Case BriefsHigh Courts

Karnataka High Court: M Nagaprasanna, J., dismissed the petition and refused to grant prayer as the case is at a pre matured stage and is not the right time to post the matter for examination.

The facts of the case are such that the respondent-wife registered a complaint on 7-12-2020 alleging offences punishable under Sections 498A, 504 read with 34 of IPC and preferred application seeking maintenance from the hands of the husband invoking Section 125 of the CrPC. The petitioner thus challenged the entertaining of the proceedings in the case registered by the respondent-wife.

Counsel for petitioner Mr Shivanna submitted that wife on her own consent or with the consent of the husband moved out of the matrimonial house and therefore, the husband –petitioner is not liable to pay any maintenance.

Counsel for respondent Mr Umesh BN submitted incidents of unbearable harassment and ill-treatment from both by the husband and mother- in- law has resulted in her going away from the matrimonial house. This can by no stretch mean moving away of the wife by mutual consent for the petitioner to contend that proceedings were not maintainable.

The Court reiterates what the Trial Court observed that the proviso to Section 125 CrPC provides discretion to court to order for interim maintenance during the pendency of proceedings and at this pre matured stage court feels it is not just to post the matter for examination. Further granting or non granting of interim maintenance is not punishing any litigant. Prima-facie at this juncture petition shows that petitioner and respondent are not living together since two year and petitioner is living in her maternal house. Hence, the application filed by the respondent under Sections 125 and 126 of CrPC is concerned it will be considered at the time of hearing on main petition.

Hence, the application filed by the respondent under Sections 125 and 126 of CrPC is kept in abeyance as examination of the parties is not at all necessary for deciding interim application is maintenance.

The Court thus held “no grounds to interfere at this juncture, the petition stands dismissed.” [Sathish v. Ambika, Criminal Petition No. 474 of 2022, decided on 12-04-2022]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Rajasthan High Court: Dinesh Mehta, J., issues notice and directs police to neither harass nor arrest the petitioner boy.

The facts of the case are such that the petitioner and complainant were scheduled to marry on 18-07-2021 which got postponed on account of the injury which the complainant had purportedly suffered where after, there arose some differences. An FIR was lodged alleging falsely about him as he tied knot with someone else recently in April 2022 with a possible malicious view to harass the petitioner and destroy his married life.

Counsel for petitioner submitted that the allegation leveled in the F.I.R. of sexual assault are absolutely mala fide which is evident from the fact that the engagement/their relationship stood broken in July, 2021 and the complainant had not done anything and waited for a period of more than 8 months and lodged the F.I.R. in question only when she found that the petitioner is about to marry another girl.

The Court thus directed to issue notice to the respondents.

The Court further held “Meanwhile, neither the petitioner shall be arrested nor shall he be harassed in the name of interrogation.”

[Vishwas Khatri v. State Of Rajasthan,  2022 SCC OnLine Raj 764, decided on 22-04-2022]


Appearances-

For Petitioner(s): Mr. Ravi Bhansali and Mr. Mohit Singhvi

For Respondent(s): Mr. Mahipal Vishnoi


Arunima Bose, Editorial Assistant has reported this brief. 

Case BriefsHigh Courts

Rajasthan High Court:  A Division bench of Manindra Mohan Srivastava, CJ. and Madan Gopal Vyas J. allowed the application and granted bail for a period of 15 days.

The instant application was filed for grant of temporary bail has on the ground that the appellant’s daughter namely, Ramila is getting married and the presence of the appellant is necessary to perform Kanyadan and other ceremonies in the marriage.

Counsel for the State submitted that the present temporary bail application has been verified and it is found that the appellant’s daughter is getting married on 28-04-2022

The Court held “Taking into consideration the ground, on which the temporary bail is sought, we are inclined to allow the application to the extent that the appellant shall be released on temporary bail upon furnishing a personal bond of Rs.25,000/- along with two local sureties…” [Ratna v. State of Rajasthan, 2022 SCC OnLine Raj 739, decided on 20-04-2022]


Appearances

For Applicant(s): Mr. Jagatveer Singh Deora

For Respondent(s): Mr. R.R. Chhaparwal


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Punjab and Haryana High Court: Raj Mohan Singh, J., contemplated the present petition and ruled that a short duration of marriage is absolutely no ground to deny an organ transplant.

The petitioner in need of a renal transplant of her husband was denied the same by the respondent. It was the case of the petitioner that marriage was solemnized with Surjit Singh in December 2021. Eventually, Surjit was diagnosed with both kidney failures. Hence, the petitioner being the wife of Surjit came forward to donate one of her kidneys to her husband. Petitioner was found fit enough to be a donor and she is doing it of her own free will.

The respondent has verified the physical and mental health of the petitioner. Even counselling of the petitioner was conducted by a psychiatrist to verify the mental state of the petitioner. Respondent 2-Hospital constituted a competent authority, comprising four members for the purpose of authorization of kidney transplantation between near relatives. The case of the petitioner was placed before the aforesaid authorization committee and the committee has rejected the same on the ground of the short duration of marriage.

The Court observed that respondents could not show any such bar under the rules that a newly wedded wife like the petitioner cannot donate one of her kidneys to her ailing husband. Court further observed that the petitioner had free will and there was no ill motive or coercion involved.

The Court held that the statutory provisions were promulgated to prevent trafficking and commercial practices, but in the present case the petitioner is the wife, there is no material on record to indicate any malpractice or any element of greed or pressure being exerted upon the petitioner. The authorization committee has only rejected the case of the petitioner for kidney transplantation due to short duration of marriage. It was held that, “evidently, the duration of marriage is not a ground to discard the willingness of one of the spouse, to donate kidney in favor of other spouse, particularly when the case of the petitioner has been verified on all legal parameters.”

Hence, petition allowed.[Manpreet Kaur v. State of Punjab, CWP 5480 of 2022, decided on 08-04-2022]


Appearances:

Ms. Surinder Kaur, Advocate for the petitioner.

Mr. C.L. Pawar, Sr. D.A.G., Punjab for respondents No.1 & 3.

Mr. Manmeet Singh Bindra, Advocate for respondent No.2


Aastha Sharma, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In a case where the husband had disputed paternity of child on suspicion, though the Division Bench comprising of Indira Banerjee and A.S. Bopanna, JJ., directed to conduct DNA test, the Bench granted a conditional compensation of thirty lakhs to the wife if the suspicion proves to be wrong and respondent-husband turns out to be the father of the child.

The instant appeal was filed against the order of Bombay High Court wherein the High Court had affirmed the directions of Family Court directing the appellant herein to conduct DNA test of the child. The husband of the appellant-respondent had filed a case before the Family Court on having strong suspicion regarding paternity of the child and had requested for a DNA test.

Quashing the revision application, the High Court observed that the respondent-husband could not be foisted with paternity of child, if it is prove by a scientific method that he is not the biological father of the said child, though, he was having access to the petitioner at the relevant time.

Assailing the findings of the High Court, the appellant-wife contended that they got married on 05-02-2014 and the marriage was consummated on 09-02-2014. On 27-28th June, 2014, she underwent medical tests in Singapore when the doctor opined that the foetus was about 21 weeks old. The appellant argued that time gap between 09-02-2014 and 27-28-06-2014 was about 20 weeks, hence, the difference, if any, was only of one week. Since the doctor’s opinion was based on estimation, it could never be absolutely accurate. Further, the child was born after 261 days, i.e., about 17 days earlier which was almost after 9 months, therefore, there was no reason to presume that the petitioner was pregnant when she married the respondent.

To resolve the dispute once and for all, the Bench refrained from interfering with the direction for paternity/DNA Test and directed that the paternity/DNA test may be conducted at the All India Institute of Medical Sciences, New Delhi, for which the appellant and the respondent were directed to give samples and the respondent was directed to bear the expenses.

However, the Bench added that if on testing, it is found that the allegations are based on suspicion and the respondent is, in fact, the father of the child, the respondent shall pay compensation of Rs.30,00,000 (Rupees thirty lakhs only) to the petitioner, in addition to usual maintenance and other costs and charges as he may be directed to pay for the petitioner and for the child. Expenses of the appellant and the child for travel to Delhi and back and for accommodation in Delhi were also directed to be borne by the respondent-husband.

