Kerala High Court
Case BriefsHigh Courts

Kerala High Court: In a divorce case where the Family Court had refused to hear the case on priority for early disposal, the Division Bench of A. Muhamed Mustaque* and Sophy Thomas, JJ. on observing that the woman belonged to Muslim community, suggested her to exercise her right to extra-judicial divorce.

The Court opined that the Presiding Officer of the Family Court is the best person to judge the management of the cases pending before the Court.

The petitioner, a 26-year-old lady Muslim woman had approached the Family Court for divorce and recovery of gold ornaments. She had sought for early hearing of the petition in the light of the judgment in Shiju Joy v. Nisha, 2021 SCC OnLine Ker 1391, wherein the High Court had issued guidelines to streamline, the disposal of the pending cases before the Family Court. Family Court was also permitted to depart from the guidelines in appropriate cases.

In the instant case, the Family Court dismissed the petition by stating that the petition being considerably a new case, it could not be prioritized f or disposal. The Family Court further found that there were no sufficient reasons to depart from the normal listing of the case.

Assailing the Family Court’s order, the petitioner contended that her parents are Senior citizens and they are longing for her second marriage after settling all the monetary claims.

The Court noted that the petitioner, being from a Muslim community has every right to invoke extra judicial divorce to separate legal marriage and there was no reason for her to wait at the corridors of the court for having separation of her marriage with the respondent. The Court said,

“When law itself bestowed her with the right to invoke extra-judicial divorce, we are at the dismay, why the petitioner has not chosen to exercise that option. If she really needs legal separation, she could have very well invoked extra-judicial divorce even in the pending matter.”

The Court further observed that if she resorts to extra-judicial divorce, the Family Court record the same in the proceedings pending before it and can very well dispose of the case without further delay as there would be no adjudication required.

In regard to the monetary claims, claim for movables, etc., the Court held that it could not pressurize the Family Court to dispose of such case overlooking the other pending matters. Further, the Court opined that the Presiding Officer of the Family Court is the best person to judge the management of the cases pending before the Court.

Hence, the Court affirmed the order passed by the Family Court and dismissed the instant petition.

[Aayisha A. v. Ahammed Haneefa, OP (FC) No. 90 of 2022, decided on 17-02-2022]


*Judgment by: Justice A. Muhamed Mustaque


Appearance:

For the Petitioner: Advocate B. Mohanlal


Kamini Sharma, Editorial Assistant has put this report together.


Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J., held that,

“…relegating parties to customary Courts when they themselves admit that they are following Hindu customs and traditions would be antithetical to the purpose behind enacting a statute like the HMA, 1955.”

Question for Consideration:

Applicability of the Hindu Marriage Act, 1955, in respect of the parties who belonged to the Meena community in view of the exclusion under Section 2(2) of the HMA,1955.

Petitioner and respondent sought divorce under Section 13-1(ia) of the HMA, 1955.

An FIR was lodged by the Respondent under The Protection of Women from Domestic Violence Act, 2005 as also an application seeking maintenance, under Section 125 of The Code of Criminal Procedure, 1973.

In the divorce petition, since the respondent did not appear, she proceeded ex-parte. However, after she was permitted to participate by the Supreme Court, she filed an application under Order VII Rule 10 and Order VII Rule11 of the Code of Civil Procedure, 1908 before the family court.

In the said application respondent sought for rejection of the divorce petition, on the ground that the provisions of the HMA, 1955 do not apply to the parties, on the ground that the provisions of the HMA do not apply to the parties concerned as they are members of a notified Scheduled Tribe in Rajasthan, and hence the HMA, 1955 would not be applicable to the case of the said parties in view of Section 2(2) of the HMA, 1955.

Family Court held that the provisions of the HMA, 1955 do not extend to the Meena community, which was a notified Scheduled Tribe. The said order was under challenge in the present petition.

Analysis, Law and Decision

Bench noted that the case of the wife was that the Meena community was covered by the exclusion under Section 2(2) of the HMA.

Divorce petition under Section 13-1(ia) of the HMA was dismissed by the trial court on the basis of the exclusion in Section 2(2) of the HMA, 1955. The trial court had not conducted the trial in the petition or considered the evidence in the matter, but summarily dismissed the petition simply on the ground that since the parties belong to the Meena Community, the provisions of the HMA, 1955 would not be applicable.

Court noted that the parties have since inception pleaded that they belong to the Meena community, however, their marriage was solemnized according to Hindu rites and ceremonies, and they follow Hindu customs.

Respondent-wife had admitted that:

(i) that the marriage was conducted as per the “Hindu Riti Riwaz”

(ii) that the marriage was effected by following the “Saptapadi”

(iii) that the marriage was conducted in front of `Agni’ – fire.

Whether in view of the above facts, parties ought to be governed by the provisions of the HMA or should they be relegated to procedures of the Meena tribe?

