Case BriefsHigh Courts

Bombay High Court: The Division Bench of S.S. Shinde and Abhay Ahuja, JJ., reiterated the observation of Supreme Court in Gian Singh v. State of Punjab, (2012) 10 SCC 303, while quashing an FIR registered for offences under Sections 498(A), 406, 504, 323, 34 of the Penal Code and Sections 3, 4 of the Dowry Prohibition Act, on the ground of matter being resolved amicably.

Factual Matrix

Due to differences between the husband and wife, they sought a divorce and a petition was filed before the Family Court, Bandra which was later converted into mutual consent divorce petition under Section 13-B of the Hindu Marriage Act, 1955.

High Court stated that considering the fact that a matrimonial dispute which sought to be amicably resolved, the Court deemed it appropriate to seek guidance from the Supreme Court decision in Gian Singh v. State of Punjab, (2012) 10 SCC 303, wherein it was observed that:

“…the criminal cases having overwhelmingly and pre-dominatingly civil favour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affrmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.”

Bench added that the present matter involved offences arising out of matrimony and was basically private in nature and the parties sought to resolve their entire dispute and due to the compromise between them, the possibility of conviction would be remote and bleak and continuation of criminal case would lead to great prejudice or injustice.

Therefore, in view of the above discussion, petition was allowed while allowing the below prayer clause:

“a. That this Hon’ble Court be pleased to quash and set aside the FIR No.256 of 2019, registered by Vikhroli Police Station at Mumbai, under Sections 498(A), 406, 504, 323, 34 of Indian Penal Code, and 3, 4 of Dowry Prohibition Act dated 19.06.2019 and Criminal Case No.959/PW/2020 and pending before Ld. 31st Metropolitan Magistrate’s Court at Vikhroli, Mumbai, and further be pleased to discharge the Petitioners from C.C. No.256 of 2019 under Sections 498(A), 406, 504, 323, 34 of Indian Penal Code, and 3, 4 of Dowry Prohibition Act.” 

Petition was disposed of in the above terms. [Yuvraj Raman Jadhav v. State of Maharashtra, 2021 SCC OnLine Bom 780, decided on 1-06-2021]


Advocates before the Court:

Ms. Anushka Shreshtha for the Petitioners.

Mr.J.P. Yagnik, APP for the Respondent-State.

Mr. Jayesh Bhosle for Respondent No.2.

Mr. Yuvraj R. Jadhav – Petitioner No.1 present through V.C.

Mrs. Madhuri Jadhav (maiden name–Madhuri Sawant)-Respondent No.2 present through V.C.

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Dr Kaushal Jayendra Thaker and Ajit Singh, JJ., while setting aside a decree of divorce addressed the issue of granting maintenance to a widowed wife.

Present application was filed for modification of Court’s earlier order whereby the appellant wife’s appeal against the divorce decree granted to the husband was dismissed as withdrawn.

Factual Matrix

An appeal that was filed in the year 2009 challenged the decree of divorce passed in favour of the respondent-husband. The said appeal was pending for a period of 9 years.

The appeal came up before the Court on 12-04-2018, Court inquired from the appellant and counsel for the respondent-husband as to whether there was any chance of settlement between the parties, to which both parties agreed to live together.

Pursuant to that, both parties resumed cohabitation. The appellant wife requested for withdrawing her appeal as no dispute survived since both parties were now happily living together.

The High Court allowed the withdrawal of appeal, however, without interfering in the decree of divorce already granted in favour of the husband.

Subsequently, the respondent-husband passed away. The appellant wife now claimed maintenance under Hindu Adoption and Maintenance Act as his widowed wife. Consequently, she sought the modification of the Court’s earlier order dismissing her appeal as withdrawn without interfering in the decree of divorce passed by the trial court.

Analysis and Decision

In the present scenarios, except the son and the appellant, there was no one else to claim as the heir of the deceased respondent and hence the only legal heir entitled to inherit the estate of the deceased is the appellant and her son.

During the time period of 20 years of litigation, the wife never sought maintenance but now claimed the same under the Hindu Adoptions and Maintenance Act, 1956.

Bench cited the Supreme Court decision in Rohtas Singh v. Sant Ramendri, (2000) 3 SCC 180 and Swapan Kumar Banerjee v. State of West Bengal, 2019 SCC OnLine SC 1263, with respect to the status of the divorced wife.

High Court held that in view of the above-stated cases, the appellant would be entitled to the maintenance as per the Hindu Adoptions and Maintenance Act, 1956 as she was dependent on the deceased.

The Bench held that it cannot be said that the appellant was a divorced wife. Being a Hindu wife, the appellant has condoned all the misdeeds of the respondent and if her husband did not cohabit with her and has thereafter, started co-habiting with her, in that view of the matter, the decree of divorce both on merits and on cohabiting and condonation of misdeeds, if any, both by the husband and the wife, the decree is liable to be set aside.

The husband after 30.07.2018 had never came up before the Court to complain that she had again deserted him or what is the status of the matrimonial relations between them, which means he had also condoned misdeed of the appellant (wife), if any.
According to the Court, a case for setting aside the impugned decree of divorce was made out.

Hence the divorce decree was set aside. The earlier order of the High Court which was sought to be modified was also set aside.[Jyotsna Verma v. Ashok Kumar, First Appeal No. 432 of 2009, decided on 10-03-2021]


Advocates before the Court:

Counsel for Appellant:- In-Person, Ms. Jyotsna Verma (In Person)

Counsel for Respondent:- B. D. Mishra, Syed Fahim Ahmed

Case BriefsHigh Courts

Kerala High Court: The Division Bench of A. Muhamed Mustaque and Kauser Edappagath, JJ., held that to get a decree of divorce under Section 13(1)(iii) of the Hindu Marriage Act, it is necessary for the party seeking divorce to prove that the other party’s unsoundness of mind is incurable or that the mental disorder is of such kind that the petitioner cannot be reasonably expected to live with his/her spouse.

The instant petition was filed by the wife in a marital dispute challenging the Family Court’s Order allowing the application filed by the husband to constitute a medical board and to direct the wife to appear before it for the assessment of her mental condition.

Husband had initiated the divorce proceedings before the Court under Section 13(1)(iii) of the Hindu Marriage Act on the ground of mental order. He added in his submissions that the mental condition of the wife was not normal as she was suffering from obsessive-compulsive disorder as well as a borderline personality disorder.

The husband filed a petition before the Court below to direct the wife to undergo medical examination for borderline personality disorder before a medical board to be constituted for the said purpose, but the wife objected the same.

Analysis, Law and Decision

 Bench while analysing the facts and circumstances of the cases stated that the Court has the power to direct the parties to the litigation to undergo a medical test.

Further, Court referred to the Supreme Court decision in Sharda v. Dharmpal, (2003) 4 SCC 493, wherein it was held that even though the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of the country under Article 21 of the Constitution of India, a matrimonial Court has the power to order a person to undergo a medical test and such a direction need not be in violation of any right to personal liberty.

“…while exercising the power to order a medical test to be undergone by a person, the Court should exercise restraint and there must be strong prima facie case and sufficient material before the Court to pass such an order.”

 In the present matter, wife’s alleged mental order is an issue to be decided.

Divorce Decree

High Court expressed that, in order to get a divorce decree under Section 13(1)(iii) of HMA, the husband must establish that unsoundness of mind of the wife is incurable or her mental disorder is of such kind and to such an extent that petitioner cannot reasonably be expected to live with her spouse.

