Case BriefsHigh Courts

Punjab and Haryana High Court: The Division Bench of Ritu Bahri and Arun Monga, JJ., held that in case of child marriage, the marriage is voidable not void and a petition for nullity under Section 13(2)(iv) could only be filed if she-wife had got married at the age of 15 that too only before she attains the age of 18.

Background

The brief facts of the present case were that at the time of marriage i.e. on 27-02-2009, the appellant (husband) was major being of the age of 23 years, 5 months and 10 days the respondent (wife) was of the age of 17 years, 6 months and 8 days. Both the parties continued to live together and cohabited as husband and wife till 31-08-2017 and had a male child out of the wedlock. The child had been living his father since 2017.

Findings of the Family Court

The grievance of the appellant was that the Family Court had dismissed his petition filed under Section 13-B of Hindu Marriage Act, 1955 for divorce by mutual consent. Relying on the decision of Madras High Court in Prema Kumari v. M. Palani, 2013 (6) RCR (Civil) 2953, the Family Court held that the marriage was not a valid one as the respondent (wife) had not completed the age of 18 years as per the mandate of Section 5(iii) of the Hindu Marriage Act, 1955, therefore the parties were required to get their marriage nullified as per Section 13(2)(iv) of the Hindu Marriage Act.

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

13-(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground- (iv) that her marriage (whether consummated or not) was solemnised before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.

The girl who has attained 15 years of age and has got married can seek dissolution of marriage before she attains the age of 18 years by filing a petition under Section 13(2)(iv) of the Hindu Marriage Act.

Analysis and Reasoning

Differentiating the judgment relied by the Family Court, the Bench stated that the wife was not 15 years of age and could not invoke the provisions of Section 13(2)(iv) of the Hindu Marriage Act. Had she been 15 years of age, she could have invoked the provisions only before she attains the age of 18. Referring to the Delhi High Court’s decision in Lajja Devi v. State, 2012 (4) R.C.R. (Civil) 821, wherein the Delhi High Court while referring to Sections 5(iii), 11 and 12 of Hindu Marriage Act, 1955 and Sections 2 and 3 of the Prohibition of Child Marriage Act, 2006, observed that if a marriage contracted with a female of less than 18 years or a male of less than 21 years, it would not be a void marriage but voidable one, which would become valid if no steps are taken by such “child” within the meaning of Section 2(a) of the Prohibition of Child Marriage Act, 2006 seeking declaration of this marriage as void.

Since both the parties continued to live together and cohabited as husband and wife since 2009 till 2017 and the respondent-wife had not chosen to file a petition for declaring her marriage void their marriage became a valid one, for all intents and purposes, when they made a petition under Section 13-B of Hindu Marriage Act, 1955, the respondent-wife was major and the marriage was valid. Hence, the Bench held that the Family Court had wrongly dismissed the petition filed under Section 13-B of Hindu Marriage Act, 1955 and a petition for nullity under Section 13(2)(iv) could only be filed if she-wife had got married at the age of 15 that too only before she attains the age of 18.

Verdict

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


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

Ms. Gitanjali Chhabra, Advocate for the appellant.

Mr. Raman B.Garg, Advocate for the respondent

Case BriefsHigh Courts

Punjab and Haryana High Court: G. S. Sandhawalia, J., allowed the application for waiving off the mandatory period of six months for divorce by mutual consent.

The instant petition had been filed by the petitioners i.e. Wife and husband who were aggrieved by the order of the Family Court, whereby their application for waiving off the mandatory period of six months had been rejected.

The petitioners submitted that they had sought divorce by mutual consent and their joint statement was recorded under Section 13-B of Hindu Marriage Act on the ground that husband was residing abroad in Houston TX (USA) since 2019. The parties were living separately since then and three children, which were borne out of the wedlock remained with the husband. Therefore, it was submitted by the parties that the mandatory period of six months be waived off.

