Case BriefsHigh Courts

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

Factual Matrix

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

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

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

No Response for 7 long years

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

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

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

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

Analysis, Law and Decision

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

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

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

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

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

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

Advocates before the Court:

For Appellant: Mrs K.Sumathi

For Respondent: Mr E.Raj Thilak

Case BriefsHigh Courts

Delhi High Court: Suresh Kumar Kait, J., dealt with the provisions in regard to the concept of the shared household while referring to a very pertinent decision of the Supreme Court.

In the instant case, the petitioner is stated to be the daughter-in-law and respondents her parents-in-law.

It has been added that multiple proceedings have been pending between the husband and wife but the focus and purpose due to which the parties were present before the Court was the Agreement to Sell entered between respondent 1 mother-in-law with third-party qua property which was purportedly in her name.

Shared Household Property

As per the petitioner, the property in question was a shared household property where she had lived with her husband due to which the said property could not be alienated from the said property.

Petitioner with regard to the above, filed an application under Section 19(1)(d) of the Protection of Women from Domestic Violence Act, 2005 (DV Act) and Magistrate after issuance of notice, vide an order granted interim relief to petitioner restraining respondents from selling or alienating the property in question.

Revision Petition was preferred against the interim order before the Sessions Court under Sections 395/397 CrPC which was converted into an appeal and vide judgment dated 03-05-2021, the said appeal was allowed.

Petitioner sought aside the judgment passed by the Appellate Court.

Analysis, Law and Decision

Bench perused the impugned judgment, provisions of DV Act as well as Supreme Court’s decision in Satish Chandra Ahuja v. Sneha Ahuja, (2021) 1 SCC 414.

What was the crux of the matter?

Petitioner filed an application to restrain the parent-in-law from selling or alienating the subject property. Since Agreement to Sell had to be executed with a limited time frame, aggrieved parents-in-law filed an appeal against the restraint order, which was allowed by the Appellate Court after giving due opportunity of being heard.

Appellate Court referred to Section 2(s) of the Statute, which defined shared household and relied upon the Satish Chandra Ahuja v. Sneha Ahuja, (2021) 1 SCC 414 where the rights of an aggrieved woman as provided under Sections 17 & 19 of the Statute, came to be revisited by the Supreme Court.

Appellate Court had observed that daughter-in-law was not residing at the house in question on the day of presentation of the complaint nor any time soon before. It was added to the observation that she was occupying a staff quarter allotted to her husband and lived in the house in question only for a short duration and occasionally visited parents-in-law, to say only thrice.

What did the appellate court held?

“…that these short durational visits or stay of daughter-in-law at the house of the parents-in- law would not get the house a colour of being a shared house hold.”

Bench in the instant case agreed with the ratio laid down by the Supreme Court decision in Satish Chandra Ahuja v. Sneha Ahuja, (2021) 1 SCC 414, however, the facts were different in the present case in comparison to the Supreme Court decision.

High Court added that the fact remained that petitioner never resided with parents-in-laws and always stayed at the place of posting of her husband and visited them occasionally.

Bench added that the intent and purpose of DV Act was to safeguard the interest of distressed women.

Though it is stated that the provisions of Section 17 of the DV Act stipulate that every woman in a domestic relationship shall have a right to reside in the shared household whether or not she has any right, title or beneficial interest in the same, but in the present case, petitioner had in fact neither permanently nor for a longer period resided in the house of parents-in-law and so, it could not be termed as ‘shared household’. Hence, there was no question of evicting or dispossessing her from there.

Pertinent Question in the present case

Whether the old aged parents-in-law, who at the fag-end of their life, wish to sell off their property to relocate themselves in a better place of their choice, be restrained to sell of the house or permitted to do it?

Supreme Court’s observation in Satish Chandra Ahuja v. Sneha Ahuja, (2021) 1 SCC 414 was referred to, wherein it was stated:

90. Before we close our discussion on Section 2(s), we need to observe that the right to residence under Section 19 is not an indefeasible right of residence in shared household especially when the daughter-in-law is pitted against aged father-in-law and mother-in-law. The senior citizens in the evening of their life are also entitled to live peacefully not haunted by marital discord between their son and daughter-in-law. While granting relief both in application under Section 12 of the 2005 Act or in any civil proceedings, the Court has to balance the rights of both the parties. The directions issued by the High Court [Ambika Jain v. Ram Prakash Sharma, 2019 SCC OnLine Del 11886] in para 56 adequately balance the rights of both the parties.”

Hence, in light of the above observations, Court found that the impugned judgment did not suffer from illegality or infirmity.