Family Court

The Family Court has the power to direct a party to appear before a medical board to undergo a medical examination and the question of such action being violative of Article 21 of the Constitution of India would not arise.

It was noted that the husband had produced documents wherein it was stated that the wife was treated by the psychiatrist for the alleged illness. The said documents were perused by the lower court.

“The fact that the wife’s alleged mental disorder is an issue to be decided in the case itself constitutes a prima facie case.”

Medical Board’s opinion regarding the medical condition of the wife may be of utmost importance for granting or rejecting the prayer for a decree of divorce under Section 13(1)(iii) of the HMA.

Further, while concluding its decision, Bench added that the above-stated opinion is relevant under Section 45 of the Evidence Act.

When a party to a litigation alleges existence of certain facts, the Court can draw no inference of its existence unless it is proved through the manner in which the Evidence Act is envisaged.

Therefore, the Family Court’s decision was justified in its order and no interference was required.[Devika M. v. Shibin Prakash, 2021 SCC OnLine Ker 1235, decided on 10-03-2021]


Advocates before the Court:

Counsel for the petitioner Sri. T.R. Harikumar

Counsel for the respondent Sri. Sharan Shahier.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of A.S. Chandurkar and N.B. Surawanshi, JJ., upheld the decision of the family court.

Present appeal was filed under Section 19 of the Family Courts Acts, 1984 by the appellant-husband, in view of his petition being dismissed by the Family Court for judicial separation and in the alternative for a decree of divorce on cruelty and desertion ground.

According to the husband, he was Mangalik as per his horoscope and hence was in search of a girl who was having a Mangalik horoscope. As per the girl’s biodata, she was depicted as Mangalik.

After her marriage with the appellant she started living in the joint family of her husband where she usually used to stay aloof. Further, it has been stated that she avoided giving her educational certificates on the pretext that they were lost.

On receiving her educational certificates from her father, the husband was shocked to know her actual date of birth therefore she was Non-Mangalik. She had even failed BA-II.

The wife left the matrimonial house at midnight without informing anyone and during the search, she was found with her brother and brother in law who were taking her to her maternal home.

The husband along with his family members went to bring the wife back, but her parents refused to send her and also threatened to involve them in a false case. According to the husband, the wife lodged false complaint on that day.

Husband alleged that the wife caused mental and physical harassment to the husband. He, therefore, contended that the wife deserted him on account of false complaint lodged by the wife and the husband from time to time.

Due to the continuous torture by the wife, the life of the husband had become miserable. He was not in a position to concentrate on his work due to continuous harassment by the wife. The husband, therefore, lost all the hopes that the smooth relations between him and wife were possible. Hence, he filed the petition seeking divorce on the ground of cruelty and desertion.

Wife while declining all the above allegations claimed that she was ready to cohabit with the husband and hence prayed for the dismissal of the petition filed by the husband.

Family Court dismissed the petition of the husband, hence the husband preferred the present appeal.

Analysis, Law and Decision

Points for determination:

  1. Whether the appellant is entitled for decree of divorce?
  2. Whether the learned Family Court dismissing the petition of husband is legally correct?

Bench noted in the cross-examination of the appellant that he admitted that prior to his marriage there were negotiations as well as internal talks and his sister had inquired about the education of the respondent as well as her family background. The appellant also admitted that he married the respondent as he liked her. He also stated that he did not take decision in his life on the basis of horoscope. The marriage was performed after verifying the background, houses and all the details of both the families. His father in his evidence admitted that the horoscopes of the appellant and the respondent were not tallied. Further, he deposed that he did not have any document to show that the appellant was a Mangalik. He even admitted that at the time of marriage the age of the appellant was beyond marriageable age.

Hence, all these admissions belie the case of the appellant that there was cheating on the part of the respondent and her parents at the time of settlement of marriage.

In view of the above, Bench observed that there was no fraud played by the wife or her family.

Appellant failed to make out a case of fraud and even if it is assumed that there was misrepresentation in respect of the date of birth, it does not affect the matrimonial relations between the appellant and the respondent, as the appellant failed to prove that he was Mangalik and he intended to marry the girl having Mangalik Yog.

Father of appellant, admitted that for initial two years of the marriage, there was no dispute between the appellant and the respondent in respect of age difference as well as the respondent being non-mangalik. According to the respondent, the ill-treatment started only after the appellant got government job.

Therefore, evidence laid by the respondent did not spell out cruelty caused by the respondent to him.

With regard to Desertion, Court noted that as per the evidence led by the respondent she was beaten and her sister and her husband saw the marks of beating on her person. After they left, she was again beaten and threatened with life. Apprehending danger to her life, she had to take shelter in the house of neighbour Shri Gordey. From there, she called her parents and her brother, sister Kiran, her husband and others took her from the house of Shri Gordey to her parent’s house

Further, there was no material that depicted that the appellant tried to bring the respondent back for cohabitation.

 “…since the appellant attributed cheating and fraud to the respondent and her parents, it is not possible to believe that he tried to bring the respondent back for cohabitation.”

Therefore, family court rightly appreciated the evidence on record and appellant failed to prove cruelty and desertion on the part of respondent-wife.

In view of the above discussion. The appeal against the family court’s decision was dismissed. [Kartik Narayan Dhawle v. Vaishali Kartik Dhawle, 2021 SCC OnLine Bom 241, decided on 23-02-2021]


Advocates who appeared before the Court:

B.R. Hindustani, Advocate holding for A.N. Ansari, Advocate for the appellant,

S.N. Thengari, Advocate for the respondent.

Case BriefsHigh Courts

Bombay High Court: Revati Mohite Dere, J., while addressing a very significant issue of assault, expressed that:

“There is imbalance of gender roles, where wife as a homemaker is expected to do all the household chores.”

Factual Matrix

Appellant was married to Manisha (deceased) and they both used to reside with the appellant’s mother.

According to the prosecution, the appellant was suspecting Manisha’s character as a result of which, there used to be frequent quarrels between them.

On 19-12-2013, Manisha was leaving the house without preparing tea on account of which, there was an exchange of words between the appellant and the deceased. Since the appellant was suspecting Manisha’s character and as she refused to make tea for the appellant, it was alleged that the appellant had given a blow on Manisha’s head from behind, with a hammer.

Further, it was alleged that the said incident was witnessed by Rohini, the appellant and Manisha’s daughter.

Prosecution submitted that after Manisha was assaulted, the appellant gave her a bath, wiped the bloodstains from the spot and thereafter took Manisha to Vitthal Hospital.

At the time when Manisha was admitted, her uncle visited, during that time appellant informed Manisha’s uncle that he had assaulted Manisha. Hence a complaint was lodged and a charge sheet was filed against the appellant for the offence punishable under Sections 302 and 201 of the Penal Code, 1860.

Sessions Judge convicted the appellant for the above-stated offences.

Analysis, Law and Decision 

High Court observed that on the day of the incident on being refused tea, the appellant assaulted Manisha with a hammer, but in Court’s opinion:

“…deceased-Manisha, by refusing to make tea for the appellant, by no stretch of imagination, can be said to have offered grave and sudden provocation for the appellant to assault her, much less, such a brutal assault.”

Bench also observed that:

“…a wife is not a chattel or an object.”

Cases as the present one, reflect the imbalance of gender – skewed patriarchy, the socio-cultural milieu one has grown up in, which often seeps into a marital relationship.

