Case BriefsHigh Courts

Kerala High Court: The Division Bench of A. Muhamed Mustaque and Kauser Edappagath, JJ., issued detailed guidelines for Family Courts for speedy disposal of petitions seeking the judicial endorsement of extra-judicial divorce.

The unilateral extrajudicial divorce under Muslim Personal law is complete when either of the spouse pronounce/declare talaq, talaq-e-tafweez or khula, as the case may be, in accordance with Muslim Personal Law. So also extrajudicial divorce by mubaarat mode is complete as and when both spouses enter into mutual agreement. The seal of the Court is not necessary to the validity of any of these modes of extra judicial divorce.

The instant petition questions the scope and nature of enquiry to be undertaken by the Family Court in a petition filed u/s 7(d) of the Family Courts Act, 1984 to endorse an extrajudicial divorce under the Muslim Personal Law and to declare the marital status of the parties to the marriage.

The petitioner was the wife of the respondent, and both the parties were Muslims. The respondent divorced the petitioner by pronouncing talaq in accordance with Muslim Personal Law. However, the petitioner disputed the legal validity of the pronouncement of talaq and filed a petition in the Family Court for restitution of conjugal rights.

Thereafter the respondent filed original petition at the Court below to declare the marital status of the petitioner and the respondent on the ground that the marriage had been dissolved by pronouncement of talaq. The petitioner appeared at the Court below on 13-09-2021. The court below adjourned the case to 10-11-2021. However, due to application filed by the respondent to advance hear the case and it was advanced to 25-09-2021 and was later adjourned to 28-09-2021. The case was taken for judgment to 30-09-2021. The grievance of the petitioner was that she was not given proper opportunity by the Court below to contest the original petition on merits.

Reliance was placed by the Court on the decision in X v. Y, 2021 (2) KHC 709 wherein it had been held that the Family Court in exercise of the jurisdiction under Explanation (d) of S.7 of the Act is competent to endorse an extrajudicial divorce to declare the marital status of a person. It was made clear in the said judgment that in the matter of unilateral dissolution of marriage invoking khula and talaq, the scope of enquiry before the Family Court is limited and in such proceedings, the Court shall record the khula or talaq to declare the marital status of the parties after due notice to other party. In the matter of mubaraat, the Family Court shall declare the marital status without further enquiry on being satisfied that the dissolution was affected on mutual consent. It was observed that such matter shall be disposed treating it as uncontested matter without any delay by passing a formal order declaring the marital status. It was further held that if any person wants to contest the effectiveness of khula or talaq, it is open for such person to contest the same in appropriate manner known under the law.

In the above backdrop, the Bench stated,

The endorsement of extrajudicial divorce and consequential declaration of the status of the parties by the Family Court invoking S.7(d) of the Act is contemplated only to have a public record of the extrajudicial divorce. Hence, detailed enquiry is neither essential nor desirable in a proceeding initiated by either of the parties to endorse an extrajudicial divorce and to declare the marital status.

Therefore, the Bench held that the Family Court has to simply ascertain whether a valid pronouncement/declaration of talaq or khula was made and it was preceded by effective attempt of conciliation. In the case of khula, it has to be further ascertained whether there was an offer by the wife to return the “dower”. No further enquiry as in the case of an adversarial litigation like chief examination and cross-examination of the parties are not at all contemplated in such proceedings.

In the light of above, the Bench proceeded to formulate the following guidelines to be followed by the Family Court in a petition filed u/s 7(d) of the Act to endorse an extrajudicial divorce under Muslim Personal Law and to declare the marital status of the parties to the marriage:

  1. On receipt of the petition, the Family Court shall issue notice to the respondent.
  2. After service of summons or appearance of the respondent, the Family Court shall formally record the statement of both parties. The parties shall also be directed to produce talaq nama/khula nama (if pronouncement/declaration is in writing)/mubaarat agreement.
  3. On prima facie satisfaction that there was valid pronouncement of talaq, khula, talaq-e-tafweez, or valid execution of mubaarat agreement, the Family Court shall proceed to pass order endorsing the extrajudicial divorce and declaring the status of the parties without any further enquiry.
  4. The enquiry to be conducted by the Family Court shall be summary in nature treating it as an uncontested matter.
  5. The Family Court shall dispose of the petition within one month of the appearance of the respondent. The period can be extended for valid reasons.
  6. If any of the parties is unable to appear at the Court personally, the Family Court shall conduct enquiry using video conferencing facility.

Accordingly, the Bench directed the Court below to record the statement of the parties, and pass final orders in the light of the observations made in this judgment. [ASBI.K.N v. HASHIM.M.U, 2021 SCC OnLine Ker 3945, decided on 12-10-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: Advocate C.Dilip Anushka Vijayakumar, Advocate P.N.Vijayan Nair and Advocate R.Pradeep

For the Respondent: Advocate Alexander Joseph Akhilasree Bhaskaran

Case BriefsHigh Courts

Punjab and Haryana High Court: The Division Bench of Ritu Bahri and Arun Monga, JJ., held that marriage with minor is valid if no attempt is made to declare the same invalid once the child turns 18.

The brief facts of the present case were that at the time of marriage in 2009, the respondent-wife was of the age 17 years, 6 months and 8 days. Both the parties continued to live together and cohabited as husband and wife till 31-08-2017 and a male child namely Manas was born out of the wedlock, who had been living with the appellant-husband since 2017.

The grievance of the appellant was that the Family Court had dismissed the petition filed under Section 13-B of Hindu Marriage Act, 1955 for divorce by mutual consent by holding that the marriage of the parties was not a valid marriage as the respondent (wife) had not completed the age of 18 years as per the mandate of Section 5(iii) of the Hindu Marriage Act, 1955. The Family Court had referred to a judgment passed by the Madras High Court in Prema Kumari v. M. Palani, 2011 SCC OnLine Mad 1815, and held that parties were required to get their marriage nullified as per Section 13(2)(iv) of the Hindu Marriage Act.

Opinion and Analysis

Section 13(2)(iv) is reproduced as under:-

13-(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground- (iv) that her marriage (whether consummated or not) was solemnised before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years. The girl who has attained 15 years of age and has got married can seek dissolution of marriage before she attains the age of 18 years by filing a petition under Section 13(2)(iv) of the Hindu Marriage Act.

Differentiating the judgment relied by the Family Court, the Bench stated that the wife was not 15 years of age and could not invoke the provisions of Section 13(2)(iv) of the Hindu Marriage Act and had she been 15 years of age, she could have invoked the provisions only when she attains the age of 18.

In Lajja Devi v. State, 2012 SCC OnLine Del 3937, the Delhi High Court had observed that  a marriage contracted with a female of less than 18 years or a male of less than 21 years, would not be a void marriage but voidable one, which would become valid if no steps are taken by such “child” within the meaning of Section 2(a) of the Prohibition of Child Marriage Act, 2006 seeking declaration of this marriage as void.

In the present case, after marriage both the parties continued to live together till 2017 and the respondent (wife) wife had not chosen to file a petition for getting her marriage void before turning major, therefore, the Bench held that the Family Court had wrongly dismissed the petition as when the couple made a petition under Section 13-B of Hindu Marriage Act, 1955, the respondent-wife was major and the marriage was valid.

Accordingly, the appeal was allowed and the impugned order was set aside. The decree of divorce under Section 13-B of the Hindu Marriage Act, 1955 was granted to the parties. [Yogesh Kumar v. Priya, FAO 855 of 2021, decided on 26-08-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Appellant: Gitanjali Chhabra, Advocate

For the Respondent: Raman B.Garg, Advocate

Case BriefsHigh Courts

Jammu & Kashmir and Ladakh High Court: Sanjay Dhar, J., held that it is not open to a father or relatives of a girl to take law into their own hands and it is the duty of the Court to protect life and liberty of a major girl who, out of her own volition, wants to reside separately from her father.

The petitioners had approached the Court seeking a direction upon respondents to ensure safety of their life and honour. The case of the petitioners was that they had entered into wedlock out of their free will and volition against the wishes of the father of petitioner 1.

The petitioner 1 contended that her father was a ill repute who had entered into wedlock four times and had divorced her mother. It was further averred that her father wanted to give her in marriage to an illiterate truck driver and the same was resisted by her and she had even lodged a complaint with Women’s Commission in this regard.