[Priyanka Janardhan Patil v. Janardhan Raghunath Patil, SLA (C) No(s). 5554 of 2020, decided on 04-04-2022]


Appearance by:

For Petitioner(s): Advocate Sangeeta Bharti, AOR Sujeeta Srivastava and Advocate Kamna Vohra

For Respondent(s): Senior Advocate Vinay Navare and AOR Rashmi Singhania


Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsDistrict Court

Court of Additional Sessions Judge, Thane: Noting the fact that a man suppressed the material fact of his private life before marriage i.e., about him being a homosexual, Rajesh S. Gupta, J., found that, the whole life of a young girl had been spoiled due to the material suppression, if the same would have been shared prior to the marriage then the consequence would be different.

In the present matter, the applicant/accused had preferred anticipatory bail for the offences punishable under Sections 420, 465, 467, 468, and 506 of IPC.

Advocate for applicant/accused submitted that de facto complainant and applicant/accused were husband and wife, and their marriage was solemnized.

During the period of marriage, the applicant/accused was working and earning around Rs 8 lakh per annum and as there were bright chances of increments in near future, de facto complainant accepted and agreed to the job profile of the applicant/accused and marriage was performed by mutual consent.

It was submitted that only with the intent to put the applicant/accused behind the bar, a false complaint was lodged.

On the other hand, APP submitted that there were specific allegations that the applicant/accused suppressed the material facts before the marriage as he being gay and indulged in homosexuality and thereby committed cheating and played fraud in the complainant and had ruined the life and future of the complainant and was not interested in the opposite sex.

IO submitted that there were chat messages between the applicant/accused and his other male partners which clearly indicated that the accused/applicant was interested in same-sex.

Original complainant submitted that the applicant by suppressing the incriminating facts before the marriage was only interested in financial assistance from the parent of the de facto complainant.

Analysis and Decision

“It is consciously taken note Hindu Marriage is a religious sacrament in which a man and a woman are bound in permanent relationship for a physical, social and spiritual purpose of Dharma, procreation and sexual pleasure.”

Court noted the allegation regarding the bogus job offer of the applicant/accused, further, it was also noted that the accused/applicant was indulging in telephonic sex with his male partners, which revealed that he was gay and interested in homosexuality, hence till date, he did not consummate a marriage with the de facto complainant and disinterested in the opposite sex.

Prima Facie it appeared that the applicant/accused had suppressed the material fact of his private life before marriage and thereby caused a wrongful loss to the parent and the complainant.

Bench expressed that,

No doubt, every individual has its dignity to live in the society. No other person can interfere into lifestyle but that does not mean that a person gets liberty to spoil the life of either of spouse.

Additionally, the Court remarked that the damage caused to the de facto complainant was irreparable and could not be compensated in money.

Prima facie, the Court opined that fraudulent intention by suppressing material fact was noted. Court also stated that prima facie, the applicant committed cheating by causing wrongful financial loss to the parent of the complainant and as well as irreparable damage to the life of the complainant.

Lastly, concluding the matter, Court observed that if released on bail, the applicant/accused will tamper with the evidence, hence no case of pre-arrest bail was made out. [Rohan Pradeep Shinde v. State of Maharashtra, 2022 SCC OnLine Dis Crt (Bom) 7, decided on 5-4-2022]


Advocates before the Court:

Shri. Valinjkar, Advocate for the applicant/accused.

Shri. V. A. Kulkarni for the respondent.

De facto complainant present in-person.

Shri. Sagar Kadam Ld. Advocate for the intervener.

Case BriefsSupreme Court

Supreme Court: The Division Bench of L. Nageswara Rao and B.R. Gavai*, JJ., upheld the impugned judgment of the High Court wherein the High Court had granted property rights to the step children of the deceased in her mehar property by declaring the mehar deed as unenforceable for being nominal.

The Disputed Family History

  • The parties have claimed through Mohiyuddin Pasha. According to the plaintiffs, Mohiyuddin Pasha had earlier married Noorbi and out of the said wedlock, two sons namely Rahaman Barid and Azgar Barid, the appellant herein were born.
  • Rahaman Barid was married to Rahamathunnisa plaintiff 1 and out of the said wedlock, plaintiff 2 was born.
  • Rahaman Barid died in 1945 i.e. prior to Mohiyuddin Pasha, who died in 1964.
  • After the death of Noorbi in 1944, Mohiyuddin Pasha married Mazambi, plaintiff 3 and had five children out of said wedlock, namely plaintiff 4 to 8.

Issue before the Court

The appellant contended that plaintiff 1 and 2 i.e. wife and daughter respectively, of Rahaman Barid were not entitled to any share in the suit schedule properties inasmuch as Rahaman Barid had died in 1944 i.e. prior to Mohiyuddin Pasha, who died in 1964. Further, he denied that plaintiff 3 was married to Mohiyuddin Pasha and that plaintiff 4 to 8 were children of Mohiyuddin Pasha. The appellant also contended that Mohiyuddin Pasha had executed a Mehar Deed in favour of his first wife Noorbi, which was registered on 30-07-1936, and as such, the said properties ceased to be the properties of Mohiyuddin Pasha.

Analysis and Findings

The High Court found that the voluminous documents of evidence; namely birth certificates of plaintiffs 4 to 8, the transfer certificates issued by the Government Higher Primary School established that plaintiffs 4 to 8 were the children born to Mohiyuddin Pasha through Mazambi. With regard to Mehar Deed, the High Court opined that it was a nominal one and was not acted upon as in an earlier suit for partition i.e. O.S. No.514 of 1961, the deceased Mohiyuddin himself had pleaded that the first son of Noorbi and Mohiyuddin Pasha, namely Rahaman Barid, was demanding separate share in the properties and was residing separately and it was to avoid any share in the suit schedule properties the Mehar Deed was created in favour of his first wife Noorbi.

Hence, the High Court reversed the findings of the Appellate Court that plaintiff 3 was not married to Mohiyuddin Pasha for being erroneous in law, the High Court had relied on the oral as well as the documentary evidence specifically the evidence of Noorbi’ brother who had admitted existence of second marriage. Consequently, the High Court vide held that all the suit schedule properties were required to be divided amongst appellant and plaintiffs 3 to 8. However, it was held that plaintiffs 1 and 2 were not entitled for any share in the suit schedule properties as Rehaman Barid, husband of plaintiff 1 and father of plaintiff 2 predeceased the propositus i.e., Mohiyuddin Pasha.

In the light of the above and considering the records available and reasoning behind the impugned judgment of the High Court, the Bench opined that the High Court had rightly interfered with the findings as recorded by the First Appellate Court, inasmuch as the First Appellate Court was not justified in reversing the findings of the Trial Court in that regard which were based on proper appreciation of evidence.

[Azgar Barid v. Mazambi, 2022 SCC OnLine SC 212, decided on 21-02-2022]


*Judgment by: Justice B.R. Gavai


Appearance by:

For the Appellant: Naresh Kaushik, Advocate

For the Respondents: Girish Ananthamurthy, Advocate


Kamini Sharma, Editorial Assistant has put this report together


 

Case BriefsHigh Courts

Karnataka High Court: M Nagaprasanna J. allowed the petition and quashed the impugned order and remitted the matter back to Sessions Judge for cross-examination.

The instant petition was filed on a complaint being registered for offences punishable under Section 376(n) read with Section 34 of Penal Code, 1860 i.e. IPC, Sections 4, 6, 8, 12 and 17 of the POCSO Act and Sections 9, 10 and 11 of the Prohibition of Child Marriage Act. The State is before the Court in the subject petition challenging the order dated 16-09-2019 passed by the Principal District and Sessions Judge, Chamarajnagar whereby the Sessions Judge declined to permit the State to cross-examine the victim on her turning hostile in a case arising out of the provisions of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’ for short) and Sections 9, 10 and 11 of the Prohibition of Child Marriage Act, 2006.

The Court relied on judgment Doula v. State, Criminal Appeal No.100260/2016 decided on 22-07-2020 observed that in terms of sub-section (2) of Section 33 of the POCSO Act, the Special Public Prosecutor or as the case would be, the counsel appearing for the accused shall, while recording examination-in-chief, cross-examination or re-examination of the child communicates the questions to be put to the child to the Special Court which shall in turn put those questions to the child. Therefore, the victim is permitted to be cross-examined under the POCSO Act itself on her turning hostile which would also cover the situation under sub-section (2) of Section 33 of the POCSO Act.

