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, Crl. RC (MD) No. 701 of 2017, decided on 17-02-2021]


Advocates who appeared for the parties:

For petitioner : S.M. Jinnah

For Respondent: No appearance

Case BriefsHigh Courts

Punjab and Haryana High Court:  In a revision petition filed against the enhanced amount of alimony H.S. Madaan, J., upheld Family Court’s decision that,

If salary of the husband increases the wife would be entitled to increased maintenance as well.

The Petitioner, one Varun Jagotta had filed the instant revision petition against his wife Diksha Kapur, feeling aggrieved by the order of the Family Court whereby the Court had granted interim maintenance at Rs 20,000  per month till September, 2019 and thereafter at Rs 28,000 per month. The petitioner was basically aggrieved by the portion of the impugned order granting maintenance at Rs 28,000 w.e.f. October, 2019 onwards.

Taking note of the fact that there had been increase in the salary of the respondent from Rs 95,000 per month to Rs 1,14,000 per month in September, 2019 and there had been increase in rent being paid by the petitioner at the rate of Rs.1,500 per month, the Family Court opined that  if the petitioner is awarded a sum of Rs 20,000/- per month by way of interim maintenance from the date of filing the application (on 03.10.2018) till September, 2019 and henceforth, at the rate of Rs 28,000/- per month, it would suffice the purpose and ends of justice would be met.

The petitioner contended that as per pay slip of the petitioner for the month of December, 2019, his net carry home salary after all the deductions came out to Rs 92,175, therefore, grant of maintenance at Rs 28,000 per month was not justified.

Noticing that salary of the petitioner had increased from Rs 95,000 per month to Rs 1,14,000 per month, the Bench held that,

 “Increase in maintenance by Rs.8,000 when there was increase in salary of revision petitioner by 19,000, was justified.”

Hence, it was held that the impugned order did not suffer from any illegality or infirmity and was not perverse or passed in an arbitrary manner. The instant petition was dismissed. [Varun Jagotta v. Diksha Kapur, CRR(F)-28 of 2021, decided on 05-02-2021]


Kamini Sharma, Editorial Assistant has put this story together.

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Vipin Sanghi and Rekha Palli, JJ., upheld the Family Court’s decision and directed the parties approach the local Court of Singapore with regard to sorting out their matrimonial dispute. 

Issue

Present appeal was filed seeking a direction against the Family Court’s decision, wherein the appellant/plaintiff sought an anti-suit injunction against the defendant/respondent to seek restraint against him for proceeding with a divorce petition filed by him to seek dissolution of marriage before the Family Justice Courts of the Republic of Singapore.

Family Court had granted injunction till the next date of hearing, restraining the defendant/respondent from prosecuting, pursuing or going ahead with his divorce action or any other proceedings as emanating from the matrimony in the case pending in Singapore Court.

Analysis

Bench found that the Family Court took note of the law laid down by the Supreme Court decisions on the aspect of grant on anti-injunction suit. Following were decisions of Supreme Court that were relied upon by the Family Court:

Y.Narasimha Rao v. Y. Venkata Lakshmi, (1991) 3 SCC 451

Modi Entertainment Network v. WSG Cricket PTE Ltd., (2003) 4 SCC 341

Dinesh Singh Thakur v. Sonal Thakur., AIR 2018 SC 2094

Appellant’s submission before the Court is that she would be severely prejudiced in case the divorce proceedings were allowed to continue in Singapore Courts, since the divorce would be granted without the appellant being granted any maintenance, or alimony, as also the custody of the children.

Opinion

Court on perusal of the submissions, facts and circumstances of the case stated that:

Firstly, regarding the rights of the parties in a matrimonial dispute according to the law of Singapore can hardly be a reason for the Court to grant the injunction, for the simple reason that the parties were domiciled in Singapore and were continuously residing there since 2012.

Secondly, no reason can be seen why the Singapore Courts would treat the appellant unfairly. Pertinently she had moved an application before the Court at Singapore to seek maintenance. Therefore, the Court cannot accept her claim that she would be prejudiced in any manner on account of her being the wife in the matrimonial dispute before a Singapore Court.

Appellant had also moved an application challenging territorial jurisdiction of the Court at Singapore, which application was rejected.

Decision

Hence, the High Court held that the Family Court had rightly rejected the application preferred by the appellant under Order 39 Rule 1 and 2 CPC.

Bench reiterated that parties being permanent resident of Singapore, residing there since 2012, should sort out their matrimonial dispute before the local Court in Singapore.

Adding to the above, Court expressed that Courts in India cannot be said to be forums that would be convenient to either of the parties. Enforcement of orders passed by the Courts in India- when the parties; their children, and; their assets/properties are situated in Singapore, would be a practical impossibility.

On finding no merit in the appeal, it was dismissed. [Rakhee Bahl v. Pankaj Bahl, 2021 SCC OnLine Del 766, decided on 03-02-2021]


Advocates for the parties:

For Appellant: Osama Suhail with Surabhi Diwan, Advs.

For Respondent: Shashank Agrawal, Adv.

Case BriefsHigh Courts

Delhi High Court: Suresh Kumar Kait, J., while addressing a criminal revision petition concerning a matrimonial dispute expressed that:

“..husband cannot wriggle out of his responsibilities to provide shelter to his wife and minor children.”

Issue: Modified Maintenance Amount to Wife

Petitioner/Husband sought to quash the Family Court’s Order through which maintenance amount was enhanced to Rs 22,000 from Rs 10,000 to respondent/wife.

Wife whereas sought modification of the Order passed by Family Court vide which interim maintenance amount of Rs 10,000 awarded by the trial court had been enhanced to Rs 22,000 while claiming it to be on the lower side.

Both the above-stated issues have been clubbed together and are being disposed of by this common Judgment.

Analysis

Wife claimed that her husband was living a luxurious life, whereas she herself was unemployed and helpless, and had two children, hence she claimed that her husband could easily maintain her and the children, but he has been deliberately neglecting his responsibilities.

In view of the above status of the husband, she claimed interim maintenance of Rs 40,000 per month.

As far as monthly income of the husband was concerned, as per his affidavit of income, he had declared his income as Rs37,418/- p.m., whereas as per ITR for the assessment year his monthly income was Rs 43,305/- p.m. Further, as per credit in bank account, his salary was shown to be Rs 44,560/- p.m, which the trial court had taken into consideration.

According to his salary slip, his total gross pay was Rs 50,003 per month and deduction of Rs 10,249 was made towards the pension scheme, insurance, society membership and repayment of the loan.

Court’s Opinion: Calculating Quantum of Maintenance

High Court opined that the income has to be ascertained keeping in mind that the deductions only towards income tax and compulsory contributions like GPF, EPF, etc. are permitted and no deductions towards house rent, electric charges, repayment of loan, LIC payments etc. are permitted.

In view of the above aspect, Bench referred to the Supreme Court decision in Dr Kulbhushan Kunwar v. Raj Kumari, (1970) 3 SCC 129, which was followed by the Punjab and Haryana High Court in Seema v. Gourav Juneja, 2018 SCC OnLine P&H 3045.

Applying the similar ratio as was in above cases, Court found that while calculating the income of the husband, deduction of Rs 1,000 towards NZRE BH NDLS contribution (which is a kind of saving) and Rs 4,451 NZRE BH Loan, from his gross income of Rs 50,003/-, cannot be permitted. Hence, the husband’s net income in hand comes to Rs 44,552/- p.m. and rounding it off to Rs 44,560.

Argument with regard to accommodation by the husband, that he has to pay rent for the same could not be considered as husband is duty-bound to arrange accommodation for his wife and children who are dependent upon him.

Court also cited the Supreme Court decision in Jasbir Kaur Sehgal v. Distt. Judge, Dehradun (1997) 7 SCC 7.

Trial Court’s Error

Whether the court below was right in dividing husband’s income into six shares while calculating and granting interim maintenance?

Husband’s mother used to receive a pension of Rs 17,199 and medical benefits, etc. and she used to live in three-storeyed building wherein one floor was occupied by her, one by her husband a and another by husband’s brother.

Since the husband pays Rs 8,000 as monthly rent and the same would be the position of the other son of the husband’s mother, her rental income would amount to Rs 16,000.

Even if it’s assumed that the rent agreement placed on record might have been manipulated to save income tax, then also it cannot be lose sight of that mother is receiving a good amount of pension and is thus, financially independent.

Another plea that the husband placed was that he had gotten employment on compassionate grounds when his father passed away, hence he is liable to maintain his mother.

On noting the above, Supreme Court decision on Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353 was referred, wherein it was held that:

“2. Be it ingeminated that Section 125 of the Code of Criminal Procedure (for short “the Code”) was conceived to ameliorate the agony, anguish, financial suffering of a woman who left her matrimonial home for the reasons provided in the provision so that some suitable arrangements can be made by the court and she can sustain herself and also her children if they are with her. The concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play, and that is where the obligations of the husband, in case of a wife, become a prominent one. In a proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity. Regard being had to the solemn pledge at the time of marriage and also in consonance with the statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a beggar. A situation is not to be maladroitly created whereunder she  is compelled to resign to her fate and think of life “dust unto dust”. It is totally impermissible. In fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able-bodied.” 

In view of the above discussion, Court found an error in the trial court’s decision in keeping the mother’s share in the income of the husband.

Hence, in this view of the matter, taking the income of husband @ Rs 44,560/- p.m. and diving it into two shares for him and remaining for his dependants i.e. wife and two children, that is to say by making five shares, each one is entitled to the share @Rs 8912/- (round of Rs 8910/-p.m.). Resultantly, the wife shall be entitled to interim maintenance @Rs 26,736/- p.m. and in round figure Rs 26,000/- instead of Rs 22,000/- p.m.

Bench modified the impugned order in the above terms. [Nitin Sharma v. Sunita Sharma, 2021 SCC OnLine Del 694, decided on 18-02-2021]

Case BriefsHigh Courts

Bombay High Court: Pushpa V. Ganediwala, J., addressed the following substantial questions of law:

  • Whether it is necessary for the wife to file an application in writing to grant permanent alimony under Section 25 of the Hindu Marriage Act, 1955?
  • Whether wife can claim maintenance under Section 25 of the Hindu Marriage Act, 1955, as she is divorcee, after passing the decree of divorce?

Counsels representing both the parties had a consensus that Section 25 of the Act does permit the divorcee spouse to claim maintenance from the other spouse even subsequent to the passing of the decree of divorce, subject to certain conditions.

Court below failed to consider the wife’s prayer for permanent alimony under Section 25 of the Act.

Bench stated that various other High Courts including this High Court have held that the word ‘application’ as referred to in Section 25 of the Act i.e. ‘on an application made to it’ does not specify as to whether it is oral application or application in writing. Adding to this observation, Court stated that a broader view of Section 25 of the Act is to be taken considering the object and purpose for the inclusion of this provision in the Act.

In Madras High Court’s decision of Umarani v. D. Vivekannandan, 2000 SCC OnLine Mad 50, it was held that there is no need of written application under Section 25 of the Hindu Marriage Act and permanent alimony and maintenance can be granted on the basis of oral application.

Madhya Pradesh High Court, in Surajmal Ramchandra Khati v. Rukminibai, 1999 SCC OnLine MP 87, held that merely because the wife had not presented a separate application praying for grant of permanent alimony, it cannot be said that she is not entitled to the same.

In view of the above discussion, Bench expressed that in terms of Section 25 of the Act, for granting the relief of permanent alimony, the Court has to consider the respondent’s own income and other property, if any, the income and other property of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the court to be just.

In the case of a decree by mutual consent, if relief for permanent alimony is sought, there is no occasion for the Court to observe the conduct of the parties, to examine their financial stability and other circumstances of the case to pass any order of permanent alimony at the time of passing of the decree of divorce by mutual consent. Essential element is that the Court should be able to comprehend the financial position and conduct of parties to pass permanent alimony order.

Appellant had narrated the financial status of the respondent-husband in her affidavit before the Court and she prayed to keep open the issue of permanent alimony for its consideration later on.

Since the appellate court dismissed the appeal on a misplaced ground of marital tie not subsisting, the said order is to be set aside.

On observing and noting the above discussion, Court opined that ‘application’ as referred to in Section 25 of the Act implies any application either in writing or oral for seeking permanent alimony and maintenance. Mode and form of the application under Section 25 of the Act are immaterial. The order in this regard cannot be passed in a vacuum.

Therefore, the matter is remanded to the trial court in order to decide the issue of permanent alimony. [Vijayshree v. Dr Nishant Arvind Kale, 2021 SCC OnLine Bom 29, decided on 08-01-2021]

Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J., dismissed an application filed under Section 24 of the Hindu Marriage Act on finding no interest in the same by the wife.

Petitioner filed a divorce petition under Section 13(1)(ia) of the Hindu Marriage Act, 1955, seeking divorce from his wife. To which Family Court granted a decree of divorce to dissolve the marriage. However, on the same date, a notice was issued in the application under Section 24 of the Hindu Marriage Act, Family Court called for the detailed affidavits to be filed as to the expenditure, assets and liabilities of both the Petitioner and Respondent.