Further, the petitioners alleged that private respondents i.e., respondents 6 to 9, invaded their house and raised a hue and cry over there and in case petitioners are not protected from the said respondents, they apprehend that they would be killed.

The respondents contested the petition for protection on the ground that the petitioner 1 had entered into a wedlock by suppressing the fact that there was already a restraint order passed by the Sub Judge, whereby she had been restrained from contracting marriage. According to the respondents, as per Shariat, consent of father his very important for marriage of daughter and without the consent of father, marriage is incomplete.

The Bench observed that the question whether the sub judge was justified in passing an order of restraint on marriage of petitioner 1 could be decided in appropriate proceedings, however, even if the petitioner 1 had violated the said order, it was not open to her father and his associates to harass the petitioners or to intimidate them. The proper course for them was to approach the concerned court seeking action for breach of its order. The Bench stated,

“No law or religion gives a license to a father to harass or intimidate his major daughter just because she does not accede to wishes of her father to marry a particular person.”

Hence, the writ petition was partly allowed and the State was directed to ensure that the petitioners were not harassed at the behest of respondents. [Anjum Afshan v.  State of J&K, 2021 SCC OnLine J&K 884, decided on 10-11-2020]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the petitioners: Mr. S. H. Thakur, Advocate

For the State: Mr. Sheikh Feroz, Dy. AG, vice

For the Respondents: Mr. B. A. Dar, Sr. AAG, for R1 to R6. and Mr. M. S. Reshi, Advocate-for R7 to R9.

Case BriefsHigh Courts

Chhattisgarh High Court: Rajendra Chandra Singh Samant, J., dismissed the petition being devoid of merits.

The facts of the case are such that the petitioner and respondent 5 are husband and wife who are unhappy together and want no reconciliation. An FIR has been lodged against the petitioner alleging the commission of offences under Sections 498A, 377, 323, 34 of IPC and Sections 3 and 4 of Dowry Prohibition Act. The instant petition was filed under Article 226 of Constitution of India seeking quashing the said FIR.

Counsel for the petitioners submitted that subsequent to lodging of FIR, the petitioner and respondent negotiated a compromise through a certain amount to be given to respondent 5 as there is no possibility of reconciliation and a petition for divorce will be filed and the cases will be withdrawn. It was further submitted that as the agreement still exists it is a fit case in which the FIR with respect to offences under Section 498A, 377, 323 and 34 of IPC and Section 3 and 4 of Dowry Prohibition Act is liable to be quashed.

Counsel for the State submitted that a prima-facie case is made out, which reflects the commission of offences registered against them. The offences under Section 498A, 377, 323 and 34 of IPC and Section 4 and 6 of Dowry Prohibition Act are not compoundable. There may be an agreement between the parties for settlement of the disputes, but that cannot be made a ground for quashment of the FIR against the petitioner.

Section 24 of the Contracts Act provides as follows:-

“24. Agreements void, if considerations and objects unlawful in part. —If any part of a single consideration for one or more objects, or any one or any part of any one of several considerations for a single object, is unlawful, the agreement is void.”

The Court observed that in view of the provision under Section 24 of the Contracts Act one of the terms of the agreement was that the Respondent 5 wants to withdraw the criminal complaint against the petitioner after receiving payment for the same, which cannot be regarded as any lawful term as the agreement cannot be enforced under any law.

The Court relied on Gian Singh v. State of Punjab, (2012) 10 SCC 303. and observed that “In respect of serious offences like murder, rape, dacoity, etc; or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between offender and victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to victim and the offender and victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or F.I.R if it is satisfied that on the face of such settlement, there is hardly any likelihood of offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated.”

 The Court observed that the terms of agreement in the compromise may be a ground of defence for the petitioner, but that cannot be a ground for quashment of the whole criminal case against them. Without there being any reason to believe that the settlement is complete between the parties, this Court cannot hold that the continuation of proceedings will be an exercise in futility, as the respondent No.5 is intent in prosecute the petitioner and others on the basis of a complaint against them

The Court thus held that one of the charges against the petitioner is the charge under Section 377 of I.P.C. regarding commission of unnatural sexual intercourse with the respondent 5, which is a ground connected with the offence under Section 498 (A) of I.P.C. regarding imparting cruel treatment to the respondent 5 by the petitioner, therefore, after overall consideration of the facts and circumstances and the case law cited, I am of this view that this is not a fit case, in which the petitioner can be granted relief as prayed by him, therefore, this petition is dismissed and disposed off.

[Nimish Agrawal v. State of Chhattisgarh, 2021 SCC OnLine Chh 3202, decided on 25-10-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances

For Petitioner: Mr. Manoj Paranjpe

For respondent 01 to 04: Mrs. Hamida Siddiqui.

For respondent 05: Mr. Jaydeep Singh Yadav

Case BriefsHigh Courts

Bombay High Court: Expressing that mother and father are equally responsible to equally share the education expenses of the child, Division bench of A.S. Chandurkar and G.A. Sanap, JJ., enhanced the maintenance amount of the child.

Instant appeals arose out of the decisions passed under Section 20 of the Hindu Adoptions and Maintenance Act, 1956.

Petitioner sought enhancement on the monthly maintenance.

Background

Petitioner was the son of the respondent. It was stated that after the marriage dispute arose between the parents of the petitioner. Respondent used to demand the salary of his mother and ill-treating and torturing her.

Mother of the petitioner lodged the complaint on the basis of the crime registered under Section 498-A Penal Code, 1860. Respondent was prosecuted.

When the petitioner was born, his parents were living separately. Petitioner’s mother had given notice to the respondent for divorce by mutual consent and divorce for petition was filed. Later the marriage was dissolved amongst them.

Reason for approaching Court

Petitioner stated that the respondent did not bother to maintain him, and his mother handled his education as well as day to day expenses.

Doing the above, petitioner’s mother faced great difficulties while maintaining him with her meager salary. Respondent did not bother to inquire about the well-being of the petitioner as well as his mother.

 On what grounds respondent seeks dismissal of the petition?

 According to the respondent, the mother of the petitioner is doing service as an ‘Assistant Teacher’ and getting a monthly salary of Rs 48,000/-. The respondent has to maintain his divorcee sister and the daughter of his sister. He has also to maintain his old aged mother. On these grounds, he prayed for the dismissal of the petition.

Lower Court granted decree and awarded the maintenance of Rs 5,000.

Analysis, Law and Decision

 High Court noted the grievance that the respondent was not allowed access to the petitioner and therefore there was a dispute. But as the petitioner was a major, he could freely meet his father-respondent. Hence, the said fact would not stand in the way of petitioner from getting the maintenance from the respondent.

The Father and Mother of the petitioner had been serving as “Teachers”. Therefore, it was apparent that both were equally responsible to share the maintenance as well as the education expenses of the petitioner.

Considering his plight and needs, the petitioner was constrained to knock on the door of the Court.

Lower Court took in consideration the day to day living cost in ordinary circumstances by a person along with the skyrocketing education expenses.

Grievance of the petitioner was that the amount of maintenance was not sufficient to satisfy his bare minimum requirements.

In High Court’s opinion also the quantum of maintenance could not be said to be just and reasonable.

Bench expressed that the father was responsible and liable to make provisions for the maintenance of his son.

If the respondent fails to share the maintenance & expenses then the mother would be required to bear the unnecessary burden

Therefore, the maintenance was enhanced to Rs 7,500 and as far as education expenses were concerned, father and mother shall share it equally.[Pradeep v. Master Sakashit, 2021 SCC OnLine Bom 3575, decided on 13-10-2021]


Advocates before the Court:

R.M. Patwardhan, Advocate for the appellant in FCA No.43/2019 and for respondent in FCA No.16/2020.

Amruta Gupta, Advocate for respondent in FCA No.43/2019 and for appellant in FCA No.16/2020.

Case BriefsHigh Courts

Rajasthan High Court: Chandra Kumar Songara J. allowed the petition of the wife-petitioner on the grounds of having a child, no source of income and residing with her parents.

The instant transfer application was filed under Section 24 of the Code of Civil Procedure, 1908 i.e. CPC on behalf of the petitioner wife seeking transfer of the Divorce Petition No.39/2020 filed under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘HMA1955’) by the respondent-husband from the Court of Additional District Judge, Kekri District Ajmer to the Family Court situated at Kota.