Therefore, the present application was accordingly dismissed while making it clear that the observations made by this Court are in the peculiar facts of the present case and shall not be treated as a precedent in any other case. [Vibhuti Wadhwa Sharma v. Krishna Sharma,2021 SCC OnLine Del 2104, decided on 17-05-2021]

Advocates before the Court:

For the petitioner: Jatan Singh, Saurav Joon & Tushar Lamba, Advocates

For the respondents: Roopenshu Pratap Singh, Advocate

Case BriefsHigh Courts

Delhi High Court: Mukta Gupta, J., while addressing a matrimonial matter, highlighted the scope of the Protection of Women from Domestic Violence Act,

PWDV Act provides for a complete mechanism for enforcement of the rights claimed under Section 12 of PWDV Act and merely because the rights as provided under Sections 18 to 22 of PWDV Act can be claimed in other legal proceedings also does not imply ouster of jurisdiction of the Magistrate to try the matter once divorce proceedings have been filed.

Due to the petitioner and respondent’s marriage running into rough weather, respondent had to leave the matrimonial home. After which the respondent filed a complaint under Section 12 of the Protection of Women from Domestic Violence Act (PWDV Act) against the petitioner and his parents.

In 2014, petitioner filed a divorce petition against the respondent.

By the present petition, petitioner sought transfer of complaint filed by the respondent under Section 12 of the PWDV Act and the execution petitions filed to the Principal Judge, Family Courts, South-East District, Saket Courts.

Analysis, Law and Decision

Present petition hinges on the interpretation of Section 26 of the PWDV Act.

In P. Rajendran v. Sasikala, Criminal Original Petition No. 29522 of 2013, decided on 14-09-2017, Madras High Court followed the decision on Capt. C.V.S Ravi v.  Ratna Sailaja, Crl. O.P. No.17122 of 2008, reiterated that merely because Family Court can grant reliefs under Sections 18 to 22 of the PWDV Act, it does not lead to the conclusion that an application filed by an aggrieved person under Section1 2 of the PWDV Act was required to be transferred to the Family Court.

Bench noted that Section 26 of the PWDV Act reveals that it permits availing of the reliefs provided under Sections 18, 19, 20, 21 and 22 of the PWDV Act in any other legal proceedings before a civil or criminal court and in case such a relief is granted than information to this extent was required to be given to Magistrate dealing with the application under the PWDV Act.

Section 26 of PWDV Act does not contemplate ouster of jurisdiction of the Magistrate even in a case some relief as contemplated under Sections 18 to 22 of the PWDV Act is granted by the civil or criminal court in some other legal proceedings.

High Court expressed that:

“…even if a proceeding is pending before the Family Court, the same will not warrant the application under Section 12 of PWDV Act to be transferred to the Family Court.”

 Court found that the petitioner had been delaying the proceedings in the application under Section 12 of the PWDV Act and was not complying with the Magistrate’s order, while avoiding making payment of maintenance to the respondent.

Hence, it was directed to conclude proceedings under Section 12 of PWDV Act as expeditiously as possible.

No reason was found to transfer the proceedings before the Metropolitan Magistrate to Family Court, therefore, petition was dismissed. [Sandeep Aggarwal v. Viniti Aggarwal, 2021 SCC OnLine Del 1524, decided on 07-04-2021]

Advocates before the Court:

For the Petitioner: Aditya Goel, Advocate

For the Respondent: Lalit Gupta, Sidharth Arora, Advocates with the respondent in person.

Chhattisgarh High Court
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Chhattisgarh High Court: Sanjay K Agrawal J., allowed the petition based on the settled principle of law.

The present writ petition has been filed by the petitioners seeking quashment of FIR No. 02/2020 dated 10-01-2020 for offence punishable under Section 420 read with Section 34 of Penal Code, 1860 i.e. IPC registered against them by Respondents 2 and 3 at police Station Gol Bazar, Raipur on the ground that the dispute, being a commercial dispute, has been settled amicably between the petitioners and respondents 2 and 3 and the offence under Section 420/34 of the IPC is compoundable with the leave of the Court.

Counsel for the petitioners submitted that as per the agreement and statement of recorded before the Additional Registrar (Judicial) it was categorically stated that the dispute has been settled between them amicably and moreover, the offence registered against the petitioners under Section 420/34 IPC, being compoundable, FIR registered against the petitioners deserves to be set aside.

Counsel for the respondents submitted that they have no objection if the FIR registered against the petitioners is quashed as the dispute has been settled amicably.