Reliance was placed by the Family Court on the decision of the Supreme Court in Amandeep Singh v. Harveen Kaur, (2017) 8 SCC 746, wherein it had been held that, “where there are no chances of reconciliation, six months period cannot be waived off except in exceptional circumstances and the parties are thus aggrieved by the impugned order.”

Observing that the couple had settled the matter and were mature to the extent that first petitioner was 34 years old and petitioner 2 was 35 years of age and had been blessed with 3 children; moreover, it was not disputed that the husband was also staying abroad for the last more than two years and they had even settled regarding the children; the Bench opined that in such circumstances, further waiting period would only prolong the proceedings and it was a fit case to exercise the jurisdiction of the Court in waiving off the mandatory period of six months.

The Bench opined that the judgment in Amandeep Singh’s case had not been appreciated in its real sense by the Family Court. The relevant portion of the said judgment reads as under:-

“16. The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. The amendment was inspired by the thought that forcible perpetuation of status of matrimony between unwilling partners did not serve any purpose. The object of the cooling off the period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option.”

Accordingly, the impugned order was set aside. The Family Court concerned was directed to take up the application again and dispose of the main case within a period of 10 days.[Sukhjeet Kaur v. State of Punjab, 2021 SCC OnLine P&H 1606, decided on 16-08-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

Counsel for the Petitioners: Mohd. Salim, Advocate

Case BriefsHigh Courts

Chhattisgarh High Court: A Division Bench of Prashant Kumar Mishra and N.K. Chandravanshi, JJ., reversed a decree of judicial separation passed by the trial court, and instead passed a decree of divorce by mutual consent as originally prayed for the parties.

The parties got married in 2017. However, they remained together only for 2 days, and thereafter never lived as husband and wife. After one year of the marriage, they preferred a joint application for divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955. The application was signed, verified and supported by both parties by filing their respective affidavits. They were examined before the trial court after completion of 6 months cooling-off period. In their deposition also, they stood by their decision to seek divorce by mutual consent. However, the trial Court refused to pass a decree of divorce by mutual consent and instead passed a decree for judicial separation for a period of one year. Aggrieved, the wife approached the High Court in the instant appeal.

The High Court noted that while granting a decree for judicial separation in place of a decree of divorce by mutual consent, the trial court referred to the provisions contained in Section 13-A of the Hindu Marriage Act, which provides that in any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of Section 13, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.

Discussing further, the Court stated that the provisions contained in Section 13-A would attract only when the trial court is satisfied “having regard to the circumstances of the case” that it considers it just to pass a decree for judicial separation instead of mutual divorce. The phrase “having regard to the circumstances of the case” requires the trial court to find out the circumstances which compels it to pass a decree for judicial separation. Unless such circumstances exist, the trial court is not entitled to pass a decree for judicial separation in a mechanical manner.

While passing the impugned decree, the trial court observed that the period of their staying together is so short that it is not possible that any serious dispute would have arisen between the parties. The trial court assumed that the dispute between the parties might not be of such intensity which would force them to seek divorce by mutual consent.

Disapproving such approach, the High Court said that the provisions contained in Section 13-B does not provide for existence of a ground like the ones contained in Section 13 for grant of divorce by mutual consent. There need not be a serious dispute between a married couple for seeking a divorce by mutual consent. It may happen in a given case that there is no quarrel or dispute between the couple but yet their actions and behaviour are not compatible with each other for living a happy and peaceful married life, therefore, they may seek divorce by mutual consent. If an application is otherwise duly constituted and properly presented before the court, it is not for the court to search for a ground or a reason, which has compelled the parties to seek divorce by mutual consent.  

In conclusion, the Court was of the opinion that having regard to the fact that the parties presented the application under Section 13-B by appearing before the trial court on 13-3-2018 and thereafter, again appeared on several dates, the trial Court should have passed the decree of divorce by mutual consent instead of decree for judicial separation. Therefore, the appeal was allowed and a decree of divorce by mutual consent was passed. [Sandhya Sen v. Sanjay Sen, 2021 SCC OnLine Chh 1888, decided on 6-4-2021]

Case BriefsHigh Courts

Delhi High Court: Anu Malhotra, J., dismissed the petition in view of the dispute being settled mutually.