The above-said application has been challenged.

Bench noted from the Family Court’s decision that the respondent did not contest the divorce petition at all. Respondent’s defence was struck off and cross-examination of the petitioner was also of a limited nature.

Further, the Court added that since the respondent did not set out any substantial defence and the decree of divorce was granted without contest, respondent didn’t seem to be interested in pressing the application under Section 24 of the Act, which is meant for interim maintenance pendente lite.

 While concluding with the decision, Court expressed that the legal position is that a Section 24 application under the Act can survive beyond the dismissal of the main proceeding for grant of divorce, in respect of the period till the dismissal of the said petition.

Adding to the above, bench stated that the decision in Rita Mago v. V.P. Mago, 20(1981) DLT 103 may no longer be good law.

Hence, Bench concluded that in view of the above facts and circumstances the respondent doesn’t seem to be interested in pursuing the application under Section 24 for interim maintenance, therefore the said application was dismissed. [Apurva Anand v. Chanchal Niranjan, CM (M) 426 of 2020 and CM Appl. 20237 of 2020, decided on 29-01-2021]


Advocates for the parties:

Petitioner: Dr Aman Hingorani and Himanshu Yadav, Advocates

 Respondent: None

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., while addressing the present revision petition expressed that:

“A court in revision considers the material only to satisfy itself about the legality and propriety of the findings, sentence and order and refrains from substituting its own conclusion on an elaborate consideration of the evidence.”

The instant revision petition was filed under Section 397/401 CrPC against the Order passed by Additional Sessions Judge. Further, the petitioner has also challenged the Order passed by Metropolitan Magistrate in an application for claiming interim maintenance under Section 23 of the Domestic Violence Act.

Facts leading to the present revision petition:

After marriage, Respondent/wife was inducted as a whole-time Director in the company run by the petitioner/husband. Later, the respondent-wife started living separately claiming that she was deserted by the petitioner after which she filed an application under Section 23 of the protection of Women from Domestic Violence Act, 2005 for seeking interim maintenance.

Since the respondent was continuing as the Director in the said company of the husband she wasn’t able to take up any other job and was not even getting any salary from the husband’s company which all lead to her not being able to maintain herself.

Initially, she was granted interim maintenance of Rs 1,00,000 but it was rejected by the lower court.

Respondent also approached the Company Law Board for a direction that she should be paid salary during the period she served as the Director of the Company to which the Company Law directed the above-stated company to pay the salary to the respondent.

When the petitioner moved an application under Section 25 of the Domestic Violence Act for the modification in the maintenance order since now the respondent was getting a salary from the Company, the said request was rejected.

Analysis and Decision

Bench opined that the scope of interference in a revision petition is extremely narrow.

Section 397 CrPC gives the High Courts or the Sessions Courts jurisdiction to consider the correctness, legality or propriety of any finding inter se an order and as to the regularity of the proceedings of any inferior court. It is also well settled that while considering the legality, propriety or correctness of a finding or a conclusion, normally the revising court does not dwell at length upon the facts and evidence of the case.

 Court noted that the findings of the Metropolitan Magistrate as upheld by the Sessions Court was that the petitioner was not providing adequate maintenance to the respondent and since the said maintenance was not being paid, petitioner was directed to pay a sum of Rs 1,00,000 towards maintenance.

Further, the Company which was being run by the petitioner did not release her salary. The respondent had to move the Court and fight for getting her legitimate salary.

To the above, Bench stated that even though the company is distinct from the petitioner but the company is being run by the petitioner and it can be assumed that the salary was not being paid to the respondent only at the instance of the petitioner.

While concluding, the Court held that it is open for the petitioner to raise all the contentions in the matrimonial proceedings pending between the husband and wife while deciding the issue of grant of alimony under Section 25 of the Hindu Marriage Act. [Taron Mohan v. State, 2021 SCC OnLine Del 312, decided on 25-01-2021]


Advocates for the parties:

Petitioner: Vishesh Wadhwa, Advocate

Respondents: Hirein Sharma, APP for the State

Joel, Advocate for the respondent 2.

Case BriefsHigh Courts

Delhi High Court: Suresh Kumar Kait, J., dismissed a petition seeking enhancement of maintenance granted to a wife.

The instant petition was filed to seek enhancement of maintenance granted to the petitioner.

Senior Counsel for the petitioner submitted that petitioner/wife got married to respondent 1 husband in a 5-star hotel, organized by the family of the petitioner due to persistent demands by the respondents because it was within the knowledge of the respondents that petitioner was a divorced lady, but they had an objection to the same.

It was stated that the petitioner was a housewife with no independent income whereas respondent 1 a doctor had an admitted salary of Rs 92,000. Respondent 1 earned additional income through consultancy and interest from FDRs which was not disclosed by him.

Further, it was added that the mother of the petitioner was also a housewife whereas father of petitioner was 100% paralyzed and disabled for last about 20 years and during pendency of the present lis, father of petitioner succumbed to COVID-19 and passed away.

Respondent 1’s family lead a luxurious lifestyle and admittedly, he was not required to maintain his parents or any other relative.

Counsel for the respondents submitted that respondent 1 was getting a gross salary of Rs 92,000 and his expenses per month were of Rs 89, 483. He had no FD, property or inherited property by any law of succession.

Hence respondent 1 was not in a position to pay even Rs 8,000 as directed by the Court, therefore, he sought the dismissal of the instant petition.

Analysis and Decision

Bench noted that the petitioner was undisputedly highly qualified and her qualifications were as under:

(i) BBA from ITM College Gurgaon

(ii) MBA from IILM College Lodhi Road, New Delhi

(iii) Core Franchisee Certificate, Sydney, Australia

Court also noted the working proof of the petitioner as stated by the respondents. Though the petitioner had claimed that her deceased father was handicapped, but never disclosed that they had received Rs 32,93,224 + 7.5% p.a. interest as compensation from the date of accident awarded by this Court, beside this he has also received a lumpsum amount from its employer along with regular benefits i.e. D.A.

A list of inherited properties of the petitioner was also laid down by respondents. Moreover, the petitioner had claimed that her parents spent Rs 1 crore on her previous marriage and also spent a good amount on her second marriage.

The explanation with respect to the money spent was not given when none of them were working as stated by the petitioner to the Court.

Court expressed that the petitioner failed to establish that respondent 2 was having more income than the admitted or assets in his name. Whereas, on the other hand, the petitioner was wealthier than respondent 1 and maintaining a better standard of life.

Hence, the instant petition was dismissed. [Shiny Verma Bakshi v. Dr Gurneet Singh Bakshi, 2021 SCC OnLine Del 156, decided on 27-01-2021]

Case BriefsHigh Courts

Delhi High Court: J.R. Midha, J., while addressing a motor accidents claim application decided on the issue whether it would be fair to deny compensation for loss of dependency to a parent, who may not be dependent on his/her child at the time of accident per se but would become dependent at his/her later age?

In the instant application, the appellants challenged the award of the Claims Tribunal and sought enhancement of the award amount.

The deceased was aged 23 years at the time of the accident and was survived by his parents who claimed compensation. Deceased was self-employed as a Contractor earning Rs 55,000 to Rs 60,000 per month.

Claims Tribunal held that since the deceased’s father was working with the Delhi Police as Sub-Inspector, hence was not dependent upon the deceased. Also, the deceased’s mother could not be said to be dependent upon the deceased as her husband was employed with the Delhi Police.

Therefore the Claim Tribunal had concluded that the deceased’s parents were not entitled to compensation for loss of dependency but only to compensation for loss of the estate in terms of the principles laid down in Keith Rowe v. Prashant Sagar, 2011 ACJ 1734.

Analysis, Decision and Law

  • Whether the mother of the deceased is entitled to compensation for the death of her son?

Court opined that the parents of the deceased were considered in law as dependent on their children, considering that the children are bound to support their parents in their old age, when the parents would be unable to maintain themselves and the law imposes a responsibility on the children to maintain their parents.

Further, the Bench added that

Even if the parents are not dependent on their children at the time of the accident, they will certainly be dependent, both financially and emotionally, upon their children at the later stage of their life, as the children were dependent upon their parents in their initial years.

With regard to loss of dependency, the Court held that it would be unfair as well as inequitable to deny compensation for loss of dependency to a parent, who may not be dependent on his/her child at the time of accident per se but would become dependent at his/her later age.

Following are legislations that recognize the legal rights of parents to be maintained by their children:

♦ Section 125 of the Code of Criminal Procedure, 1973

♦ Section 20 of Hindu Adoption and Maintenance Act, 1956, and Maintenance and Welfare of Parents and Senior Citizens Act, 2007

Bench referred to the following decisions:

Vijaya Manohar Arbat v. Kashirao Rajaram Sawai, (1987) 2 SCC 278.

In Magma General Insurance Co. Ltd. v. Nanu Ram, (2018) 18 SCC 130 Supreme Court had reaffirmed the with respect to the rights of parents to compensation in case of accidental death of a child.

Mahendrakumar Ramrao Gaikwad v. Gulabbai Ramrao Gaikwad, 2001 CriLJ 2111

In Sarla Verma v. D.T.C., (2009) 6 SCC 121, the Supreme Court held that the mother of the deceased bachelor is entitled to compensation by taking 50% of his income as loss of dependency on the premise that the deceased would not contribute more than 50% to his mother after marriage. The Supreme Court further observed that the mother would be considered as a dependent even if the father was employed and earning.

In light of the above decisions, the High Court held that the parents of the deceased child are considered as dependents for computation of compensation. Further, the Bench also highlighted that the principles relating to the loss to the estate shall apply only to claimants other than parents, children and spouse.

Hence, the deceased’s mother in the instant case is entitled to compensation for loss of dependency.

Compensation

Taking the income of the deceased as Rs 4,131 per month, adding 40% towards future prospects, deducting 50% towards personal expenses and applying the multiplier of 18, the loss of dependency is computed as Rs 6,24,607.20.

Court directed the appellant 1 to remain present in Court before the next date of hearing along with the passbook of her savings bank account near the place of her residence as well as PAN card and Aadhaar card.

Appellant 1 shall produce the original passbook of her individual savings bank account with the necessary endorsement on the next date of hearing. However, the bank concerned shall permit appellant 1 to withdraw money from her savings bank account by means of a withdrawal form.

While concluding in light of the above-stated, Court asked for the copy of this Judgment to be sent to Delhi Judicial Academy to sensitize the Claims Tribunals about the principles laid down by this Court in the present Judgment. [Indrawati v. Ranbir Singh, 2021 SCC OnLine Del 114, decided on 08-01-2021]


Advocates for the parties:

For the Appellants: Santosh Kumar Chauriha, Advocate

For the Respondents: Atul Nigam, Advocate along with Anubhav Tyagi and Randhir Kumar, Advocates for R-3

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): Neeraj Kumar Gupta (Information Commissioner) decide whether a legally wedded wife can seek the information regard to income tax returns of her husband under the Right to Information Act, 2005.

The instant application was filed before the CPIO, Income Tax Officer seeking the following information:

  1. “The copy of Form 16 issued by the company at Micro Focus Software Development, ‘LAUREL’, Block ‘D’, 65/2, Bagmane Techpark, C.V. Raman Nagar, Bengaluru for the year filed for 2016- 17, 2017-2018 & 2018-2019 of my husband Mr Suman Chatterjee.
  2. The relevant documents/papers relating to the Gross Annual Income of my husband Mr Suman Chatterjee.
  3. The relevant documents/papers relating to the Gross salary of my husband Mr Suman Chatterjee.”

The appellant filed the first appeal dated 11-01-2019 which was disposed of by the first appellate authority on 05-03-2019.

Thereafter, she filed a second appeal under Section 19(3) of the RTI Act before the Commission requesting to take appropriate legal action against the CPIO under Section 20 of the RTI Act, 2005 and also to direct him to provide the sought-for information.

Decision

Commission referred to the decision of Supreme Court in Girish Ramchandra Deshpande v. CIC, (2013) 1 SCC 212 with regard to the applicability of Section 8(1)(j) of the RTI Act, 2005.

Legal Issue to be decided

Whether the appellant claiming to be the legally wedded wife of Mr Suman Chatterjee is entitled to seek details of his income tax returns i.e. Form 16?

In regard to the above question, Commission referred to the Delhi High Court decision in Vijay Prakash v. UOI,2009 SCC OnLine Del 1731, wherein it was clarified that in a private dispute between husband and wife, the basic protection afforded by virtue of exemption from disclosure enacted under Section 8(1)(j) cannot be lifted or disturbed unless the petitioner is able to justify how such disclosure would be in ‘public interest’.

Bench noted that in the present matter, the appellant did not succeed in establishing the information sought was for a larger public purpose.

Commission decided that since the filing of income tax returns by an individual is not a public activity and rather it is in the nature of an obligation which a citizen owes to the State. The said information cannot be disclosed to the appellant in the absence of any larger public interest.