While making very essential observations, Bench quoted from a study, ‘The Man Who Mistook His Wife For Chattel’ by Margo Wilson and Martin Daly:

“by `proprietary’, we mean first that men lay claim to particular women as songbirds lay claim to territories, as lions lay claim to a kill, or as people of both sexes lay claim to valuables. Having located an individually recognizable and potentially defensible resource packet, the proprietary creature proceeds to advertise and exercise the intention of defending it from rivals. Proprietariness has further implication, possibly peculiar to the human case, of a sense of right or entitlement”. 

Medieval notion of the wife being the property of the husband to do as he wishes, unfortunately, still persists in the majority mindset. Nothing but notions of patriarchy.

Bench refused the appellant counsel’s argument the deceased by refusing to make tea for the appellant offered grave and sudden provocation.

In view of the present set of circumstances and arguments, Court stated that appellant not only assaulted his wife, but also after assaulting her, he wasted precious and crucial time by wiping the blood from the spot and bathing Manisha before taking her to hospital, if the deceased would have been rushed to the hospital, her life could have been saved.

Therefore, Court found no infirmity in the impugned judgment and dismissed the present appeal.[Santosh Mahadev Atkar v. State of Maharashtra, 2021 SCC OnLine Bom 248, decided on 02-02-2021]


Advocates who appeared before the Court:

Sarang Aradhye for the Appellant

V. Gavand, A.P.P for the Respondent–State

Case BriefsHigh Courts

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

Issue

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

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

Analysis

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

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

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

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

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

Opinion

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

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

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

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

Decision

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

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

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

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


Advocates for the parties:

For Appellant: Osama Suhail with Surabhi Diwan, Advs.

For Respondent: Shashank Agrawal, Adv.

Case BriefsHigh Courts

Madras High Court: J. Nisha Banu, J., while addressing a revision petition directed the Family Court to waive off the cooling-off period in view of the petitioners living separately for the past 13 years.

The instant petition was filed to seek direction to waive off the cooling period.

The revision petitioners had preferred the petition on the file of the Family Court under Section 13-B of the Hindu Marriage Act, 1955. Husband and Wife had been living separately for 13 years and mutually agreed to dissolve their marriage.

The grievance that arose was that, since they had been living separately for the past 13 years, the family Court ought to have disposed of the petition. Hence, petitioners are constrained to move the present revision petition before the Court for granting speedy disposal of the petition.

Revision petitioners’ counsel while narrating the facts of the matter, relied upon the decision of the Supreme Court in Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746, wherein it was held that:

18. In determining the question whether provision is mandatory or directory, language alone is not always decisive. The Court has to have the regard to the context, the subject matter and the object of the provision. ….

… we are of the view that where the Court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13B(2), it can do so after considering the following :

i) the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself;

ii) all efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;

iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;

iv) the waiting period will only prolong their agony.

The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the concerned Court.

  1. Since we are of the view that the period mentioned in Section 13B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.”

Hence, High Court concluded in the present matter that since the petitioners had been separated for the past 13 years and had entered into a compromise along with this in view of the above-referred decision, Family Court shall waive the cooling period and dispose of the petition.[Jaishankar, In Re., 2021 SCC OnLine Mad 708, decided on 01-02-2021]

Case BriefsHigh Courts

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

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

Issue: Modified Maintenance Amount to Wife

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

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

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

Analysis

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

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

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

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

Court’s Opinion: Calculating Quantum of Maintenance

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

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

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

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

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

Trial Court’s Error

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

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

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

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

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

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

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

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

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

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

Case BriefsSupreme Court

Supreme Court: In a case dealing with Transfer of petition under Section 9 of the Hindu Marriage Act, for restitution of conjugal rights from Palanpur, Gujarat to Mumbai after a previous Transfer Petition was dismissed, the single-judge bench of V. Ramasubramanian, J has held that the dismissal of a petition for transfer, may not operate as res judicata, when a fresh petition is filed on change of circumstances. However, when a case is at its final stage, this Court will be extremely reluctant to order the transfer, as it may derail the entire process.

In the present case, after three years of the dismissal of the first Transfer Petition, the petitioner came up with the present Transfer Petition on the ground that there are change of circumstances warranting a fresh look as her mother had died making it impossible for her to leave two minor daughter in Mumbai to attend to the hearings at Palanpur; and also because it was becoming difficult for her to defend the case, which was being listed for hearing on 2 to 3 occasions every month as the Family Court was imposing penalties upon her whenever a request for adjournment was sought or when the Legal Aid lawyer appointed on her behalf did not attend the Court. Further, the Family Court discarded the evidence of the petitioner and struck off her right of evidence after which the petitioner came up with the Transfer Petition.

The respondent, on the other hand, argued that the proceedings for restitution of conjugal rights have already reached the stage of judgment and that once a request for transfer got rejected on an earlier occasion, a second petition cannot be maintained.

Considering both the aspects, the Court was of the opinion that the present petition for transfer cannot be opposed solely on the ground that the earlier petition was dismissed. But at the same time, the petitioner will have to satisfy the court that there are change of circumstances and that there are sufficient grounds made out.

“While the hardship, both social and financial, pleaded by the petitioner deserves favourable consideration, the transfer of the case at this stage of the proceeding may not be appropriate.”

The Court, hence, rejected the Transfer Petition but issued the following directions:

  • The petitioner be permitted to move an application for reopening of her evidence before the family Court.
  • The application may be allowed to be filed online if such a facility is available. Else, it may be permitted to be filed through counsel without the petitioner having to undertake a travel. On all occasions except the date on which the petitioner is to be cross examined, the petitioner may be permitted by the Family Court to be represented by a counsel without being present. If Video   Conferencing facility is available, the petitioner may be granted the said facility;
  • The Family Court may take a lenient view on the said application and have the evidence on the side of the petitioner restored. Thereafter the case may be posted for the cross examination of the petitioner.
  • For facilitating the cross examination of the petitioner by the counsel for the respondent-husband, the Court may be granted a firm date. On the date so fixed, the petitioner shall appear before the Family Court.
  • The respondent shall ensure that the cross examination of the petitioner is carried out without fail by the counsel for the respondent.
  • No request for any adjournment on behalf of the respondent shall be allowed.
  • On every occasion when the family Court wants the physical presence of the petitioner, the respondent shall pay a sum of Rs.10,000/- to the petitioner, towards expenses for travel and stay. If the respondent fails to pay, the petitioner will be at liberty to approach the Supreme Court.

[Amruta Ben Himanshu Kumar Shah v. Himanshu Kumar Parvinchandra Shah, 2021 SCC OnLine SC 46, decided on 29.01.2021]


Counsels who appeared before the Court

For petitioner: Advocate

For respondent: Advocate Ranu Purohit

Case BriefsHigh Courts

Allahabad High Court: Dr Y.K. Srivastava, J., expressed while deciding the present application that:

“Proceeding for interim maintenance, shall as far as possible, be disposed of within 60 days from the date of service of notice on the husband.”

Instant application was filed under Section 482 CrPC, seeking quashing of order in proceedings in a case filed under Section 125 of CrPC.

Additional Advocate General appearing for the State respondents raised an objection with regard to the maintainability of the present petition on the ground that the order sought to be quashed, related to grant of interim maintenance, is subject to a final adjudication on the main petition filed under Section 125 CrPC It is submitted that it is open to the applicant to raise all his objections before the Family Court.

Section 125 CrPC falls under Chapter IX of the Code of Criminal Procedure, 1973 and it contains provisions whereunder, an order for maintenance of wives, children and parents can be made. The object of the provisions contained under Chapter IX is to provide a speedy and effective remedy against persons, who neglect or refuse to maintain their dependent wives, children and parents.

