Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ referred the question as to whether a Parsi woman automatically gets converted to Hinduism after marrying a Hindu man under the Special Marriage Act, 1954 to a 5-judge Constitution bench. The Court directed the matter to be added in the list of matters which are already listed before the Constitution Bench on 10.10.2017.

The Court said that the larger bench will have to consider whether the five-judge bench judgement in the triple talaq matter can also have some bearing in the present case, apart from examining he applicability of ‘doctrine of culture’ which provides that a woman assumes the religion of her husband after marriage.

The bench was hearing a plea filed by Goolrokh Gupta challenging the Bombay High Court judgement that had held that a Parsi woman is deemed to be converted to Hinduism after marrying a Hindu man under the Special Marriage Act. [Goolrokh M. Gupta v.  Burjor Pardiwala,  Special Leave to Appeal (C) No(s).18889/2012, order dated 09.10.2017]

With inputs from The Hindu

Case BriefsSupreme Court

Supreme Court: After conducting a 6-day hearing during summer vacations, the historic verdict on the validity of Triple Talaq is out and this is what the 5-judge Constitution Bench has held:

“In view of the different opinions recorded, by a majority of 3:2 the practice of ‘talaq-e-biddat’ – triple talaq is set aside.”

The 395-pages long judgment begins with the dissenting opinion of JS Khehar, CJ and SA Nazeer, J where the judges asked the Union of India to consider appropriate legislation, particularly with reference to ‘talaq-e-biddat’ and requested the different political parties to keep their individual political gains apart, while considering the necessary measures requiring legislation. CJI, writing the judgment for himself and Nazeer, J said that till the time a law comes into force, the Muslim husbands should be injuncted from pronouncing ‘talaq-e-biddat’ as a means for severing their matrimonial relationship. The instant injunction will be operative for a period of six months and if the legislative process commences before the expiry of the period of six months, and a positive decision emerges towards redefining ‘talaq-ebiddat’ (three pronouncements of ‘talaq’, at one and the same time) – as one, or alternatively, if it is decided that the practice of ‘talaq-e-biddat’ be done away with altogether, the injunction would continue, till legislation is finally enacted. Failing which, the injunction shall cease to operate.

Stating that while examining issues falling in the realm of religious practices or ‘personal law’, it is not for a court to make a choice of something which it considers as forward looking or non-fundamentalist, the 2 judges said,

“It is not for a court to determine whether religious practices were prudent or progressive or regressive. Religion and ‘personal law’, must be perceived, as it is accepted, by the followers of the faith. And not, how another would like it to be.”

CJI and Nazeer, J also took note of the fact that the AIMPLB has undertaken to issue an advisory through its website, to advise those who enter into a matrimonial alliance, to agree in the ‘nikah-nama’, that their marriage would not be dissolvable by ‘talaq-e-biddat’.

Nariman, J, writing down the majority judgment for himself and Lalit, J noted that given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place. It was held that this form of Talaq is 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. This form of Talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India. The Court, hence, held that the Muslim Personal Law (Shariat) Application Act, 1937, insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of the expression “laws in force” in Article 13(1) and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq. After going through the Hanafi jurisprudence, the Court noticed that very jurisprudence castigates Triple Talaq as being sinful. The Court said that Triple Talaq is a form of Talaq which is itself considered to be something innovative, namely, that it is not in the Sunna, being an irregular or heretical form of Talaq, it was held that:

“the fundamental nature of the Islamic religion, as seen through an Indian Sunni Muslim’s eyes, will not change without this practice.”

It was, hence, held that Triple Talaq was not a part of Article 25(1) of the Constitution and hence, the Muslim Personal Board that the ball must be bounced back to the legislature does not hold good as Article 25(2)(b) would only apply if a particular religious practice is first covered under Article 25(1) of the Constitution.

Joseph, J, writing down a separate judgment but agreeing with the majority opinion, said,

“Merely because a practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible.”

He said that the purpose of the Muslim Personal Law (Shariat) Application Act, 1937 was to declare Shariat as the rule of decision and to discontinue anti-Shariat practices with respect to subjects enumerated in Section 2 which include talaq and therefore, in any case, after the introduction of the 1937 Act, no practice against the tenets of Quran is permissible and hence, there cannot be any Constitutional protection to such a practice. [Shayara Bano v. Union of India, 2017 SCC OnLine SC 963, decided on 22.08.2017]


Case BriefsHigh Courts

Madras High Court: Expressing dismay upon the suffering of the petitioner due to her marriage being conducted without a proper enquiry as to the physical health of the groom, the Bench of N. Kirubakaran, J., observed that it would be prudent for the Central and State Governments to enlighten and sensitize people to go for pre-marital counselling and the same should be promoted by way of short films, advertisements and seminars.