Further adding to the above analysis, Bench stated that according to Section 2(n) of the RTI Act, 2005 any person other than the citizen making a request for information can be termed as ‘third party’. Therefore, appellant being a person other than the RTI applicant surely comes within the definition of ‘third party’.

Bench did not find any public interest which outweighs the harm caused in its disclosure.

In light of several decisions of the Supreme Court and High Court, Commission opined that in the absence of any larger public interest in the matter, the appellant was not entitled to seek the details of the Income Tax returns filed by the third party, Mr Suman Chatterjee which is exempted under Section 8(1)(j) of the RTI Act, 2005.

Another significant point to be noted was that the appellant sought the disclosure of at least the ‘gross annual income’ of her husband so that she could defend her matrimonial case. Considering the said marital discord between the husband and wife vis-à-vis her right of maintenance, Commission opined that the respondent should consider providing the numerical figures of the gross annual income of her husband.

In light of the above observations, appeal was disposed of. [Amrita Chatterjee v. CPIO, Income Tax Officer; 2021 SCC OnLine CIC 40; decided on 08-01-2021]

Case BriefsHigh Courts

Madras High Court: G.R. Swaminathan, J., while retention of custody of an Elephant named ‘Lalitha’ to her caretaker with whom she had stayed for almost 20 years and had an emotional bonding observed that

“Just solutions to legal issues may sometimes lie outside the formal statutory framework. Judges should therefore boldly think outside the box and not feel inhibited or timid.”

The above lines were quoted since the present case pertained to “Lalitha” a female elephant, and Court found light not in the provisions of the Wild Life (Protection) Act, 1972 but in the pages of Peter Wohlleben’s “The Inner Life of Animals”.

Facts

G. Thangappan had originally purchased Lalitha and the ownership certificate for the same was issued. Later the said elephant was bought by Mohammed Aslam and sold her to Kannathu Kunju Mohammed.

Petitioner purchased ‘Lalitha’ in 2000 and the applied to seek transfer of ownership.

While the petitioner awaited for the transfer ownership the said request was rejected in March 2020 with the imposition of penalties for having transported Lalitha from one place to another without permission.

Crux of filing the instant petition

Petitioner sought rejection order in regard to the transfer of ownership to be set aside.

Analysis, Law and Decision

Relevant Provisions

Section 43 (1) of the Wild Life (Protection) Act, 1972 states that no person having in his possession captive animal in respect of which he has a certificate of ownership shall transfer by way of sale or offer for sale or by any other mode of consideration of commercial nature such animal.

Section 39 (3) of the Wild Life (Protection) Act, 1972 states that no person shall, without the previous permission in writing of the Chief Wild Life Warden or the authorised officer acquire or keep in his possession, custody or control, or transfer to any person, whether by way of gift, sale or otherwise any wild animal falling within the purview of the Act.

Was the sale of Lalitha Illegal?

The significant fact noted by the Court was that there could be no dispute that the sale of Lalitha in the first place by Thiru, Thangappan was illegal and subsequent sales were also vitiated.

Since no prior permission was obtained by the petitioner for acquiring Lalitha, the said was rightly rejected and hence the bench upheld the said order to be valid.

Respondents stated that the petitioner will have to surrender possession of the animal for being shifted to the camp maintained by the Forest Department.

Bench considered the above, whether the same could be permitted or not?

Mirror Test

Court while considering the above question observed that:

Elephants are known to be sensitive and possessed of self-awareness. They have passed what is known as “mirror test”.

German naturalist Peter Wohlleben, after years of direct, personal observation, says that animals also feel the very same emotions which the humans are capable of. Feelings of love, grief and compassion are equally found in the animals.

Article 51A (g) of the Constitution of India calls upon us to have compassion for living creatures.

Supreme Court in Animal Welfare Board of India v. A. Nagaraja, (2014) 7 SCC 547, after noting that Chapter 7.1.2 of the guidelines of World Organization of Animal Health (OIE), recognizes five internationally recognized freedoms for animals such as (i) freedom from hunger, thirst and malnutrition; (ii) freedom from fear and distress; (iii) freedom from physical and thermal discomfort; (iv) freedom from pain, injury and disease; and (v) freedom to express normal patterns of behavior declared that Sections 3 and 11 of the Prevention of Cruelty to Animals Act, 1960. 

In light of the above-cited case, High Court held that Lalitha is entitled to express her normal patterns of behaviour.

Court noted that Lalitha has been with the writ petitioner for more than twenty years. In all these years, State did not intervene and take her away.  The department was issuing directives from time to time and they were complied with by the petitioner.

Further, it was noted that a Microchip has been implanted in Lalitha’s body so that her movements could be tracked. It seemed that Lalitha developed a great bonding with her caretakers.

Forcible relocation in alien surrounding would traumatize Lalitha.

Hence, the approach to be adopted in the instant matter is to be similar as the one in child custody cases.

Surprise inspection

Bench made a surprise inspection and found that Lalitha was being sumptuously fed and the fact that pleased the most was her not being chained at all. In fact, Lalitha looked happy and healthy.

Lalitha’s Maintenance

Caretakers were questioned by the Bench in regard to Lalitha’s maintenance to which they responded that she is taken to some well-known temples and Dargas, wherein she is paid for her majestic participation, her dignity is maintained intact.

Bench in light of the above stated that there was no exploitation to which Lalitha was being subjected.

Peter Wohlleben in the chapter “In the Service of Humanity”, in his Book remarks that when the log-haulers are kind and give rest to their horses, the animals are eager to work. One can find a similar human-animal partnership with shepherds and their dogs which also follow verbal commands. This is another example of animals taking pleasure in their work, as we can clearly see if we watch sheepdogs racing around a flock of sheep to round them up (Page 251).

Further, the Court also expressed that the veterinarians appointed by the department certified that Lalitha was being maintained properly by the petitioner.

A psychological wound would be caused to Lalitha if she will be removed from petitioners’ custody. Hence the present arrangement needed to be continued.

Another significant and essential point which was noted by the Bench was that Lalitha’s usual place of stay was a coconut groove and there was an R.O. Plant as well. The said land was owned by Thiru. Pothiraj who gave in writing to the Court that the said land will not be sold during the lifetime of Lalitha.

High Court took inspiration from the following statement of law:

“The courts now recognise that the impact on the administration is relevant in the exercise of their remedial jurisdiction. Quashing decisions may impose heavy administrative burdens on the administration, divert resources towards re-opening decision, and lead to increased and unbudgeted expenditure. Earlier cases took the robust line that the law had to be observed, and the decision invalidated whatever the administrative inconvenience caused. The courts nowadays recognise that such an approach is not always appropriate and may not be in the wider public interest. The effect on the administrative process is relevant to the courts’ remedial discretion and may prove decisive.”

[Passage approvingly quoted by the Supreme Court in (1994) 1 SCC 648, Malaprabha Co-Operative Sugar Factor v. Union Of India]

In light of the above passage, Court held that the administrative decision may be found to be valid in law and yet there can be no sequitur.

In the present matter,

the rights of the animal are more relevant and they determine the adjudicatory outcome and not the formal validity of the administrative order.

For the above reason, Court disposed of the petition and upheld the impugned order by directing the respondents to permit the petitioner to continue to keep the custody of Lalitha. [S.G.M. Shaa v. Principal Chief Conservator of Forests and Chief Life Warden,  2020 SCC OnLine Mad 6242, decided on 10-09-2020]

Case BriefsHigh CourtsTribunals/Commissions/Regulatory Bodies

It’s the last day of 2020, and here we are with the 20 most-read Case Briefs of the SCC Online Blog in the Year 2020.

The following lists consist of the most-loved Case Briefs by SCC Blog Readers.

[Bombay High Court]

Bom HC | State Govt. declares ATMA, XAT, MAT, GMAT entrance tests not to be valid eligibility for MBA/MMS courses, instead only MS-CET, CMAT and CET to be valid: Read HC’s decision on Government Circular

[Anmol Jagdish Baviskar v. Minister, Higher and Technical Education Department Mumbai; 2020 SCC OnLine Bom 3853, decided on 11-12-2020]


[National Consumer Disputes Redressal Commission]

If a person carries out trading in shares on an occasional basis by opening a Demat Account, will that person come under the ambit of Consumer? Read NCDRC’s opinion

[Vaman Nagesh Upaskar v. India Infoline Ltd., 2020 SCC OnLine NCDRC 469, decided on 28-10-2020]


[Bombay High Court]

Bom HC | If the wife is earning something for livelihood, can the same be a ground to refuse alimony under S. 24 of Hindu Marriage Act? Read Court’s ruling reiterating SC’s decision

[Arpana Vijay Manore v. Dr Vijay Tukaram Manore, 2020 SCC OnLine Bom 3925, decided on 09-12-2020]


[Delhi High Court]

Del HC | Schools free to decline Online Education Facility to students whose parents fail to pay tuition fees

[Queen Mary School Northend v. Director of Education, 2020 SCC OnLine Del 736 , decided on 08-07-2020]


[Allahabad High Court]

All HC | Offences under Ss. 498-A IPC and 3/4 of Dowry Prohibition Act compounded in light of settlement between parties

[Deena Nath v. State of U.P., 2020 SCC OnLine All 1057, decided on 23-09-2020]


[Supreme Court]

Maintenance of wife|Husband doesn’t have to pay maintenance in each of the proceedings under different Maintenance laws [Explainer on Supreme Court guidelines]

[Rajnesh v. Neha,  2020 SCC OnLine SC 903, decided on 04.11.2020]


[Kerala High Court]

Ker HC | If a particular income is not taxable under Income Tax Act, it cannot be taxed on basis of estoppel or any other equitable doctrine; Court reiterates principles for recovery under Income Tax Act

[Uniroyal Marine Exports v. CCE,  2020 SCC OnLine Ker 5175, decided on 17-11-2020]


[Allahabad High Court]

[Maintenance to Muslim wife] All HC | “S. 125 CrPC perhaps one of the most secular enactment ever made in this country”: HC while upholding maintenance awarded to a divorced Muslim wife

[Jubair Ahmad v. Ishrat Bano, 2019 SCC OnLine All 4065, decided on 18-10-2019]


[Kerala High Court]

Ker HC | No blanket order should be passed under S. 438 CrPC to prevent accused from being arrested when there is no crime registered against him; Court quashes order granting anticipatory bail

[State of Kerala v. Ansar M.C.,  2020 SCC OnLine Ker 4569, decided on 21-10-2020]


[Supreme Court]

SC clarifies law on admissibility of electronic evidence without certificate under Section 65B of Evidence Act, 1872

[Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, 2020 SCC OnLine SC 571, decided on 14.07.2020]


[Allahabad High Court]

All HC | Can a complaint filed in light of S. 138 NI Act be dismissed on ground of one day delay? Read Court’s reasoned order

[Pankaj Sharma v. State of U.P., 2020 SCC OnLine All 1339, decided on 22-09-2020]


[Chhattisgarh High Court]

Chh HC | Can an application for anticipatory bail under S. 438 CrPC be filed directly before the High Court? || Thorough Analysis

[Hare Ram Sharma v. State of Chhattisgarh, 2020 SCC OnLine Chh 639, decided on 18-11-2020]


[Bombay High Court]

[S. 125 CrPC] Bom HC | Wife cannot be denied maintenance on ground of having a source of income

[Sanjay Damodar Kale v. Kalyani Sanjay Kale, 2020 SCC OnLine Bom 694, decided on 26-05-2020]


[Calcutta High Court]

Cal HC | Rejection of complaint under S. 156(3) CrPC by Magistrate without taking cognizance under S. 190(1)(a) is an error in law; correct approach explained

[Pranati v. State of W.B., 2020 SCC OnLine Cal 132, decided on 21-01-2020]


[Delhi High Court]

Del HC | If interim maintenance by wife has already been secured under Domestic Violence Act, will application under S. 125 CrPC be maintainable? Court answers

[Rani v. Dinesh, Crl. Rev. P. 1091 of 2019 and Crl. M.A 13677 of 2020, decided on 02-12-2020]


[Himachal Pradesh High Court]

HP HC | Remedy under S. 125 CrPC and S. 12 of DV Act, 2005 are distinct and different; Law does not prohibit wife to proceed under both of the said statutory provisions simultaneously or otherwise; Petition dismissed

[Sachin Sharma v. Palvi Sharma,  2020 SCC OnLine HP 2109, decided on 26-10-2020]


[Chhattisgarh High Court]

Chh HC | S. 320 CrPC is no bar to the exercise of power of quashing of FIR in matrimonial matters; Petition allowed

[Gurumukh Das Chandani v. State of Chhattisgarh, 2020 SCC OnLine Chh 568, decided on 27-10-2020]


[Allahabad High Court]

All HC | Principle contained in S. 141 of NI Act is not applicable to a sole-proprietary concern, firm need not be arraigned as an accused while making a claim for recovery under S. 138 of the NI Act

[Dhirendra Singh v. State of U.P., 2020 SCC OnLine All 1130, decided on 13-10-2020]


[Karnataka High Court]

[MV Act] Kar HC | Will the insurance company be liable for compensation if the vehicle was insured as ‘private vehicle’ but plyed on ‘hire’ at the time of accident? HC decides

[United India Insurance Co. Ltd. v. Basavaraj, 2020 SCC OnLine Kar 1652, decided on 02-11-2020]


[National Consumer Disputes Redressal Commission]

NCDRC | Can a consumer claim refund of principal amount if flat not delivered on time? Commission untangles two fundamentals for Buyer — Consumer

[Ankur Goyal v. Rise Project (P) Ltd., 2020 SCC OnLine NCDRC 465, decided on 14-10-2020]

Case BriefsSupreme Court Roundups

2020 has been a year of COVID-19, challenges, and changes. Of many things that this year has taught us, one of the biggest lessons has been our ability to work from home alone – but together! Like most of us, the Courts too took the cue and started functioning via video conferencing when the pandemic hit the World. At first, the Supreme Court restricted it’s functioning to avoid mass gatherings in Courts and directed that only urgent matters will be heard, however, soon all the in-person hearings were completely banned and the Court directed that it would hear “extremely urgent” matters via video conferencing.