The instant petition sought quashing of an FIR registered under Sections 498A/406/34 of the Penal Code, 1860 submitting to the effect that a settlement has since been arrived at between the parties.

State did not oppose the quashing of FIR which was apparently emanated due to a matrimonial discord which has been resolved by the dissolution of the marriage between the parties vide a decree of divorce through mutual consent under Section 13 B (2) of the Hindu Marriage Act, 1955.

Respondent 2 had stated that she arrived at the settlement with petitioners without any duress, pressure or coercion from any quarter, hence Court considered it appropriate to put a quietus to the litigation between the parties and for the maintenance of peace and harmony between the parties in view of the observations of the Supreme Court decision in Gian Singh v. State of Punjab, (2012) 10 SCC 303 and Jitendra Raghuvanshi v. Babita Raghuvanshi, (2013) 4 SCC 58, wherein it was held that:

“… 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. They institution of marriage occupies an important place and it has an important role to play in 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….”

(emphasis supplied)

Hence, in view of the above, the Court directed for quashing of the FIR and disposed of the petition.[Harish Kumar v. State, 2020 SCC OnLine Del 1635, decided on 04-12-2020]


Advocates who appeared before the Court:

For the petitioners: Naveen Kumar Bansal, Advocate with petitioners in person.

For the Respondents: Sanjeev Sabharwal, APP for State with SI Maninder Maan Piyush Pahuja, Adv for R-2 with R-2 in person.

Case BriefsHigh Courts

Bombay High Court: N.J. Jamdar, J., while addressing a revision application with regard to maintenance under Section 125 of Code of Criminal Procedure, 1973 held that,

Statutory right of wife of maintenance cannot be permitted to be bartered away or infringed by setting up an agreement not to claim maintenance.

Wife cannot be denied maintenance on the ground of having a source of income.

Family Court’s Judgment was challenged in the present revision application whereby, Order for payment of Rs 15,000 per month to wife under Section 125 of Code of Criminal Procedure, 1973, was passed.

Applicant claimed that since inception of marital life applicant faced extreme cruelty and was subjected to harassment.

Respondent after leaving the applicant to her parental home at Satara did not come to fetch back the applicant due to which police intervention was allowed, after which applicant started reside separately.

To avoid harassment from respondent, applicant signed the documents for presenting a petition for obtaining divorce by mutual consent, accordingly a decree of divorce was obtained. Despite the same, respondent continued to visit applicant’s apartment and had marital relations as well.

Respondent had not made ay provision for the maintenance and livelihood of the applicant and applicant also had no source of income.

Hence, applicant was constrained to prefer application for award of maintenance under Section 125 CrPC.

Family Court had held that

“Applicant being a wife, despite being a divorcee, within the meaning of Explanation (b) to Section 125(1) of the Code, the agreement to reside separately from the Respondent does not disentitle her from claiming maintenance.”

Bench while addressing the present application observed that,

“There is no material on record to indicate at any point of time till the filing of the instant Petition for award of maintenance the Applicant had ever raised any grievance about the decree of divorce having been obtained by fraud.”

Supreme Court in the case — Rohtash Singh v. Ramendri, (2000) 3 SCC 180, considered the question whether a wife against whom a decree of divorce has been passed on account of her deserting the husband can claim maintenance allowance under Section 125 of Code of Criminal Procedure?

To the above, Supreme Court held that,

woman after divorce becomes destitute. If she cannot maintain herself and remains unmarried, the man who was once her husband continues to be under a duty and obligation to provide maintenance to her.

Statutory right of wife of maintenance cannot be permitted to be bartered away or infringed by setting up an agreement not to claim maintenance. Such a clause in the agreement would be void under Section 23 of the Indian Contract Act, being opposed the public policy.

