Case BriefsHigh Courts

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

“..a decree of judicial separation can be rescinded by the same court; but a decree of divorce can be reversed only by a judicial order: either in review or in appeal.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

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

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

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

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

Analysis, Law and Decision

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

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

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

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

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

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

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

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

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

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

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

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

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

High Court remarked that,

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

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

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

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

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

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

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

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

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

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

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

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

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


Advocates before the Court:

For the Appellant: Appellant-in-person

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

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: A Division Bench of Prashant Kumar Mishra and N.K. Chandravanshi, JJ., reversed a decree of judicial separation passed by the trial court, and instead passed a decree of divorce by mutual consent as originally prayed for the parties.

The parties got married in 2017. However, they remained together only for 2 days, and thereafter never lived as husband and wife. After one year of the marriage, they preferred a joint application for divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955. The application was signed, verified and supported by both parties by filing their respective affidavits. They were examined before the trial court after completion of 6 months cooling-off period. In their deposition also, they stood by their decision to seek divorce by mutual consent. However, the trial Court refused to pass a decree of divorce by mutual consent and instead passed a decree for judicial separation for a period of one year. Aggrieved, the wife approached the High Court in the instant appeal.

The High Court noted that while granting a decree for judicial separation in place of a decree of divorce by mutual consent, the trial court referred to the provisions contained in Section 13-A of the Hindu Marriage Act, which provides that in any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of Section 13, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.

Discussing further, the Court stated that the provisions contained in Section 13-A would attract only when the trial court is satisfied “having regard to the circumstances of the case” that it considers it just to pass a decree for judicial separation instead of mutual divorce. The phrase “having regard to the circumstances of the case” requires the trial court to find out the circumstances which compels it to pass a decree for judicial separation. Unless such circumstances exist, the trial court is not entitled to pass a decree for judicial separation in a mechanical manner.

While passing the impugned decree, the trial court observed that the period of their staying together is so short that it is not possible that any serious dispute would have arisen between the parties. The trial court assumed that the dispute between the parties might not be of such intensity which would force them to seek divorce by mutual consent.

Disapproving such approach, the High Court said that the provisions contained in Section 13-B does not provide for existence of a ground like the ones contained in Section 13 for grant of divorce by mutual consent. There need not be a serious dispute between a married couple for seeking a divorce by mutual consent. It may happen in a given case that there is no quarrel or dispute between the couple but yet their actions and behaviour are not compatible with each other for living a happy and peaceful married life, therefore, they may seek divorce by mutual consent. If an application is otherwise duly constituted and properly presented before the court, it is not for the court to search for a ground or a reason, which has compelled the parties to seek divorce by mutual consent.  

In conclusion, the Court was of the opinion that having regard to the fact that the parties presented the application under Section 13-B by appearing before the trial court on 13-3-2018 and thereafter, again appeared on several dates, the trial Court should have passed the decree of divorce by mutual consent instead of decree for judicial separation. Therefore, the appeal was allowed and a decree of divorce by mutual consent was passed. [Sandhya Sen v. Sanjay Sen, 2021 SCC OnLine Chh 1888, decided on 6-4-2021]

Case BriefsSupreme Court

Supreme Court: In a case dealing with Transfer of petition under Section 9 of the Hindu Marriage Act, for restitution of conjugal rights from Palanpur, Gujarat to Mumbai after a previous Transfer Petition was dismissed, the single-judge bench of V. Ramasubramanian, J has held that the dismissal of a petition for transfer, may not operate as res judicata, when a fresh petition is filed on change of circumstances. However, when a case is at its final stage, this Court will be extremely reluctant to order the transfer, as it may derail the entire process.

In the present case, after three years of the dismissal of the first Transfer Petition, the petitioner came up with the present Transfer Petition on the ground that there are change of circumstances warranting a fresh look as her mother had died making it impossible for her to leave two minor daughter in Mumbai to attend to the hearings at Palanpur; and also because it was becoming difficult for her to defend the case, which was being listed for hearing on 2 to 3 occasions every month as the Family Court was imposing penalties upon her whenever a request for adjournment was sought or when the Legal Aid lawyer appointed on her behalf did not attend the Court. Further, the Family Court discarded the evidence of the petitioner and struck off her right of evidence after which the petitioner came up with the Transfer Petition.

The respondent, on the other hand, argued that the proceedings for restitution of conjugal rights have already reached the stage of judgment and that once a request for transfer got rejected on an earlier occasion, a second petition cannot be maintained.