Ultimately, faced with the unprecedented and extraordinary outbreak of a pandemic, Supreme Court issued guidelines on functioning of courts through video conferencing. It said that it was necessary that Courts at all levels respond to the call of social distancing and ensure that court premises do not contribute to the spread of virus.

Also read:

When the video conference hearings first began, the Courts and the public at large were skeptical about it’s success, however, the Supreme Court, in October, said that the “the system of Video Conferencing has been extremely successful in providing access to justice.” 

Read: SC says “system of Video Conferencing has been extremely successful”; alters only one guideline from April 6 order

Here are a few unmissable facts and stories from the highest Court of the country:

  • Even though most of the Court functioning took place online and through video conferencing, 696 judgments were delivered in the year 2020 .
  • All the Constitution bench verdicts were unanimous with no dissenting opinion. [Read more]
  • In a first, Single-Judge bench started hearing cases. [Read more]
  • A new dress code was notified for advocates in light of the COVID-19 pandemic. [Read more]
  • 228 advocates registered as Advocates-on-Record of the Supreme Court. [Read more]
  • 2 judges, Justice R. Banumathi and Justice Arun Mishra retired

Read:

Read: “Justice Ramana’s proximity with Mr. Chandrababu Naidu is too well-known”; Read what Andhra Pradesh CM Jagan Mohan Reddy wrote in his letter to CJI

Here’s a quick roundup of all the important Supreme Court judgments:

11 Constitution bench judgments 

  • All the Constitution bench verdicts were unanimous with no dissenting opinion.
  • 9 out of 11 Constitution bench judgments were delivered by benches consisting of Justices Arun Mishra, Indira Banerjee, Vineet Saran and M.R. Shah, followed by Justices Aniruddha Bose and S. Ravindra Bhat who were part of Constitution benches in 5 and 4 cases, respectively.

Read more…


Maintenance in matrimonial disputes| Extensive guidelines framed; Issue of overlapping jurisdiction under different Laws resolved

The bench ofIndu Malhotra and R. Subhash Reddy, JJ framed guidelines on overlapping jurisdiction under different enactments for payment of maintenance, payment of Interim Maintenance, the criteria for determining the quantum of maintenance, the date from which maintenance is to be awarded, and enforcement of orders of maintenance.

Read more…

Also read: Guidelines

[ Rajnesh v. Neha,  2020 SCC OnLine SC 903 ]


Appointments and functioning of Tribunals

A 3-judge bench issued extensive directions in relating to selection, appointment, tenure, conditions of service, etc. relating to various tribunals, 19 in number, thereby calling for certain modifications to the Tribunal, Appellate Tribunal and other Authorities [Qualification, Experience and Other Conditions of Service of Members] Rules, 2020.

“Dispensation of justice by the Tribunals can be effective only when they function independent of any executive control: this renders them credible and generates public confidence.”

Read more…

Also read: ‘It’s high time we put an end to the disturbing trend of Govt ignoring our directions.’ Read why Supreme Court directed constitution of National Tribunals Commission

[Madras Bar Association v. Union of India2020 SCC OnLine SC 962 ]


Constitutionality of imposition of GST on lotteries, betting and gambling

Lottery, betting and gambling are well known concepts and have been in practice in this country since before independence and were regulated and taxed by different legislations. When Act, 2017 defined the goods to include actionable claims and included only three categories of actionable claims, i.e., lottery, betting and gambling for purposes of levy of GST, it cannot be said that there was no rationale for including these three actionable claims for tax purposes.

Read more…

[Skill Lotto Solutions v. Union of India, 2020 SCC OnLine SC 990 ]


Homebuyer can choose between seeking remedy under the RERA Act or the Consumer Protection Act

The bench of UU Lalit and Vineet Saran, JJ held that the Real Estate (Regulation and Development) Act, 2016 (RERA Act) does not bar the initiation of proceedings by allottees against the builders under the Consumer Protection Act, 1986.

Read more… 

[Imperia Structures v. Anil Patni,  2020 SCC OnLine SC 894 ]


Domestic Violence| Wife’s right to residence in shared household belonging to not just husband but also to his relatives

“The domestic violence in this country is rampant and several women encounter violence in some form or the other or almost every day, however, it is the least reported form of cruel behavior. A woman resigns her fate to the never-ending cycle of enduring violence and discrimination as a daughter, a sister, a wife, a mother, a partner or a single woman in her lifetime.” 

Read more…

[Satish Chander Ahuja v. Sneha Ahuja, 2020 SCC OnLine SC 841 ]


Daughters’ coparcenary rights

The 3-judge bench of Arun Mishra, SA Nazeer and MR Shah, JJheld that daughters have right in coparcenary by birth and that it is not necessary that the father coparcener should be living when the Hindu Succession (Amendment) Act, 2005 came into force.

“The conferral of right is by birth, and the rights are given in the same manner with incidents of coparcenary as that of a son and she is treated as a coparcener in the same manner with the same rights as if she had been a son at the time of birth.”

Read more…

[ Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1 ]


Permanent commission to all women Army officers

The bench of Dr. DY Chandrachud and Ajay Rastogi, JJ has ordered that the permanent commission will apply to all women officers in the Indian Army in service, irrespective of their years of service.

“Underlying the statement that it is a “greater challenge” for women officers to meet the hazards of service “owing to their prolonged absence during pregnancy, motherhood and domestic obligations towards their children and families” is a strong stereotype which assumes that domestic obligations rest solely on women.”

Read more… 

[Ministry of Defence v. Babita Puniya, (2020) 7 SCC 469]


RBI’s ban on Cryptocurrency trading quashed

The 3-judge bench of Rohinton Fali Nariman, S Ravindra Bhat and V Ramasubramania, JJ has struck down the curb on trading in virtual currency, cryptocurrency and bitcoins in India.

In the 180 pages long verdict penned by Justice Ramasubramania, it was held,

“When the consistent stand of RBI is that they have not banned Virtual currencies (VCs) and when the Government of India is unable to take a call despite several committees coming up with several proposals including two draft bills, both of which advocated exactly opposite positions, it is not possible for us to hold that the impugned measure is proportionate.”

Read more…

[Internet & Mobile Assn. of India v. Reserve Bank of India, (2020) 10 SCC 274 ]


Installation of CCTV Cameras in all Police Station

The 3-judge bench of RF Nariman*, KM Joseph and Anirudhha Bose, JJ directed all the States and UTs to install CCTV cameras in all Police Stations and file compliance affidavits within 6 weeks. The Court said that the directions are in furtherance of the fundamental rights of each citizen of India guaranteed under Article 21 of the Constitution of India, and hence, the Executive/Administrative/police authorities are to implement this Order both in letter and in spirit as soon as possible.

Read more… 

[Paramvir Singh Saini v. Baljit Singh, 2020 SCC OnLine SC 983 ]


Automatic expiration of stay 

“Whatever stay has been granted by any court including the High Court automatically expires within a period of six months, and unless extension is granted for good reason, within the next six months, the trial Court is, on the expiry of the first period of six months, to set a date for the trial and go ahead with the same.” 

Read more…

[Also read detailed report on the 2018 verdict in Asian Resurfacing of Road Agency Pvt. Ltd. v. Central Bureau of Investigation, 2018 SCC OnLine SC 310,  here.]


Political parties to publish criminal antecedents of candidates & give reasons for their selection

A bench of RF Nariman and S. Ravindra Bhat, JJ directed all political parties to upload on their website details of pending criminal cases against candidates contesting polls, noting that there has been an alarming increase in criminalisation of politics. The Court said political parties will also have to upload reasons for selecting candidates with pending criminal cases on their website.

Read more… 

[Rambabu Singh Thakur v. Sunil Arora, (2020) 3 SCC 733 ]


SC/ST (Prevention of Atrocities) Amendment Act, 2018 constitutionally valid

 A 3-judge bench of Arun Mishra, Vineet Saran and S. Ravindra Bhat, JJ has upheld the constitutional validity of the SC/ST (Prevention of Atrocities) Amendment Act, 2018, and said that a court can grant anticipatory bail only in cases where a prima facie case is not made out. In the unanimous verdict, Justice Mishra penned the opinion for himself and Justice Saran whereas Justice Bhat wrote a separate but concurring opinion.

Read more… 

[Prathvi Raj Chauhan v. Union of India, (2020) 4 SCC 727 ]


Test for determining non-arbitrability of disputes

The 3-judge bench of NV Ramana*Sanjiv Khanna** and Krishna Murari, JJ overruled the ratio in Himangni Enterprises v. Kamaljeet Singh Ahluwalia, (2017) 10 SCC 706 wherein it was held that landlord-tenant disputes governed by the provisions of the Transfer of Property Act, 1882, are not arbitrable as this would be contrary to public policy.

Read more…

[Vidya Drolia v. Durga Trading Corporation, 2020 SCC OnLine SC 1018 ]


Admissibility of electronic evidence without certificate under Section 65B of Evidence Act, 1872

In a reference dealing with the interpretation of Section 65B of the Evidence Act, 1872 that deals with admissibility of electronic records, the 3-judge bench of RF Nariman, S. Ravindra Bhat and V. Ramasubramanian, JJ held that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in by the 3-judge bench in Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473, and incorrectly “clarified” by a division bench in Shafhi Mohammad v. State of Himachal Pradesh, (2018) 2 SCC 801. The Court further clarified that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced.

Read more…

[Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1 ]


Advance tax ruling system

The bench of SK Kaul and Indu Malhotra, JJ has recommended the Central Government to consider the efficacy of the advance tax ruling system and make it more comprehensive as a tool for settlement of disputes rather than battling it through different tiers, whether private or public sectors are involved. It suggested that a council for Advance Tax Ruling based on the Swedish model and the New Zealand system may be a possible way forward.

Writing two postscripts, the Court said that it was forced to do so on account of the backbreaking dockets which are ever increasing and as a move towards a trust between the Tax Department and the assessee.

Read more… 

[National Co-operative Development Corporation v. Commissioner of Income Tax, 2020 SCC OnLine SC 733 ]


Telecos get 10 years to pay AGR dues

Asking Telecom Operators to make the payment of 10% of the total AGR dues as by 31.3.2021, the 3-judge bench of Arun Mishra, SA Nazeer and MR Shah, JJ gave 10 years to the Telecom Service Providers (TSPs) to complete the payment of their AGR dues.

Read more…

[Union of India v. Assn. of Unified Telecom Service Providers of India, (2020) 9 SCC 748 ]


All petitions challenging the IBC provisions relating to personal guarantors transferred to Supreme Court

The Insolvency and Bankruptcy Code is at a nascent stage and it is better that the interpretation of the provisions of the Code is taken up by the Supreme Court to avoid any confusion.

Read more…

[Insolvency and Bankruptcy Board of India v. Lalit Kumar Jain,  2020 SCC OnLine SC 884 ]


The final order that sealed the fate for the Nirbhaya convicts

Putting the last nail in the coffin for the Nirbhaya death row convicts, the 3-judge bench of R. Banumathi, Ashok Bhushan and AS Bopanna, JJ dismissed the plea file by Pawan Kumar Gupta challenging the rejection of his mercy petition by the President on the ground that his plea of juvenility had not been finally determined and this aspect was not kept in view by the President of India while rejecting his mercy plea.

The hearing took place late at night at 2:30 AM.

Read more…

Also read:

[Pawan Kumar Gupta v. State of NCT of Delhi, 2020 SCC OnLine SC 340 ]


Shaheen Bagh Protests

“Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone. The present case was not even one of protests taking place in an undesignated area, but was a blockage of a public way which caused grave inconvenience to commuters. We cannot accept the plea of the applicants that an indeterminable number of people can assemble whenever they choose to protest.” 

The 3-judge bench of SK Kaul, Aniruddha Bose and Krishna Murari, JJ has, in the Shaheen Bagh protests matter, held that while there exists the right to peaceful protest against a legislation, public ways and public spaces cannot be occupied in such a manner and that too indefinitely.