The Court observed that In the present case, the petitioner-wife is residing in Kota at her parental house. The petitioner-wife has a daughter, namely Vaidehi from her first husband. Presently, she is six years old and is being taken care of by the petitioner alone. The petitioner is a house-wife and she is not employed anywhere and has no source of income. The Kekri Court in Ajmer District is at a distance of more than 100 kms. from Kota. The daughter of petitioner is about six years old and parents of petitioner are too old.

The Court relied on judgments Sumita Singh v. Kumar Sanjay, AIR 2002 SC 396 and Rajani Kishor Pardeshi v. Kishor Babulal Pardeshi (2005) 12 SCC 237  and observed that while going into the merits of a transfer application, Courts are required to give more weightage and consideration to the convenience of the female litigants, and transfer of legal proceedings from one Court to another should ordinarily be allowed taking into consideration their convenience and the Courts should desist from putting female litigants under undue hardships. In such type of matters, the convenience of the wife is to be preferred over the convenience of the husband.

The Court thus held “the present transfer application filed by the petitioner-wife is allowed and case bearing No.39/2020 titled as Rajendra Prasad Sharma Vs. Smt. Ekta Dhadhich pending before the Court of Additional District Judge, Kekri District Ajmer is ordered to be transferred to the Family Court, No.1, Kota.”

[Ekta Dhadhich v. Rajendra Prasad Sharma, S.B. Civil Transfer Application No. 72/2021, decided on 30-09-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances

For Petitioner(s): Mr. Abhishek Bhardwaj

For Respondent(s): Mr. Arnav Singh

Case BriefsSupreme Court

Supreme Court: The bench of Justice R. Subash Reddy and Hrishikesh Roy*, JJ has held that in a declaratory suit, where ownership over coparcenary property is claimed, the plaintiff cannot be subjected to the DNA test against his wishes.

“When the plaintiff is unwilling to subject himself to the DNA test, forcing him to undergo one would impinge on his personal liberty and his right to privacy.”

The Court explained that DNA is unique to an individual (barring twins) and can be used to identify a person’s identity, trace familial linkages or even reveal sensitive health information. The Court should therefore examine the proportionality of the legitimate aims being pursued, i.e whether the same are not arbitrary or discriminatory, whether they may have an adverse impact on the person and that they justify the encroachment upon the privacy and personal autonomy of the person, being subjected to the DNA Test.

The Court was deciding the case where, in a declaratory suit for ownership over coparcenary property, the plaintiff had already adduced ‘enough’ documentary evidence to prove relationship between the parties. The Court noticed that in such cases, the Court’s decision should be rendered only after balancing the interests of the parties, i.e, the quest for truth, and the social and cultural implications involved therein.

“The possibility of stigmatizing a person as a bastard, the ignominy that attaches to an adult who, in the mature years of his life is shown to be not the biological son of his parents may not only be a heavy cross to bear but would also intrude upon his right of privacy.”

The Court held that in such kind of litigation where the interest will have to be balanced and the test of eminent need is not satisfied our considered opinion is that the protection of the right to privacy of the Plaintiff should get precedence.

It was, hence, held that the respondent cannot compel the plaintiff to adduce further evidence in support of the defendants’ case. In any case, it is the burden on a litigating party to prove his case adducing evidence in support of his plea and the court should not compel the party to prove his case in the manner, suggested by the contesting party.

Important Rulings

Banarsi Dass v. Teeku Dutta, (2005) 4 SCC 449

DNA test is not to be directed as a matter of routine but only in deserving cases. The presumption of legitimacy is this, that a child born of a married woman is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it. The law presumes both that a marriage ceremony is valid, and that every person is legitimate. Marriage or filiation (parentage) may be presumed, the law in general presuming against vice and immorality.

Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women, (2010) 8 SCC 633

The discretion of the court must be exercised after balancing the interests of the parties and whether a DNA Test is needed for a just decision in the matter and such a direction satisfies the test of “eminent need”.

Dipanwita Roy v. Ronobroto Roy, (2015) 1 SCC 365

In the said case the husband alleged infidelity against his wife and questioned the fatherhood of the child born to his wife. In those circumstances, it was held that when the wife had denied the charge of infidelity, the Court opined that but for the DNA test, it would be impossible for the husband to establish the assertion made in the pleadings. In these facts, the decision of the High Court to order for DNA testing was approved by the Supreme Court.

[Ashok Kumar v. Raj Gupta, 2021 SCC OnLine SC 848, decided on 01.10.2021]

___________________________________________________________________________________

Counsels:

For appellant-plaintiff: Advocate Sunieta Ojha

For respondent – defendants: Senior Advocate Rameshwar Singh Malik


*Judgment by: Justice Hrishikesh Roy

Know Thy Judge | Justice Hrishikesh Roy

Case BriefsHigh Courts

Kerala High Court: The Division Bench of A.K. Jayasankaran Nambiar and Mohammed Nias C.P., JJ., held that mere use of word ‘irrevocably’ does not render pronouncement of talaq illegal if intention of the husband shows otherwise.

Factual Fulcrum of the Case

In the instant case, the appellant-A.Sajani had filed a matrimonial suit against her husband-Dr. B. Kalam Pasha, a serving judicial officer in the State of Kerala. The grievance of the appellant was that the respondent had deserted her, had sent her a Talaqnama and had contracted another marriage with a younger girl. Pleading that the talaqnama was not a valid one in law, the appellant contented there was only a single pronouncement of talaq and it was made irrevocable thereby rendering it illegal and void going by the law laid down in Shayara Bano v. Union of India, (2017) 9 SCC 1, and that no valid grounds had been established by the respondent that would have enabled him to divorce her.

The respondent-husband argued that he had pronounced ‘Talaq Ahsan’ and the use of the word ‘irrevocably’ was only to alert his wife of the seriousness of the decision and to indicate that it was not to be taken lightly. The respondent contended that since there had been only a single pronouncement, notwithstanding the express use of the word ‘irrevocably’ in the talaqnama it had to be seen as a Talaq Ahsan.

Findings of the Family Court

The Family Court denied the prayer for restitution of conjugal rights holding that the talaq was a talaq ahsan and valid.

Observation and Analysis

In Shayara Bano v. Union of India(2017) 9 SCC 1, the practice of “Talaq-e-Biddat –Triple Talaq was set aside’; the nature and characteristic features of a triple talaq or talaq-e-biddat that was found objectionable by the Court and which led the Court to hold the practice as bad in law was its instant irrevocability that rendered the practice ‘manifestly arbitrary’ in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it.

Similarly, in Shamim Ara v. State of UP(2002) 7 SCC 518, the Supreme Court spelt out the requirements of a valid talaq as

  • that the talaq must be for a reasonable cause; and
  • it must be preceded by attempts at reconciliation between the husband and the wife by two arbiters – one chosen by the wife from her family and the other by the husband from his family.

In the same line, the Kerala High Court had held in Kunhimohammed v. Ayishakutty, 2010 SCC OnLine Ker 567, that, if an attempt for reconciliation by two arbiters has taken place, and they have not succeeded in bringing about a reconciliation, it can also be held that there is a reasonable cause for pronouncement of talaq, and that the specific reason for divorce need not be established before the court since the same would not be justiciable.

Hence, rejecting the argument that use of the word ‘irrevocably’ in the talaqnama rendered the pronouncement of talaq illegal since it clearly evidenced the intention of the respondent that he was not ready to reconsider his decision during the period of three lunar months that were to follow, the Bench though observed that the choice of words of the respondent who was a serving judicial officer could not be presumed that he had used the word ‘irrevocably’ without understanding its significance, it was held that,

“Notwithstanding the use of the word ‘irrevocably’ in the talaqnama, the respondent must be seen as having pronounced a talaq ahsan, that became irrevocable only on the expiry of the period of three lunar months immediately following the single pronouncement of the talaq…”

Findings and Conclusion

Hence, observing that even after the pronouncement of talaq, there were efforts for reconciliation  within a year after the pronouncement of talaq, and the respondent married another woman on 25-02-2018; i.e. almost after an year, the Bench held that the ends of justice would be served by treating the lapse on the part of the respondent as a mere irregularity in the mode of pronouncement of the talaq, that could be regularised by postponing the effective date of dissolution of marriage by the period of three lunar months required in the case of a Talaq Ahsan. [A. Sajani v. B. Kalam Pasha, 2021 SCC OnLine Ker 3574, decided on 24-09-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Appellant: A. Sajani (Party-In-Person) and Adv. M.Vanaja

Amicus Curiae: Sr. Adv. T.Krishnanunni

Caveator: Adv. Babu Karukapadath

For the Respondents: Adv. M.A.Vaheeda Babu, Adv. P.U. Vinod Kumar, Adv. Arya Raghunath, Adv. Vaisakhi V., Adv. T.M. Muhammed Musthaq and Adv. Mohamed Hisham P

Case BriefsHigh Courts

Rajasthan High Court: Pushpendra Singh Bhati J. disposed of the instant petition with a direction to the petitioners to appear before the Station House Officer, Police Station, Feench, Luni, District Jodhpur alongwith appropriate representation regarding their grievance. 