It was observed that the proceedings for maintenance under Section 125 CrPC are of a summary nature and the purpose and object of the same is to provide immediate relief to the applicant.

An application under Section 125 CrPC can be moved by the wife on fulfilment of two conditions :-

a) the husband has sufficient means and;

(b) he neglects or refuses to maintain his wife, who is unable to maintain herself. The Magistrate, in such a case, may direct the husband to pay such monthly sum of the money, as deemed fit taking into consideration the financial capacity of the husband and other relevant factors.

Bench observed that Section 125 CrPC is in the nature of a benevolent provision having a social purpose with the primary objective to ensure social justice to the wife, child and parents, who are unable to support themselves so as to prevent destitution and vagrancy.

With regard to the third proviso of Section 125 CrPC, Court expressed that it gives a timeline by providing that the proceeding for interim maintenance, shall as far as possible, be disposed of within 60 days from the date of service of notice on the husband.

Hence, an order granting interim maintenance is subject to a final adjudication on the main petition and the interim maintenance granted during the pendency of the proceedings is only provisional maintenance subject to final determination to be made on the conclusion of the proceedings.

In light of the above discussion, the Court exercised its inherent jurisdiction in respect of the reliefs prayed for.

Counsel for the applicant at this stage made a prayer that he may be permitted to withdraw the present application and stated that the applicant would contest the proceedings before the court below.

The present application filed under Section 482 CrPC stood, accordingly, dismissed. [Mithilesh Maurya v. State of U.P., Application u/s 482 no. – 19612 of 2020, decided on 08-01-2021]

Case BriefsSupreme Court

[Note: This report is a detailed analysis of Supreme Court’s judgment in Rajnesh v. Neha*. To read the guidelines and directions issued by the Court, click here.]

Supreme Court: The bench of Indu Malhotra** and R. Subhash Reddy, JJ has framed guidelines on the issue of maintenance of wife, covering overlapping jurisdiction under different enactments for payment of maintenance, payment of Interim Maintenance, the criteria for determining the quantum of maintenance, the date from which maintenance is to be awarded, and enforcement of orders of maintenance.

The directions came in a case which revealed that the application for interim maintenance under Section 125 Cr.P.C. has remained pending before the Courts for seven years now, and there have been difficulties encountered in the enforcement of orders passed by the Courts, as the wife was constrained to move successive applications for enforcement from time to time.


Legislations dealing with the issue of maintenance


The legislations which have been framed on the issue of maintenance are the Special Marriage Act, 1954, Section 125 of the Cr.P.C. ,1973; and the Protection of Women from Domestic Violence Act, 2005 which provide a statutory remedy to women, irrespective of the religious community to which they belong, apart from the personal laws applicable to various religious communities. Further, a Hindu wife may claim maintenance under the Hindu Adoptions and Maintenance Act 1956 , and also in a substantive proceeding for either dissolution of marriage, or restitution of conjugal rights, etc. under the Hindu Marriage Act, 1955 by invoking Sections 24 and 25 of the said Act.

The different enactments provide an independent and distinct remedy framed with a specific object and purpose. In spite of time frames being prescribed by various statutes for disposal of interim applications, in practice that in a vast majority of cases, the applications are not disposed of within the time frame prescribed.

Special Marriage Act, 1954

  • Section 36 of this secular legislation, applicable to all persons who solemnize their marriage in India, provides that a wife is entitled to claim pendente lite maintenance, if she does not have sufficient independent income to support her and for legal expenses. The maintenance may be granted on a weekly or monthly basis during the pendency of the matrimonial proceedings. The Court would determine the quantum of maintenance depending on the income of the husband, and award such amount as may seem reasonable.
  • Section 37 provides for grant of permanent alimony at the time of passing of the decree, or subsequent thereto. Permanent alimony is the consolidated payment made by the husband to the wife towards her maintenance for life.

Hindu Marriage Act, 1955

  • Sections 24 and 25 make provision for maintenance to a party who has no independent income sufficient for his or her support, and necessary expenses. This is a gender-neutral provision, where either the wife or the husband may claim maintenance. The prerequisite is that the applicant does not have independent income which is sufficient for her or his support, during the pendency of the lis.
  • Section 24 of the HMA provides for maintenance pendente lite, where the Court may direct the respondent to pay the expenses of the proceeding, and pay such reasonable monthly amount, which is considered to be reasonable, having regard to the income of both the parties. The proviso to Section 24 providing a time line of 60 days for disposal of the application was inserted vide Act 49 of 2001 w.e.f. 24.09.2001.
  • Section 26 of the HMA provides that the Court may from time to time pass interim orders with respect to the custody, maintenance and education of the minor children.

Hindu Adoptions & Maintenance Act, 1956

HAMA is a special legislation which was enacted to amend and codify the laws relating to adoption and maintenance amongst Hindus, during the subsistence of the marriage.

Section 18 provides that a Hindu wife shall be entitled to be maintained by her husband during her lifetime. She is entitled to make a claim for a separate residence, without forfeiting her right to maintenance. Section 18 read in conjunction with Section 23 states the factors required to be considered for deciding the quantum of maintenance to be paid. Under sub-section (2) of Section 18, the husband has the obligation to maintain his wife, even though she may be living separately. The right of separate residence and maintenance would however not be available if the wife has been unchaste, or has converted to another religion.

Distinction between maintenance under HMA and HAMA

  • The right under Section 18 of HAMA is available during the subsistence of a marriage, without any matrimonial proceeding pending between the parties. Once there is a divorce, the wife has to seek relief under Section 25 of HMA.
  • Under HMA, either the wife, or the husband, may move for judicial separation, restitution of conjugal rights, dissolution of marriage, payment of interim maintenance under Section 24, and permanent alimony under Section 25 of the Act, whereas under Section 18 of HAMA, only a wife may seek maintenance.

Section 125 of the Cr.P.C

The purpose and object of Section 125 Cr.P.C. is to provide immediate relief to an applicant. An application under Section 125 Cr.P.C. is predicated on two conditions :

  • the husband has sufficient means; and
  • “neglects” to maintain his wife, who is unable to maintain herself.

In such a case, the husband may be directed by the Magistrate to pay such monthly sum to the wife, as deemed fit. Maintenance is awarded on the basis of the financial capacity of the husband and other relevant factors.

Under sub-section (2) of Section 125, the Court is conferred with the discretion to award payment of maintenance either from the date of the order, or from the date of the application.

Under the third proviso to the amended Section 125, the application for grant of interim maintenance must be disposed of as far as possible within sixty days’ from the date of service of notice on the respondent.

Protection of Women from Domestic Violence Act, 2005

The D.V. Act provides relief to an aggrieved woman who is subjected to “domestic violence.”

1.Sections 17 and 19 grant an entitlement in favour of an aggrieved woman to the right of residence in a “shared household”, irrespective of her having any legal interest in the same or not. From the definition of “aggrieved person” and “respondent”, it is clear that :

(a) it is not the requirement of law that the aggrieved person may either own the premises jointly or singly, or by tenanting it jointly or singly;

(b) the household may belong to a joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title, or interest in the shared household; 24

(c) the shared household may either be owned, or tenanted by the respondent singly or jointly.

2. The right to residence u/S. 19 is, however, not an indefeasible right, especially when a daughter-in-law is claiming a right against aged parents-in-law. While granting relief u/S. 12 of the D.V. Act, or in any civil proceeding, the court has to balance the rights between the aggrieved woman and the parents-in-law.