Read more…

[Amit Sahni v. Commissioner of Police, 2020 SCC OnLine SC 808 ]


Farmers’ protest

“Indeed the right to protest is part of a fundamental right and can as a matter of fact, be exercised subject to public order.”

Refusing to interfere with the ongoing Farmers’ protest, the 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ said that the farmers’ protest should be allowed to continue without impediment and without any breach of peace either by the protesters or the police.

Read more…

[Rakesh Vaishnav v. Union of India, 2020 SCC OnLine SC 1032 ]


Sushant Singh Rajput Death Case

When truth meets sunshine, justice will not prevail on the living alone but after Life’s fitful fever, now the departed will also sleep well. Satyameva Jayate.”

A single judge bench of Hrishikesh Roy, J has held the ongoing investigation by the CBI to be lawful and further directed that if any other case is registered on the death of the actor Sushant Singh Rajput and the surrounding circumstances of his unnatural death, the CBI is directed to investigate the new case as well.

Read more… 

[Rhea Chakraborty v. State of Bihar, 2020 SCC OnLine SC 654 ]


Scandalous allegations against Supreme Court judges

After finding advocates Vijay Kurle, Nilesh Ojha and Rashid Khan Pathan guilty of levelling scandalous allegations against Justice RF Nariman and Justice Vineet Saran, the bench of Deepak Gupta and Aniruddha Bose, JJ has sentenced all 3 to undergo simple imprisonment for a period of 3 months each with a fine of Rs. 2000/-. It further said that in default of payment of fine, each of the defaulting contemnors shall undergo further simple imprisonment for a period of 15 days.

Read: 

[Vijay Kurle, In re, 2020 SCC OnLine SC 407  and Rashid Khan Pathan v. Vijay Kurle, 2020 SCC OnLine SC 711]


Vikas Dubey Encounter

After Vikas Dubey, a history-sheeter and gangster-turned-politician, was killed in a police encounter on July 10, 2020, the Supreme Court gave a go ahead to Inquiry Committee headed by Former SC judge Justice B S Chauhan.

Later,  a 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ refused to scrap the Judicial Committee constituted to look into the killing of Vikas Dubey and said that the allegations of bias made against the members of the Commission merely on the basis of newspaper reports and nothing more, are liable to be rejected outright.

“ … the Chairman and a Member of the Commission had held high Constitutional positions and while making allegations the petitioner has based his claim only on the newspaper report and the manner in which the averments are made in the application is unacceptable.”

Read: 

[Ghanshyam Upadhyay v. State of Uttar Pradesh2020 SCC OnLine SC 587 and 2020 SCC OnLine SC 658 ]


Prashant Bhushan Contempt proceedings

Twitter row

The 3-judge bench of Arun Mishra, BR Gavai and Krishna Murari, JJ has, in a 108-pages long verdict, held advocate Prashant Bhushan guilty of criminal contempt in the suo motu contempt petition initiated against him after he criticised the Supreme Court and the sitting and former CJIs in a couple of tweets. It held,

The tweets which are based on the distorted facts, in our considered view, amount to committing of ‘criminal contempt’. 

The Court, however, sentenced Bhushan with a fine of Rupee 1 for his contemptuous tweets and said

“If we do not take cognizance of such conduct it will give a wrong message to the lawyers and litigants throughout the country. However, by showing magnanimity, instead of imposing any severe punishment, we are sentencing the contemnor with a nominal fine of  Re.1/­ (Rupee one).”

Read:

[Prashant Bhushan, In re, 2020 SCC OnLine SC 646 and  2020 SCC OnLine SC 698 ]

Tehelka contempt

In another contempt proceeding against Bhushan, after refusing to accept the explanation of advocate Prashant Bhushan in the 2009 contempt petition against Advocate Prashant Bhushan and former Tehelka Tarun Tejpal, the 3-judge bench of Arun Mishra, BR Gavai and MR Shah, JJ framed larger questions in the matter that will have far-reaching ramifications.

Read more… 

[Amicus Curiae v. Prashant Bhushan, 2020 SCC OnLine SC 651 ]


Kunal Kamra and Rachita Taneja contempt cases 

The 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah, JJ issued notice to cartoonist Rachita Taneja and comedian Kunal Kamra in two separate cases relating contemptuous social media posts.

Read more…

[Shrirang Katneshwarkar v. Kunal Kamra2020 SCC OnLine SC 1041 and Aditya Kashyap v. Rachita Taneja, 2020 SCC OnLine SC 1042 ]


Here’s the list of some of the important COVID-19 Orders/Direction issued by the Supreme Court:

“Even if one survives from COVID-19, many times financially and economically he is finished.”

“To a worker who has faced the brunt of the pandemic and is currently laboring in a workplace without the luxury of physical distancing, economic dignity based on the rights available under the statute is the least that this Court can ensure them.” 


Also read:

2020 Roundup: 11 Constitution bench judgments, 17 judges, Zero dissent

 

Case BriefsHigh Courts

In our series of 2020 wrap-ups, let’s revisit and take a dive at some of our stories on family laws and how different High Courts dealt with the same involving some very significant rulings.

We have listed down Case briefs under sub-categories, of our coverage under the Family Law and its allied provisions.


[Allahabad High Court]

Custody of Minor

In minor’s custody case, where child is below 5 years of age, mother is preferred, but is there any exception to it? All HC explains

[Meenakshi v. State of U.P., 2020 SCC OnLine All 1475, decided on 02-12-2020]

If a natural guardian faces criminal charges relating to death of spouse, can custody of children or visitation rights be granted? All HC discusses

[Shaurya Gautam v. State of U.P., 2020 SCC OnLine All 1372, decided on 10-11-2020]

Decree of Eviction against Son

Can daughter-in-law be evicted without seeking decree of eviction against the son under S. 2(s) of Domestic Violence Act? All HC answers

[Sujata Gandhi v. S.B. Gandhi, 2020 SCC OnLine All 763, decided on 12-06-2020]


 [Bombay High Court]

Alimony

If the wife is earning something for livelihood, can the same be a ground to refuse alimony under S. 24 of Hindu Marriage Act? Read Bom HC’s ruling reiterating SC’s decision

[Arpana Vijay Manore v. Dr Vijay TukaramManore, 2020 SCC OnLineBom 3925, decided on 09-12-2020]

Bigamy

Person committing offence under S. 494 IPC, must have married another woman or man during subsistence of his or her first marriage; Bom HC invokes power under S. 482 CrPC to meet ends of justice

[Rekha v. State of Maharashtra, 2020 SCC OnLineBom 291, decided on 13-02-2020]

 Cooling-off Period

Can “cooling-off period” under S. 13-B(2) of Hindu Marriage Act be waived? Legal position discussed in a case of pregnant woman

[Kovelamudi Kanika Dhillon v. Kovelamudi Surya Prakash Rao,  2020 SCC OnLineBom 2054, decided on 26-10-2020]

 Cruelty to Woman

Abuse of S. 498-A IPC by making vague allegations and roping in family members of husband: Courts to carefully scrutinize allegations

[Shabnam Sheikh v. State of Maharashtra, 2020 SCC OnLineBom 1752, decided on 15-10-2020]

“Easy to accuse somebody of ill-treatment after someone dies, but not wise to convict somebody based on general statements”: Bom HC holds every cruelty is not an offence under S. 498-A IPC

[State of Maharashtra v. Shri Balu Ravji Abhang, 2020 SCC OnLineBom 307, decided on 20-02-2020]

Family members should not be dragged without specific evidence against them, otherwise, S. 498-A IPC is unfortunately misused as a weapon, says Bom HC

[State of Maharashtra v. Ashok, 2020 SCC OnLineBom 331, decided on 26-02-2020]

 Custody of Minor

Welfare of child as paramount consideration: Bom HC gives custody to father of minor for mother not being able to take care of the child

[Sashanka v. Prakash, 2020 SCC OnLineBom 3497, decided on 27-11-2020]

Domestic Violence & Jurisdiction of Courts

Does Family Court has jurisdiction to entertain an application for relief under Ss. 18 to 22 of DV Act? Read what Bom HC held

[Hitesh Prakashmalji Mehta v. Aashika Hitesh Mehta, 2020 SCC OnLineBom 983, decided on 28-09-2020]

Second Marriage

Performing second marriage during pendency of an appeal is a breach under S. 15 of HMA, but would it amount to civil contempt? Bom HC analyses

[Kanchan v. Prashant Manikrao Bagade, 2020 SCC OnLineBom 911, decided on 08-09-2020]

 Unmarried Daughter (Maintenance)

Whether unmarried daughter who is major by age, entitled to claim maintenance from father till her marriage? Bom HC explains law in light of Hindu Adoption & Maintenance Act

[Sanjay J. Phagnekar v. State of Maharashtra, 2020 SCC OnLineBom 3382, decided on 23-11-2020]

Widowed Daughter-in-Law (Maintenance)

Can a widowed daughter-in-law claim maintenance from the estate inherited by her father-in-law? Law explained

[Sardool Singh Sucha Singh Mathroo v. Harneet Kaur, 2020 SCC OnLineBom 927, decided on 07-09-2020]

 Wife having Independent Source of Income (Maintenance)

[S. 125 CrPC] Wife cannot be denied maintenance on ground of having a source of income: Restated by Bom HC

[Sanjay Damodar Kale v. Kalyani Sanjay Kale, 2020 SCC OnLineBom 694, decided on 26-05-2020]


[Calcutta High Court]

Child Marriages

Alarming rise of child marriages during lockdown has given a strong impression that they may be in garb of child trafficking; Police to investigate

[Contagion of COVID-19 Virus in Children, In Re., 2020 SCC OnLine Cal 1066, decided on 25-06-2020]

 Harassment over Complexion

Harassment by in-laws for woman’s black complexion is cruelty under S. 498-A IPC; Husband convicted for murdering wife over her black complexion

[Mazidul Miah v. State of W.B., 2020 SCC OnLine Cal 1077, decided on 25-06-2020]


[Chhattisgarh High Court]

Alienation of Property by Alleged Wife

Whether alienation of property by an alleged wife of a deceased is void? Chh HC analyses position in light of ‘Customs’ under Hindu Marriage Act

[Anirudh Prasad Kamal Sen v. Dashmat Bai Suryavanshi, Second Appeal No. 93 of 2009, decided on 28-08-2020]

Cause of Action

In a matrimonial dispute, cause of action can arise several times, even if the dispute is settled and case has been withdrawn

[Harsha Dewani v. Ashutosh Gupta, 2020 SCC OnLineChh 149, decided on 10-08-2020]


[Delhi High Court]

Adultery

Adultery can only be committed after marriage, allegation of having relationship before marriage cannot be a ground of adultery; Divorce petition dismissed

[Vishal Singh v. Priya, 2020 SCC OnLine Del 638, decided on 12-06-2020]

Affidavit of Assets, Income and Expenditure

Del HC updates Affidavit of Assets, Income & Expenditure to be filed at threshold of matrimonial disputes; Issues modified directions [Detailed Report: Read Directions]

[Kusum Sharma (5) v. Mahinder Kumar Sharma, 2020 SCC OnLine Del 931, decided on 6-8-2020]

Cruelty & Desertion

Del HC analyses “A typical case that showcases as to what would amount to cruel behaviour on part of one spouse to utter detriment of other”

[Venkatesh Narasimhan v. V. Sujatha, 2020 SCC OnLine Del 571, decided on 01-05-2020]

Divorce Proceedings

Husband citizen and domicile of USA, Can he raise objections on divorce proceedings filed by wife in India? Del HC decrypts the law in light of catena of SC decisions

[Karan Goel v. Kanika Goel, 2020 SCC OnLine Del 1319, decided on 12-10-2020]

 Impotency

Is making false allegation of impotency by wife against husband a ground for decree of divorce? Del HC determines

[Kirti Nagpal v. Rohit Girdhar, 2020 SCC OnLine Del 1466, decided on 20-11-2020]

Maintenance

If interim maintenance by wife has already been secured under Domestic Violence Act, will application under S. 125 CrPC be maintainable? Del HC answers

[Rani v. Dinesh, Crl. Rev. P. 1091 of 2019 and Crl. M.A 13677 of 2020, decided on 02-12-2020]

Matrimonial Disputes

Del HC reiterates SC’s position on “duty of the Courts to encourage genuine settlements of matrimonial disputes”

[Harish Kumar v. State, 2020 SCC OnLine Del 1635, decided on 04-12-2020]

 Remedy against Custody Orders

“No exception to remedy against orders of custody under Domestic Violence Act”: Del HC dismisses S. 482 CrPC petition in view of S. 29 DV Act

[Srisha Dinav Bansal v. Rajiv Bansal, 2020 SCC OnLine Del 764, decided on 20-07-2020]

Right to Privacy versus Right to Fair Trial

[S. 14 of Family Courts Act] In a contest between right to privacy and right to fair trial, both of which arise under expansive Art. 21, right to privacy may have to yield to right to fair trial

[Deepti Kapur v. Kunal Julka, 2020 SCC OnLine Del 672, decided on 30-06-2020]