Facts

The facts of the present case are that petitioner is in live-in relationship with petitioner even when she was married with one. The petitioner 1 alleged in the petition that due to continuous harassment and violence, resulting out of her giving birth to a girl child, she had to make a choice of entering into a live-in relationship to live life with liberty and dignity. The present petition was filed to seek protection, as right to life is a fundamental right enshrined under Article 21 of the Constitution of India, and protection of right to life is imbibed in the same, and thus, such fundamental right cannot be done away with, except by due process of law.

Issues

The issues before this Court for consideration are:

(i) Whether the State ought to intervene in the personal relationships of adult citizens?

(ii) As to what would prevail, in case there is a conflict between law and morality; and

(iii) Whether the State, having a duty of protecting its citizens, is having any kind of restrictions, reservations or exception?

Observations

The Court relied on judgment Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 wherein it was observed that surrender of one’s autonomy to another must be willful, and their intimacy and privacy is a matter of their choice.

“64. The right to privacy enables an individual to exercise his or her autonomy, away from the glare of societal expectations. The realisation of the human personality is dependent on the autonomy of an individual. In a liberal democracy, recognition of the individual as an autonomous person is an acknowledgment of the State’s respect for the capacity of the individual to make independent choices.”

The Court relied on judgment in Shafin Jahan v. Asokan K.M. (2018) 16 SCC 368 wherein it was observed:

“23. . . . . .The High Court has lost sight of the fact that she is a major, capable of taking her own decisions and is entitled to the right recognised by the Constitution to lead her life exactly as she pleases. Intimacies of marriage, including the choices which individuals make on whether or not to marry and on whom to marry, lie outside the control of the state. Courts as upholders of constitutional freedoms must safeguard these freedoms. The cohesion and stability of our society depend on our syncretic culture.”

The Court relied on judgment S.S. Ahluwalia v. Union of India, (2001) 4 SCC 452  wherein it was observed that “it is the duty of the State to create a climate where members of the society belonging to different faiths, caste and creed live together and, therefore, the State has a duty to protect their life, liberty, dignity and worth of an individual which should not be jeopardized or endangered.”

 The Court thus observed that it is well- settled that it is not in the Court’s domain to intrude upon an individual’s privacy. Any scrutiny or remark upon the so-called morality of an individual’s relationship and blanket statements of condemnation especially in matters where it is not called into question, to begin with, would simply bolster an intrusion upon one’s right to choice and condone acts of unwarranted moral policing by the society at large.

It was also observed that the sanctity and supremacy of law must be protected at all costs. Even the due process of law through which the fundamental rights of any person are taken away must conform with the principles of justice and fair play and has to be reasonably administered according to the circumstances of the case i.e. there must be a proportionality between the illegality of the act and the right taken away through the due process of law.

The Court held “the present petition is disposed of, with a direction to the petitioners to appear before the Station House Officer, Police Station, Feench, Luni, District Jodhpur alongwith appropriate representation regarding their grievance. The Station House Officer, Police Station, Feench, Luni, District Jodhpur shall in turn hear the grievance of the petitioners, and after analyzing the threat perceptions, if necessitated, may pass necessary orders to provide adequate security and protection to the petitioners.”

[Leela v. State of Rajasthan, S.B. Criminal Misc (Pet.) No. 5045/2021, decided on 15-09-2021]


Appearances

For Petitioner(s): Mr. Gajendra Panwar

For Respondent(s): Mr. Arun Kumar


Arunima Bose, Editorial Assistant has reported this brief. 

Legislation UpdatesStatutes/Bills/Ordinances

On September 17, 2021, the Rajasthan Assembly passed the Compulsory Registration of Marriages (Amendment) Bill, 2021 in order to amend the Rajasthan Compulsory Registration of Marriages Act, 2009.

Key Amendments:

  • Section 8 relating the duty to submit memorandum has been modified. It has been substituted with the following : 

(1) The parties to the marriage, or in case the  bridegroom has not completed the age of twenty one years and/or bride has not completed the age of eighteen years, the parents or, as the case may be, guardian of the parties shall be responsible to submit the memorandum, in such manner, as may be prescribed, within a period of thirty days from the date of solemnization of the marriage to the Registrar within whose jurisdiction the marriage is solemnized, or the parties to the marriage or either of them are residing for at least thirty days before the date of submission of the memorandum.
(1A) If, at any time, death of either of the parties  to the marriage or of both occurs, the surviving party, parents, adult child or, as the case may be, guardian of the parties may submit the memorandum, in such manner, as may be prescribed, to the Registrar within whose jurisdiction the marriage is solemnized, or the surviving party, parents, adult child or, as the case may be, guardian of the parties is residing for at least thirty days before the date of submission of the memorandum.

  • Section 2 clause (f) of the Rajasthan Compulsory Registration of Marriages Act, 2009  substituted with the following:

(f) “District Marriage Registration Officer, Additional District Marriage Registration Officer and Block Marriage Registration Officer” mean the District Marriage Registration Officer, Additional District Marriage Registration Officer and Block Marriage Registration Officer respectively appointed under section 5;

Case BriefsHigh Courts

Kerala High Court: The Division Bench of A. Muhamed Mustaque and Kauser Edappagath, JJ., held that false allegation of impotency amounts to mental cruelty, hence, is a valid ground for dissolution of marriage.

The appellant and the respondent were husband and wife, both doctors by profession. Both of them had initiated legal proceedings against each other – the husband, for divorce and the wife, for restitution of conjugal rights. After trial, the Court below, by the impugned common order, dismissed the original petition filed by the appellant and allowed the original petition by the respondent granting her a decree for restitution of conjugal rights.

The appellant had sought for decree of nullity on the ground that his consent to the marriage was obtained by fraud perpetrated by the respondent in suppressing material facts regarding her mental condition. He had also prayed that the marriage be dissolved on the grounds of incurable unsound mind and cruelty on the part of the respondent.

Whether suppression of any information amount to fraud?

Though it was alleged by the appellant, and practically admitted by the respondent, that two psychiatrists had treated the respondent, no steps were taken by the appellant to examine them or to produce the treatment records. The essential ingredient to be proved for securing an order of dissolution of marriage under Section 10 (1) (iii) of the Act, 1869 is that the respondent had been incurably of unsound mind for a continuous period of not less than two years immediately preceding the presentation of the petition; but there was no convincing evidence on record to prove that the respondent had been suffering from any mental disease of incurable nature. Therefore, opining that the proviso to Section 19 of the Act gets attracted only when the consent was obtained through force or by playing fraud, the Bench explained,

“The word ‘suppression’ does not occur in Section 19 of the Act. The Parliament has employed the words ‘force’ and ‘fraud’. Before a party gives consent for the marriage with the other, there is bound to be exchange of information. This Section cannot be treated as a provision placing burden upon a spouse to the marriage, to reveal the entire information about him or her to the other.”

Hence, the Bench reached to the findings that the allegation was about suppression and failure to inform a particular fact cannot be treated as fraud, unless the person failing to mention it was under legal obligation to state it. Thus, the non disclosure by the wife before marriage that she was suffering from delusion disorder was not a suppression of material fact. Hence, it could not amount to fraud in obtaining his consent for the marriage.