The Court relied on judgment B.S. Joshi v. State of Haryana (2003) 4 SCC 675, Gian Singh v. State of Punjab (2012) 10 SCC 303 and Jitendra Raghuvanshi v. Babita Raghuvanshi (2013) 4 SCC 58 and observed that

“15. In our view, it is the duty of the courts to encourage genuine settlements of matrimonial disputes, particularly, when the same are on considerable increase. Even if the offences are non compoundable, if they relate to matrimonial disputes and the Court is satisfied that the parties have settled the same amicably and without any pressure, we hold that for the purpose of securing ends of justice, Section 320 of the Code would not be a bar to the exercise of power of quashing of FIR, complaint or the subsequent criminal proceedings.”

 16. There has been an outburst of matrimonial disputes in recent times. The institution of marriage occupies an important place and it has an important role to play in the society. Therefore, every effort should be made in the interest of the individuals in order to enable them to settle down in life and live peacefully. If the parties ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law, in order to do complete justice in the matrimonial matters, the courts should be less hesitant in exercising their extraordinary jurisdiction. It is trite to state that the power under Section 482 should be exercised sparingly and with circumspection only when the Court is convinced, on the basis of material on record, that allowing the proceedings to continue would be an abuse of process of court or that the ends of justice require that the proceedings ought to be quashed. We also make it clear that exercise of such power would depend upon the facts and circumstances of each case and it has to be exercised in appropriate cases in order to do real and substantial justice for the administration of which alone the courts exist. It is the duty of the courts to encourage genuine settlements of matrimonial disputes and Section 482 of the Code enables the High Court and Article 142 of the Constitution enables this Court to pass such orders.”

The Court thus held that offence under Section 420/34 of the IPC is compoundable with the leave of the Court and taking into consideration that the parties have settled their dispute amicably as per the agreement that they entered into and further considering that respondent 2 has filed his affidavit and respondent 3 has recorded his statement before the Assistant Registrar (Judicial) wherein they have clearly stated that they have compromised and settled the dispute amicably outside the Court.

In view of the above, offence was compounded, FIR quashed and petition disposed off.[Gurumukh Das Chandani v. State of Chhattisgarh, 2020 SCC OnLine Chh 568, decided on 27-10-2020]

Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Allahabad High Court: J.J. Munir, J., observed that, in matrimonial matters, it is disconcerting to note that parties change his/her faith to the others just for the purpose of matrimony and nothing more.

Detenue Pooja, in compliance with the rule nisi issued by the Court on 24-09-2020, was produced before the Court.

Court ascertained the detenue’s stand in the instant matter, which is recorded verbatim:

Q. Aapka nam?
A. Pooja alias Zoya.
Q. Aapki aayu?
A. 19 saal.
Q. Aapke pita ji ka nam?
A. Pramod.
Q. Aapne shadi ki hai?
A. Haa.
Q. Kab ki hai?
A. 5.8.2020 ko.
Q Aapke pati ka nam?
A. Shahwej.
Q. Aap kisake sath jana chahti hai?

A. Apane pati ke sath.

Bench noted that Pooja had forsaken her native religion which is Hinduism and converted to Islam in order to marry Shavez.

Though under the Constitution, a citizen has the right to profess practise or propagate the religion of his/her choice but it is disconcerting that in matrimonial matters one party should change his/her faith to the others just for the of matrimony and nothing more.

Bench stated that “If two citizens of India professing different religions wish to marry, it is open to them to do so under the Special Marriage Act, 1954, which is one of the earliest endeavours towards a Uniform Civil Code.”

Detenue by her statement indicated her clear choice to stay with her husband with whom she claimed to have married and since she is a major she is free to do so.

In view of the above, Court stated that the rule nisi is made absolute. Hence, detenue is ordered to be set at liberty and she is free to stay with whomsoever she wants and go wherever she likes.

Therefore, petition was allowed.[Pooja v. State of U.P., Habeas Corpus WP No. 446 of 2020, decided on 8-10-2020]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: While deciding an application for transfer of two cases from one jurisdiction to another, R. Narayana Pisharadi, J., disposed of the same finding no reason to pass an order to that effect.

The factual matrix in the present case is that the respondent has filed O.P. No. 460 of 2019 against the first petitioner in the family court, Muvattupuzha for restitution of conjugal rights. The respondent has filed another O.P. No. 662 of 2019 against the petitioners in the same court seeking guardianship and permanent custody of the two minor children.

The present application has been filed by the petitioners to transfer the above mentioned two cases from the family court, Muvattupuzha to the family court, Thrissur.

