell with her grievances and after understanding given to both the parties, they started residing together, but the same did not continue for long as the respondent found herself in an unsafe environment and proceeded to file the present proceedings.

Family Court held that the respondent had proved that the appellant was treating her with cruelty. Hence by the impugned judgment, the Family Court proceeded to pass a decree for divorce on the ground of cruelty. Being aggrieved the appellant has preferred this appeal.

Issue for Consideration:

Whether in the facts of the case the Family Court was justified in granting a divorce on the ground of cruelty?

Decision

Bench in view of the facts and circumstances found the Family Court’s decision to be justified.

“…making of unfounded allegations against the spouse or his/her relatives in the pleadings or making complaints with a view to affect the job of the spouse amounts to causing mental cruelty to the said spouse.”

Mental Cruelty: What led to it?

Court elaborated on the above point that the conduct of the husband of not pleading that the wife was suffering from epilepsy and stating the same for the first time in his deposition as well as making wild allegation that the wife and her relatives had secured false caste certificate without attempting to substantiate the said allegation resulted in causing mental cruelty to wife.

Bench also added regarding the husband’s conduct that, it appeared from his conduct in one or the other he intended to prejudice the service of the wife.

The impugned judgment was affirmed. [Thalraj v. Jyoti, 2021 SCC OnLine Bom 255, decided on 10-02-2021]


Advocates who appeared for the parties:

P.K. Mishra, Advocate for the appellant.

A.B. Bambal, Advocate for the respondent.

Case BriefsHigh Courts

Madras High Court: K. Murali Shankar, J., addressed the issue with regard to payment of maintenance, whether from the date of application or date of order.

Factual Matrix

In the present matter, the second respondent is the mother and respondents 3 and 4, brothers of the first respondent who had married the petitioner. After a while misunderstandings arose between the petitioner and first respondent due to which they started living separately.

Petitioner had filed a maintenance case earlier and the Magistrate passed an order directing the first respondent to pay monthly maintenance at Rs 5,000 per month to the petitioner and her minor children.

Petitioner’s case

Petitioner stated that in order to avoid the payment of maintenance, respondents conspired and took the petitioner and her children to Chennai so as to resume their cohabitation. In the period of two months that the petitioner lived with first respondent, she was harassed and tortured physically and mentally and the petitioner was forcefully sent out of the matrimonial home by forcibly retaining the minor children.

In view of the above petitioner invoked the provisions of the Protection of Women from Domestic violence Act, 2005.

Trial Court passed impugned order, wherein first respondent was directed to pay the maintenance of Rs 5,000. On not being satisfied with the maintenance amount also the order of the trial court directing the first respondent to pay maintenance from the date of the order, petitioner/wife came forward with the present revision.

Analysis

Section 12 of the Protection of Women from Domestic Violence Act, 2005 does not provide the date from which the maintenance to be awarded and there is no provisions in the Hindu Adoption and Marriage Act with respect to the date from which the maintenance order may be made effective. But, at the same time, Section 125(2) CrPC, contemplates that the Magistrate may award maintenance either from the date of order or from the date of application.

 In the Supreme Court decision of Jaiminiben Hirenbhai Vyas v. Hirenbhai Rameshchandras Vyas, (2015) 2 SCC 385, it was held that Section 125 CrPC, impliedly requires the Court to consider making the order for maintenance effective from either of the two dates, having regard to the relevant facts.

It is neither appropriate nor desirable that a Court simply states that maintenance should be paid from either the date of order or the date of the application in matters of maintenance.

As per Section 354(6) of the CrPC, the Court should record reasons in support of the order passed by it, in both eventualities and that the purpose of the provision is to prevent vagrancy and destitution in society and the Court must apply its mind to the options having regard to the facts of the particular case.

Supreme Court in its decision of Rajnesh v. Neha,2020 SCC OnLine SC 903, after analyzing the provisions in various enactment of the Judgments of the appeal and considering the divergent views taken by the various Courts issued necessary direction to bring about the uniformity in the orders passed by all the Courts.

Right to claim maintenance must date back to the date of filing of the application, since the period during which maintenance proceedings remained pending is not within the control of the applicant. Considering the above, the Supreme Court categorically directed that all the Courts award maintenance from the date of application.

 Conclusion

In the present matter, the petitioner had filed the case in the year 2014 and the impugned order was passed on 11-07-2017.

In view of the above discussion, Court held that it has no hesitation to hold that the impugned order granting maintenance from the date of order is liable to be set aside and the petitioner would be entitled to get maintenance from the date of application.

Hence, criminal revision case was partly allowed. [Mohamed Nisha Banu v. Mohamed Rafi, 2021 SCC OnLine Mad 801, decided on 17-02-2021]


Advocates who appeared for the parties:

For petitioner : S.M. Jinnah

For Respondent: No appearance

Case BriefsHigh Courts

Allahabad High Court: Dr Yogendra Kumar Srivastava, J., expressed that:

The remedy of writ of habeas corpus at the instance of a person seeking to obtain possession of someone whom he claims to be his wife would therefore not be available as a matter of course.

The present matter for writ of habeas corpus was filed to produce the corpus of petitioner 1 stated to be under detention.

On investigation, it was revealed that petitioner 1 had left her matrimonial home on her own on account of discord with her husband, petitioner 2 for the reason that he is stated to have entered into another marriage and a child was also stated to have been born out of the wedlock.

Petitioners counsel though disputing the factum of the second marriage did not controvert the fact of petitioner 2 being in an extra marital relationship and also that a child was born out of the said relationship.

Analysis and Decision

The writ of habeas corpus is a prerogative writ and an extraordinary remedy.

Bench observed that writ of habeas corpus is of right and not a writ of course and may be granted only on reasonable ground or probable cause being shown, as held in Mohammad Ikram Hussain v. State of U.P., 1964 AIR 1625 and Kanu Sanyal v. District Magistrate Darjeeling, (1973) 2 SCC 674.

Elaborating more on writ of Habeas Corpus, Court added that it has been held as a festinum remedium and accordingly the power would be exercisable in a clear case.

Hence, High Court held that in view of the other remedies available for the purpose under criminal and civil law, issuance of writ of habeas corpus at the behest of a husband to regain his wife may not be available as a matter of course and the power in this regard may be exercised only when a clear case would be made out.

Therefore, petitioner 1 having left the matrimonial home on her own due to a matrimonial discord, the present petition for a writ of habeas corpus at the behest of husband would not be entertainable.[Soniya v. State of U.P., 2021 SCC OnLine All 174, decided on 10-02-2021]