3. Section 20(1)(d) provides that maintenance granted under the D.V. Act to an aggrieved woman and children, would be given effect to, in addition to an order of maintenance awarded under Section 125 of the Cr.P.C., or any other law in force.

4. Under sub-section (6) of Section 20, the Magistrate may direct the employer or debtor of the respondent, to directly pay the aggrieved person, or deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.

5. Section 22 provides that the Magistrate may pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence perpetrated by the respondent.

6. Section 26 of the D.V. Act provides that any relief available under Sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding before a Civil Court, Family Court or Criminal Court.

7. Section 36 provides that the D.V. Act shall be in addition to, and not in derogation of the provisions of any other law for the time being in force.


Analysis of the issues


(a)Issue of overlapping jurisdiction

The Court noticed that while it is true that a party is not precluded from approaching the Court under one or more enactments, since the nature and purpose of the relief under each Act is distinct and independent, it is equally true that the simultaneous operation of these Acts, would lead to multiplicity of proceedings and conflicting orders. This process requires to be streamlined, so that the respondent/husband is not obligated to comply with successive orders of maintenance passed under different enactments.

“It is well settled that a wife can make a claim for maintenance under different statutes. For instance, there is no bar to seek maintenance both under the D.V. Act and Section 125 of the Cr.P.C., or under H.M.A. It would, however, be inequitable to direct the husband to pay maintenance under each of the proceedings, independent of the relief granted in a previous proceeding.”

The Court, hence, directed that in a subsequent maintenance proceeding, the applicant shall disclose the previous maintenance proceeding, and the orders passed therein, so that the Court would take into consideration the maintenance already awarded in the previous proceeding, and grant an adjustment or set-off of the said amount. If the order passed in the previous proceeding requires any modification or variation, the party would be required to move the concerned court in the previous proceeding.

[Read detailed guidelines and directions here]

(b) Payment of Interim Maintenance

At present, the issue of interim maintenance is decided on the basis of pleadings, where some amount of guess-work or rough estimation takes place, so as to make a prima facie assessment of the amount to be awarded. It is often seen that both parties submit scanty material, do not disclose the correct details, and suppress vital information, which makes it difficult for the Family Courts to make an objective assessment for grant of interim maintenance.

“While there is a tendency on the part of the wife to exaggerate her needs, there is a corresponding tendency by the husband to conceal his actual income.”

It was hence directed that the Affidavit of Disclosure of Assets and Liabilities shall be filed by both parties in all maintenance proceedings, including pending proceedings before the concerned Family Court / District Court / Magistrates Court, as the case may be, throughout the country.

Apart from this the Court also directed that in the first instance, the Family Court in compliance with the mandate of Section 9 of the Family Courts Act 1984, must make an endeavour for settlement of the disputes.

For this, Section 6 provides that the State Government shall, in consultation with the High Court, make provision for counsellors to assist a Family Court in the discharge of its functions. Given the large and growing percentage of matrimonial litigation, it has become necessary that the provisions of Section 5 and 6 of the Family Courts Act are given effect to, by providing for the appointment of marriage counsellors in every Family Court, which would help in the process of settlement. If the proceedings for settlement are unsuccessful, the Family Court would proceed with the matter on merits.

[Read detailed guidelines and directions here]

(c) Criteria for determining quantum of maintenance

The objective of granting interim / permanent alimony is to ensure that the dependant spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded.

“The maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort.”

For determining the quantum of maintenance payable to an applicant, the factors which would weigh with the Court inter alia are

  • the status of the parties; reasonable needs of the wife and dependant children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; etc.
  • the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependant family members whom he is obliged to maintain under the law, liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. The Court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of living.
  • On termination of the relationship, if the wife is educated and professionally qualified, but had to give up her employment opportunities to look after the needs of the family being the primary caregiver to the minor children, and the elder members of the family, this factor would be required to be given due importance. With advancement of age, it would be difficult for a dependant wife to get an easy entry into the work-force after a break of several years as she would be required to undergo fresh training to acquire marketable skills and re-train herself to secure a job.
  • In case where the wife is working, it cannot operate as a bar from being awarded maintenance by the husband. The onus is on the husband to establish with necessary material that there are sufficient grounds to show that he is unable to maintain the family, and discharge his legal obligations for reasons beyond his control. If the husband does not disclose the exact amount of his income, an adverse inference may be drawn by the Court.
  • The living expenses of the child would include expenses for food, clothing, residence, medical expenses, education of children. Extra coaching classes or any other vocational training courses to complement the basic education must be factored in, while awarding child support. Albeit, it should be a reasonable amount to be awarded for extra-curricular/coaching classes, and not an overly extravagant amount which may be claimed.

“Education expenses of the children must be normally borne by the father. If the wife is working and earning sufficiently, the expenses may be shared proportionately between the parties.”

  • Serious disability or ill health of a spouse, child / children from the marriage / dependant relative who require constant care and recurrent expenditure, would also be a relevant consideration while quantifying maintenance

The aforesaid factors are however not exhaustive, and the concerned Court may exercise its discretion to consider any other factor/s which may be necessary or of relevance in the facts and circumstances of a case.

[Read detailed guidelines and directions here]

(d) Date from which maintenance is to be awarded

Even though a judicial discretion is conferred upon the Court to grant maintenance either from the date of application or from the date of the order in S. 125(2) Cr.P.C., it would be appropriate to grant maintenance from the date of application in all cases, including Section 125 Cr.P.C. In the practical working of the provisions relating to maintenance, there is significant delay in disposal of the applications for interim maintenance for years on end. It would therefore be in the interests of justice and fair play that maintenance is awarded from the date of the application.

The rationale of granting maintenance from the date of application finds its roots in the object of enacting maintenance legislations, so as to enable the wife to overcome the financial crunch which occurs on separation from the husband. Financial constraints of a dependant spouse hampers their capacity to be effectively represented before the Court. In order to prevent a dependant from being reduced to destitution, it is necessary that maintenance is awarded from the date on which the application for maintenance is filed before the concerned Court.

[Read detailed guidelines and directions here]

(e) Enforcement of orders of maintenance

Enforcement of the order of maintenance is the most challenging issue, which is encountered by the applicants. If maintenance is not paid in a timely manner, it defeats the very object of the social welfare legislation. Execution petitions usually remain pending for months, if not years, which completely nullifies the object of the law.

An application for execution of an Order of Maintenance can be filed under the following provisions :

(a) Section 28 A of the Hindu Marriage Act, 1956 r.w. Section 18 of the Family Courts Act, 1984 and Order XXI Rule 94 of the CPC for executing an Order passed under Section 24 of the Hindu Marriage Act (before the Family Court);

(b) Section 20(6) of the DV Act (before the Judicial Magistrate); and

(c) Section 128 of Cr.P.C. before the Magistrate’s Court.

Section 18 of the Family Courts Act, 1984 provides that orders passed by the Family Court shall be executable in accordance with the CPC / Cr.P.C.

Section 125(3) of the Cr.P.C provides that if the party against whom the order of maintenance is passed fails to comply with the order of maintenance, the same shall be recovered in the manner as provided for fines, and the Magistrate may award sentence of imprisonment for a term which may extend to one month, or until payment, whichever is earlier

Some Family Courts, however, have passed orders for striking off the defence of the respondent in case of non-payment of maintenance, so as to facilitate speedy disposal of the maintenance petition.

The Court, however, was of the opinion that striking off the defence of the respondent is an order which ought to be passed in the last resort, if the Courts find default to be wilful and contumacious, particularly to a dependant unemployed wife, and minor children. Contempt proceedings for wilful disobedience may be initiated before the appropriate Court.