The Court thus observed that from a perusal of the impugned order is that it runs counter to Section 33 of the POCSO Act, judgments rendered by various courts and resultantly becomes unsustainable. Therefore, the State is to be permitted to cross-examine the victim. But, such cross-examination can be only in terms of Section 33 of the POCSO Act which mandates that while cross-examination questions shall be put to the Court and the Court in turn to put the same questions to the victim. The Sessions Judge shall take such care and caution in transmitting the questions to the victim to be in strict consonance.

The Court held “Criminal Petition is allowed and the order dated 16.09.2019 passed by the Principal District and Sessions Judge, Chamarajnagar in Special Case No.184 of 2019, stands quashed.”

[State v. Somanna, 2022 SCC OnLine Kar 370, decided on 03-03-2022]


For petitioners: Mr. Shankar HS


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Punjab and Haryana High Court: Rajbir Sehrawat, J., allowed the instant revision petition, filed against the order of Family Court, where the joint application for waving off the statutory period of 6 months for cooling off, had been dismissed.

It was the case of the petitioner that the marriage was irreconcilable even after all the efforts by the said parties. However, the parties agreed to dissolve their marriage by mutual consent. A joint petition was filed before the trial Court under Section 13-B of Hindu Marriage Act, 1955. The Trial Court concluded that all the efforts to reconcile have failed, however, directed cooling off period of 6 months till final adjudication.

Parties sought waiver off the said direction, the same was rejected by the trial Court stating that ‘petitioner has not made any efforts towards reconciliation’. It was contended by the petitioner that all the conditions have been fulfilled and the trial court should have allowed the waiver.

The Court observed that the parties were living separately for 2 years hence; it was obvious that marriage had gone beyond redemption. It was also observed that the condition laid down in Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746, was fulfilled.

The Court held, “There would not be any justification in forcing the parties to continue the marriage, when they have already decided to get apart after having made every possible effort to settle their dispute. Hence, the Court below should have waived off the statutory period of six months as per the prayer made by the petitioners.” Order of trial Court was set aside.

[Parul Madaan v. Gaurav Indora, C.R. No. 430 of 2022, decided on 09-03-2022]


Appearance:

Ms Mannu Chaudhary, for the petitioner.


Aastha Sharma, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Karnataka High Court: M. Nagaprasanna, J. allowed the criminal petition and quashed both the orders by the Magistrate and the Sessions Judge.

The facts of the case are such that the petitioner and the respondent are husband and Wife and the marital life between the couple have turned sore, pursuant to which respondent-wife filed a petition invoking Section 12 of the Protection of Women from Domestic Violence Act, 2005. The Magistrate awarded maintenance of Rs.1,000/-. After invoking the provisions of the Act, the respondent-wife filed a invoking Section 127 of the Cr.PC. for enhancement of the maintenance amount awarded under the Act. The petition was allowed and the respondent-wife was awarded maintenance of Rs.5,000/- from the date of the order. Feeling aggrieved by the order, Criminal Revision Petition invoking Section 397 Cr.PC was filed. The Sessions Judge dismissed the said Revision Petition confirming the order passed by the Magistrate enhancing maintenance to the wife from Rs 1,000/- to Rs 5,000/-. It is these two orders that are called in question in the subject petition.

Counsel for the petitioner submitted that the respondent once having invoked the provisions of the Act could not have filed an application seeking enhancement under Section 127 of the Cr.P.C. The order passed by the learned Magistrate as affirmed by the learned Sessions Judge is orders without jurisdiction.

The Court observed that Section 125 of the Cr.P.C. enables the wife to seek maintenance at the hands of the husband inter alia. Invoking this provision, the learned Magistrate can award maintenance. Section 127 of the Cr.P.C. deals with alteration in allowance. Maintenance that is awarded under Section 125 of the Cr.P.C. can be varied in an application filed under Section 127 of the Cr.P.C. What is sine qua non is that an order of maintenance should precede a petition under Section 127 of the Cr.P.C., failing which, a petition under Section 127 of the Cr.P.C. seeking enhancement of maintenance is not available.

The Court further observed that it is an undisputed fact that the respondent-wife invoked the provisions of the Act in which maintenance was awarded. It is also an admitted fact that there is no proceeding initiated by the respondent-wife invoking Section 125 of the Cr.P.C. Therefore, without there being any determination of maintenance under Section 125 of the Cr.P.C. petition under Section 127 of the Cr.P.C. is not maintainable. The language employed in Section 127 of the Cr.P.C. is unequivocal as on a proof of change in the circumstances of any person receiving allowance under Section 125 of Cr.P.C. can maintain a petition under Section 127 of the Cr.P.C. A proceeding under Section 125 of the Cr.P.C. therefore should precede a proceeding under Section 127 of the Cr.P.C. The fact that a provision of Act was invoked for grant of maintenance and provisions of Cr.P.C. are invoked seeking enhancement of maintenance cannot be countenanced in law.

The Court thus held “the order passed by the learned Magistrate enhancing maintenance under Section 127 of the Cr.P.C. was without jurisdiction and a nullity in law. The foundation being a nullity in law, a super structure to it affirming the order of the learned Magistrate, by the learned Sessions Judge will have to follow suit – is to be declared a nullity in law.”

[Shivanand v. Basavva, Criminal Petition No. 101378 of 2019, decided on 17-02-2022]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

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

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

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

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

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

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

Analysis, Law and Decision

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

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

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

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

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

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

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

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

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

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

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

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

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

High Court remarked that,

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

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

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

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

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

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

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

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

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

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

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

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

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


Advocates before the Court:

For the Appellant: Appellant-in-person

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

Case BriefsSupreme Court

Supreme Court: In a habeas corpus case the Division Bench Ajay Rastogi and Abhay S. Oka*, JJ., held that in a case for custody of the child the rights of the parties to a custody dispute (parents) are irrelevant. However, adding an exception, the Bench stated,

 “We may note here that a writ Court while dealing with the issue of habeas corpus cannot direct a parent to leave India and to go abroad with the child. If such orders are passed against the wishes of a parent, it will offend her/his right to privacy.”

Background

The instant case arose out of unfortunate dispute between the appellant- wife and the respondent – husband over the custody of their minor male child Aaditya Kiran. The parties were married and living in New York, USA and the child held the citizenship of USA. It was for the treatment of the child for hydronephrosis in India, which required surgery that consent for international travel with one legal guardian, was executed by and between the appellant and the respondent on 04-02-2019. The consent was recorded in the said document to enable the child to travel with the mother–the appellant to India for the period between 05-02-2019 to 26-09-2019. It was further recorded that any changes to this plan shall be discussed and consented to by both the parents.

The child underwent a surgery on 14-03-2019 in Max Hospital, Saket, New Delhi. The certificate issued by Dr. Anurag Krishna, Director, Paediatrics and Paediatric Surgery of Max Hospital recorded  that he had examined the child on 12-07-2019 when he found that the child was doing well, however a suggestion was made that the child needed to be reviewed 6 to 7 months post-surgery along with a fresh ultrasound and renal scan.

Apple of Discord and Litigation History

It was the case of the respondent that the appellant had violated the international travel consent by not allowing the minor child to come back to USA by 26-09-2019, hence a petition was filed before the Circuit Court of Benton County, Arkansas, USA seeking primary care, control, and custody of the minor on account of his wrongful detention outside USA by the appellant wherein interim order was pronounced in favour of the respondent.

It was when no heed was paid to the said order by the appellant; the respondent approached the High Court of Punjab and Haryana seeking a writ of habeas corpus to secure release of the minor child from the illegal custody of the appellant. The High Court, by the impugned judgment decided the case in favour of the respondent and directed to hand over the custody of the minor the respondent.

Doctrine of Best Interest

The appellant’s stand was that there was a need to make a departure from the rule of “best interest of the child” or the “welfare principle” as welfare would mean balancing the interests of all the members of the child’s family and the mother as the primary caregiver must be kept in mind as a person who has legal rights which must be respected and protected.

Rejecting the contention of the appellant, the Bench held that the principle that the welfare of the minor shall be the predominant consideration and that the rights of the parties to a custody dispute are irrelevant. Opining that when a Court decides that it is in the best interest of the minor to remain in the custody of one of the parents, the rights of the other parent are bound to be affected, the Bench stated that the rights of parents/parent cannot be put on par with welfare of child.