Second Marriage & Custody of Children

Second marriage of a mother is by itself not sufficient to deprive her of custody of her biological child

[Faisal Khan v. Humera,  2020 SCC OnLine Del 572, decided on 1-5-2020]

Settlement Deed affecting Children’s Right to Maintenance

Is it lawful for a wife to agree to a settlement deed in the process of dissolution of marriage wherein she settles that her minor children will not claim maintenance in future? Court explains

[Vashno Jaishwal v. State (NCT of Delhi), 2020 SCC OnLine Del 1504, decided on 20-11-2020]


[Gauhati High Court]

 Conjugal Life

Refusal to wear “sakha and sindoor” is clear intention that a hindu wife is unwilling to continue conjugal life: Divorce decreed to husband

[Bhaskar Das v. Renu Das, 2020 SCC OnLineGau 2954, decided on 19-06-2020]

 Maintenance

If a woman is divorced, will her status as a wife entitling her to maintenance under S. 125 CrPC change? Read Gau HC’s position

[Bijoy Seal v. Sefali Seal, 2020 SCC OnLineGau 4024, decided on 30-09-2020]

Special Marriage Act

If a marriage is first solemnised under the Special Marriage Act and later upon conversion to Islam, marriage is again solemnised under Mohammedan Law: Which law will prevail for dissolution of marriage? Gau HC to consider

[Md Makfur Rahman v. Malina Deb Barman, 2020 SCC OnLineGau 4645, decided on 23-04-2020]


[Gujarat High Court]

Permanent Alimony to a Muslim Woman

Will permanent alimony granted to a Muslim woman be conditional to her remarriage? Detailed report untangling significance of ‘Permanent Alimony’ & ‘Periodical Maintenance’

[Tarif Rashidbhai Qureshi v. Asmabanu, 2020 SCC OnLineGuj 711, decided on 19-03-2020]

Special Marriage Act

If marriage is registered under Special Marriage Act, is it necessary for the couple to take recourse of same law to sever ties permanently? Guj HC elucidates in a custody matter

[Chavda Twinkle v. State of Gujarat, 2020 SCC OnLineGuj 1167, decided on 17-07-2020]


[Himachal Pradesh High Court]

Ancestral Property

Can wife claim maintenance under S. 12 of the Protection of Women from Domestic Violence Act, 2005 over ‘ancestral property’ of the husband? HP HC explains

[Kubja Devi v. Chhape Ram,  2020 SCC OnLine HP 1829, decided on 05-10-2020]


[Jharkhand High Court]

Desertion

‘Desertion’ has to be wilful and voluntary for a valid ground for divorce under S. 13 of Hindu Marriage Act, 1955; Legal principle “No one can take a benefit of his own fault” applied

[Sanjay Kumar v. Suman Kumari, 2020 SCC OnLineJhar 773, decided on 08-09-2020]


[Karnataka High Court]

Cruelty to First Wife

Though Shariat permits a Muslim man to practise polygamy, but would that amount to cruelty to first wife? Kar HC explains concept of Marital Cruelty

[Yusufpatel v. Ramjanbi, MFA No. 201154 of 2018 (FC), decided on 17-08-2020]


 [Kerala High Court]

Convenience & Welfare of Children over Wife

In matrimonial matters preference is to be given to convenience and welfare of children over wife: Ker HC dismisses application for transfer of case

[Nimi v. Ajith M.T., 2020 SCC OnLine Ker 4313, decided on 09-10-2020]

Cruelty

Wife’s persistent effort to separate husband from family amounts to cruelty: Divorce granted in favour of husband

[Ranjith P.C. v. Asha Nair. P, 2020 SCC OnLine Ker 1751 , decided on 20-05-2020]

 Dowry

Is there a limitation period for wife to claim property entrusted to in-laws given in form of dowry? Ker HC answers

[Sheela K.K. v. N.G. Suresh, 2020 SCC OnLine Ker 4240, decided on 24-09-2020]

 Suppressing Material Facts & Marriage

If a wife obtains husband’s consent for marriage by suppressing material facts like cardiac ailments, would that amount to fraud? Ker HC explains whether marriage can be declared null & void

[Ajitha v. Harshan, Mat. Appeal No. 734 of 2012, decided on 25-09-2020]

 Transfer Petitions related to Matrimonial Disputes

While considering transfer petitions related to matrimonial disputes, the convenience of wife is to be preferred over the convenience of husband; Ker HC reiterates

[Kavitha v. Gopakumar, 2020 SCC OnLine Ker 6098, decided on 30-11-2020]


[Madras High Court]

Customary Divorce

Can plea of customary divorce be considered as a valid defence while departmental proceeding for bigamy is initiated? Madras HC considers scope of defence under Service Rules

[Sudalaimai v. Deputy Inspector General of Police, WP (MD) No. 17504 of 2014, decided on 09-09-2020]

 Illegitimate Child [Maintenance]

Is an illegitimate child entitled to maintenance under S. 125 CrPC? Madras HC reiterates legal position

[Pachaimuthu v. Minor Vishanthini, 2020 SCC OnLine Mad 2677, decided on 01-10-2020]

Limitation Period for Domestic Violence Complaints

Limitation provided under CrPC is applicable to complaints under Domestic Violence Act: Madras HC rejects complaint filed after lapse of 1 yr 10 months

[N. Prasad v. Harithalakshmi, 2020 SCC OnLine Mad 1767, decided on 20-07-2020]

 Void Marriage

What is the essential condition for validity of any marriage? Detailed Report highlighting legality of marriage of a girl below 18 years of age

[Prakash v. State, Crl. A. No. 334 of 2014, decided on 30-11-2020]


[Orissa High Court]

Rights of a “lady” in Same-sex Couple Relationship

Same-sex couple have a right to live together outside wedlock; Rights of a woman enshrined in Protection of Women from Domestic Violence Act, 2005 to apply on the “lady” in the relationship

[Chinmayee Jena v. State of Odisha, 2020 SCC OnLine Ori 602, decided on 24-08-2020]


[Punjab & Haryana High Court]

Sapinda Prohibition

Whether partners falling in sapinda prohibition under HMA can stay in a live-in relationship? Parties argue while hearing in anticipatory bail

[Akhilesh v. State of Punjab,  2020 SCC OnLine P&H 2058, decided on 19-11-2020]

Section 498-A IPC, a weapon?

Disgruntled wives use provisions of S. 498-A IPC as a weapon rather than shield: P&H HC

[Amarjit Kaur v. Jaswinder Kaur, 2020 SCC OnLine P&H 577, decided on 15-05-2020]

 Voidable Marriage

In case a marriage is solemnized in violation of age restriction, marriage is only voidable

[Deepak Kumar v. State of Haryana, 2020 SCC OnLine P&H 759 , decided on 15-06-2020]


[Rajasthan High Court]

Theory of Homicidal Death

Allegation of woman set ablaze in view of dowry demand dismissed; Prosecution theory of homicidal death sheer exaggeration; finds Raj HC

[Gopal v. State of Rajasthan, DB Criminal Appeal No. 799 of 2014, decided on 06-08-2020]


 [Telangana High Court]

Harassment or Cruelty

For invoking S. 304-B IPC, harassment or cruelty caused to a woman should have happened “soon before her death”

[Surender Singh v. State of A.P., 2020 SCC OnLine TS 874, decided on 06-07-2020]


[Tripura High Court]

Dissolution of Marriage of ST Couple

Will Hindu Marriage Act have application on a couple belonging to Scheduled Tribe notified under the Constitution for purpose of dissolution of marriage? Tripura HC explains

[Rupa Debbarma v. Tapash Debbarma, 2020 SCC OnLine Tri 425, decided on 09-09-2020]

Irretrievable Breakdown of Marriage

What amounts to irretrievable breakdown of marriage? Tripura HC discusses in a case where the couple lived apart for 13 continuous years

[Aparna Dey v. Alok Dey, 2020 SCC OnLine Tri 411, decided on 09-09-2020]

Lived like a Wife [Maintenance]

“Woman who lived like wife, cannot be deprived of maintenance”: Tripura HC grants maintenance to woman who “lived like wife” for 10 yrs

[Sri Bibhuti Ranjan Das v. Gouri Das, 2020 SCC OnLine Tri 280, decided on 07-07-2020]


[Uttaranchal High Court]

Medical Examination of Wife in Divorce Proceedings

Wife not eligible for medical examination of whether she can conceive or not during Divorce proceedings; Utt HC allows appeal

[Rashmi Gupta v. YogeshBabu, 2020 SCC OnLineUtt 339, decided on 01-07-2020]

 Mental Cruelty

Mental cruelty is no less than physical cruelty, wife causing mental cruelty to husband valid ground for dissolution of marriage; Utt HC dismisses appeal

[Anita Gaur v. Rajesh Gaur, 2020 SCC OnLineUtt 503, decided on 24-08-2020]


Also Read:

2020 Wrap Up — Flashback of Stories on Consumer Cases

Case BriefsHigh Courts

Gauhati High Court: Soumitra Saikia, J., observed that

“..a valid decree of divorce by itself is no ground to deny the maintenance to a divorced wife.”

The criminal petition filed under Section 482 of the Criminal Procedure Code, 1973 sought the quashment of the Judgment and Order.

Wife/OP had filed an application under Section 125 CrPC claiming maintenance from the petitioner/husband @ Rs 5000 per month, later the husband filed a petition seeking to reduce the maintenance allowance stating that there was a substantial loss of income and was facing financial hardship.

In the meanwhile, the divorce case was decreed in favour of the husband. By the said judgment, the marriage was dissolved by decree of divorce under Section 13(1)(i–a) and (i)(b) of the Hindu Marriage Act.

Later, the husband’s petition seeking to reduce the maintenance allowance was allowed. The wife again preferred the revision petition stating that she decree of divorce would not automatically disentitle the wife from getting maintenance and the said revision petition was allowed by setting aside by remanding the matter back to the Judicial Magistrate Court.

Being aggrieved with the above, the husband filed the present criminal petition.

Analysis and Decision

On perusal of Section 125 and 127 of the Criminal Procedure Code, 1973, it revealed that legislature engrafted the said provisions for the benefit of the wife, a child and the parents of any person of any in order prevent them from becoming destitute.

In the instant matter, the concern is with regard to the maintenance in respect of a divorced wife.

“…true purport of the provisions of Section 125 is to ensure that in the event the husband fails to provide for adequate sustenance on an application made before the Magistrate, the sections empower the Magistrate to order the husband to provide for adequate maintenance for the benefit of the wife so as to prevent the wife from being reduced to a destitute or be compelled to live a life of beggary.”

Supreme Court consistently has held that a divorced wife would also be included in the definition of a wife as it defined under Section 125 CrPC.

“…responsibility of the husband towards a wife will not cease merely because a decree of divorce has been passed severing the marriage between the husband the wife.”

Decisions referred by the Court:

Rohtash Singh v. Ramendri, (2000) 3 SCC 180; Manoj Kumar v. Champa Devi,(2018) 12 SCC 748, Swapan Kumar Banerjee v. State of West Bengal, (2019) 4 SCC 146.

Court upon perusal of the Supreme Court decisions stated that it is evident that Section 125 CrPC being beneficial legislation to provide for protection to the wife, a mere divorce between the husband and wife will not preclude the “divorced wife” from claiming and/or availing of the benefits available to a wife under Section 125 CrPC.

The husband cannot absolve his responsibility to maintain and to provide for the adequate maintenance to the wife unless there are evidences to support that the wife is no longer required to be maintained in view of certain changed circumstances.

Bench also added that the claim for maintenance of a divorced wife can only be defeated either on the ground that she has remarried or that she is able to maintain herself. 

“…a ‘divorce’ does not change the status of a wife in the context of Section 125 CrPC.”

“…power under Section 127(2) CrPC, can only be invoked by a magistrate for cancellation of maintenance granted earlier only when there are changed circumstances after grant of such maintenance under Section 125.”

In the instant matter, there was no change of circumstances, which required the magistrate to invoke its powers under Section 127(2) for cancellation of the order directing payment of maintenance.

High Court directed the trial court to decide the matter afresh. [Bijoy Seal v. Sefali Seal, 2020 SCC OnLine Gau 4024, decided on 30-09-2020]


Advocates who appeared before the Court:

Advocate for the Petitioner: P J SAIKIA

Advocate for the Respondent:  K KALITA

Case BriefsSupreme Court

Supreme Court: In a bid to harmonise the competing reliefs of a daughter-in-law and her in-laws under the Protection of Women from Domestic Violence Act 2005 and the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, respectively, the 3-judge bench of Dr. DY Chandrachud*, Indu Malhotra and Indira Banerjee, JJ has held that the Tribunal under the Senior Citizens Act, 2007 may have the authority to order an eviction, if it is necessary and expedient to ensure the maintenance and protection of the senior citizen or parent, however, the over-riding effect for remedies sought under the Senior Citizens Act 2007, cannot be interpreted to preclude all other competing remedies and protections that are sought to be conferred by the DV Act 2005.