Hence, it was directed that the order or decree of maintenance may be enforced like a decree of a civil court, through the provisions which are available for enforcing a money decree, including civil detention, attachment of property, etc. as provided by various provisions of the CPC, more particularly Sections 51, 55, 58, 60 read with Order XXI.

[Read detailed guidelines and directions here]

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


*CRIMINAL APPEAL NO. 730 OF 2020

**Justice Indu Malhotra has penned this judgment

Case BriefsSupreme Court

Supreme Court: The bench of Indu Malhotra* and R. Subhash Reddy, JJ has framed guidelines on the issue of maintenance of wife, covering overlapping jurisdiction under different enactments for payment of maintenance, payment of Interim Maintenance, the criteria for determining the quantum of maintenance, the date from which maintenance is to be awarded, and enforcement of orders of maintenance.

The directions came in a case which revealed that the application for interim maintenance under Section 125 Cr.P.C. has remained pending before the Courts for seven years now, and there have been difficulties encountered in the enforcement of orders passed by the Courts, as the wife was constrained to move successive applications for enforcement from time to time.


Legislations dealing with the issue of maintenance


The legislations which have been framed on the issue of maintenance are the Special Marriage Act, 1954, Section 125 of the Cr.P.C. ,1973; and the Protection of Women from Domestic Violence Act, 2005 which provide a statutory remedy to women, irrespective of the religious community to which they belong, apart from the personal laws applicable to various religious communities. Further, a Hindu wife may claim maintenance under the Hindu Adoptions and Maintenance Act 1956 , and also in a substantive proceeding for either dissolution of marriage, or restitution of conjugal rights, etc. under the Hindu Marriage Act, 1955 by invoking Sections 24 and 25 of the said Act.

The different enactments provide an independent and distinct remedy framed with a specific object and purpose. In spite of time frames being prescribed by various statutes for disposal of interim applications, in practice that in a vast majority of cases, the applications are not disposed of within the time frame prescribed.


Guidelines and Directions 


(a)Issue of overlapping jurisdiction

To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, the Court issued the following directions in order to ensure uniformity in the practice followed by the Family Courts/District Courts/Magistrate Courts throughout the country:

(i) where successive claims for maintenance are made by a party under different statutes, the Court would consider an adjustment or setoff, of the amount awarded in the previous proceeding/s, while determining whether any further amount is to be awarded in the subsequent proceeding;

(ii) it is made mandatory for the applicant to disclose the previous proceeding and the orders passed therein, in the subsequent proceeding;

(iii) if the order passed in the previous proceeding/s requires any modification or variation, it would be required to be done in the same proceeding.

(b) Payment of Maintenance

Interim Maintenance

(a) the Affidavit of Disclosure of Assets and Liabilities shall be filed by both parties in all maintenance proceedings, including pending proceedings before the concerned Family Court / District Court / Magistrates Court, as the case may be, throughout the country.

[Note: The judgment has the Affidavit of Disclosure of Assets and Liabilities annexed as Enclosures I, II and III.]

(b) The applicant making the claim for maintenance will be required to file a concise application accompanied with the Affidavit of Disclosure of Assets;

(c) The respondent must submit the reply alongwith the Affidavit of Disclosure within a maximum period of four weeks.

  • The Courts may not grant more than two opportunities for submission of the Affidavit of Disclosure of Assets and Liabilities to the respondent.
  • If the respondent delays in filing the reply with the Affidavit, and seeks more than two adjournments for this purpose, the Court may consider exercising the power to strike off the defence of the respondent, if the conduct is found to be wilful and contumacious in delaying the proceedings.
  • On the failure to file the Affidavit within the prescribed time, the Family Court may proceed to decide the application for maintenance on basis of the Affidavit filed by the applicant and the pleadings on record;

(d) The above format may be modified by the concerned Court, if the exigencies of a case require the same. It would be left to the judicial discretion of the concerned Court, to issue necessary directions in this regard.

(e) If apart from the information contained in the Affidavits of Disclosure, any further information is required, the concerned Court may pass appropriate orders in respect thereof.

(f) If there is any dispute with respect to the declaration made in the Affidavit of Disclosure, the aggrieved party may seek permission of the Court to serve interrogatories, and seek production of relevant documents from the opposite party under Order XI of the CPC. On filing of the Affidavit, the Court may invoke the provisions of Order X of the C.P.C or Section 165 of the Evidence Act 1872, if it considers it necessary to do so.

The income of one party is often not within the knowledge of the other spouse. Hence, the Court may invoke Section 106 of the Evidence Act, 1872 if necessary, since the income, assets and liabilities of the spouse are within the personal knowledge of the party concerned.

(g) If during the course of proceedings, there is a change in the financial status of any party, or there is a change of any relevant circumstances, or if some new information comes to light, the party may submit an amended / supplementary affidavit, which would be considered by the court at the time of final determination.

(h) The pleadings made in the applications for maintenance and replies filed should be responsible pleadings; if false statements and misrepresentations are made, the Court may consider initiation of proceeding u/S. 340 Cr.P.C., and for contempt of Court.

(i) In case the parties belong to the Economically Weaker Sections (“EWS”), or are living Below the Poverty Line (“BPL”), or are casual labourers, the requirement of filing the Affidavit would be dispensed with.

(j) The concerned Family Court / District Court / Magistrate’s Court must make an endeavour to decide the I.A. for Interim Maintenance by a reasoned 37 order, within a period of four to six months at the latest, after the Affidavits of Disclosure have been filed before the court.

(k) A professional Marriage Counsellor must be made available in every Family Court

Permanent alimony

(i)Parties may lead oral and documentary evidence with respect to income, expenditure, standard of living, etc. before the concerned Court, for fixing the permanent alimony payable to the spouse.

(ii) In contemporary society, where several marriages do not last for a reasonable length of time, it may be inequitable to direct the contesting spouse to pay permanent alimony to the applicant for the rest of her life. The duration of the marriage would be a relevant factor to be taken into consideration for determining the permanent alimony to be paid.

(iii) Provision for grant of reasonable expenses for the marriage of children must be made at the time of determining permanent alimony, where the custody is with the wife. The expenses would be determined by taking into account the financial position of the husband and the customs of the family.

(iv) If there are any trust funds / investments created by any spouse / grandparents in favour of the children, this would also be taken into consideration while deciding the final child support.

(c) Criteria for determining the quantum of maintenance

For determining the quantum of maintenance payable to an applicant, the factors which would weigh with the Court inter alia are the status of the parties; reasonable needs of the wife and dependant children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a non-working wife.

The financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependant family members whom he is obliged to maintain under the law, liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. The Court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of living.

Serious disability or ill health of a spouse, child / children from the marriage / dependant relative who require constant care and recurrent expenditure, would also be a relevant consideration while quantifying maintenance

The aforesaid factors are however not exhaustive, and the concerned Court may exercise its discretion to consider any other factor/s which may be necessary or of relevance in the facts and circumstances of a case.

(d) Date from which maintenance is to be awarded

Maintenance in all cases will be awarded from the date of filing the application for maintenance before the concerned Court. The right to claim maintenance must date back to the date of filing the application, since the period during which the maintenance proceedings remained pending is not within the control of the applicant.