Considering both the aspects, the Court was of the opinion that the present petition for transfer cannot be opposed solely on the ground that the earlier petition was dismissed. But at the same time, the petitioner will have to satisfy the court that there are change of circumstances and that there are sufficient grounds made out.

“While the hardship, both social and financial, pleaded by the petitioner deserves favourable consideration, the transfer of the case at this stage of the proceeding may not be appropriate.”

The Court, hence, rejected the Transfer Petition but issued the following directions:

  • The petitioner be permitted to move an application for reopening of her evidence before the family Court.
  • The application may be allowed to be filed online if such a facility is available. Else, it may be permitted to be filed through counsel without the petitioner having to undertake a travel. On all occasions except the date on which the petitioner is to be cross examined, the petitioner may be permitted by the Family Court to be represented by a counsel without being present. If Video   Conferencing facility is available, the petitioner may be granted the said facility;
  • The Family Court may take a lenient view on the said application and have the evidence on the side of the petitioner restored. Thereafter the case may be posted for the cross examination of the petitioner.
  • For facilitating the cross examination of the petitioner by the counsel for the respondent-husband, the Court may be granted a firm date. On the date so fixed, the petitioner shall appear before the Family Court.
  • The respondent shall ensure that the cross examination of the petitioner is carried out without fail by the counsel for the respondent.
  • No request for any adjournment on behalf of the respondent shall be allowed.
  • On every occasion when the family Court wants the physical presence of the petitioner, the respondent shall pay a sum of Rs.10,000/- to the petitioner, towards expenses for travel and stay. If the respondent fails to pay, the petitioner will be at liberty to approach the Supreme Court.

[Amruta Ben Himanshu Kumar Shah v. Himanshu Kumar Parvinchandra Shah, 2021 SCC OnLine SC 46, decided on 29.01.2021]


Counsels who appeared before the Court

For petitioner: Advocate

For respondent: Advocate Ranu Purohit

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Hima Kohli and Asha Menon, JJ. dismissed an appeal filed by the appellant-wife against the order of the Family Court whereby her application under Order 9 Rule 13 read with Section 151 CPC for setting aside of the ex-parte decree of judicial Separation passed in favour of the husband was rejected.

Marriage of the parties to this matter ran into rough weather and the husband filed a petition under Section 10 of the Hindu Marriage Act, 1955 seeking Judicial Separation froths wife. The petition proceeded ex-parte against the wife and a decree of Judicial separation was passed. Thereafter, the wife filed an application under Order 9 Rule 13 read with Section 151 CPC for setting aside the said decree,  claiming that she had never been served. The application was, however,  rejected by the Family Court. Aggrieved thereby, the wife filed the present appeal.

S.S. Panwar, Advocate represented the appellant-wife. Per contra, Navin Kumar Chaudhary, Advocate, appeared for the respondent-husband.

The High Court noted that the trial court dealing with the petition seeking the relief of Judicial Separation had recorded that the notice of the petition issued by the ordinary process was refused by the father of the appellant. It was also noted that the summons despatched by registered cover was refused by the appellant herself and the said refusal on her part to accept service of the notice, was deemed to be an effective service upon her. The court observed that the evidence produced by the appellant was not sufficient to establish that she was in the hospital and had no opportunity to refuse the process of the Court as contended by her.

It was further noted that the address of the appellant being correct, the Family Court rightly drew a presumption of deemed service as contemplated under Section 27 of the General Clauses Act, 1897, to conclude that the appellant was duly served and had failed to contest the petition.

Accordingly, finding no error in the impugned order, the High Court dismissed the appeal.[Ritu v. Sandeep Kumar Prashar, 2019 SCC OnLine Del 9940, decided on 03-09-2019]

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: A Division Bench of Rakesh Kumar Jain and Harnaresh Singh Gill, JJ. allowed an appeal asking for entitlement to permanent alimony in terms of Section 25 of the Hindu Marriage Act, 1955.

The marriage of the parties was solemnized on 11-6-2012 as per Hindu Sikh rites and rituals. The respondent-husband was a widower whereas the appellant wife who had claimed herself to be a spinster was already married. A petition was filed by the respondent-husband under Section 11 of the Act for annulment of marriage alleging that the factum of earlier marriage was not disclosed to him at the time of their marriage was on 11-6-2012. The learned trial court concluded that at the time of marriage by the appellant with the respondent, she was already having a spouse and, therefore, a decree under Section 11 of the Act was passed against her declaring her marriage null and void.