Giving the example of visitation rights, the Bench stated, whenever the Court disturbs the custody of one parent, unless there are compelling reasons, the Court will normally provide for visitation rights to the other parent. The reason is that the child needs the company of both parents. The orders for visitation rights are essentially passed for the welfare of minors and for the protection of their right of having the company of both parents. Such orders are not passed only for protecting the rights of the parents.

Hence, the Bench concluded that the consideration of well-being and welfare of the child must get precedence over the individual or personal rights of the parents.

Whether the Court, while deciding custody matters, can compel one of the parents to move from one country to another?

Another question before the Court was whether a parent can be compelled to go abroad for enforcing the Court order in custody cases. In that regard, the Bench opined that the welfare of a minor being of paramount consideration in such proceedings, the Courts cannot decide where the parents should reside as it will affect the right to privacy of the parents.

Therefore, the Bench held that a parent has to be given an option to go abroad with the child and it ultimately depends on the parent concerned to decide and opt for giving a company to the minor child for the sake of the welfare of the child as it will all depend on the priorities of the concerned parent. However, noticing that in the impugned judgment the High Court did provide such an option to the appellant, the Bench held that there was no compulsion on the appellant to go abroad with the child.

Factual Analysis

Considering the submissions made by both the parties and evidence available on record the Bench made following observations:

  • It was not the case of the appellant that there was even a discussion with the respondent for modification of the said consent till date and admittedly, the period of travel mentioned in the consent was not extended by the respondent.
  • Though the doctor recorded that the child needed to be reviewed 6 to 7 months after the surgery along with fresh ultrasound and renal scan, the surgery had taken place 33 months back and the appellant had neither provided any medical opinion on the current health of the child nor any medical certificate recording that the child needs any further treatment or medical care in India.
  • The child had spent more than three years in USA and two and a half years in India. Therefore, it could not be said that there was a complete integration of the child with the social, physical, psychological, cultural and academic environment of either USA or India.
  • The respondent had financial resources to maintain the appellant and the minor child in USA.
  • The welfare report of Visiting Consular of US Embassy recorded that the appellant informed that “her aunt picks up the minor child from school and brings him home each day and stays with him throughout the day while the mother and grand-parents are at work. Moreover, a domestic helper is taking care of the needs of the child.” Therefore, the appellant was not devoting her whole day to take personal care of the minor and to attend to the needs of the minor child.
  • On the other hand, the respondent had submitted that he had an option to permanently work from home and his mother had a valid visa to stay in USA till 23-02-2024 who had expressed willingness to take care of the minor child in USA.

Conclusion

In the backdrop of above mentioned observations the Bench upheld the impugned judgment with some minor modifications and passed the following order:

  • The appellant was given option to travel to USA along with the minor child and to contest the proceedings pending in USA and in such case, the appellant was directed to communicate her willingness to the respondent within two fifteen days and inform him of possible travel dates which was to be within three months;
  • If the appellant opts for travelling to USA, the respondent was directed to sponsor air tickets for round trip, arrange separate accommodation for the appellant and if she wishes to continue in USA, the respondent was to take all possible steps for the extension of visa or for getting a new visa;
  • If the appellant agrees to travel, the respondent was directed to pay US$ 6,500 to the appellant for her initial expenditure in USA and after expiry of period of one month the respondent was to pay mutually agreed amount of maintenance along with proper medical insurance to the appellant and the minor child. Additionally, the respondent was directed to undertake obligation to provide proper medical treatment to the minor child;
  • If the appellant agrees to travel, for a period of three months from the date of her arrival, the respondent was not take any steps to implement or enforce the order passed by the Circuit Court of Benton County, Arkansas to enable her to contest the said case. Hence, for the said period the custody of the minor was to be with appellant; during that period the respondent was granted temporary custody of the minor child from 10 am to 5 pm on every Sunday and liberty to video call the minor child for half an hour on every day.
  • In the event, the appellant deny to visit USA and fails to communicate her willingness to visit USA within a period of fifteen days, the respondent was granted liberty to take custody of the child.

Additionally, the Bench added the parties would be at liberty to adopt agreed joint parenting plan if they wish to.

[Vasudha Sethi v. Kiran V. Bhaskar, 2022 SCC OnLine SC 43, decided on 12-01-2022]


*Judgment by: Justice Abhay S. Oka


Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsHigh Courts

Kerala High Court: In an interesting case the Division Bench of A.Muhamed Mustaque and C.R. Sophy Thomas, JJ., held that not taking treatment for mental illness in order to bring out a peaceful and harmonious family atmosphere can also be counted as cruelty to the persons at the receiving end. Upholding the Family Court’s order granting divorce on the ground of cruelty, the Bench remarked,

“There is no merit in preserving intact a marriage, when the marital tie becomes injurious to the parties. When there is no rose, and only thorns left, and there is no scope for the plant to sprout again, there is no meaning in watering the same, knowing that it is dead forever.”

Factual Backdrop

In the instant case, the husband, who was an Engineer cum Yoga Trainer approached the Family Court to dissolve marriage under Section 10 of the Divorce Act, alleging cruelties, both mental and physical, and desertion, from the part of the wife, who was a Post Graduate. The husband was alleging that, from the very inception of marriage, the wife was showing behavioural disorders. She was intolerable even on minor domestic problems and she was abusive and assaultive in nature. She often threatened the husband that she would slice his throat and even strangulated him during sleep. Whenever he did not accede to her demand for unnatural sex, she threatened to slice away his penis. She often threatened him with suicide, and once she jumped out of a running car. She went out of the house during night hours without informing the husband, and there was occasion to bring her from street during midnight.

It was further the case of the husband that in spite of being taken to various psychologists and psychiatrists, his wife was not co-operating with the treatment. In July 2005, she went to her paternal house and never came back to live with her husband and children.

Findings of the Family Court

On analysing the facts and evidence, the Family Court found that the husband could establish the grounds of cruelty and desertion against the respondent-wife, and so, the O.P was decreed dissolving the marriage.

Challenging the said judgment and decree, the wife had come up in the instant appeal alleging that, by the impugned judgment, the husband was given an incentive for his own cruelty and desertion. The Family Court ought to have found that she had never intended to terminate her matrimonial life with the husband. In fact, she was prevented from entering her matrimonial home by an injunction suit filed by the mother-in-law.

Factual Analysis

Relying on the decision of the Supreme Court in Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, the Bench stated that in matrimonial life, cruelty can be defined in many ways; it has many perspectives which depend upon the socio-economic status and circumstances of parties to the marriage. With regard to the allegations made by the husband the Bench made following observations:

  • The appellant used to get irritated over minor domestic issues, and on one such occasion, since the husband could not heed to her request for purchasing a nighty from a shop, she bit off a portion of his shoulder muscle, and the bite mark was still there on his shoulder. His mother had to call the Police to manage that situation.
  • Statements of the doctors revealed that appellant was suffering from impulse control disorder which means, not able to control anger, and exhibiting anger in an excessive manner, which may adversely affect marital life. The persons suffering from impulse control disorder may be assaultive in nature and may throw things or may exhibit homicidal or suicidal tendency as stated by the doctor.
  • The doctor further stated that there is no complete cure for this illness, but it could be controlled under proper medication. However, even according to the appellant, after 2007 she had not continued the treatment.
  • The allegations of arrogance, and abusive and assaultive nature of the appellant, spoken to by her husband and children, get corroboration from medical report, and the testimony of Doctor.

One may suffer mental stress or strain due to very many reasons. But, not taking treatment for the same in order to bring out a peaceful and harmonious family atmosphere also may have to be counted as cruelty to the persons at the receiving end. The appellant has no case that, she had any difficulty to continue the treatment, but according to her, she had no psychiatric problem and so she discontinued the treatment.

Observations and Findings

In A: husband v. B: Wife, 2010 SCC OnLine Ker 4925, it had been held that law cannot recognise different varieties of cruelty as Hindu cruelty, Muslim cruelty, Christian cruelty or secular cruelty to justify a decree for divorce and matrimonial cruelty must have a uniform definition or conceptualisation to justify the founding of a decree for divorce. Further, under S.10(1)(x) of the Divorce Act, the cruelty must be such as to cause reasonable apprehension in the mind of the petitioner, spouse that it would be harmful or injurious for the petitioner to live with the respondent.