(e) Enforcement/Execution of orders of maintenance

For enforcement / execution of orders of maintenance, it is directed that an order or decree of maintenance may be enforced under Section 28A of the Hindu Marriage Act, 1956; Section 20(6) of the D.V. Act; and Section 128 of Cr.P.C., as may be applicable. The order of maintenance may be enforced as a money decree of a civil court as per the provisions of the CPC, more particularly Sections 51, 55, 58, 60 r.w. Order XXI.

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


*Justice Indu Malhotra has penned this judgment

Case BriefsHigh Courts

Chhattisgarh High Court: Rajendra Chandra Singh Samant, J., while addressing a petition made an observation with regard to matrimonial disputes that,

“…in a matrimonial dispute, the cause of action can arise again and again, even if the dispute is settled and compromised before the court and the case has been withdrawn.”

Present matter pertained to the quashing of an order passed by the Family Court, Bilaspur in a Civil Suit.

Petitioners’ counsel submits that respondent had filed a civil suit under Section 9 of the Hindu Marriage Act, 1955 and during the pendency, it was placed before the National Lok Adalat and as the respondent did not want to press on the said proceedings, it was disposed of.

Respondent in the present matter has filed a repeat application under Section 9 of the Hindu Marriage Act. Petitioner challenged the maintainability of the civil suit under Order 7 Rule 11 read with Section 23 Rule 4 of CPC on the ground that the previous application filed by the respondent had been disposed of by award.

Order 23 Rule 4 of CPC specifically provides about the abandonment of a suit under sub-rule 1 without permission of Court.

Further, it has been submitted that Section 21 of the Legal Services Authorities Act, 1987 provides that any award passed in the Lok Adalat shall be final and binding on all the parties and no appeal shall lie to any court against the award, hence in view fo the said the repeat application filed by the respondent stands unsustainable.

Respondent’s Counsel submitted that since the petitioner did not honour the ut of court compromise, respondent was compelled to file an application under Section 9 of the HMA, 1955.

Bench on perusal of the submissions and facts stated that under Section 21 of the Legal Services Authorities Act, 1987, an award of Lok Adalat shall be deemed to be a decree of a civil court which includes the order on compromise or settlement between the parties before the Lok Adalat.

Court stated that Lok Adalat has no authority to exercise the power under Order 23 Rule 1 of CPC. The Lok Adalat on taking cognizance in any matter referred to it from a court, can act only in accordance with Section 20 sub-section 4, 5 & 6 of the Act, 1955 and there is no mention that the Lok Adalat can allow the withdrawal of the civil suit.

Hence the Lok Adalat’s order having lo legality is not an order at all.

“the case of the respondent against the petitioner was terminated on the basis of the statement made by the respondent side, that some agreement has taken place between the parties out of the court.”

Court added that, in a matrimonial dispute, the cause of action can arise again and again, even if the dispute is settled and compromised before the court and the case has been withdrawn.

Therefore,

When a dispute crops up again at any subsequent stage on account of differences between the parties to the matrimony, that would be a separate cause of action, on which the party aggrieved, has an entitlement to maintain legal proceeding under the provision of the Hindu Marriage Act, 1955.

In view of the above, the petition was dismissed. [Harsha Dewani v. Ashutosh Gupta, 2020 SCC OnLine Chh 149, decided on 10-08-2020]

Case BriefsHigh Courts

Kerala High Court: N. Anil Kumar, J. allowed this application for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973.

The applicant of this bail is the accused in Crime No. 2227 of 2019 of the Sasthamkotta Police Station in Kollam District. The applicant was accused of committing offences punishable under Section 498-A of the Penal Code.

The contentions made by the counsel for the complainant, C.N. Prabhakaran, are that the wife of the accused is the de facto complainant. The de facto complainant got married to the accused on 5-11-2018. After that the wife lived at the matrimonial home of the accused of 3 months where she alleged was treated with cruelty and was mistreated. The wife filed a petition before District Police Chief, Kollam against the accused of the same reasons.

The contentions made by the counsel for the petitioner, M.R. Jayalatha, are that the accused filed O.P. No. 982 of 2019 before the Family Court and alleged that the wife has stolen the gold ornaments which were entrusted with her by the applicant’s family after the marriage.

After hearing both the sides, the Court held that both the parties are in a matrimonial dispute and the Original Petition is already pending in the Family Court. The Court held that because the matter is matrimonial, the petitioner can be granted the bail-in case he gets arrested. Though the Court laid down certain conditions-

  1. the petitioner will be granted the bail-in case of arrest, but he will have to execute a personal bond of Rs 50,000 along with bonds of two solvent sureties amounting to the satisfaction of the arresting officer
  2. the petitioner will have to make himself present before the Investigating Officer, as when directed
  3. the petitioner will not intimidate or influence the prosecution witness
  4. in case of non-compliance with the order of this Court, the Court having jurisdiction over the case can cancel his bail. [Sunil Kumar v. State of Kerala, 2019 SCC OnLine Ker 6060, decided on 27-12-2019]
Case BriefsHigh Courts

Punjab and Haryana High Court: Hari Pal Verma, J. allowed the petition filed for quashing of FIR under Section 482 of Code of Criminal Procedure, 1973 on the ground that the matrimonial dispute had been resolved by mediation.

An FIR was filed against the petitioner’s husband accusing him of cruelty and breach of trust against her under Sections 498-A, 406 and 120-B of the Indian Penal Code, 1860. The parties were directed for the process of mediation and they further decided to compromise before the Mediation and Conciliation Center, Barnala. The complainant agreed upon the settlement agreement and stated that she had no objection on quashing of the all the proceedings against the petitioner.

The present court directed the learned Chief Judicial Magistrate, Barnala to get the statements recorded and send its report in order to check the genuineness of the compromise. Further the same was received by the Court and it stated that it was unnecessary to continue the proceeding before the trial court.

Relying on the decision of Supreme Court in Gold Quest International (P) Ltd. v. State of Tamil Nadu, (2014) 15 SCC 235 which held that under matrimonial or civil property disputes of criminal nature if the parties have entered into settlement then it is legal to quash the proceeding under Section 482 of Code of Criminal Procedure along with Article 226 of the Constitution of India; this Court allowed the petition for quashing of FIR and all subsequent proceedings as per compromise entered between the parties. [Sheenu Gupta v. State of Punjab, 2019 SCC OnLine P&H 1399, decided on 02-08-2019]

Case BriefsHigh Courts

Allahabad High Court: Sanjay Kumar Singh, J. while allowing the application under Section 482 CrPC observed that even the law provides that it may not be necessary for every criminal offence to mete out punishment, particularly, if the victim wants to bury the hatchet.

In the instant case, applicant 1 is the husband and applicant 2 is the brother-in-law of opposite party 2 (OP). Due to non-fulfilment of dowry demands, OP was tortured, beaten and harassed and thereby made OP lodge an FIR against the applicants, her father-in-law and sister-in-law.

On the request of applicants, time was granted to them to make arrangement of payment to settle the dispute amicably. Afterwards, a joint affidavit was filed by the applicants and OP submitting that they have settled their matrimonial dispute outside the Court and they have no grievance against each other. The settlement was based on certain terms and conditions like OP will receive an amount of Rs 22 lakh from applicant 1 and would not prosecute each other or family members with regard to present matrimonial dispute between them.

After observing the submissions of the parties, the Court looked into some relevant judgments of the Supreme Court where guidelines for quashing of criminal proceedings on the basis of compromise and amicable settlement of the matrimonial dispute between the parties concerned was laid down.

In Madhavrao Jiwajirao Scindia v. Sambhaji-Rao Chandrojirao Angre, (1988) 1 SCC 692, it was laid down that the inherent power under Section 482 CrPC should be used where special features appear or it is expedient and in the interest of justice to permit a prosecution to continue.