 Cruelty

Considering the case of the appellant, the Bench opined that there was nothing to disbelieve the evidence given by the appellant that throughout the period they lived together, the respondent hs perpetrated various acts, ranging from several mental agony by behaving in an immature, irrational and bizarre manner, being drowsy, lethargic and unhygienic always, showing abnormal postures with her hands, talking uninhibitedly, often screaming that some gang was going to attack her, staring at people, having a phobia for darkness, having bad mouth odour, abdicating all shared household duties etc., making his life a living hell. The Bench stated that to constitute cruelty, the conduct complained of need not necessarily be so grave and severe so as to make cohabitation virtually unendurable or of such character as to cause danger to life, limb or health. It must be something more serious than “ordinary wear and tear of the married life”. It is sufficient if the conduct and behaviour of one spouse towards the other is of such a nature that it causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the marital tie. The Bench further stated,

“Malevolent intention is not essential to cruelty. There may be instances of cruelty by unintentional but inexcusable conduct of the party. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs; the act complained of could otherwise be regarded as cruelty.”

It had been held by the Supreme Court in Samar Ghosh (supra) that intention is not a necessary element in cruelty and that the relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill treatment.

False Allegation of Impotency

Yet another facet of mental cruelty on the part of the respondent canvassed by the appellant was the false accusation made by the respondent against the appellant about his sexual capacity, that the appellant was suffering from erectile dysfunction and was incapable of performing sexual activities. In K. Srinivas Rao v. D. A. Deepa, (2013) 5 SCC 226, it was held that making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings amount to causing mental cruelty to the other spouse.

The respondent had imputed that the appellant was suffering from erectile dysfunction, and thus, he was incapable of performing sexual activities, but at the same breath, she had admitted that she had a satisfactory sexual relationship with the appellant after July, 2010. Therefore, opining that the respondent had miserably failed to substantiate the imputation made by her, the Bench said remarked,

“Casting aspersions of impotency or erectile dysfunction by one spouse against other in the counter statement in a matrimonial proceeding will undoubtedly constitute cruelty.”

Hence, it was found that the respondent making unnecessary accusations against the appellant amounted to mental Cruelty. Accordingly, the Bench held that the appellant had made out a case for granting a decree for dissolution of marriage on the ground of cruelty under Section 10(1)(x) of the Act. The prayer for restitution of conjugal rights by the respondent was rejected, the impugned orders were partly set aside and the marriage between the appellant and the respondent was dissolved.[xx v. xx, 2021 SCC OnLine Ker 2327 , decided on 31-05-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Appellant: Adv. P.Gopakumaran Nair, Adv. B.Bindu and Adv. N.K.Subramanian

For the Respondent: Adv. K.N.Abhilash and Adv. Sunil Nair Palakkat

Case BriefsHigh Courts

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

Factual Matrix

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

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

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

No Response for 7 long years

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

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

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

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

Analysis, Law and Decision

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

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

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

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

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

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


Advocates before the Court:

For Appellant: Mrs K.Sumathi

For Respondent: Mr E.Raj Thilak

Case BriefsHigh Courts

Kerala High Court: The Bench of N.Nagresh, J., directed the Local Registrar to register the marriage of couple living in Israel through virtual mode.

The petitioner is the father of one Mohan Sebastian. Mr. Mohan Sebastian married Mrs. Sonia Raju on 13-01-2020 and both of them were working in Israel. Due to COVID-19 pandemic, the couple was unable to travel back to India and get their marriage registered before the Local Registrar. The couple had a child on 26-02-2021 but to obtain Birth Certificate and passport of the newborn child, Marriage Certificate from the Local Self Government Authority has to be produced before the Israeli Authorities.

Although, the couple had applied for registration before the local Registrar their application was rejected due to non-appearance of parties in person before the Registrar. The petitioner argued that due to the pandemic situation, his son and daughter-in-law were not in a position to travel from Israel to Kerala. However, they can appear before the Registrar by virtual mode. It was urged that unless the marriage is registered utilising virtual mode, the future of the newborn child will be put to difficulties and it will affect the family adversely.

Considering the facts and circumstances of the case, and also taking into account the pandemic situation prevailing and the impending lockdown, the Bench directed the Local Registrar to register the marriage of the petitioner’s son and daughter-in-law adopting video conferencing facility as expeditiously as possible. The reliance was placed by the Court on Mathew T.K. v. Secretary and Registrar of Marriages, 2020 (4) KLT 853. The petition was disposed of accordingly.

[Sebastian Thomas v. Local Self Government Department, 2021 SCC OnLine Ker 2180, decided on 04-05-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

Counsels for the Petitioner: Ajeesh S.Brite, Abhilash Augustine M., Stephy Joseph and Sereena P.A.

Case BriefsHigh Courts

Kerala High Court: The Division Bench of A. Muhamed Mustaque and Kauser Edappagath, JJ., held that:

“…woman in a live-in-relationship, acknowledging the biological father of the child, out of such a relationship, will have to be treated as a married woman for the purpose of Juvenile Justice.”

Present matter unbundles the trauma of a couple in a live-in relationship, isolation of a single mother, love of mother for her child, rights of biological father, entangled in the legal vortex.

Factual Matrix

In the instant case, the couple – John and Anitha are Christian and Hindu by their faith. The couple realized that their intimacy knew no bounds to chart a new path in their life. They started to live together at Ernakulam, 65 km away from the parental house of Anitha. Opposition came from their own kith and kin. They waited to officially marry once their parents were convinced. But the biological instincts of the couple could not be arrested. Anitha became pregnant in the month of May 2019. She gave birth to a baby girl on 3/2/2020 in the Government Hospital, Aluva. The birth certificate indicates the names of father and mother of the child.

Issue in the present case revolves around the importance of the birth certificate.

In the revision memorandum it was stated that the John broke the relationship with Anitha and due to anxiousness, Anitha made attempts to contact John but all were in vain after which she had no option other than to approach the Child Welfare Committee, Ernakulam and handed over the child to the Committee.

Thereafter, she constantly kept in touch with the Committee and the Child Care Institution where the child was put up, to keep a track of the wellbeing of the child.

Further it was stated in view of the above that,

Desperation and plight of the motherhood reflected through the chat messages with the social worker depicted the care for the baby from the womb of the person, Anitha.

Since Anitha had executed the Deed of Surrender the said deed permitted the Committee to give the child for adoption.

Adding to the above, it was stated that the Committee, noting that Anitha is an unmarried mother, followed the procedure that delineated for surrender of the child by an unwed mother as referable under the Adoption Regulations, 2017. On completion of the procedure, the Committee declared that the child is legally free for adoption in the manner contemplated under Section 38 of the Juvenile Justice (Care and Protection of Children) Act, 2015. Child was thereafter given in adoption to a couple by the Family Court order on 02-02-2021.

Petitioners approached the Court claiming themselves as a live-in relationship couple approached the Court.

Government Pleader and counsel appearing for the Committee submitted before the Court that the child had already been given in adoption and based on the submissions the Court had also opined that a writ of Habeas would not lie as the proceedings concluded under JJ Act have a legal colour.

Analysis, Law and Decision

Central issue in the present matter was more related to a perplexing mind; accepting and recognizing live-in relationships.

Did the law differentiate between unwed and legally wed couple in matters or relationships not connected with marriage, as a social institution?

In the context of juvenile justice does the law differentiate unwed couple and legally wed couple to recognize biological parents?

Section 38 of the Juvenile Justice Act declares the procedure for declaring a child legally free for adoption.

Separate procedure has been referred for orphan and abandoned child and a distinct procedure for a surrendered child.

Which of the procedures have to be followed was the question involved in the case.

Under Section 38 of the JJ Act, the procedure for declaration has been made for the abandoned child and surrendered child keeping in mind the paramount parental rights of biological parents.

Bench noted that the Committee had followed the procedure for surrendering the child applicable to an unmarried mother.

Following are the circumstances wherein normally a child needs care and protection from the State/Committee:

  1. Orphan or abandoned child
  2. Surrendered child

‘Surrendered child’ needs further classification under the law:

  1. surrendered by a married couple
  2. Surrendered by an unmarried mother.

Question that perplexed Court’s mind:

High Court expressed while placing their doubt that whether it can hold a couple in a live-in relationship not a married couple for the purpose of law related to surrender?

Married Couple v. Unwed Mother

Court elaborated that a married couple has to be understood in contrast to an unwed mother. Unwed mother must be understood as a mother who begotten a child as a result of sexual assault or in a casual relationship. Law in such circumstances places importance to the right of such mothers.

“… an unmarried mother would be recognised as a single parent and surrender by such mother is legally considered as valid in the light of Section 35(1) of JJ Act and Adoption Regulations 7(4), 7(7) and 7(21).”