Background

The spouse of the appellant purchased a property in his own name a few months before the marriage but subsequently sold it, after a few years, under a registered sale deed at the same price to his father (the father-in-law of the appellant), who in turn gifted it to his spouse i.e. the mother-in-law of the appellant after divorce proceedings were instituted by the Fourth respondent. Parallel to this, the appellant had instituted proceedings of dowry harassment against her mother-in-law and her estranged spouse; and her spouse had instituted divorce proceedings. The appellant had also filed proceedings for maintenance against the Fourth respondent and the divorce proceedings are pending. It is subsequent to these events, that the parents-in-law instituted an application under the Senior Citizens Act 2007 seeking their daughter-in-laws’s eviction from the residential house.

The appellant had asserted that she had been living in the house, as her matrimonial residence, until the application was filed. According to her, her spouse has deserted her and their minor daughter and left them in the lurch. The electricity to the premises was disconnected for non-payment of dues. She claimed that the proceedings have been utilised to secure the eviction of the appellant so as to deny her claim of a right to reside in the shared household under the Protection of Women from Domestic Violence Act 2005.

Harmonising competing reliefs under the DV Act 2005 and Senior Citizens Act 2007

Section 36 of the DV Act 2005 stipulates that the provisions of the Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force. This is intended to ensure that the remedies provided under the enactment are in addition to other remedies and do not displace them. The Senior Citizens Act 2007 is undoubtedly a later Act and Section 3 stipulates that its provisions will have effect, notwithstanding anything inconsistent contained in any other enactment. However, the provisions of Section 3 of the Senior Citizens Act 2007 giving it overriding force and effect, would not by themselves be conclusive of an intent to deprive a woman who claims a right in a shared household, as under the DV Act 2005.

“Principles of statutory interpretation dictate that in the event of two special acts containing non obstante clauses, the later law shall typically prevail.”

The Senior Citizen’s Act 2007 contains a non obstante clause. However, in the event of a conflict between special acts, the dominant purpose of both statutes would have to be analyzed to ascertain which one should prevail over the other. The primary effort of the interpreter must be to harmonize, not excise. Hence, Section 36 of the DV Act 2005, albeit not in the nature of a non obstante clause, has to be construed harmoniously with the non obstante clause in Section 3 of the Senior Citizens Act 2007 that operates in a separate field.

In this case, both pieces of legislation are intended to deal with salutary aspects of public welfare and interest. The DV Act 2005 was intended to deal with the problems of domestic violence which, as the Statements of Objects and Reasons sets out, “is widely prevalent but has remained largely invisible in the public domain”. The Statements of Objects and Reasons indicates that while Section 498A of the Indian Penal Code created a penal offence out of a woman’s subjection to cruelty by her husband or relative, the civil law did not address its phenomenon in its entirety. Hence, consistent with the provisions of Articles 14, 15 and 21 of the Constitution, Parliament enacted a legislation which would “provide for a remedy under the civil law which is intended to protect the woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society”.

A significant object of the legislation is to provide for and recognize the rights of women to secure housing and to recognize the right of a woman to reside in a matrimonial home or a shared household, whether or not she has any title or right in the shared household.

“Allowing the Senior Citizens Act 2007 to have an overriding force and effect in all situations, irrespective of competing entitlements of a woman to a right in a shared household within the meaning of the DV Act 2005, would defeat the object and purpose which the Parliament sought to achieve in enacting the latter legislation.”

The law protecting the interest of senior citizens is intended to ensure that they are not left destitute, or at the mercy of their children or relatives. Equally, the purpose of the DV Act 2005 cannot be ignored by a sleight of statutory interpretation. Both sets of legislations have to be harmoniously construed.

“Hence the right of a woman to secure a residence order in respect of a shared household cannot be defeated by the simple expedient of securing an order of eviction by adopting the summary procedure under the Senior Citizens Act 2007.”

Role of Tribunals constituted under Senior Citizens Act 2007

Senior Citizens Act 2007 was promulgated with a view to provide a speedy and inexpensive remedy to senior citizens. Accordingly, Tribunals were constituted under Section 7. These Tribunals have the power to conduct summary procedures for inquiry, with all powers of the Civil Courts, under Section 8. The jurisdiction of the Civil Courts has been explicitly barred under Section 27 of the Senior Citizens Act 2007.

“However, the over-riding effect for remedies sought by the applicants under the Senior Citizens Act 2007 under Section 3, cannot be interpreted to preclude all other competing remedies and protections that are sought to be conferred by the DV Act 2005. The DV Act 2005 is also in the nature of a special legislation, that is enacted with the purpose of correcting gender discrimination that pans out in the form of social and economic inequities in a largely patriarchal society. In deference to the dominant purpose of both the legislations, it would be appropriate for a Tribunal under the Senior Citizens Act, 2007 to grant such remedies of maintenance, as envisaged under S.2(b) of the Senior Citizens Act 2007 that do not result in obviating competing remedies under other special statutes, such as the DV Act 2005.”

Section 26 of the DV Act empowers certain reliefs, including relief for a residence order, to be obtained from any civil court in any legal proceedings. Therefore, in the event that a composite dispute is alleged, such as in the present case where the suit premises are a site of contestation between two groups protected by the law, it would be appropriate for the Tribunal constituted under the Senior Citizens Act 2007 to appropriately mould reliefs, after noticing the competing claims of the parties claiming under the DV Act 2005 and Senior Citizens Act 2007.

Duty of “aggrieved woman” under DV Act

Section 3 of the Senior Citizens Act, 2007 cannot be deployed to over-ride and nullify other protections in law, particularly that of a woman’s right to a “shared household‟ under Section 17 of the DV Act 2005. In the event that the “aggrieved woman” obtains a relief from a Tribunal constituted under the Senior Citizens Act 2007, she shall be duty-bound to inform the Magistrate under the DV Act 2005, as per Sub-section (3) of Section 26 of the DV Act 2005. This course of action would ensure that the common intent of the Senior Citizens Act 2007 and the DV Act 2005- of ensuring speedy relief to its protected groups who are both vulnerable members of the society, is effectively realized.

Decision on facts

A shared household would have to be interpreted to include the residence where the appellant had been jointly residing with her husband. Merely because the ownership of the property has been subsequently transferred to her in-laws or that her estranged spouse is now residing separately, is no ground to deprive the appellant of the protection that was envisaged under the DV Act 2005.”

On construing the provisions of sub-Section (2) of section 23 of the Senior Citizen Act 2007, it is evident that it applies to a situation where a senior citizen has a right to receive maintenance out of an estate and such estate or part thereof is transferred. On the other hand, the appellant’s simple plea is that the suit premises constitute her “shared household‟ within the meaning of Section 2(s) of the DV Act 2005.

Considering the series of transactions which took place in respect of the property, the Court noticed that the fact that specific proceedings under the DV Act 2005 had not been instituted when the application under the Senior Citizens Act, 2007 was filed, should not lead to a situation where the enforcement of an order of eviction deprives her from pursuing her claim of entitlement under the law.

“The inability of a woman to access judicial remedies may, as this case exemplifies, be a consequence of destitution, ignorance or lack of resources. Even otherwise, we are clearly of the view that recourse to the summary procedure contemplated by the Senior Citizen Act 2007 was not available for the purpose of facilitating strategies that are designed to defeat the claim of the appellant in respect of a shared household.”

Conclusion

The Court, hence, concluded that the claim of the appellant that the premises constitute a shared household within the meaning of the DV Act 2005 would have to be determined by the appropriate forum. The in-laws i.e. the Second and Third Respondents will be at liberty to make a subsequent application under Section 10 of the Senior Citizens Act 2007 for alteration of the maintenance allowance, before the appropriate forum.

The Court left it open to the appellant to pursue her remedies under the DV Act 2005. For that purpose, it would be open to the appellant to seek the help of the District Legal Services Authorities and if the appellant does so, all necessary aid and assistance shall be furnished to her in pursuing her legal remedies and rights. Further, in order to enable the appellant to pursue her remedies under the DV Act 2005, there shall be an order and direction restraining the respondents from forcibly dispossessing the appellant, disposing of the premises or from creating any right, title and interest in favor of any third party in any manner whatsoever for a period of one year, to enable the appellant to pursue her remedies in accordance with law. The appellant is at liberty to move the Court to espouse her remedies under the DV Act 2005 for appropriate orders, including interim protections.

[S. Vanitha v. Deputy Commissioner, Bengaluru Urban District, Civil Appeal No. 3822 of 2020, decided on 16.12.2020]


*Justice Dr. DY Chandrachud has penned this judgment. Read more about him here.

For Appellant: Advocate Yatish Mohan

For Respondents: Advocate Rajesh Mahale

Case BriefsHigh Courts

Bombay High Court: Mangesh S. Patil, J., in the present application directed the husband to pay an amount of Rs 10,000 towards alimony pendente lite under Section 24 of the Hindu Marriage Act.

Petitioner-wife has impugned the order passed by the Family Court, Judge wherein her application was rejected in which she sought interim alimony under Section 24 of the Hindu Marriage Act, 1955 in a divorce proceeding filed by the respondent-husband under Section 13(i–a) of that Act.

Petitioner submitted that she was unable to maintain herself since the time she and her husband separated. She was even unable to work due to the psychological pressure and harassment meted out to her by the respondent.

As against this, the respondent is a Medical Officer earning around Rs 60,000 to Rs 65,000 salary. No-one is dependent on him and therefore, she claimed interim maintenance at the rate of Rs 15,000 per month and also claimed Rs 200 for rickshaw fare for attending the Court for each date and Rs 25,000 for engaging Advocate.

Analysis and Decision

Bench stated that as far as the right of a wife, who is capable of earning, to claim alimony is concerned, Supreme Court in the decision of Rajnesh v. Neha,2020 SCC OnLine SC 903, considered it in clause (c) of Part III under the head of ‘Criteria for determining the quantum of maintenance’.

Court in view of the above concluded that even if the petitioner in the matter in hand is a medical practitioner and was earning something for her livelihood, the same cannot be a ground to refuse alimony to her under Section 24 of the Hindu Marriage Act.

Quantum of Maintenance

Bench observed that though the petitioner had produced her Income tax Returns, respondent did not reciprocate the gesture. Supreme Court’s decision in Rajnesh v. Neha, 2020 SCC OnLine SC 903, laid down several guidelines requiring both the parties to make several disclosures in the form of affidavits inter alia touching the income aspect as well. Conspicuously, in that matter, the Supreme Court had directed the husband to produce Income Tax returns before passing the order for granting interim maintenance.

Consequently, without indulging into further discussion, Court held that the failure of the respondent to come with disclosure as to his own income and taking into consideration all the aforementioned facts and circumstances and bearing in mind the guidelines laid down by the Supreme Court in the case of Rajnesh v. Neha, 2020 SCC OnLine SC 903 and resorting to inevitable guesswork, it would be just and proper to award interim maintenance to the petitioner at the rate of Rs 10,000 per month.

Along with the above direction of interim maintenance respondent shall pay all the arrears up to date to her within 12 weeks from the date of this judgment.

In view of the above discussion, the petition was partly allowed. [Arpana Vijay Manore v. Dr Vijay Tukaram Manore, 2020 SCC OnLine Bom 3925, decided on 09-12-2020]


Advocates who appeared for the matter:

B.R. Warma, Advocate holding for Shrirang B. Varma, Advocate for the petitioner

A.M. Gholap, Advocate for the respondent

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Rajiv Sahai Endlaw and Asha Menon, JJ., while addressing the instant matter, observed that:

The wife and children of a personnel of the Air Force who has sworn to put his life in peril deserve a treatment different from that of a civilian who has no obligation to sacrifice his life for the country.

Petitioner, a sergeant in the Indian Air Force (IAF) filed the petition in regard to the following:

  • impugning the Air Force Order issued by respondent 2 Chief of Air Staff
  • impugning the administrative order issued by the Chief of Air Staff, sanctioning maintenance claim against the petitioner.
  • Seeking maintenance, directing respondent 2 Chief of Air Staff to refund the amount of maintenance granted under the administrative order, to the son of the petitioner and payable to the respondent 5 i.e. wife of the petitioner.

What the petitioner alleged?

Petitioner’s wife left matrimonial home along with her son and refused to join the petitioner in spite of repeated efforts of the petitioner. Petitioner approached the family court for dissolution of marriage and further initiated custody proceedings for his son.

As a counterblast, wife of the petitioner initiated proceedings under Section 125 of the Criminal Procedure Code, 1973 for maintenance and also approached the Court under Section 156(3) CrPC for registration of a case under Sections 141, 149, 363, 504 & 506 of the Penal Code, 1860 against the petitioner and his parents.

Wife of the petitioner also filed a false and fabricated case under Section 498A of the IPC against the petitioner and his parents but the proceedings in the criminal complaint, as well as the case under Section 498A of the IPC, were stayed by the Allahabad High Court.

Analysis and Decision

Petitioner’s counsel drew the Court’s attention to Sections 190, 191 and 191A of the Air Force Act, 1950 empowering the Central Government to make regulations for all or any of the purposes of the Act other than those specified in Section 189 and requiring the regulations so made to be published in the Gazette and to be laid before the Parliament.