From the available facts and evidence, the respondent husband had amply proved that the appellant had treated him with such cruelty as to cause reasonable apprehension in his mind that it would be harmful or injurious to him to live with the appellant and that his children were also anxious to save the life of their father as the children deposed that if the appellant and respondent were again put together, they will lose their father. Further, from the evidence on record following circumstances were proved against the appellant wife:

  • The appellant herself admitted that she had left her matrimonial home in July 2005. She had no case that before her mother-in-law filed injunction suit against her, she preferred any complaints or petitions before any authority seeking restitution of conjugal rights or even for getting custody of her minor girl children.
  • She had no case that, when she left her matrimonial home, she was prevented from taking her children with her. So, of obviously, she left her matrimonial home even without caring her little girl children.
  • The children would say that, even when she was informed about their biological maturity, she did not care to see them. In the year 2005, the respondent was hospitalised due to heart attack and then also, the appellant did not turn up.
  • In 2009, when the appellant and her parents tried to make a forcible entry in the house, the mother-in-law filed a civil suit and obtained injunction. Though, the injunction was later vacated and subsequently the mother-in-law not pressed that suit, only after the civil suit, the appellant filed complaint under the Domestic Violence Act for getting residence order in the shared household.

Conclusion

Hence, considering the fact that the parties lived separately for the last more than 16 years, the Bench held that their marriage was to be treated as a deadwood which had no signs of life. In the result, the appeal was dismissed and the impugned judgment and decree were upheld. [Mary Margret v. Jos P Thomas, Mat. Appeal No.1119 of 2015, decided on 21-01-2022]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

Advocates for the Appellant: P.George William, Achu Subha Abraham, Philip T.Varghese and Thomas T.Varghese

Advocates for the Respondent: V.V.Asokan (Senior.), V.M.Kurian, Mathew B. Kurian, C.N.Sreekumar, K.T.Thomas and K.I.Mayankutty Mather

Experts CornerSanjay Vashishtha

The jurisprudence on the rape on the pretext of marriage is being shaped by judicial precedents across the India. Marriage is considered as sacred union between two individuals – transcending beyond physical, emotional and spiritual bounds. In ancient Hindu laws, marriage and its rituals are performed to pursue dharma (duty), artha (possessions) and kama (physical desires). With such sanctity, marriage is more than a ritual, and accordingly the present criminal jurisprudence invokes Section 90 of the Penal Code, 1860 when the consent for a sexual intercourse is sought on the false promise of marriage.

 

On the other hand, “men’s rights activists” claims that these charges framed against the accused should be equitable to “false rape cases” for various reasons. It is argued that these allegations are paradoxical and rather counterproductive insofar as rampant acquittals and discharge in such cases dilute the seriousness surrounding the penal provision relating to rape.

 

Therefore, the term “consent” becomes the subject-matter of a legal deliberation and debate. In terms of Section 90 IPC, consent given by a victim under a misconception of fact would amount to rape within the meaning of Section 375 IPC. However, what is the degree and the nature of this misconception? Is there a legal litmus test to decipher this misconception? Anthropologists and experts can vouch for the fact that wear and tear is an integral part of any relationship, marital or otherwise. In fact, quite recently, Sikkim High Court had in fact extended the benefit of doubt to the accused on the ground of “relationship going sour”1. Therefore, an endeavour is made in this article to sum up the recent developments on the jurisprudence surrounding rape on the pretext of marriage and identify legal parameters which could potentially decipher the key difference between actual inducement leading to rape on the pretext of marriage or not.

 

To start with, the Supreme Court in Sonu v. State of U.P.2 quashed an FIR under Section 376 IPC between former lovers inter alia on the ground that “there is no allegation that the promise to marry given to the second respondent (prosecutrix) was false at the inception”. The decision, authored by HMJ Dr D. Y. Chandrachud cited Pramod Suryabhan Pawar v. State of Maharashtra3 wherein the following was laid down by the Supreme Court as a litmus test to govern such matters:

 

  1. 16. Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a “misconception of fact” that vitiates the woman’s “consent”. On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it.

*                                  *                                  *

  1. 18. To summarise the legal position that emerges from the above cases, the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman’s decision to engage in the sexual act.

 

In Sonu v. State of U.P.4 the prosecutrix in her Section 164 CrPC statement admittedly claimed that the physical relations were consensual and were an outcome of a “love affair” between the two, however, on account of the accused promising to marry her. Subsequently, the family of the accused refused to have their marriage solemnised and so did the accused.

 

The fundamental issue that crops up from the Sonu judgment5 and those alike in genesis in terms of facts and circumstances is the presence of a intimate/love affair between the complainant and the accused. It is seldom the case that the accused has either married someone during the period of alleged inducement or was already in an active relationship with someone else or has married someone else either during or immediately following the refusal to marry which prompts law enforcement agencies to register an FIR under Section 376 IPC.

 

In this regard, the Full Bench of the Supreme Court headed by HMJ Rohinton Nariman had recently in Maheshwar Tigga v. State of Jharkhand6 arising out of SLP (Crl.) No. 393 of 2020 observed:

 

  1. 10. They were both smitten by each other and passions of youth ruled over their minds and emotions. The physical relations that followed was not isolated or sporadic in nature, but regular over the years. The prosecutrix had even gone and resided in the house of the appellant. In our opinion, the delay of four years in lodgement of the FIR, at an opportune time of seven days prior to the appellant solemnising his marriage with another girl, on the pretext of a promise to the prosecutrix raises serious doubts about the truth and veracity of the allegations levelled by the prosecutrix. The entire genesis of the case is in serious doubt in view of the admission of the prosecutrix in cross-examination that no incident had occurred on 9-4-1999.

 

The Court further observed in Maheshwar Tigga case7 :

  1. 14. Under Section 90 IPC, a consent given under a misconception of fact is no consent in the eye of the law. But the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years. It hardly needs any elaboration that the consent by the appellant was a conscious and informed choice made by her after due deliberation, it being spread over a long period of time coupled with a conscious positive action not to protest. (Emphasis added) The prosecutrix in her letters to the appellant also mentions that there would often be quarrels at her home with her family members with regard to the relationship, and beatings given to her.

 

The Supreme Court has, especially in the last decade, passed several landmark decisions in an endeavour to frame policy related jurisprudence on this subject matter. From holding that the victim was not a “gullible woman of feeble intellect” in Vinod Kumar v. State of Kerala8 to reiterating the distinction between a promise which is unfulfilled and a promise which is false from the very beginning in Anurag Soni v. State of Chhattisgarh9 in the Supreme Court has made it unambiguous and coherent that in order to establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two propositions must be established10:

 

  1. 18. … The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman’s decision to engage in the sexual act.

 

Therefore, in other words, while the Supreme Court has identified a fine distinction between matters where there is an intention to deceit at the outset, it is paramount that concept of regular wear and tear of relations as otherwise evident from matrimonial matters is required to be infused in this jurisprudence, literally or otherwise.

 

In the recent past, my professional experience as a defence counsel in various such matters spanning from trial courts to the Supreme Court and as a consultant to a law enforcement agency, has enabled me to identify the following parameters which could further enable the investigating officers from identifying a case which merits a final report in the form of a charge-sheet in contrast to a final report under Section 173 CrPC in the form of a closure report: –

 

  1. In some matters, the FIR under Section 376 IPC is in fact an outcome of a regular wear and tear of relationship spanning over several years, including live-in relationships, which as per the Supreme Court in Velusamy v. D. Patchaiammal11, following certain conditions has the sanctity of presumption of marriage. The facts highlighting gradual wear and tear of relations leading to a break-up/refusal to marry could be a relevant identifier with regards to the primary litmus test laid down by the Supreme Court in this regard.
  1. In most of the matters, the accused (as I would only know their narrative – as a defence counsel) has neither married anyone else nor had any other relationship during the subsistence of their relationship with now complainant. They were neither actively pursuing matrimonial alliances through other online/offline modes.
  1. In a case, the complainant herself did not sought marriage till a particular timeline after which the accused sought time – and the same resulted in an FIR under Section 376 IPC.
  1. In one matter, one of my clients who had cleared one of the toughest examinations in the country was prevented from joining and rendering his services on account of the said FIR under Section 376 IPC. In this matter the complainant in statement recorded under Section 164 CrPC had stated that the accused had promised to marry her after clearing his examination and programmes. One could say this was a premature FIR, but be as it may, it is the prerogative of the complainant to choose the time and place of recording of such first information report.