Further the Court observed that,

The decree of divorce by mutual consent was passed in the year 2007. The application for award of maintenance came to be preferred in the year 2016. The Applicant was indubitably running a business under the name and style of “Kalyani Beauty Parlor and Training Institute” when the decree of divorce was passed in the year 2007.

Time lag of almost 9 years in approaching the Court with a claim that the Applicant was unable to maintain herself assumes critical significance in this context.

Family Court was of the view that the claim of the Applicant that she had no source of income was reliable and trustworthy and though the Applicant had the necessary qualification and experience, there was nothing to show that the Applicant was running the business of beauty parlor, in praesenti.

In High Court’s opinion in the backdrop of the material on record, the claim of the Applicant that she had no source of income ought to have been accepted by the Judge, Family Court with a pinch of salt.

High Court observes that,

the fact that the wife carries on some business and earns some money is not the end of the matter. Neither the mere potential to earn nor the actual earning, howsoever meager it may be, is sufficient to deny the claim of maintenance.

Supreme Court in the case of Sunita Kachwa v. Anil Kachwa, III 2014 (DMC) 878 S.C., held that: 

“In any event, merely because the wife was earning something, it would not be a ground to reject her claim for maintenance.”

Thus the Applicant is entitled to maintenance from the Respondent even if the Applicant still carries on the business of Kalyani Beauty Parlor and Training Centre and earns some income out of the said business.

In this era of inflationary economy, where the prices of commodities and services are increasing day by day, the income from the business of beauty parlor, which has an element of seasonality, may not be sufficient to support the livelihood of the Applicant.

Impugned order is required to be interfered with to the extent of the quantum of maintenance. The Revision Application, thus, deserves to be partly allowed to this extent.

Hence, Respondent-husband shall pay maintenance to the Applicant at the rate of Rs 12,000/- per month from the date of the Petition i.e. 17th June, 2016.[Sanjay Damodar Kale v. Kalyani Sanjay Kale, 2020 SCC OnLine Bom 694, decided on 26-05-2020]

Case BriefsHigh Courts

Uttaranchal High Court: Lok Pal Singh, J. dismissed a writ petition where mandamus was sought to direct the Principal Judge of Family Court to decide the matter of petitioner under Section 13-B of Hindu Marriage Act, 1955 and grant a decree of divorce based on mutual consent.

The factual matrix of the case was the petitioner and respondent both filed a joint petition in the Family Court for divorce by mutual consent. The petitioner contended that on the first date of hearing in Family Court both parties appeared and a due date after six months was fixed for the appearance. But on subsequent dates the respondent-wife was absent, hence he had no knowledge that whether the case is pending or divorce had been granted.

Learned counsel for the petitioner, Karan Anand, relied on a judgment in Suman v. Surendra Kumar, 2002 SCC OnLine Raj 111, where Rajasthan High Court decided a similar matter where the respondent was the husband and he absented himself from the Court hearing, in such case the Court had held, “This is a case of total silence on the part of the husband on the question of consent at the stage of the second motion. Should we infer the negative from silence? We are of the view that if the husband wanted to withdraw his consent he should have taken a positive stand for that purpose. There was nothing which prevented him from informing the Court that he was withdrawing his consent for decree of divorce by mutual consent. When the husband has himself left the matter for inference, the inference ought to be drawn in favor of consent rather than for absence of consent. The husband had already given his consent for the decree of divorce at the time of the first motion and he alone could withdraw the consent by a positive act, otherwise, the inference would be that the consent which was initially given continues.” Thus, the Court granted a divorce by mutual consent ex-parte.