The following grounds have been set forth by the petitioner for transfer of the cases: (1) The family court, Muvattupuzha has got no jurisdiction to entertain

and try the case O.P. No. 662 of 2019 and it should’ve been filed before the Family Court, Thrissur. (2) The first petitioner has filed a case as M.C.No.639 of 2019 against the respondent under Section 125 CrPC in the family court, Thrissur claiming maintenance for the two minor children. Consolidation of the two cases pending in the family court, Muvattupuzha and the case M.C.No. 639 of 2019 pending in the family court, Thrissur is necessary. (3) The first petitioner and her parents are residing at Thrissur. The convenience of the wife and the children has to be given preference in matrimonial matters.

With reference to the contention that family court, Muvattupuzha lacks jurisdiction, the Court observed that the said contention is irrelevant as it should have been raised before that family court itself. It requires consideration of disputed facts which can be done by the family court and not this Court.

The Court also observed that just because of the fact that first petitioner has instituted a case as M.C.No.639 of 2019 in the family court, Thrissur is also not a sufficient ground to transfer the other two cases pending in the family court, Muvattupuzha to the family court, Thrissur.

While deliberating over the principle generally followed that in applications for transfer of cases relating to matrimonial matters, the convenience of the wife has to be given preference; the Court observed that in the present matter preference has to be given to the convenience and welfare of the children.

Counsel for the respondent, Biju Abraham has submitted that currently children are in the custody of the respondent and they are living with him and his parents at his house which is within the jurisdiction of the family court, Muvattupuzha. The petitioner has failed to provide any evidence which could show otherwise. The respondent is a practicing doctor while the first petitioner is pursuing her post-graduate studies. Transfer of the cases from the family court, Muvattupuzha to the family court, Thrissur would cause considerable hardship to the respondent and also to the children.

The Court also noted that the respondent had filed O.P.(FC) Nos. 309 of 2020 and 323 of 2020 before this Court for speedy disposal of the cases O.P. No. 460 of 2019 and O.P. No. 662 of 2019 pending before the family court, Muvattupuzha in which this Court allowed the prayer issuing a direction that family court, Muvattupuzha has to dispose of the aforesaid two cases within a period of six months. If the cases are transferred now, then the same would result in an unnecessary delay thus defeating the purpose of expeditious disposal in return.

In view of the above, the Court has dismissed the present application finding no merit in the arguments raised by the petitioner.[Nimi v. Ajith M.T., 2020 SCC OnLine Ker 4313, decided on 09-10-2020]

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Case BriefsHigh Courts

Delhi High Court: Mukta Gupta, J. dismissed a writ petition wherein the petitioner husband sought quashing of FIR registered under Section 498-A, 406 and 34 IPC at Police Station, Paschim Vihar, Delhi.

The petitioner, who was represented by Hitender Kapur, Advocate, took three grounds seeking to quash FIR: (i) lack of territorial jurisdiction contending that no offence has taken place in Delhi and thus Police Station has no jurisdiction to investigate and the Trial Court has no jurisdiction to try the offence; (ii) that the FIR was not lodged within the period of limitation; (iii) that on the face of the FIR the allegations are not made out.

Rajesh Mahajan, ASC with Jyoti Babbar, Advocate appeared for the State, while Kamal Gupta, Advocate represented the respondent wife.

(i) Territorial Jurisdiction

The High Court followed the decision in Rupali Devi v. State of U.P., (2019) 5 SCC 384, wherein it was held that even in cases where there is no allegation of harassment or demand of dowry at the parental place of the complainant who comes to take refuge at her parental place, she can lodge an FIR in the said Police Station, which can be investigated by the officer of the said Police Station and the Trial Court having jurisdiction on the said Police Station would have jurisdiction to try the said offence.

Moreover, the case of the complainant in the FIR itself was that her costly items, jewellery, etc., were taken on the ground that they were to be kept in a locker in Delhi so that it could be safe, thus the jewellery and costly items were retained in Delhi. Marriage being performed at Delhi, the entrustment of articles also took place at Delhi. Hence in view of Section 181(4) CrPC, the Court at Delhi would have jurisdiction to try the offence. Thus, this Court finds no merit in the first argument raised.

(ii) Limitation

On facts, it was held that the complaint was filed within the period of limitation. It was also observed that it is trite law that while taking cognizance even if there is delay in matrimonial matters the Court has to see whether it is in the interest of justice to condone the delay in taking the cognizance.

(iii) Nature of allegations

It was noted that the complainant has alleged that the accused person used to taunt her for the kind of clothes given to them at the function and at the wedding and that the same was not as per their demand and status. Allegations were also made regarding entrustment if costly items including jewellery. The Court was of the view that prima facie, the allegations constituting offence punishable under Sections 498-A and 406 IPC were made out.[Ankur Narang v. State (NCT of Delhi), 2019 SCC OnLine Del 8933, decided on 30-04-2019]