 

However, an important caveat may be highlighted at the outset. The idea is not to promote closures or highlight one-sided anecdotal experience – but to highlight that the growing number of such acquittals/quashing’s and overshadow matters which would otherwise merit trials and convictions. This also tends to diminish the sensitivity and seriousness with which investigation is to be conducted in such matters, in my personal view and experience.

 

Its about time that parameters be laid down, withstanding the fact that every criminal case/FIR is unique and peculiar directing the investigating officers to consider, atleast some of the aforesaid while choosing to file a closure, as final reports in the form of charge-sheets, at times are mechanically filed in this regard.


† Sanjay Vashishtha is a practicing counsel at the Supreme Court of India, LLM in Comparative Criminal Law from McGill University, Canada and MSc, Criminology and Criminal Justice from University of Oxford. He is serving as a counsel/special counsel and consultant for several law enforcement and public sector institutions.

1 Makraj Limboo v. State of Sikkim, 2021 SCC OnLine Sikk 1.

2 2021 SCC OnLine SC 181.

3 (2019) 9 SCC 608, 618, 620.

4 2021 SCC OnLine SC 181.

5 2021 SCC OnLine SC 181.

6 (2020) 10 SCC 108, 114.

7 (2020) 10 SCC 108, 115.

8 (2014) 5 SCC 678.

9 (2019) 13 SCC 1.

10 Pramod Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC 608, 620.

11 (2010) 10 SCC 469.

Case BriefsHigh Courts

Punjab and Haryana High Court: Lisa Gill, J., held that to permit a spouse to record conversations with an unsuspecting partner and to produce the same in a court of law, to be made the basis of deciding a petition under Section 13 of the Act cannot be permitted.

Order of the Family Court

The instant revision petition had been file by the petitioner-wife against the order of the Family Court whereby the husband of the petitioner, respondent herein, had been allowed to prove the Compact Disc pertaining to conversation between him and the wife subject to the condition of its correctness.

A petition was filed by the petitioner’s husband under Section 13 of the Hindu Marriage Act, 1955 for seeking divorce on the ground that his wife had been treating him with cruelty. With an intention to expedite the proceedings, the respondent-husband had moved an application seeking permission to submit his supplementary affidavit by way of examination-in-chief along with CD and transcriptions of conversations so recorded in the memory cards/chips of the respective mobile phones.

The said application was allowed by the Family Court observing that the husband was allowed to prove the CD pertaining to the conversations between him and his wife subject to the condition of correctness and that strict principles of evidence are not applicable to the proceedings before the Family Court by virtue of Sections 14 and 20 of the Family Court Act.

Are Recordings of Private Conversation between Husband and Wife permissible as Evidence?

The petitioner contended that the evidence sought to be led by the husband was completely beyond pleadings, therefore, absolutely impermissible as the said CD’s were a clear cut infringement and downright invasion of the her privacy thus a violation of Article 21 of the Constitution, as the conversations had been recorded without her knowledge and consent.

The petitioner argued that the Family Court had given a complete go bye to Section 65 of the Evidence Act, 1882 because if recording had been done through a mobile phone, CD’s of the recording and transcripts thereof in any case, could not be accepted as evidence thereof. Moreover, there was non-compliance of Section 65-B of the Act, 1882.

Right to Privacy v/s Recordings of Personal Conversation as Evidence

Admittedly, there was no mention of the conversations recorded by the husband between the years 2010 to 2016 in the said petition. It was thus evident that the husband was well aware of these conversations which could very well have formed part of the pleadings at the very outset, but clearly did not find mention. Furthermore, there was no averment regarding these conversations in the amended petition or even in the affidavit tendered in examination-in-chief. Therefore, the Bench opined that the CD’s in question could not be permitted in evidence.

Opining that acceptance of the CD in question would amount to a clear breach of fundamental right of the petitioner-wife i.e., right to privacy, as had been held the Supreme Court in People’s Union for Civil Liberties v. Union of India, (1997)1 SCC 301. Furthermore, the Bench said,

“It cannot be said or ascertained as to the circumstances in which the conversations were held or the manner in which response elicited by a person who was recording the conversations, because it is evident that these conversations would necessarily have been recorded surreptiously by one of the parties.”

In Tripat Deep Singh v. Paviter Kaur, 2018 (3) RCR (Civil) 71, it was held that conversations between husband and wife in daily routine cannot be made the basis of or considered for deciding a petition under Section 13 of the Act. Reference to Section 122 of the Evidence Act, had been succinctly dealt with by the Rajasthan High Court in Vishal Kaushik v. Family Court, 2015 SCC OnLine Raj 445, wherein the Court had heal that,

“The exception to privileged communication between husband and wife carved out in Section 122 of the Indian Evidence Act, which enables one spouse to compel another to disclose any communication made to him/her during marriage by him/her, may be available to such spouse in variety of other situations, but if such communication is a tape recorded conversation, without the knowledge of the other spouse, it cannot be, admissible in evidence or otherwise received in evidence.”

Verdict

Keeping in view the factual matrix of the case, the Bench opined that it could not be said the Family Court is not bound by strict rules of evidence and is at liberty to accept the CD in evidence which is a clear cut infringement of the right of privacy of the wife.

Therefore, acceptance of the CD by the Family Court was held to be unjustified and the impugned order was set aside. The application filed by the respondent-husband for submitting the said CD was dismissed and the instant revision petition was allowed. The Family Court was directed to take steps for expeditious disposal of the petition filed under Section 13 of the Act, preferably within six months. [Neha v. Vibhor Garg, CR No. 1616 of 2020, decided on 12-11-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner-wife: Rajan Bansal, Advocate

For the Respondent-husband: Sumeet Goel, Sr. Advocate with Anubhav Bansal, Advocate

Case BriefsHigh Courts

Rajasthan High Court: Dinesh Mehta J. rejected the petition and disposed off the stay application.

The instant petitions were filed by couples who have fled home and have decided to marry and are now before the Court seeking police protection.

The Court relied on judgment Lata Singh v. State of U.P., AIR 2006 SC 2522, wherein it was observed that the Courts are not meant to provide protection to such youths, who have simply fled to marry according to their own wishes.

The Court observed that there is no material or reason for this Court to conclude that the petitioners’ life and liberty are at peril. There is not even an iota of evidence to evince that private respondents (relatives of the petitioner 1) are likely to cause physical or mental assault to the petitioners. If the petitioners have decided to marry, they must muster the audacity and possess tenacity to face and to persuade the society and their family to accept the step they have taken.

The Court observed that in a deserving case, the Court can provide security to the couple, but cannot lend them the support they have sought. They have to learn to support each other and face the society. If any person misbehaves or manhandles them, the Courts and police authorities are there to come to their rescue, but they cannot claim security as a matter of course or right.

The Court held “any serious threat perception to the petitioners is not found and, therefore, there is no requirement of passing any order for providing police protection to them”

[Shobha v. State of Rajasthan, S.B. Civil Writ Petition No. 545/2022, decided on 11-01-2022]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For petitioner: Mr Ankit Chaudhary

Case BriefsHigh Courts

Jammu and Kashmir High Court: In a case alleging dowry death, Rajnesh Oswal, J., clarified the scope and applicability of Jammu and Kashmir Dowry Restraint Act 1960. Observing that the Trial Court had conducted mini trial at the stage of framing of charge, the Bench expressed,

 “The trial court was considering issue with regard to framing of charge under section 304-B RPC but the trial court got swayed by the definition of dowry as defined under the Act of 1960 forgetting the legislative intent behind making the amendment, more when the definition was elastic even for the purpose of Act of 1960 by the use of expression “In this Act unless the context otherwise requires”.

The instant petition had been filed by the mother of the deceased against the impugned order of the Trial Court by which the respondents were discharged of offence under section 304-B RPC and instead charges were framed for offences under sections 306 and 498-A/34 RPC.