The Court observed that case referred by the learned counsel for petitioner i.e. Suman v. Surendra, 2002 SCC OnLine Raj 111,, initially the appeal filed by the wife against the decision of the Family Court rejecting an application under Section 13-B of Act, 1955 was dismissed by the Rajasthan High Court. Subsequently, on the review application, a decree of divorce was granted on the basis of mutual consent thereby dissolving the marriage between the parties under Section 13-B of the Act, whereas, in the present case, there is no such order of the Family Court, on record, rejecting or allowing the petition under Section 13-B. Court further noted that although petitioner filed an order sheet stating that respondent was absent on several dates and in the interest of justice adjournments were made, the fact that whether the initial divorce petition is decided by the Court in any form is still a question which was not known to the Court. Based on aforementioned observations Court held that “direction sought by the petitioner is not legally maintainable as no higher court can issue a direction to a subordinate court to pass judgment or decree in favour of either of the parties.”[Rajeev Mandrawal v. Renu Mandrawal, 2019 SCC OnLine Utt 442, decided on 10-05-2019]

Case BriefsHigh Courts

Kerala High Court: The Bench of Alexander Thomas, J. hearing a civil writ petition, considered the legal validity of unilateral cancellation of deeds and held that a vendee cannot be divested of his title by unilateral cancellation of sale deed by the vendor.

Petitioner (widow of one James), since her husband’s death, was in ownership and enjoyment of property settled by James’ mother Kunjamma in his favour. Her request to settle the said property in favour of their daughter, was refused by the District Registrar on the ground that the settlement deed executed by Kunjamma in favour of James had been unilaterally cancelled by her by executing and registering a cancellation deed. Aggrieved, the petitioner filed the instant petition for praying for a direction to the District Registrar to execute and register settlement deed executed by her in favour of her daughter.

The Court took note of its decisions in Pavakkal Noble John v. State of Kerala, 2010 SCC OnLine Ker 2561 and P.A. Hamsa v. District Registrar General, Kozhikode, 2011 SCC OnLine Ker 1882 where it was held that a registration officer is legally obliged to reject and refuse to register cancellation of sale deed which has been unilaterally executed without the knowledge and consent of parties to the sale deed.

It was noted that Kunjamma’s cancellation deed had been executed after James’ death and hence there was no question of any bilateral execution or registration of cancellation deed with his consent. Therefore, the said cancellation deed was null and void and not binding on James’ legal heirs, i.e., the petitioner and her daughter.

Accordingly, settlement deed executed by petitioner in favour of her daughter was directed to be registered. The Court also directed Inspector General of Registration to issue necessary norms and guidelines in this regard, by way of circular, to the registration officers.[Lali Yohannan v. State of Kerala, 2018 SCC OnLine Ker 8056, Order dated 29-11-2018]

Case BriefsHigh Courts

Kerala High Court: A Division bench comprising of C.K. Abdul Rehim and R. Narayana Pisharadi, JJ. allowed an appeal against the judgment of Family Court for the said court’s failure in conducting a proper enquiry and for failure in recording satisfaction based on such an enquiry conducted.

The appellant and respondent had jointly filed a petition for dissolution of their marriage by mutual consent Section 10A of the Divorce Act, 1869. The petition was allowed and respondent was granted permanent custody of their minor children. The appellant-wife challenged the said decree on the ground of court’s non-compliance to the mandatory procedural formality of interregnum waiting period.

The primary question for the determination of the court was as to whether a decree granting divorce by mutual consent can be challenged in an appeal filed under Section 19 of the Family Courts Act, 1984.

The Court observed that a decree under Section 13 B of the Hindu Marriage Act, 1955 is passed on the Court being satisfied that certain circumstances exist and certain conditions are fulfilled. Such a decree is not a decree passed merely on consent, but on the court being satisfied with the existence of those conditions. Relying on the decision of Gujarat High Court in Jyoti v. Darshan Nirmal Jain, 2012 SCC OnLine Guj 6283 it was held that in the present case since the lower court had failed to record its satisfaction under Section 10A(2) of the Divorce Act and not even followed the mandatory procedure of six months waiting period, therefore bar under Section 19 (2) of the Family Courts Act would not apply and the instant appeal would be maintainable.[Tiji Daniel v. Roy Panamkoodan,2018 SCC OnLine Ker 4145, decided on 17-09-2018]