The word `Hindu’ is not defined in any of the statutes. It is in view of the fact that there is no definition of Hindu, that the Supreme Court has held in Labishwar Manjhi  v. Pran Manjhi, (2000) 8 SCC 587, that if members of Tribes are Hinduised, the provisions of the HMA, 1955 would be applicable.

Further, the High Court expressed that the manner in which the marriage had been conducted in the present matter and the customs being followed by the parties show that as in the case of Hindus, the marriage is conducted in front of the fire. The Hindu customary marriage involves the ceremony of Saptapadi which has also been performed in the present case. The various other ceremonies, as is clear from the marriage invitation are also as per Hindu customs.

Hence,

If members of a tribe voluntarily choose to follow Hindu customs, traditions and rites they cannot be kept out of the purview of the provisions of the HMA, 1955.

Adding to the above, High Court also stated that nothing was placed before the Court to show that the Meena community Tribe had a specialized Court with proper procedures to deal with the issues.

Therefore, if the Court has to choose between relegating parties to customary Courts which may or may not provide for proper procedures and safeguards as against codified statutes envisioning adequate safeguards and procedures, this Court is inclined to lean in favour of an interpretation in favour of the latter, especially in view of the binding precedent of the Supreme Court.

Divorce Proceedings

Court held that if proper tribal customs were not established or the following of Hindu customs or rites was admitted by the parties, there was no reason to hold that the provisions of the HMA, 1955 would not apply. 

The trial court erred in noting the admissions of Respondent-wife which led to the incorrect conclusion. 

Courts have been repeatedly confronted with the conflicts that arise in personal laws

Bench remarked that persons belonging to various communities, castes, and religions, who forge marital bonds, struggle with such conflicts. It is with the hope of bringing uniformity and to eliminate these struggles and conflicts, that the Supreme Court way back in 1985, in Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556 observed:

“…A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so.”

In Jordon Diengdeh v. S.S. Chopra, (1985) 3 SCC 62, the Supreme Court observed in the context of dissolution of marriage between a couple wherein the wife belong to the Naga Tribe and the husband was a Sikh by religion that Article 44 of the Constitution needs to be implemented in its letter and spirit.

Need for a Uniform Code has been again echoed by the Supreme Court in ABC v. State (NCT of Delhi), (2015) 10 SCC 1.

Lastly, the Court concluded stating that the need for a Uniform Civil Code as envisioned under Article 44, has been reiterated from time to time by the Supreme Court. Cases like the present one repeatedly highlight the need for such a Code – ‘common to all’, which would enable uniform principles being applied in respect of aspects such as marriage, divorce, succession etc., so that settled principles, safeguards and procedures can be laid down and citizens are not made to struggle due to the conflicts and contradictions in various personal laws.

The hope expressed in Article 44 of the Constitution that the State shall secure for its citizens Uniform Civil Code ought not to remain a mere hope.

The Supreme Court had, in 1985 directed that the judgment in Jordon Diengdeh v. S.S. Chopra, (1985) 3 SCC 62, to be placed before the Ministry of Law to take appropriate steps. However, more than three decades have passed since then and it is unclear as to what steps have been taken in this regard till date.

In view of the above discussion, the appeal was allowed.[Satprakash Meena v. Alka Meena, 2021 SCC OnLine Del 3645, decided on 7-07-2021]


Advocates before the Court:

For the Petitioner: F.K. Jha, Advocate

For the Respondent: Abhinav Gupta and Nitesh Ranjan, Advocates

Op EdsOP. ED.

India is truly a strange country of diversity. A popular cliché remains in our society that only among the Muslim community polygamous marriage exists. One ignores the fact that before enactment of the Hindu Marriage Act, 1955[1]; there used to exist polygamy among the Hindu community. Section 17 of the said Act provides that Sections 494 and 495[2] of the Penal Code, 1860 shall be attracted if any Hindu commits bigamy.

Muslims are allowed by their personal law to marry four times provided that the husband loves the four wives equally. One can assume that it is possible for a Muslim wife to petition for divorce if this condition is not strictly followed. The Parsi Marriage and Divorce Act[3] provides for a similar penal provision in Section 5 of the Act. Section 44 of the Special Marriage Act[4] mentions that bigamous marriage shall attract penalty under Sections 494 and 495 of the Penal Code. However, one cannot find a similar penal provision in the  Christian Marriage Act[5].

Further Section 18 of the  Divorce Act, 1869[6] provides that “Any husband or wife may present a petition in the District Court or the High Court, praying that, his or her marriage may be declared null and void”. Section 19(4) of the said Act provides that such decree of nullity may be made on the ground that former husband or wife of either party was living at the time of marriage and the marriage with such former husband or wife was then in force. Thus it is amply clear that if neither party (husband or wife) sues for decree of nullity of marriage there is a chance of continuing a number of polygamous marriages.