In G.V. Rao v. L.H.V. Prasad, (2000) 3 SCC 693, the Supreme Court made some apt observations in relation to matrimonial disputes. Little matrimonial skirmishes suddenly escalate which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved. Instead of fighting out in the Court, the parties should amicably terminate their disputes.

In Swati Verma v. Rajan Verma, (2004) 1 SCC 123 similar to the present case, the Supreme Court had quashed the criminal proceedings under Sections 498A and 406 IPC before the CJM as the divorce litigation between the sparring spouses was decided on the basis of a compromise.

With these cases referred and a few others, the Court observed that If the offender and victim want to move on in matrimonial cases, they may be allowed to compound the offences in terms of the settlement.[Alok Jaiswal v. State of U.P., Application u/s 482 No.  27720 of 2019, decided on 08-08-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court:  Fateh Deep Singh, J. allowed the application of bail on the ground that petitioner was behind the bar and that culpability will be determined during the trial which was not going to be concluded in near future.

A petition for regular bail was made for the offence under Sections 342, 354B, 376, 511/34, 450 of the Penal Code, 1860.

The facts of the case were that the accused petitioner and his sons forcibly took the complainant into a room, tore off her clothes, abused her, tried to violate her and gave her beatings against which the FIR was made the very next day of the incident.

G.C. Shahpuri, counsel for the petitioner argued that bare perusal of the FIR would show that no allegation of actual rape has come about and being a pure case of matrimonial dispute, in which the petitioner has no role to play except that he happens to have intervened into the matrimonial dispute, he has been falsely implicated. Thus, prayed for the anticipatory bail.

Baljinder S. Virk, Deputy Advocate General, stoutly opposed the grant of relief on the grounds that if allowed bail the petitioner might stifle the trial.

The High Court opined that no useful purpose will be served by keeping the petitioner in the custody as petitioner was already behind the bars for more than seven months and culpability shall be determined at the end of the trial which was not likely to conclude in the near future.  It was also instructed that anything observed herein shall not be construed as an expression on the merits of the case. Thus, ordered the release of petitioner on regular bail. [Dalip Bera v. State of Haryana, 2019 SCC OnLine P&H 669, decided on 28-05-2019]

Case BriefsHigh Courts

Delhi High Court: R.K. Gauba, J., referring to the relevant authority on the subject, allowed a petition filed under Section 482 CrPC for quashing of an FIR registered under Sections 498-A and 406 read with Section 34 IPC.

The parties were married to each other. The wife had lodged the aforesaid FIR against her husband and in-laws. Investigation concluded, the police filed a charge-sheet and cognizance was taken. Subsequently, the parties reached a settlement as per which they agreed to obtain a divorce and terminate the present criminal case. Consequent to the same, the present petition was moved and the wife supported the same.

The High Court noted pertinently that the offence under Section 498-A is a non-compoundable offence. Thereafter, it cited various decisions of the Supreme Court and the observations therein which pertain to the law on the present subject.

Reliance was placed upon B.S. Joshi v. State of Haryana, (2003) 4 SCC 675 wherein it was stated, “…the ends of justice are higher than the ends of mere law…”, Gian Singh v. State of Punjab, (2012) 10 SCC 303 was also quoted wherein the Supreme Court observed, “…the power of compounding of offences given to a court under Section 320 is materially different from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction.” Further reliance was placed on Jitendra Raghuvanshi v. Babita Raghuvanshi, (2013) 4 SCC 58 wherein it was held, “… it is the duty of the courts to encourage genuine settlements of matrimonial disputes…”

Following the well-settled principle that continuing criminal action which arose essentially out of the matrimonial dispute and where parties decide to hurry the hatchet, will be an abuse of judicial process, the Court allowed the petition and quashed the subject FIR and proceedings arising therefrom. [Naman Jethani v. State, 2019 SCC OnLine Del 7681, Order dated 14-02-2019]

Case BriefsHigh Courts

Madras High Court: A Bench comprising of V.M. Vellumani, J. has held in the case of matrimonial dispute regarding the irretrievable breakdown of marriage as a ground for divorce valid.

In the present case, the appellant has averred various incidents, by which, the respondent has repeatedly caused mental agony and cruelty to the appellant. The learned counsel for the appellant stated that the respondent has admitted in his evidence that he put up 10 locks, not 22 locks to lock the home. Any normal prudent man would not put 10 locks to lock the home. This fact coupled with the fact that the respondent was friendly with the parents of the appellant in their presence and talked about them shows mental illness of the respondent.

Thus, the appeal has been filed by the wife claiming for divorce on the grounds of mental cruelty and the fact that both the appellant and respondents have been living separately for more than ten years. The respondent is alleged to be mentally ill as well.

“Marriages are made in heaven. Both parties have crossed the point of no return.”

-Durga Prasanna Tripathy v. Arundhati Tripathy; (2005) 7 SCC 353

According to Hindu Law, irretrievable breakdown of marriage is not considered as a valid ground for divorce but this court, following the precedents, has held irretrievable breakdown of marriage a valid ground for divorce. To prevent the appellant from more cruelty, the appeal of divorce has been allowed. Furthermore, this Court has also dismissed the claim filed by the respondent for the restitution of conjugal rights. [Salome v. Prince D. Immanuel, 2017 SCC OnLine Mad 1651, decided on 06-04-2017]

Case BriefsHigh Courts

Uttaranchal High Court: A Division bench comprising of Rajiv Sharma and Alok Singh, JJ. dismissed an appeal filed against the judgment of Family Court, granting a decree of divorce, for want of substantiation of the appellant-wife’s allegations against the respondent-husband.

Facts of the case were that marriage was solemnized between the parties as per Hindu rites and ceremonies. Immediately after their marriage, a few differences cropped up between them and the appellant/ wife left the matrimonial home after seven months of marriage as she wanted to stay away from her in-laws. The respondent was working in Indian Army and posted in Kanpur. In order to maintain peace in his marital life, he took the appellant along with him to Kanpur where they stayed in the government-allotted quarters. However, their disputes continued and in the meantime, respondent got transferred to Arunachal Pradesh. He could not take the appellant along with him over there due to duty restrictions and sent her back to his parents’ home. After two months, the appellant left her matrimonial home and made complaints to the superior officers of respondent; pursuant to which the respondent/ husband sent her a legal notice to stop harassing him. Thereafter, the appellant along with her parents threatened to implicate him in a dowry case and filed a case under Section 125 CrPC. The respondent also filed a suit under Section 13 of the Hindu Marriage Act, 1955 which was decreed vide impugned judgment.

The High Court perused entire evidence on record and noted that there were several inconsistencies in the appellant’s statements – on one hand, she stated that she wanted to live with her husband and on the other hand, she stated that she has a threat to her life from him. Further, the appellant had failed to produce any witness or documentary evidence in support of her bare allegations of harassment, torture, and demand for dowry. While she contended of having complained to the respondent’s senior officers at Kanpur, no copy of the complaint was filed by her. She also alleged demand for dowry, harassment and that her husband wanted to have a second marriage but had failed to substantiate all of her allegations.

As such, the High Court opined that the Family Court had appreciated and discussed the evidence on record elaborately and there was no infirmity in the impugned judgment. On this holding, the instant appeal was dismissed. [Sangeeta Bhakuni v. Pushkar Singh Bhakuni,2018 SCC OnLine Utt 868, decided on 28-09-2018]