Married Couple: Deed of Surrender

The procedure in case of a married couple ensures that both the parents execute deed of surrender and; if the child born to a married couple and surrendered by one of the biological parent, and whereabouts of the other parent are not known, the child shall be treated as an abandoned child and procedure under Regulation 6 will have to be followed. This procedure mandates an inquiry to trace out the biological parents or the legal guardians.

Context of Juvenile Justice Act | Whether a married couple includes a couple in a live-in relationship or not?

Parental right of biological parents is a natural right not preconditioned by institutionalization of legal marriage.

Live-in relationship

In a live-in relationship, a couple acknowledges the mutual rights and obligations. It is more of a contract. Offspring in such a relationship is acknowledging biological parental rights of both.

 Supreme Court in its decision of D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469, considered live-in relation similar to the marriage provided it fulfills the requirements referred as follows:

(a) The couple must hold themselves out to society as being akin to spouses.

(b) They must be of legal age to marry.

(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried.

(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

Merely spending weekends together or a one night stand would not make it a ‘domestic relationship’.

Bench remarked that, If a mother does not acknowledge any sort of relationship with the biological parent such mother has to be treated as an unmarried mother for the purpose of Juvenile Justice.

The woman in a live-in-relationship, acknowledging the biological father of the child, out of such a relationship, will have to be treated as a married woman for the purpose of Juvenile Justice.

No relevance of Legal Marriage

The dominant object of law in making the distinction between the married couple and unmarried mother is in the context of the nature of inquiry to be conducted for tracing the biological parents to restore the child with biological parents or guardian, and in such circumstances, the legal marriage has no relevance.

In matters of surrender by unwed mother no such inquiry is contemplated as she does not acknowledge any relationship with the biological father. 

A woman’s womb is precious possession of her personhood and no one can claim right over it; except with her consent.

Woman’s decision on fatherhood

Bench expressed that it is for the woman to recognize and decide on the recognition of fatherhood of child. If she chooses the preference to acknowledge the biological father at the time of conceiving, the father has every right to be recognized as a biological father

Adding to the above, Court stated that if at the time of conception, the mother has not recognized the right of fatherhood, in the context of JJ Act, a man has no right to recognize himself as the biological father, except with her consent and; she continues to be recognized as an unwed mother for the purpose of JJ Act.

“Decisional autonomy is the key in privacy rights.”

 Hence, in view of the above discussion, it can be held that a child born in a live-in relationship also has to be construed as a child born to a married couple.

In view of the facts and circumstances of the case, High Court noted that father’s name was disclosed to the hospital authority and name of the child was also given in the birth certificate in which father’s name was mentioned.

Birth certificate is a crucial document for public authority to verify that the child is born to a married couple or not.

 High Court held that Committee is not responsible to inquire about the legal status of the marriage as they are not the competent authority to decide on such status.

 Once it is found that the child is born to a couple, for all practical purposes of JJ Act, inquiry must be initiated as though the child belonged to a married couple. 

Bench held that due enquiry procedure postulates an institutional decision of the Committee treating the child as abandoned or surrendered. The enquiry in this case must have been an enquiry as contemplated for an abandoned child as only one parent alone had executed the surrender deed.

Once the declaration under Section 38 is found invalid, all consequential proceedings would also fall.

While parting with the decision, High Court added that:

“…in a country where the people worship Goddess, in the land where people have been taught about woman : Yatra naryastu pujyante ramante tatra Devata, yatraitaastu na pujyante sarvaastatrafalaahkriyaah”. (Manusmriti (3.56)). [Gods abide where women are worshiped and all actions go futile where they are dishonoured] (Manusmriti 3 : 56),

 In the State where we boast cent percent literacy, our attitude to woman is despising; a single mother has no financial or social support. She faces emotional challenges and forced to believe she is destined to be isolated as result of guilt. She gets hardly any support from the system. It is time for the Government to evolve a scheme to support the single mother.

The anomie Anitha had to face as a single mother is the hurdle created by the society. Anitha never attempted to exterminate her womb; she bore the pain to give birth; like every mother she loved to care the child… but was not allowed by circumstances in the society. She thought without support of man, she cannot survive.”

Therefore, the certificate issued under Section 38 of the JJ Act is set aside and the revision was allowed and in view of the biological father’s willingness to take care of the child, Committee to consider the rights to claim for restoration under Section 37 and 40 of the JJ Act.[ XXXXXXXXXX v. State of Kerala, 2021 SCC OnLine Ker 1709, decided on 09-04-2021]


Advocates before the Court: 

By Advs. Sri. Rajit

Smt. Lekshmi P. Nair

R6 by Adv. Smt. B. Bindu

Case BriefsHigh Courts

Punjab and Haryana High Court: Arun Kumar Tyagi, J., addressed the instant petition, whereby an inter-caste couple had approached the Court for seeking protection of their life and liberty.

In the present case, petitioner 1, an 18 years old Muslim woman, performed marriage with petitioner 2, 25 years old Hindu man in accordance with Hindu rites and ceremonies. The grievance of the petitioners was that the marriage being against the wishes of respondent 4, the petitioners were apprehending threat to their life and liberty.

The Bench opined that since the marriage was solemnized between inter-caste couple as per Hindu rites, it was prima facie invalid since it had been admitted that petitioner 1 did not convert to Hindu religion before solemnization of marriage in accordance with Hindu rites and ceremonies. However, relying on the verdict of the Supreme Court in the case of Nandakumar v. State of Kerala, (2018) 16 SCC 602, the Bench said the petitioner 1 being major, was entitled to live with a person and at a place of her choice. Hence, both the petitioners were held to be entitled to live in live-in-relationship in the nature of marriage and also to protection of their life and liberty.

In the light of above, the petition was disposed of with the directions to the Superintendent of Police to look into the grievances of the petitioners as set out in the petition and take appropriate action for protection of their life and liberty.[Nasima v. State of Haryana, 2021 SCC OnLine P&H 613, decided on 03-03-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioners: Adv. Balraj Singh Dhull,

For the Respondents: Addl. A.G. Ranvir Singh Arya

Case BriefsSupreme Court

Supreme Court: In a case where two educated consenting adults had got married to each other without the consent of their parents, the bench of Sanjay Kishan Kaul* and Hrishikesh Roy, JJ held that

“… the consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into a wedlock and that their consent has to be piously given primacy.”

Background

Santosh is an M.Tech from NIT, Tiruchirapalli and is working as a Lecturer in KLES (Karnataka Lingayat Education Society) Pre-University College, Bailhongal, while Laxmi, is an M.A.B.Ed., working as an Assistant Professor in Jain College of Engineering, Belagavi, Karnataka. They developed liking for each other during these assignments. However, there was resistance from the parents of Laxmi, though the parents of Santosh were willing for the matrimony of both the well qualified petitioners who are majors and Hindu by religion.

After Laxmi had, without informing her parents, travelled from Hubli to Bangalore and thereafter to Delhi in order to get married to Santosh, her parents had filed a complaint of a missing person. Laxmi, however, sent her marriage certificate to her parents through whatsapp on 15.10.2020 in which she revealed the factum of marriage to Santosh. She also spoke to the investigating officer and informed that she had already married Santosh and was residing with him. But the IO instead insisted that she should appear before the Murgod police station to record a statement so that the case can be closed. She then sent a letter to the IO stating that she was married to Santosh and there was threat from her parents and thus, was unable to visit the police station.

Thereafter, the IO stated that they would like to close the case, but they wanted her to get her statement recorded at the police station. The IO also stated that the family members may file a case against her that she has stolen things from the home and if an FIR is filed, there would be a negative mark against Santosh and they would have to arrest him which would be problematic for his job also.

What the Court said

The choice of an individual is an inextricable part of dignity, for dignity cannot be thought of where there is erosion of choice. Such a right or choice is not is not expected to succumb to the concept of “class honour” or “group thinking.”

The Court said that the case was handled does not reflect very well on the police authorities or the IO, the marriage certificate having been received by him and the conversation already been held with Laxmi where she clearly stated that she was married to Santosh and that she was feeling threatened and apprehensive of coming to the police station.

If the IO could have visited the residence of Santosh, he could very well have recorded the statement of Laxmi rather than insisting and calling upon the petitioners to come to the local police station at Karnataka. Not only that, he undoubtedly sought to compel Laxmi to come and record the statement at police station on the threat of possibility of a false case being registered by her parents against her husband and the consequent action of the police which would result in the arrest of her husband.