One can argue that law allows absolute liberty to a subject if there is no express prohibition in it. One can cite Article 21 of the Indian Constitution for the justification.

Conclusion

From practical experience one can gather that marrying more than once even if permissible in personal laws, attracts a disability in Government jobs or for standing as a candidate in election of legislative bodies[7]. Even a  modern Muslim country like Turkey discourages polygamous marriage. In Bai Fatima v. Ali Mahomed[8], the defendant wanted to have a second wife, executed a document in favour of the plaintiff, that is, his first wife, contemplating future separation and also payment of maintenance allowance to the plaintiff. After the execution of the document they lived together for some time. And then they separated. The plaintiff brought an action to recover the arrears of maintenance as mentioned in the document. It was held that such an agreement between Mohammadan husband and wife to live separately in future because the husband wanted to marry again was opposed to public policy as mentioned in Section 23 of the Contract Act and thus, void.

The bane of polygamous marriage is having constant discord among the spouses, hindrance of the welfare of the children and further; stretching the economic resources of the family. There is a threat of population explosion due to polygamous marriage. Further, the earlier social backdrop for polygamous marriages in different religions does not exist anymore. Marriage is, one presumes a “secular institution” and thus law can provide reasonable restrictions.

Section 2(f) of the Domestic Violence Act, 2005[9] provides protection to women who are having a relationship in the nature of marriage with the partner. In Indra Sarma v. N.K.V. Sarma [10] the Court laid down that the women in defacto[11]marriage are protected from the abuse of the partner.

Although the Constitution directs for a Uniform Civil Code,  however, it remains as a far cry and distant reality.


* Assistant Professor, Symbiosis Law School, Pune

[1] The Hindu Marriage Act, 1955

[2] Section 494  IPC punishes the offence of marrying again during the lifetime of husband and wife. Section 495  IPC punishes for the same offence with concealment of former marriage from person with whom subsequent marriage is contracted.

[3] The Parsi Marriage and Divorce Act, 1936

[4] Special Marriage Act, 1954

[5] Christian Marriage Act, 1872

[6] Divorce Act, 1869

[7] See Article 25(1) of the Indian Constitution which provides; Subject to public order, morality and health and to the other provisions of this part, all persons are equally entitled to freedom of conscience and the right freely to profess,  practice and propagate religion.

[8] ILR (1912) Bom 280

[9] The Protection of Women from Domestic Violence Act, 2005

[10] (2013) 15 SCC 755

[11] (i) A reference in a written law to a defacto relationship shall be construed as a reference to a relationship(other than legal marriage) between two persons who live together in marriage-like relationship

(ii)The following factors are indicators of whether or not  a de facto relationship exists between two persons but are not essential,

(a) The length of relationship between them,

(b) Whether two persons have resided together,

(c) The nature and extent of common residence,

(d) Whether there is or has been a sexual relationship between them,

(e) The degree of financial dependence and interdependence and arrangements for financial support between them,

(f) The ownership, use and acquisition of their property (including property they own individually),

(g) The degree of mutual commitment by them to a shared life,

(h) Whether they care for and support children,

(i) The reputation and public aspects, of the relation between them.

Foreign LegislationLegislation Updates

An Act further to amend the Divorce Act, 1869, the Dissolution of Muslim Marriages Act, 1939, the Special Marriage Act, 1954, the Hindu Marriage Act, 1955 and the Hindu Adoptions and Maintenance Act, 1956.

BE it enacted by Parliament in the Seventieth Year of the Republic of India as follows:—

CHAPTER I
PRELIMINARY

1. (1) This Act may be called the Personal Laws (Amendment) Act, 2019.
(2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

CHAPTER II
AMENDMENT TO THE DIVORCE ACT, 1869

2. In the Divorce Act, 1869, in Section 10, in sub-section (1), clause (iv) shall be omitted.

CHAPTER III
AMENDMENT TO THE DISSOLUTION OF MUSLIM MARRIAGES ACT, 1939

3. In the Dissolution of Muslim Marriages Act, 1939, in Section 2, in ground (vi), the words “leprosy or” shall be omitted.

CHAPTER IV
AMENDMENT TO THE SPECIAL MARRIAGE ACT, 1954

4. In the Special Marriage Act, 1954, in Section 27, in sub-section (1), clause (g) shall be omitted.

CHAPTER V
AMENDMENT TO THE HINDU MARRIAGE ACT, 1955

5. In the Hindu Marriage Act, 1955, in Section 13, in sub-section (1), clause (iv) shall be omitted.

CHAPTER VI
AMENDMENT TO THE HINDU ADOPTIONS AND MAINTENANCE ACT, 1956

6. In the Hindu Adoptions and Maintenance Act, 1956 in Section 18, in sub-section (2), clause (c) shall be omitted.

[Dated: 21-02-2019]

Ministry of Law and Justice