Background

The allegations against the respondents were that they used to demand dowry and a car from the deceased and although the amount of two lakhs was paid by the petitioner, neither the atrocities against the deceased came to an end nor the demand for dowry. The allegation was levelled that the husband, father in law, mother in law and brother in law had started beating the deceased and they also snatched her phone which had compelled the deceased to take her own life and she committed suicide.

The grievance of the petitioner was that the Trial Court had altered the charge from 304-B RPC to 306 and 498-A/34 RPC despite the fact that there was abundant evidence on record for framing of charge under section 304-B RPC.

Question of Law

Whether the definition of the dowry as defined under the J&K Dowry Restraint Act 1960 is entirely different vis-a-vis dowry as defined under the Dowry Prohibition Act, 1961 that is applicable to the whole of the India excluding the then State of Jammu and Kashmir?

The controversy had arisen because the definition of the dowry as contained in the Dowry Restraint Act, 1960 as was applicable in the erstwhile State of J&K, was very restrictive in its application whereas the definition of a dowry as contained in the Dowry Prohibition Act, 1961 as applicable in rest of the India except the erstwhile State of Jammu and Kashmir was of wider amplitude.

Observations of the Trial Court

As per definition of dowry as defined under the Dowry Restraint Act, 1960, dowry means any property transferred or agreed to be transferred as a part of any betrothal, marriage, pre-betrothal, post-marriage ceremony and other ceremonies such as Thaka, Rophera, Duphera, Phirsal, Phersuzen and like ceremonies.

The section contemplates the transfer of a property or agreement for transfer of a property as a part of contract in connection with the ceremonies. The Trial Court discharged the respondents on the premise that there was no such contract between the parties as such offence under section 304-B RPC was not made out and further that there was no evidence that the deceased was subjected to cruelty by the accused in relation to the demand of the dowry or a car soon before her death.

Analysis and Findings

Opining that the reasons furnished by the Trial Court for non-applicability of section 304-B RPC just because there was no contract within the meaning of section 2 of Dowry Restraint Act, 1960 were not convincing, the Bench clarified, the section 2 of the Dowry Restraint Act, 1960 begins with expression “In this Act unless the context otherwise requires” meaning thereby that the definition of “Dowry” used in the Act 1960, cannot be put in to straight jacket formula and if the Act of 1960 necessitates or requires, then the word “dowry” can contemplate other situations/persons as well.

If the interpretation of the trial court is accepted, then none other than the husband, his father and mother can be proceeded against under section 304-B RPC and it would do violence not only to the statue but also the legislative intent behind it.

Section 304-B RPC contemplates the death of woman with in the period of 7 years and also the persons who can be proceeded against under section 304-B i.e. husband and his relatives where as the section 2 of the Act 1960 contemplates persons to be proceeded against as party to the marriage or betrothal and father, mother and guardian of the party. The Bench expressed,

“Section 2 of the Dowry Restraint Act, 1960 begins with expression “In this Act unless the context otherwise requires” meaning thereby that the definition of “Dowry” used in the Act 1960, cannot be put in to straight jacket formula and if the Act of 1960 necessitates or requires, then the word ‘dowry’ can contemplate other situations/persons as well.”

Therefore, the Bench concluded that the definition of dowry under the Act, 1960 cannot be given stricter meaning so as to defeat the very purpose of the statute. On the issue, whether there was any evidence on record to justify framing of charge under section 304-B RPC with regard to the demand of dowry, the Bench cautioned that the court is not supposed to hold mini trial at this stage (framing of charges).

Considering that the deceased died because of suicide within the seven years of marriage and the presumption of dowry death was wrongly rejected by the Trial Court on the ground that there was no evidence that the deceased was subjected to cruelty by the accused in relation to the demand of the dowry or a car “soon before her death”, the Bench cited Satbir Singh v. State of Haryana, (2021) 6 SCC 1, to remind the Court that when the legislature used the words, “soon before” they did not mean “immediately before”.

Conclusion

In the light of above, the petition was allowed and the impugned order was set aside with the direction to the Trial Court to frame the charges for commission of offences under Section 304-B, 498-A/34 RPC against the respondent 2 to 4. [Shakuntla Devi v. Union Territory of J&K, 2021 SCC OnLine J&K 1002, decided on 10-12-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: Ajay Bakshi, Advocate

For the UT of J&K: Aseem Sawhney, AAG

For Respondents: Satinder Gupta, Advocate

Case BriefsHigh Courts

Kerala High Court: In a significant case regarding Right to maintenance of child born out of inter-faith marriage, the Division Bench of Dr. Kausar Edappagath and A. Muhamed Mustaque JJ., held that the child being non sui juris, the State and the Courts as Parens Patriae are bound to protect it irrespective of law being silent in this regard. The Bench expressed,

“We see no reason to deny the children born to an inter-faith couple legal right to claim maintenance from their father for the reason that there is no specific statutory provision mandating such a father to maintain his children.”

Background

The inter-faith couple, (husband being a Hindu and wife a Muslim) entered into wedlock in 1987 and a girl child-respondent 1 was born to them who was brought up as a Muslim.

The root of the instant case was originated at the Family Court, Nedumangad, where a petition was filed by the respondent 1 against the couple claiming past and future maintenance, educational and marriage expenses invoking the provisions of Hindu Adoptions and Maintenance Act, 1956. Evidently, the appellant-husband had alone contested the matter at the Family Court on the ground that the petition invoking provisions of Hindu Adoptions and Maintenance Act, 1956 was not maintainable.

Findings of the Family Court

The family court, after the analyzing the evidences on record, found that the first respondent had an upbringing of that of a Hindu as her father; the appellant herein was a Hindu. Accordingly, holding that the respondent 1 was entitled to all the reliefs as claimed by her from her parents, the Family Court awarded a decree for Rs. 1,08,000 towards past maintenance, Rs. 14,66,860 towards marriage expenses and Rs. 96,000 towards educational expenses with interest.

Observations and Findings

Does father of a child born out of an inter–faith marriage have legal obligation to maintain it in the absence of a statutory stipulation?

Evidently, after 3 years of age the first respondent was brought up as Muslim by her maternal grandparents as the appellant had left their company and later on, the respondent 2 married another person. Moreover, the respondent 1 was married to a Muslim man as per Muslim rites.  Therefore, the Bench opined that the findings of the Family Court that the respondent 1 was brought up as a Hindu and, hence, the provisions of the Hindu Adoptions and Maintenance Act, 1956 would apply could not be sustained. Similarly, the Muslim Personal Law also could not be applied since both parties were not Muslims. Further, the Bench expressed,

“There is no substantive law mandating a father of a child born out of an inter–religion marriage to maintain it. The Special Marriage Act, 1984 is silent on this.”

However, opining that every child born to this world is entitled to be maintained and since, father is recognized as the guardian, he is under a duty to maintain and protect the child, the Bench applied the United Nations Convention on the Rights of the Child (UNCRC), to hold that every child has the right to survival, protection and education. In Mathew Varghese v. Rosamma Varghese, (2003 KHC 362), it was held that every father whatever be his religious denomination and faith has the indisputable liability to maintain his child.

Further, every child irrespective of his race, caste or religion has a remedy by way of a suit or petition under S. 9 and O. XXXII A of the CPC and Section 7(1)(e) of the Family Courts Act, 1984 to claim maintenance. A criminal liability is imposed by Section 125 of CrPC to a father irrespective of the faith or religion professed by him to maintain his children.

Therefore, opining that the caste, faith or religion cannot have any rational basis for determining the parental duty of a father and all the children have to be treated alike irrespective of the faith or religion professed by the parents, the Bench held that the children of an inter-faith couple are entitled to be maintained by their father where son’s entitlement is until he attains the age of the majority and that of daughter’s is until she gets married.

Whether Right to maintenance includes marriage expenses as well?

In Mathew Varghese’s case, while deciding the question whether a Muslim father is liable under Personal Law to meet the marriage expenses of his unmarried daughter, the Supreme Court had held that maintenance is the right of the child and such maintenance does and must include all expenses for the mental and physical well being of the child and so far as unmarried daughter is concerned, her marriage is also something essential for the mental and physical well being.

In so far as the Hindu father is concerned, Section 3(b) of the Hindu Adoptions and Maintenance Act, 1956 which obliges the father to maintain his unmarried daughter specifically includes the right of the claimant for marriage expenses. Therefore, the Bench concluded that an unmarried daughter born to an inter religious couple is entitled to marriage expenses from her father.

