Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Dr Kaushal Jayendra Thaker and Ajit Singh, JJ., while setting aside a decree of divorce addressed the issue of granting maintenance to a widowed wife.

Present application was filed for modification of Court’s earlier order whereby the appellant wife’s appeal against the divorce decree granted to the husband was dismissed as withdrawn.

Factual Matrix

An appeal that was filed in the year 2009 challenged the decree of divorce passed in favour of the respondent-husband. The said appeal was pending for a period of 9 years.

The appeal came up before the Court on 12-04-2018, Court inquired from the appellant and counsel for the respondent-husband as to whether there was any chance of settlement between the parties, to which both parties agreed to live together.

Pursuant to that, both parties resumed cohabitation. The appellant wife requested for withdrawing her appeal as no dispute survived since both parties were now happily living together.

The High Court allowed the withdrawal of appeal, however, without interfering in the decree of divorce already granted in favour of the husband.

Subsequently, the respondent-husband passed away. The appellant wife now claimed maintenance under Hindu Adoption and Maintenance Act as his widowed wife. Consequently, she sought the modification of the Court’s earlier order dismissing her appeal as withdrawn without interfering in the decree of divorce passed by the trial court.

Analysis and Decision

In the present scenarios, except the son and the appellant, there was no one else to claim as the heir of the deceased respondent and hence the only legal heir entitled to inherit the estate of the deceased is the appellant and her son.

During the time period of 20 years of litigation, the wife never sought maintenance but now claimed the same under the Hindu Adoptions and Maintenance Act, 1956.

Bench cited the Supreme Court decision in Rohtas Singh v. Sant Ramendri, (2000) 3 SCC 180 and Swapan Kumar Banerjee v. State of West Bengal, 2019 SCC OnLine SC 1263, with respect to the status of the divorced wife.

High Court held that in view of the above-stated cases, the appellant would be entitled to the maintenance as per the Hindu Adoptions and Maintenance Act, 1956 as she was dependent on the deceased.

The Bench held that it cannot be said that the appellant was a divorced wife. Being a Hindu wife, the appellant has condoned all the misdeeds of the respondent and if her husband did not cohabit with her and has thereafter, started co-habiting with her, in that view of the matter, the decree of divorce both on merits and on cohabiting and condonation of misdeeds, if any, both by the husband and the wife, the decree is liable to be set aside.

The husband after 30.07.2018 had never came up before the Court to complain that she had again deserted him or what is the status of the matrimonial relations between them, which means he had also condoned misdeed of the appellant (wife), if any.
According to the Court, a case for setting aside the impugned decree of divorce was made out.

Hence the divorce decree was set aside. The earlier order of the High Court which was sought to be modified was also set aside.[Jyotsna Verma v. Ashok Kumar, First Appeal No. 432 of 2009, decided on 10-03-2021]


Advocates before the Court:

Counsel for Appellant:- In-Person, Ms. Jyotsna Verma (In Person)

Counsel for Respondent:- B. D. Mishra, Syed Fahim Ahmed

High Courts

Delhi High Court:  In reference of a matter to Full Bench concerning locus standi of private parties to maintain appeals by virtue of the proviso to Section 372 CrPC. The Court overruled its previous view decided in Chattar Singh v. Subhash  2011 SCC OnLine Del 81 : (2011) 123 DRJ 257 (DB) wherein, it was held that the appellant being a Class II heir would not inherit any thing from his deceased son. Thus, would not fall within the expression ‘legal heir’ in the light of Section 2(wa) and hence he is not entitled to prefer an appeal  by virtue of  proviso attached to Section 372 of CrPC .

While adjudicating this matter two questions arose for the court’s consideration by virtue of the order of reference. Firstly, whether the term ‘victim’ which includes ‘legal heirs’ means persons entitled to the property of the victim under the law applicable of inheritance or would embrace any person who has suffered any loss or injury caused by crime/offence for which the accused person has been charged. And secondly, whether the appellate remedy given under proviso of Section 372 CrPC, is available with respect to only such offences which were committed as on the date when the appellate right was conferred by law or the appellate right would be available with respect to the date of the decision or the appellate remedy is without any reference of the two points i.e. the date when the offence was committed or when the offence was committed or when the appellate right was conferred by law.

The Court by making an extensive discussion on point involved in first question held that, the definition of ‘victim’ as provided in Section 2 (wa) of CrPC which includes ‘legal heirs’ cannot exclude those who actually fall within the definition of ‘victim’ by virtue of emotional harm suffered by them. The laws of inheritance, which decide one’s ‘legal heirs’, are not intended to be solely determinative of the entitlement to exercise the rights of the victim, in the criminal trial/appeal on his/her death. The Court hereby applying the Heydon’s mischief rule expanded the scope of the term by saying that it is impermissible for an appellate court to shut out an appeal by a legal heir based on his/her not being an immediate heir, or being lower down in hierarchy vis-à-vis entitlement to the crime victim’s estate. Replying to the second question the court reaffirmed the view, relying on numerous decisions decided by the Supreme Court, that right to appeal being a substantive right always acts prospectively thus, all cases in which orders were passed by any criminal court acquitting the accused or convincing him for a lesser offence or imposing inadequate compensation, passed on or after the date on which amendment was made, the victims in those cases would have the qualified right mentioned in the proviso of Section 372 CrPC. Ram Phal v. State; 2015 SCC OnLine Del 9802; decided on 28-05-2015