“We strongly deprecate the conduct of the IO in adopting these tactics and the officer must be sent for counseling as to how to manage such cases.”

The Court also noticed that both the parties are well educated.

“Educated younger boys and girls are choosing their life partners which, in turn is a departure from the earlier norms of society where caste and community play a major role. Possibly, this is the way forward where caste and community tensions will reduce by such inter marriage but in the meantime these youngsters face threats from the elders and the Courts have been coming to the aid of these youngsters.”

[Laxmibai Chandaragi v. State of Karnataka, 2021 SCC OnLine SC 85, decided on 08.02.2021]


*Judgment by: Justice Sanjay Kishan Kaul 

Know Thy Judge| Justice Sanjay Kishan Kaul

Case BriefsHigh Courts

Allahabad High Court: Vivek Chaudhary, J., held that while giving notice under Section 5 of the Special Marriage Act, 1954, it shall be optional for the parties to the intended marriage to make a request in writing to the Marriage Officer to publish or NOT to publish a notice under Section 6 and follow the procedure of objections as prescribed under the Act.

Backdrop – Story of many Safias and Abhisheks

A Habeas Corpus petition was filed by one Safia Sultana through her husband Abhishek Kumar Pandey claiming that they got married as per Hindu rituals after Safia converted to Hindu religion and got a new name Simran. It was alleged that Safia’s father was not permitting them to live together. They claimed that both of them were adults, married of their free will, and desired to live together. They alleged that Safia’s custody by her father was illegal. However, before the Court, Safia’s father fairly accepted that since Safia married Abhishek with her choice and wants to live with him, he accepted her decision and wished both of them best for their future.

The issue of the petition concluded there. But the views expressed by the young couple, compelled the Court to look into the deeper issue. Safia and Abhishek expressed that they could have solemnized their marriage under the Special Marriage Act, 1954 but the Act requires a 30 days notice to be published and objections to be invited from the public at large. They expressed that any such notice would be an invasion in their privacy and would have definitely caused unnecessary social pressure/interference in their free choice with regard to their marriage. The personal laws do not impose any such condition of publication of notice, inviting and deciding objections before solemnizing any marriage. They further state that such a challenge is being faced by a large number of similarly situated persons who desire to build a life with a partner of their own choice.

It is further submitted that such young couples are not in a position to raise these issues before solemnizing their marriages as any litigation further attracts unnecessary attention which invades into their privacy and also causes unnecessary social pressure upon them with regard to their choice of a life partner.

Discussion & analysis

PROVISIONS

For the purpose of the present discussion, the Court referred to Section 4 (Conditions relating to solemnization of special marriages); Section 5 (Notice of intended marriage); Section 6 (Marriage notice book and publication); Section 7 (Objection to marriage); Section 8 (Procedure on receipt of objection); and Section 46 (Penalty for wrongful action of Marriage Officer).

QUESTION

After briefly visiting the history and development of law with regard to civil marriages in India, it was considered that the question before the Court was:

“Whether the social conditions and the law, as has progressed since passing of the Special Marriage Act, 1872 and thereafter the Special Marriage Act, 1954 till now, would in any manner impact the interpretation of Sections 5, 6 and 7 of the 1954 Act and whether with the change the said sections no more remain mandatory in nature.”

INTERPRETATION PARADOX

The Court noted that the Golden Rule of Interpretation is that so far as possible plain reading of the provisions should be accepted. However, at the same time, there is another Principle of Interpretation, that, an ongoing statute should be interpreted on the basis of present day’s changed conditions and not on old obsolete conditions. Reliance was placed on the Supreme Court decision in Satyawati Sharma v. Union of India, (2008) 5 SCC 287; and Kashmir Singh v. Union of India, (2008) 7 SCC 729. Reliance was also placed on Githa Hariharan v. RBI, (1999) 2 SCC 228; N. Kannadasan v. Ajoy Khose, (2009) 7 SCC 1; and K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1.

Thus, said the Court, it was required to consider the changes in the social and legal aspects, if any, that may impact the interpretation of the provisions of the 1954 Act.

CHANGES IN SOCIO-LEGAL ASPECTS

While discussing the changes in Socio-legal aspects, the Court referred to the 59th Law Commission Report; the 212th Law Commission Report; and the 242nd Law Commission Report and recommendation made by the Law Commission in these reports.

DEVELOPMENT OF LAW

While walking through the Development of Law on the present aspects, the Court relied on a number of Supreme Court decisions and concluded that since the case of Lata Singh v. State of U.P., (2006) 5 SCC 475, till the case of Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, the law has travelled a long distance defining fundamental rights of personal liberty and of privacy:

  • Once a person becomes a major he or she can marry whosoever he/she likes.” [Lata Singh Union of India, (2006) 5 SCC 475]
  • An inherent aspect of Article 21 of the Constitution would be the freedom of choice in marriage.” [Indian Woman Says Gang-Raped on Orders of Village Court, In re, (2014) 4 SCC 786]
  • Choice of woman in choosing her partner in life is a legitimate constitutional right. It is founded on individual choice that is recognized in the Constitution under Article 19.” [Asha Ranjan v. State of Bihar, (2017) 4 SCC 786]
  • The consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into a wedlock…..it is a manifestation of their choice which is recognized under Articles 19 and 21 of the Constitution.” [Shakti Vahini Union of India, (2018) 7 SCC 192]
  • “Neither the State nor the law can dictate a choice of partners or limit the free ability of every person to decide on these matters…. Social approval for intimate personal decisions is not the basis for recognising them.” [Shafin Jahan Asokan K.M., (2018) 16 SCC 368]
  • Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which straddles across the spectrum of fundamental rights and protects for the individual a zone of choice and self-determination……. privacy is one of the most important rights to be protected both against State and non-State actors and be recognized as a fundamental right.” [S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1]

Decision

In view of the changed social circumstances and progress in laws noted and proposed by the Law Commission as well as law declared by the aforesaid judgments of the Supreme Court, the High Court held that:

“It would be cruel and unethical to force the present generation living with its current needs and expectations to follow the customs and traditions adopted by a generation living nearly 150 years back for its social needs and circumstances, which violates fundamental rights recognized by the courts of the day.”

In view of the Court, the interpretation of Sections 6 and 7 read with Section 46 containing the procedure of publication of notice and inviting objections to the intended marriage in 1954 Act thus has to be such that would uphold the fundamental rights and not violate the same. It was held:

“In case the same on their simplistic reading are held mandatory, as per the law declared today, they would invade in the fundamental rights of liberty and privacy, including within its sphere freedom to choose for marriage without interference from state and non-state actors, of the persons concerned.”

It was further noted that even today, majority of marriages in India are performed under personal laws which do not require publication of any notice or calling for objections with regard to such a marriage. However, under Sections 6 and 7 of the 1954 Act, the persons intending to solemnize a marriage are required to give a notice and the Marriage Officer thereafter is made duty-bound to publish the notice for a period of 30 days and invite objections with regard to the same. Any person can object to the marriage on the ground that it violates any of the condition of Section 4 of the 1954 Act. None of the conditions under Section 4 is such, violation of which would impact rights of any person in any manner different than the same would in case of marriage under any personal law. Even if a marriage takes place in violation of any of the conditions of Section 4, legal consequences would follow and the courts can decide upon the same, including declare such a marriage to be void, as they do under the personal laws.

The Court was of the view that:

“There is no apparent reasonable purpose achieved by making the procedure to be more protective or obstructive under the 1954 Act, under which much less numbers of marriages are taking place, than procedure under the other personal laws, more particularly when this discrimination violates the fundamental rights of the class of persons adopting the 1954 Act for their marriage.”

However, held that Court, that in case, such individuals applying to solemnize their marriage under the 1954 Act themselves by their free choice desire that they would like to have more information about their counterparts, they can definitely opt for publication of notice under Section 6 and further procedure with regard to objections to be followed. Such publication of notice and further procedure would not be violative of their fundamental rights as they adopt the same of their free will. Therefore, the requirement of publication of notice under Section 6 and inviting/entertaining objections under Section 7 can only be read as directory in nature, to be given effect only on request of parties to the intended marriage and not otherwise.