In the present case, the petitioner had moved to the Family Court for annulment of her marriage within 6 months from the date of her marriage. According to the petitioner, the respondent had fraudulently obtained her consent for marriage by hiding that he had a cancerous growth on his left thigh which finally prevented the consummation of their marriage. Further medical investigations revealed that the respondent had a hole in his heart.

Invoking Article 227 of the Constitution and Section 151 of the CPC which bestows the Court with the power to pass appropriate order to meet the ends of justice, the Court was determined to decide the petition on merits, as the parties were very young and in the lengthy court proceedings resulting from transferring the petition to the trial court, the parties would not only lose their precious youth, but will also be rendered with an uncertain future. Perusing the contentions of the parties and the medical records of the respondent, the Court took to task the respondent for suppressing his medical condition from the petitioner. The Court further observed that the shock, pain and agony that the petitioner might have faced upon knowing the medical condition of the respondent, is nothing short of cruelty and her fundamental right to a decent and meaningful life under Article 21 had been grossly violated. The Court also observed that how the society commits crime against women in the name of marriages, thereby maligning the sacred rite of matrimony. The Court stated that the only way the petitioner can be comforted and compensated for her mental agony, is by annulling her marriage with the respondent under Section 13(1)( i-a) of the Hindu Marriage Act. However adding a word of comfort for the respondent, the Court said that the respondent’s only fault was to hide his medical condition from his wife, and that he should not be demoralized as scientists have discovered that several types of cancers are curable.  [A v. B,  2016 SCC OnLine Mad 8908, decided on 05.08.2016]

Case BriefsHigh Courts

Madras High Court: While deciding upon an appeal against the order and decree passed by the Family Court, Tirunelveli, the Division Bench of K.K. Sasidharan and B. Gokuldas, JJ., set aside the decision of the Family Court dismissing the joint petition for dissolution of marriage of the appellants for want of reasons for separation. The Court further observed that the Family Courts are not allowed to enlarge the scope of enquiry under Section 13B (2) of the Hindu Marriage Act, 1955, and once it is satisfied that the essential requirements under Section 13B (2) has been fulfilled and substantiated then the Family Court must venture to grant the decree of divorce to the parties. It is not for the Family Court to decide as to whether parties were justified in living separately as it is not the scope of a petition filed under Section 13-B of the 1955 Act.

In the present case, the appellants had filed a joint petition under Section 13B (2) of the 1955 Act with mutual consent seeking for dissolution of marriage as the appellants were living separately and there was no chance of any re-union. However their petition was dismissed as the Family Judge noted that the parties have not mentioned the reasons for their separation.

Perusing the facts of the case, the Court observed that the parties have been living separately form 18.04.2014 and as per the affidavit presented by the appellants there has been no cohabitation between them since the stated date of separation. The Court observed that the only requisite of Section 13B (2) is that the parties applying for dissolution of marriage must be living separately for a period of one year or more, irrespective of any reason for doing so, and when the ingredient was satisfied by the appellants in the present case, it was unnecessary for the Family Court to enquire about the reasons behind their separation. As per the provision the only duty of the Family Court was to ensure that whether the marriage has been solemnised and that the averments in the petition are true. The Court also observed that when the parties were willing to part ways as their marriage had turned out to be a failure, the Family Court should have respected the sentiments of the parties and should have granted the divorce. With these observations, the Bench set aside the order of the Family Court and granted the decree for dissolution of the marriage of the appellants. [A.C. Mathivanan  v B. Sathyabama, 2016 SCC OnLine Mad 8884, decided on 03.08.2016]


Case BriefsHigh Courts

Punjab and Haryana High Court: While deciding upon the issue that whether a complaint under the Domestic Violence Act is maintainable even after a decree of divorce has been passed, the bench of Anita Chaudhry, J., held that the provisions of the Domestic Violence Act can only be invoked if the marital relationship is in existence, therefore once a marital relationship is ended by a decree of divorce, a complaint under Domestic Violence Act cannot be filed at all.

The present case was filed seeking the quashment of complaint filed under the Domestic Violence Act. It is to be noted that the marital relationship between the petitioner and his wife had ended by an exparte divorce decree. The counsel for the petitioner, Sukhbir Singh contended that, since the marriage of the petitioner and his wife has ended therefore the complaint under the Domestic Violence Act is not maintainable.