Section 91(i), in exercise of powers whereunder the impugned AFO No. 03/2013 has been issued, shows the same as authorising deduction from pay and allowances of an officer of any sum required by order of the Central Government to be paid for the maintenance of his wife or his legitimate or illegitimate child or towards the cost of any relief given by the said Government to the said wife or child.

Petitioner being a sergeant, the above-stated section would not apply to him.

Section 92(i) authorises deduction from the pay and allowances of an airman, of any sum required by order of the Central Government or any prescribed officer to be paid for the maintenance of his wife or his legitimate or illegitimate child or towards the cost of any relief given by the said Government to the said wife or child.

The Court opined that once (a) there is a specific provision in the Air Force Act i.e. in Sections 91(i) and 92(i) thereof and to which there is no challenge, qua deduction from the pay and allowances, for payment of maintenance; (b) Rule 162, to which also there is no challenge, defines the ‘prescribed officer’ within the meaning of Section 92(i); and, (c) the Air Force Regulations in Regulation 917, to which also there is no challenge, provides that Air Force orders will be issued by the Chief of Air Staff, the impugned order has been issued in compliance of all the said provisions and there was no the need for the said order to be laid before the Parliament or to be notified/ratified इन accordance with Sections 190, 191 and 191A of the Act.

Just like the Courts draw their power to pass orders/decrees for payment of maintenance, from the statutes mentioned hereinabove, so does the Central Government and/or the prescribed officer draw power to award maintenance to wife and children of Air Force personnel from the provisions of the Air Force Act.

Next plea in the petition that was considered was, of the Air Force personnel being discriminated against vis-a-vis civilians, orders for payment of maintenance to wife and children whereagainst can be passed only by the Courts and not by the Central Government or the prescribed officer.

Regarding this, the Bench observed that:

Certainly it is not open to Air Force personnel, to have the privileges not available to civilians and reject the obligations, also not imposed on the civilians. The counsel for the petitioner also forgets that while the civilians can be punished only by the Courts of the land, the Air Force personnel can be tried and punished also by the Authorities under the Air Force Act. What is evident therefrom is, that personnel of the Air Force, form a class by themselves, distinct from the civilians.

Additional observations of the Court:

Sections 16 and 17 of the Air Force Act provides for all persons, enrolled as combatants, selected to hold a non- commissioned rank and subject to the Air Force Act, to be attested and which attestation is in the form of administration of oath containing a promise inter alia to obey all commands of any officer set over him, even to the peril of his life.

The said oath taken by the defence personnel, to the said extent is different from the oath required to be taken vide Articles 60, 69, 124 and 219 of the Constitution of India by the President, Vice-President, Judges of the Supreme Court and the Judges of the High Courts respectively, none of whom swear to place their life at peril for the service of the country.

Bench found no merit in the challenge by petitioner to AFO No. 3 of 2013. The said AFO did not make any legislative change and only guided the exercise of discretion and power vested by Sections 91(i) and 92(i) in the Central Government and the prescribed officer to make deductions from the salary and allowance for payment of maintenance to wife and children.

In Suneel v. Union of India 2003 SCC OnLine Del 810, question in the context of Army Act was considered and it was held that in view of the statutory provisions, the Authorities under the Army Act could not be debarred from making an order of maintenance in favour of wife and children of an Army personnel.[Sergeant Ajit Kumar Shukla v. Union of India,  2020 SCC OnLine Del 1590, decided on 10-11-2020]

Case BriefsHigh Courts

Gujarat High Court: The Division Bench of J.B. Pardiwala and Vireshkumar B. Mayani, JJ., while addressing the issue of grant of permanent alimony to a Muslim Woman noted the significant difference between permanent alimony and periodical maintenance.

An instant appeal under Section 19 of the Family Courts Act, 1984 was filed at the instance of the original defendant (husband) and was directed against the judgment and decree passed by Principal Judge, Ahemdabad for a decree of divorce under the provisions of Dissolution of Muslim Marriages Act, 1939.

Analysis, Law and Decision

Question for consideration:

Whether the Family Court committed any error in passing the order of permanent alimony in favour of the wife while granting the decree of divorce to the wife?

There are two types of alimony:

1. Given at the time of court proceedings- This is usually the maintenance amount.

2. Given at the time of legal separation- This can be given either in a lump sum or as a fixed monthly or quarterly payment or as per the requirements of the spouse.

Supreme Court on a creative and meaningful interpretation of the MWPRDA, 1986, upheld its constitutionality. It held that a Muslim husband is liable to make reasonable and fair provision for the future of his divorced wife extending beyond the Iddat period.

In the Supreme Court decision of Shabana Bano v. Imran Khan, (2010) 1 SCC 666, the question that fell for consideration was whether a Muslim Divorced wife would be entitled to receive the amount of maintenance from her divorced husband under Section 125 CrPC, and if yes, then through which forum.

In the above decision of the Supreme Court, it was held that petition under Section 125 CrPC would be maintainable before the family court as long as the wife does not remarry. The amount of maintenance to be awarded under Section 125 of the CrPC cannot be restricted for the Iddat period only.

Main Argument

The most significant submission on behalf of the appellant was that no provision exists in the Dissolution of Muslim Marriage Act, 1939 for the maintenance or permanent alimony. Further, it was stated that Family Court had no jurisdiction to pass any order with respect to maintenance or permanent alimony once the suit is allowed and the marriage is dissolved at the instance of the wife.

Muslim Women (Protection of Rights on Divorce) Act, 1986

The Muslim Women Act is “to protect the rights of Muslim women who have been divorced by or have obtained a divorce from their husbands and to provide for matters connected therewith or incidental thereto.

Hence the Muslim Women Act professes to deal with Muslim divorced women and their rights against their former husbands.

Family Court

Bench observed that, where a Family Court has been established, the power and the jurisdiction of the Family Court under Section 7(2) of the Family Courts Act, 1984 to entertain an application for maintenance, even by a divorced Muslim wife, under Chapter IX of the Code of Criminal Procedure has not been taken away, either expressly or even by implication by the Muslim Women Act of 1986.

And once such an application is made to a Family Court under Section 7(2) of the Family Courts Act, and not to a Magistrate, the same has got to be disposed of by the Family Court in accordance with the provisions of Chapter IX of the Code of Criminal Procedure, and the Muslim Women Act of 1986, including its Section 5, would have no manner of application.

Matrimonial Property

Further, it was stated that the right to maintenance and right in the matrimonial property are the consequences of the marriage or its dissolution. Those reliefs are incidental to the main relief of ‘dissolution of marriage’ and therefore, these reliefs are very much an integral part of the decree of ‘dissolution of marriage’.

Section 4 of the Act, 1986

It was also sought to be argued on behalf of the appellant that in view of Section 4 of the Act, 1986, the former husband had no liability to make any provision for the Post-Iddat period.

Bench observed that the right of maintenance given to the wife and the minor children under the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, is in addition to the right, which the minor children are having under Muslim Law to get maintenance from the father. The law expects that the parties should not be driven to approach the different forums but in one forum itself, they should be granted whatever reliefs to which they are entitled.

Supreme Court in the decision of K.A. Abdul Jaleel v. Shahida, (2003) 4 SCC 166 was concerned with the provisions of Section 7 of the Family Courts Act, 1984 as to whether the Family Court had the jurisdiction to adjudicate upon any question relating to the properties of the parties not only of the subsisting marriage but also divorced parties and the Supreme Court was pleased to hold that the reason for the enactment of the Family Courts Act, 1984, was to set up a Court to deal with all the disputes concerning with the Family and it is now a well-settled principle of law that the jurisdiction of a Court created specifically for the resolution of disputes of certain kinds should be construed liberally.

Wife has remarried

Counsel submitted that the wife was remarried and in view of there was no question of any lump sum permanent alimony.

Bench observed that

A divorced Muslim woman is entitled to receive, from her husband, inter alia, “maintenance”, “reasonable and fair provision”, “Mahr” etc. under Section 3 of the Act, 1986.

Permanent Alimony

Bench stated that what is significant to note is that the relief of permanent alimony is a relief incidental to the granting of the substantive relief by the Court in the main proceeding. It is an incidental relief claimed in the main proceeding, though an application is necessary for claiming it.

The Supreme Court had the occasion to consider the question whether a Muslim woman obtaining a divorce under the provisions of the Act, 1939 is entitled to maintenance under Section 125 CrPC, and it was held in Zohara Khatoon v. Mohd. Ibrahim, (1981) 2 SCC 509 that there are three distinct modes in which a dissolution of marriage can be brought about and Clause(b) of the Explanation to Section 125(1) envisages all the three modes, whether a wife is divorced unilaterally by the husband or where she obtains divorce under the other two modes, she continues to be a wife for the purpose of getting maintenance under Section 125 of the Code.

The Supreme Court held that divorce resulting from the dissolution of marriage under the provision of Dissolution of Muslim Marriage Act, 1939 is also a legal divorce under the Mohammedan law by virtue of the Statute (1939 Act).

Conclusion

Bench observed that when the Court would make an award of permanent alimony or for one-time payment, it is not founded on any stipulation that any part of the sum would be either actually refunded in whole or in part. Such sum is not granted on the condition against remarriage for all times to or for any particular period.

The permanent alimony in a way is an estimated sum in a lump sum to discharge the judgment debtor from his future liabilities unconditionally.

The grant of periodical payment by way of maintenance to a divorced wife is in recognition/obligation to the spouse to maintain her so long as she enjoys the continued status of a divorcee.

On remarriage status of divorcee comes to an end and she acquires another marital status as someone’s spouse. Under the Act, 1986 as under Section 125 CrPC, the wife includes a divorcee.

In view of the above discussion, it can be said that:

when the wife remarries, her claim of maintenance primarily comes to stand against her new husband coming into existence in a new relationship.

The proposition of law laid down by the Court should be looked into keeping in mind Section 3(1)(a) of the Act, 1986.

A divorced woman is entitled to ‘a reasonable and fair provision” and “maintenance” to be made and paid to her within and post the Iddat period by her former husband.

Point-wise Conclusion of the decision:

  • After the Act of 1939, a wife had a statutory right to obtain a divorce from her husband through the Court on proof of the grounds mentioned in the Act.
  • The ex-wife, having obtained a divorce from her erstwhile husband under the provisions of the Act, 1939 is entitled to the reasonable and fair provision under Section 3 of the Act, 1986.
  • The Family Courts Act has in its comprehension all community including the Muslims. All disputes between the Muslim community within the purview of the Family Courts Act are to be settled by the Family Courts.
  • Dispute contemplated by Section 3 of the Act, 1986 is within the purview and four corners of the Family Courts Act as the dispute under Section 3 of the Act, 1986 also relates to matrimonial relations between the parties.
  • Right of maintenance and right in the matrimonial property are the consequences of the marriage or its dissolution.
  • The Law contemplates that the husband has two separate and distinct obligations; (I) to make “reasonable and fair provision” for his divorcee wife and (ii) to provide “maintenance” for her. The obligation to make a reasonable and fair provision for the divorced wife is not restricted until the divorced wife remarries. It is within the jurisdiction of the Family Court to pass an order for a lump sum amount to be paid to the wife in the discharge of the obligation of the husband under Section 3(1)(a) of the Act, 1986 and such order cannot be modified upon remarriage of the divorced Muslim wife.
  • Provision for permanent alimony is incidental to the granting of a decree or judicial separation, divorce or annulment of marriage.
  • The permanent alimony in a way is an estimated sum in a lump sum to discharge the husband from her future liabilities unconditionally.
  • If the wife gets remarried, her status of divorcee comes to an end and the liability of the husband to pay periodical maintenance would also come to an end.

Another significant observation of the High Court was which was placed by the counsel for the parties was that the appellant had remarried way back in the year 2014. Before the respondent herein instituted the proceedings in the Family Court for divorce, the husband had already remarried and raised a family. The appellant could do so because polygamy is permissible amongst the Muslim Community. It does not constitute an offence of bigamy punishable under Section 494 of the Penal Code.

The materials on record indicated that the husband hardly paid anything towards maintenance. The respondent had to leave her matrimonial home soon after the marriage, i.e., sometime in 2010. Ultimately, she was constrained to institute the proceedings of divorce in the Family Court. Even during the pendency of such proceedings, nothing was paid to the wife. The wife, ultimately, succeeded before the Family Court in getting the marriage dissolved and was also successful in getting an order of permanent alimony. The husband now cannot turn around and say that he is not liable to pay the lump sum amount because the respondent is remarried.

Hence, in Court opinion, the Family Court’s line of reasoning ad the ultimate conclusion that was drawn by the family court was just and proper.

Therefore the appeal was dismissed.[Tarif Rashidbhai Qureshi v. Asmabanu, 2020 SCC OnLine Guj 711, decided on 19-03-2020]


Advocates who appeared for the parties:

Nishant Lalakita for Appellant 1

Javed S Qureshi for Appellant 1

SP Majmudar for Defendant 1

Shashvata U Shukla for Defendant 1

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