Conclusion

Emphasising that an unmarried daughter cannot ask or compel her father to conduct marriage in a lavish or luxurious manner and a father cannot be fastened with the liability to bear the amount spent by the daughter lavishly according to her whims and fancies, the Bench ruled that the Court can only award bare minimum reasonable expenses, that too only if the father has requisite means and the daughter is dependent on him.

Regarding the facts, the respondent 1 had claimed Rs. 25,00,000 towards marriage expenses and the Family Court had granted Rs. 14,66,860 for the same, the Bench observed that all the bills except three of marriage expenses were for the purchase of gold ornaments and the total of actual expense incurred for marriage would come to Rs. 1,73,150. Therefore, the Bench concluded that a sum of Rs. 3,00,000 would be just and reasonable towards the marriage expenses since there is no concept of dowry in a Muslim Marriage and no obligation for the father to pay any money, gold or sthreedhanam to his daughter.

Accordingly, the amount granted by the Family Court towards the marriage expenses was modified and the impugned judgment was partly upheld to the extent it provided maintenance of Rs. 5,000 and education expenses of Rs. 96,000 (the amount actually spent on the education of respondent 1). [J.W Aragadhan v. Hashmi N.S, Mat. Appeal No. 65 of 2015, Decided on 03-12-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Appellant: Advocate Nirmal S.

For the Respondents: Advocate G.  Ranju Mohan, Advocate K.V Samudra and Advocate M. Samthi

Case BriefsHigh Courts

Chhattisgarh High Court: The Division Bench of Goutam Bhaduri and Rajani Dubey, JJ., held that the wife refusing to join the company of her husband in view of waiting for auspicious time, would amount to desertion.

An appeal was filed against the decision of the Family Court whereby the appellant preferred the petition seeking divorce on the ground of desertion was dismissed.

Husband and Wife lived together for 11 days and subsequently, the wife’s family members came and took her away on the ground of some important work. Thereafter, she did not return. Husband pleaded that he tried to get her back but the same was not acceded to on the ground that auspicious time (subh-muharat) was not there.

Further, it was alleged that respondent/wife did not volunteer to join her husband back at any point of time. Subsequently, the husband filed a suit for restitution of conjugal rights, which was decreed ex parte.

Trial Court observed that the husband failed to prove the ground of desertion and further even after getting a decree of restitution of conjugal rights, since it was not put to execution, therefore, the intention of the husband was not to resume and restore the family and consequently would not be entitled to any divorce decree.

Analysis, Decision and Law

High Court noted in view of the facts of the present matter that the wife contributed more to restrain herself from the company of the husband on that pretext and no telephonic conversation or exchange of letter took place for more than 11 years in between the parties.

Further, the Bench expressed that, simply sitting dormant despite knowing of the fact the effort made by the husband for restitution of conjugal rights atleast showed the intention of wife not to join back the company of husband. Even otherwise she could have joined the company of the husband without there being the execution of the decree.

In Court’s opinion, if the wife was so sanguine of the fact that the factum of the auspicious moment would destroy her matrimonial home, she should have stepped forward which was done by the husband twice but was blocked by the wife.

Therefore, in the present case, despite efforts taken by the husband to restore the matrimonial home, wife did not cooperate and under the guise of auspicious time to return, she continued at her maternal home.

Hence, in view of the above discussion, the wife knowingly deserted the company of the husband, leading to the husband being entitled to get a decree of divorce under Section 13(ib) of the Hindu Marriage Act, 1955.

Lastly, the Court dissolved the marriage of the parties and allowed the appeal. [Santosh Singh v. Amita Singh, 2021 SCC OnLine Chh 3811, decided on 13-12-2021]


Advocates before the Court:

For Appellant: Mr Sourabh Sharma, Advocate

For Respondent: Mrs Renu Kochar, Advocate

Case BriefsHigh Courts

Kerala High Court: The Division Bench of A.Muhamed Mustaque and Sophy Thomas set aside the findings of Family Court wherein it had held rejected to grant divorce holding that providing maintenance is sufficient for husband to meet marital obligations. Opining that unequal treatment between wives is sufficient ground to dissolve marriage under muslim law, the Bench remarked,

“Refusal to cohabit and perform the marital obligations with the previous wife is tantamount to the violation of the Quranic injunctions which commands equal treatment of the wives if the husband contracts more than one marriage.”

The parties married on 04-08-1991 and 3 children were born from the wedlock. The parties were Muslims and they married in accordance with the personal law applicable to them. However, after moving abroad, the respondent contracted another marriage with a lady namely Hajira during the subsistence of marriage with the appellant. The claim of the respondent was that he contracted second marriage as the appellant refused to have a sexual relationship with him.

The appellant-petitioner filed a divorce petition in the Family Court on enumerated grounds of the Dissolution of Muslim Marriages Act, 1939 for divorce. In the petition, the grounds under the specific head of Section 2(ii), 2(iv) and 2(viii) of the Act alone were referred. However, the pleadings in the petition indicated the ground for divorce under Section 2(viii) (f) as well.

Grounds for Divorce

The appellant-petitioner relied on following grounds, as stipulated under Act, 1939 for seeking divorce:

Section 2(ii): “that the husband has neglected or has failed to provide for her maintenance for a period of two years.”

Section 2(iv): “that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years.”

Section 2(viii) (a) and (f): “that the husband treats her with cruelty, that is to say- (a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or (f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Qoran.”

Erroneous Findings of the Family Court

The Family Court formulated the points for consideration on three different heads except with reference to sub clause (f). It had come out in the evidence that the respondent used to provide maintenance. The appellant had a case that that amount was in fact the money collected from abroad due to the intervention of local politicians to meet the marriage expenses of the daughter and not the maintenance provided, however, there was no evidence to that effect.

“The Family Court carried on an assumption that providing maintenance would be sufficient to prove that the husband performed marital obligations. This finding, according to us, is erroneous and cannot stand the scrutiny of the law.”

Analysis and Observation

The appellant had stated in the petition that from 21-02-2014 onwards, the respondent husband stopped visiting her. On the other hand, according to the respondent, he was forced to marry another lady for the reason that the appellant failed to co-operate with him on his physical needs. Rejecting the contention of the respondent, the Bench stated,

“We are not persuaded to believe the version of the respondent in this regard. Three children were born in the wedlock. Two of them got married. Absolutely, there was no evidence to show that the respondent was willing to cohabit with the appellant. That means, he failed to perform the marital obligations.”

Further observing that the couple was living separately at least for a period of five years prior to filing the petition, the Bench opined that the appellant made out a ground for divorce under Section 2(iv) of the Act. The next ground was under Section 2(viii) (a) of the Act, which referred to the physical and mental cruelty of the wife.

We noted that the parties are living separately for more than five years before the institution of the petition. That would show that there was no cohabitation. In such circumstances, we will not be able to justify the case put forward by the appellant-wife in regard to the physical or mental cruelty.

Unequal Treatment of Wives as a ground for Divorce

The next ground was under Section 2(viii) (f) of the Act. Though in the petition, this provision had not been specifically mentioned, the Bench opined that mere omission to quote a statutory provision would not disentitle the claim for divorce on that ground if there were sufficient averments in the petition. The Bench added,

“If there exists a marriage with another lady during the subsistence of the previous marriage, the burden is on the husband to prove that he had treated both wives equitably in accordance with the injunctions of Quran. Staying away from the first wife for five years itself would show that he had not treated them equally.”

The respondent had no case that he lived with the appellant after 2014. Hence, the Bench held that the refusal to cohabit and perform the marital obligations with the previous wife is tantamount to the violation of the Quranic injunctions which commands equal treatment of the wives if the husband contracts more than one marriage.

Conclusion

In the light of above, the Bench held that the appellant-wife was entitled to get a decree of divorce. Accordingly, the appeal was allowed and impugned judgment was set aside. The Bench declared that the marriage between the appellant and the respondent stood dissolved. [Ramla v. Abdul Rahuf C.K., Mat.Appeal No.431 of 2021, decided on 01-12-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Appellant: C.Ijlal and Ummul Fida, Advocates

For the Respondent: T.P.Sajid and Shifa Latheef, Advocates