Anil Chawla, learned counsel for the appellant, submitted that the appellant is entitled to permanent alimony in terms of Section 25 of the Act. He basically relied upon the decision of the Supreme Court in the case of Rameshchandra Rampratapji Daga v. Rameshwari Rameshchandra Daga, (2005) 2 SCC 33 in which it was held that the jurisdiction of the Court to grant alimony was not restricted to judicial separation or divorce and encompassed all kind of decrees such as restitution of conjugal rights under Section 9, judicial separation under Section 10, declaring marriage as null and void under Section 11, annulment of marriage as voidable under Section 12 and Divorce under Section 13.

Whereas, learned counsel for the respondent, Veneet Sharma, submitted that once the marriage of the appellant with the respondent had been held to be null and void after the decree had been passed under Section 11 of the Act, the question of award of permanent alimony did not arise at all. To further his arguments, the learned counsel cited Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav, 1988 (1) HLR 375. Relying on Savitaben Somabhai Bhaitya v. State of Gujarat, 2005 (2) R.C.R. (Criminal) 190, he contended that in the said case though, the dispute was in regard to the award of maintenance under Section 125 of the Code of Criminal Procedure, 1973 but it was held by the Supreme Court that marriage of a woman in accordance with the Hindu rites with a man having a living spouse was a complete nullity in the eyes of law and she was therefore not entitled to the benefit of Section 125 of the Code or the Hindu Marriage Act.

The Court observed that the judgment in the case of Ramesh Chandra, (2005) 2 SCC 33was deciding a specific issue as to whether Section 25 of the Act would be applicable in the decree passed under Section 11 of the Act which was not the issue before the Supreme Court in the case of Savitaben Somabhai Bhatiya (supra) in which Section 125 CrPC was in issue before the Supreme Court

Citing Balwant Rai Saluja v. Air India Ltd., (2014) 9 SCC 407, in which it was held that the binding nature of a decision would extend to only observation on the point raised and decided by the Court, the Court held that the present case was governed by the Ramesh Chandra case.

In view of the above, the Court allowed the present appeal only to the extent that the question of law which was framed by the Court holding that the appellant would be entitled to permanent alimony under Section 25 of the Act irrespective of the fact that the decree has been passed under Section 11 of the Act. The Court accordingly remanded the matter back to the trial court to decide the application under Section 25 of the Act, to be filed by the appellant before it for the purpose of seeking permanent alimony. [Sukhbir Kaur v. Sukhdev Singh, FAO-M No. 35 of 2016 (O&M), decided on 06-05-2019]

Case BriefsHigh Courts

Delhi High Court: A Bench of Jyoti Singh and G.S. Sistani, JJ. allowed an appeal filed by the husband against the decision of the family court whereby it had granted a decree of judicial separation under Section 10 of the Hindu Marriage Act, 1955 instead of a decree of divorce as prayed for by the husband in a divorce petition filed under Section 13(1)(i-a) and (iii).

The husband had alleged various incidents of cruelty against the wife. But the same were held to be omnibus allegations by the trial court. However, the trial court was of the view that a case for granting a decree of judicial separation was established and therefore it passed the impugned order. The High Court upheld most of the findings of the trial court. However, it was held that the allegation in relation to the criminal case filed by the wife against the husband amounted to matrimonial cruelty. The husband was working in the Indian Air Force when the criminal case under various sections IPC including Section 498-A was filed. He had to undergo imprisonment for 111 days. However, the wife did not appear in the trial and the husband was ultimately acquitted. It was noted that the case was filed on the advice and under pressure of her brother. However, due to the imprisonment, the husband was not granted extension in his employment with the Indian Air Force which jeopardized his career and he suffered a great loss of reputation.

Apart from that. the parties were living separately for 15 years. There was no scope of reconciliation. The gap between them could not be bridged. It was observed: “the marriage has irretrievably broken down. While this may not be a ground for divorce under the Hindu Marriage Act, 1955 but in cases where the marriage is seen to be beyond repair, the courts have taken this as an important circumstance amongst other grounds including cruelty to severe the material tie. Marriage is an institution which is based on love, faith and trust and sentiments and emotions for each other. But if the parties have lost these virtues for each other, an artificial reunion is of no consequence.” It was noted that although the wife suffered remorse and regret her follies, she seemed to be undecided on what she wants in life. Even though she might want to go back, the husband was not willing to stay with her at all. Their marriage had reached a stage beyond salvage. Therefore, due to the cruelty inflicted upon the husband by causing his wrongful imprisonment, coupled with an irretrievable breakdown of the marriage, the Court granted a decree of divorce. [M.S. v. S.D., 2019 SCC OnLine Del 8234, decided on 23-04-2019]