Operative Portion of the Order

“Thus, this Court mandates that while giving notice under Section 5 of the Act of 1954 it shall be optional for the parties to the intended marriage to make a request in writing to the Marriage Officer to publish or not to publish a notice under Section 6 and follow the procedure of objections as prescribed under the Act of 1954. In case they do not make such a request for publication of notice in writing, while giving notice under Section 5 of the Act, the Marriage Officer shall not publish any such notice or entertain objections to the intended marriage and proceed with the solemnization of the marriage. It goes without saying that it shall be open for the Marriage Officer, while solemnizing any marriage under the Act of 1954, to verify the identification, age and valid consent of the parties or otherwise their competence to marry under the said Act. In case he has any doubt, it shall be open for him to ask for appropriate details/proof as per the facts of the case.”[Safiya Sultana v. State of U.P., 2021 SCC OnLine All 19, decided on 12-01-2021]

Case BriefsHigh Courts

Allahabad High Court: Raj Beer Singh, J., observed that:

“The object of the Section 125 CrPC being to afford a swift remedy, and the determination by the Magistrate as to the status of the parties being subject to a final determination by the Civil Court, when the husband denies that the applicant is not his wife, all that the Magistrate has to find, in a proceeding under Section 125 CrPC, is whether there was some marriage ceremony between the parties, whether they have lived as husband and wife in the eyes of their neighbours, whether children were born from the union.”

The instant revision was preferred against the order passed under Section 125 of Criminal Procedure Code.

Contention that falls for consideration:

Whether respondent 2 has been able to show herself as married wife of revisionist in order to claim maintenance from revisionist under Section 125 CrPC?

Proceedings under Section 125 CrPC. are summary proceeding. In Supreme Court’s decision of Dwarika Prasad Satpathy v. Bidyut Prava Dixit, (1999) 7 SCC 675, it was observed that the standard of proof of marriage in a Section 125 proceeding is not as strict as is required in a trial for an offence under Section 494 IPC.

Bench expressed that it is a well-settled law that for the purposes of a proceeding under Section 125 CrPC, the factum of marriage has to be prima facie considered.

“If there is prima facie material on record to suggest that the parties have married or are having relationship in the nature of marriage, the court can presume in favour of the woman claiming maintenance.”

 Court also stated that an order passed in an application under Section 125 CrPC does not finally determine the rights and obligations of the parties and the said section is enacted with a view to provide a summary remedy for providing maintenance to a wife, children and parents.

In the decision of S. Sethurathiuam Pillai v. Barbara it was observed that maintenance under Section 488 CrPC, 1898 (similar to Section 125 Cr.P.C.) cannot be denied where there was some evidence on which conclusion for grant of maintenance could be reached. It was held that order passed under Section 488 is a summary order which does not finally determine the rights and obligations of the parties; the decision of the criminal court that there was a valid marriage between the parties will not operate as decisive in any civil proceeding between the parties.

Court observed that in a proceeding for maintenance under Section 125 CrPC, a Magistrate or Judge of the Family Court has to be prima facie satisfied about the marital status of the parties, as a decision under Section 125 CrPC is tentative in nature, subject to the decision in any civil proceeding, as has been held in Santosh v. Naresh Pal (1998) 8 SCC 447.

In light of the above discussions, High Court states that if from the evidence which is led, the Magistrate/Court is prima facie satisfied with regard to the performance of marriage in proceedings under Section 125 CrPC which are of summary nature, strict proof of performance of essential rites is not required.

In the instant matter, respondent 2 had submitted that her nikah was solemnized with the revisionist and out of that marriage, she gave birth to a daughter, but she was killed by the revisionist, whereas the case of the revisionist was that his nikah was never solemnized and they never lived as husband and wife together.

Limited Scope of Revisional Court

Question whether the respondent 2 was a married wife of revisionist, is a question of fact and thus, this court cannot upset the finding of the trial court by entering into re-appreciation of evidence, unless it is shown such a finding is not based on evidence or some patent error of jurisdiction is shown. In the instant case, no such eventuality could be shown. In fact, if the wife had been neglected and the wife was entitled to maintenance, the scope of interference by the Revisional Court is very limited.

Further, the Court added that in view of evidence on record, the grant of maintenance from the date of application cannot be said arbitrary or against law. The quantum of maintenance also appeared reasonable and appropriate.

“If a party deliberately delays the proceedings for long period, such party must not be allowed to take advantage of such tactics.”

 High Court found no illegality, perversity or error of jurisdiction in the impugned order.

While parting with the decision, Court added that the Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. [Irshad Ali v. State of U.P., 2021 SCC OnLine All 92, decided on 08-01-2021]


Advocates who appeared on behalf of the parties:

 Counsel for Revisionist: Krishna Mishra

Counsel for Opposite Party: G.A.

Legislation UpdatesStatutes/Bills/Ordinances

Governor of Madhya Pradesh promulgates the Madhya Pradesh Freedom of Religion Ordinance, 2020.

Purpose of this Ordinance

To provide freedom of religion by prohibiting conversion from one religion to another by misrepresentation, allurement, use of threat or force, undue influence, coercion, marriage or any fraudulent means and for the matters connected therewith.

Prohibition of unlawful conversion from one religion to other religions [Section 3]

The said ordinance states that no person shall:

  • Convert or attempt to convert, either directly or otherwise, any other person by use of misrepresentation, allurement, use of threat or force, undue influence, coercion or marriage or by any other fraudulent means;
  • Abet or conspire such conversion

Complaint against conversion of religion [Section 4]

No police officer shall inquire or investigate except upon written complaint of a person converted in contravention of Section 3 above or his parents or siblings or with leave of the Court by any other person who is related by blood, marriage or adoption, guardianship or custodianship as may be applicable.

Punishment for contravention of provisions of Section 3 [Section 5]

Imprisonment for a term not less than one year but which may extend to 5 years and the person shall also be liable to not less than Rs 25,000 fine.

There are certain proviso clauses mentioned under the said Section.

Marriages performed with the intent to convert a person shall be null and void [Section 6]

Marriages performed in contravention of Section 3 shall be deemed to be null and void.

Jurisdiction of Court [Section 7]

To declare the marriage null and void, the petition shall be presented by any person mentioned in Section 4 before the family court or where a family court is not established, the Court having jurisdiction of a family court within the local limits wherein, —

  • The marriage was solemnized or
  • Respondent at the time of the presentation resides or
  • Either parties to the marriage last resided together or
  • Where the petitioner is residing on the date of presentation of the petition.

Inheritance Right [Section 8]

Child born out of a marriage performed in contravention of Section 3 will be legitimate and succession to the property by such child shall be regulated according to the law governing inheritance of the father.

Right to Maintenance [Section 9]

Woman whose marriage is declared null and void under Section 7, children born out of that marriage shall be entitled to maintenance.

Declaration before conversion of religion [Section 10]

Any person who desires to convert shall submit a declaration to that effect 60 days prior to such conversion to the District Magistrate stating his desire to convert without any force, coercion, undue influence or allurement.

Section 11 states the punishment for violation of provisions of Ordinance by an institution or organization.

Burden of Proof [Section 12]

Burden of Proof as to whether a conversion was not effected through misrepresentation, allurement, use of force, threat of force, undue influence, coercion or by marriage or any other fraudulent means done for the purpose of carrying out conversion lies on the accused.

Investigation [Section 14]

No police officer below the rank of sub-inspector of police shall investigate any offence registered under the ordinance.


Also Read:

Prohibition of Unlawful Religious Conversion | Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 [Brief Explainer]

Case BriefsHigh Courts

Calcutta High Court: The Division Bench of Sanjib Banerjee and Arijit Banerjee, JJ., observed that an adult woman is free to marry the person of her choice covert.

In the instant matter, it was traced out that the girl’s age was 19 years old and she married a person of her choice and doesn’t want to return to her parental home.

Upon the petitioning father complaining that his daughter’s statement under Section 164 of the CrPC may not have been recorded in an atmosphere where she felt comfortable, the 19-year-old girl was required to meet the senior-most Additional District Judge and for sufficient care to be taken so that she was not under any coercion or undue influence.

Despite a clear and clean report, father harboured some suspicion.

Bench held that,

If an adult marries as per her choice and decides to convert and not return to her paternal house, there can be no interference in the matter.

Matter has been listed on 24-12-2020.[Palash Sarkar v. State of W.B., WPA No. 9732 of 2020, decided on 21-12-2020]