The Court perused the relevant provision of the Domestic Violence Act, namely Section 2(a) and 2(f) while answering the accompanying question that whether a divorced woman is included in the definition of an ‘aggrieved person’. It was observed by the Court that the language of the concerned provision uses ‘who is’ and ‘has been’, both of which have been used in the present tense, clearly establishing that there has to be a marital relationship in existence. Similarly, Section 2(f) stresses about the existence of a relationship by marriage or a relationship in the nature of marriage at the time. The expression used is ‘are related’ by marriage, which again is in present tense. The relevant provisions indicate the legislative intent to protect women who are living in a domestic relationship. Therefore for a complaint under the Domestic Violence Act to sustain, it is necessary that the marriage between the aggrieved person and the respondent is in existence. [Amit Agarwal v. Sanjay Aggarwal, 2016 SCC OnLine P&H 4200, decided on 31.05.2016]

Case BriefsHigh Courts

Allahabad High Court: Deciding a petition where a woman police constable was dismissed from service and deprived of all consequential benefits for marrying her co-constable, who was already married and for solemnising the marriage without seeking the prior permission of the department, the Bench of Mahesh Chandra Tripathi, J. held that the punishment of dismissal from service is too harsh and disproportionate to the conduct of the petitioner and the directed the respondents to reinstate her in service forthwith with all consequential benefits.

The husband was merely awarded censure entry, whereas the petitioner was found guilty by way of a departmental enquiry under Rule 29(2) of the U.P. Government Servant Conduct Rules, 1956 and awarded a harsh punishment of dismissal from service. The petitioner contended that she had no knowledge about the first marriage of  her husband and that he had a living wife and hence, had not committed any misconduct. The petitioner cited the case of Shravan Kumar Panday v. State of UP, (2010) 8 ADJ 243 wherein it was held that whoever violates the provisions of Rules 29(1) and (2) shall be awarded with minor penalty and awarding a punishment of dismissal is a major punishment which is against the spirit of Rule 29.

The respondent vehemently opposed the petition on the ground that as per the provisions of Rule 29 of the 1956 Rules, second marriage is impermissible and once it has been accepted by the petitioner, that her husband was already married and he has living wife and four children, no leniency is required in the matter.

The Court agreed with the petitioner’s contention that according to Section 17 of the Hindu Marriage Act, no marriage between two Hindus could be solemnised, if one of them has a husband or wife living and if such marriage is solemnised after the commencement of this Act, it would be null and void. The provisions of Sections 494 and 495 of the Penal Code, 1860 shall apply in such cases. Applying this law, the marriage of the petitioner was null and void under law and no punishment could be awarded against her under Rule 29 of the 1956 Rules. As per Section 11 read with Section 5 of the Hindu Marriage Act, 1955, the marriage may be held as void. The petitioner’s case cannot be dealt with under Rule 29 of the 1956 Rules.

The Court held that it will be open to the respondents to award any minor punishment against the petitioner,if they think proper in the facts and circumstances of the case, after affording her full opportunity of hearing. [Aneeta Yadav v. State of  U.P,  2016 SCC OnLine All 294, decided on 2 May 2016]

Case BriefsHigh Courts

Madras High Court: While dismissing the petition challenging the validity of Section 7-A of the Hindu Marriage Act, 1955, the Division Bench of S.K. Kaul, C.J. and T.S. Sivagananam, J. relying on the decision of S.Nagalingam v. Sivagami, (2001) 7 SCC 487, upheld the validity of Section 7-A [as inserted by the Hindu Marriage (Tamil Nadu Amendment) Act, 1967] as the provision applies to any marriage between two Hindus solemnized in the presence of relatives, friends or other persons and that the presence of a Priest is not mandatory for the performance of a valid marriage.

In the present petition it was contended that Section 7-A is ultra vires the Section 7 (which mandates the Saptapadi) read with Section 3(a) of the Hindu Marriage Act and contrary to the tenets of Hinduism. The petitioner appearing for himself, also contended that the impugned provision violates Article 14 of the Constitution.

The Court however refused to entertain the arguments raised by the petitioner and observed that Section 7-A mainly provides for a particular type of marriage i.e. the Suyamariyathai marriages which has been in prevalence for over half a century and thus the impugned provision cannot be declared invalid on the ground of discrimination as it is the prerogative of the parties to enter into matrimony as according to the requisites of Section 7 or Section 7-A of the Hindu Marriage Act. The Court further stated that there is a presumption in favour of the constitutionality of an enactment and unless the petitioner proves that the enactment has transgressed any of the Constitutional principles. [A. Asuvathaman v. Union of India, 2015 SCC OnLine Mad 9765decided on 30.10.2015]