Case BriefsHigh Courts

Delhi High Court: Rajnish Bhatnagar, J., while addressing petition in regard to matrimonial discord resulting into husband committing suicide held that,

“…deceased/husband appears to be a weak character who was not in a position to face the ups and downs of life and he adopted the short cut method in order to bring an end to his agony and worldly affairs.”

On the rise of matrimonial disputes between the husband and wife i.e. deceased and petitioner/accused, respectively, petitioner left and started residing with her parents at Sikkim.

Allegations such as — gold jewellery and cash all worth 18 Lakhs was taken by the petitioner which actually belonged to the deceased.

After the said allegations were made, a complaint was filed by the police and deceased filed two cases including a petition under Section 9 of Hindu Marriage Act for Restitution of Conjugal Right.

Deceased suffered with stress and depression due to the pertaining circumstances and faced continuous threats from the petitioner resulting into committing suicide.

Deceased left a suicide note stating that the petitioner and his family members were responsible for his death.

Ramesh Gupta, Senior Counsel, for the petitioner submitted that there was no direct and proximate link between cruelties allegedly inflicted by the petitioner.

The alleged Gold Jewellery was petitioner’s Stridhan and all the other allegations are vague and false.

“…court should not act as a mouthpiece of the prosecution.”

Further, the Senior Counsel adding the following to his submissions:

Court has undoubted power to sift and weigh the evidence for finding out whether or not a prima facie case is made out against the accused.

He further urged that for the invocation of Section 306 of Penal Code, 1860, ingredients of Section 107 of the IPC have to be satisfied and it has to be established that there was instigation, provocation, incitement, or encouragement from the side of the petitioner to the deceased who committed the act of such a desperate nature.

It is further urged that the deceased was of hypersensitive nature, who failed to cope up with the hardships of life.

Analysis and Decision of the Court

Scope of this Court

At the time of framing of charge, the Court is not supposed to look into the evidence of the case in detail and is only to consider whether there is a strong suspicion against the accused on the basis of the material that comes before it. The court has the power to sift the evidence for the limited purpose of finding out, whether or not a prima facie case is made out against the accused.

However, the Court is not supposed to delve deeply into the merits of the matter and start a roving expedition into the evidence.

There is no one fixed definition that may be ascribed to the term prima facie’ nor can the term strong suspicion have a singular meaning.

Trial Court charged the petitioner for the offence under Section 306 IPC for abetting the murder of her husband.

What did the suicide note contained?

“…I am unable to face the present circumstances for which my wife Reena Prasad is responsible. Due to her false allegations against me, I am committing suicide. I wish that after my death, my dead body be handed over to my in laws. I love my wife very much but she loves money.”

“… I do not have enough means to fight court cases against Reena. Whatever cases she has filed against me are all false.”

“… I can not think clearly ever since my wife has left me. It is my desire that after my death, the money which has been taken away by my wife be utilized to pay my debts.”

Bench on perusal of the facts and the suicide note placed stated that the ingredients of abetment are totally absent in the instant case for an offence under Section 306 IPC.

Taking the totality of material on record, tone and tenor of the suicide note and facts and circumstances of this case into consideration, it leads to the irresistible conclusion that it is the deceased and he alone and none else is responsible for his death.

Deceased appeared to be hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide.

In High Court’s opinion, Trial Court had failed to apply the law properly to the facts of the present case and committed an error in reading the suicide note which is shorn of ingredients of Section 306 IPC.

Reading of the suicide note clearly shows that the petitioner at no point of time instigated, goaded, incited and encouraged the deceased with such an intention that he should commit suicide.

Thus High Court found trial court’s Order to be of complete non application of the law in the right perspective and allowed the present revision petition. [Reena v. State (NCT of Delhi), 2020 SCC OnLine Del 630  , decided on 08-06-2020]

Case BriefsHigh Courts

Bombay High Court: Ravindra V. Ghuge, J., while allowing the present petition and setting aside the impugned order of the Family Court, stated that:

“Seeking directions to forcibly have a second child during the pendency of a petition seeking restitution of conjugal rights, would be detrimental to the mental growth of the child.”

The issue in the present petition that has been cropped up is:

Whether the demand of an estranged wife, before the Family Court in a pending petition for restitution of conjugal rights that, the husband shall restore sexual relations and bear a second child from his wife or he be subjected to IVF so as to let the wife give birth to a child, is legal and sustainable?”

Bench stated that it is conscious of the pending proceedings between the parties and would refrain from dealing with the allegations in the two proceedings initiated by them.

In the pending proceedings initiated by the wife, she has moved an application praying that the husband be directed to develop physical relations with the wife or he should be subjected to the IVF procedure.

The Couple has one male child residing with the wife, she still desires to have one more with estranged husband and reasoned it by saying that in future the son would go abroad for education or a job and she would be alone and in that case, the second child would give her company.

Wife also stated that as one of the reasons to compel the husband to have a second child that, the wife is about 35 years of age and it is the right age to have second child, lest with advancing age, she may not be physically and mentally in a position to have a second child.

Petitioner-Husband opposed the application and specifically averred that no spouse can be compelled to have sex, directly or indirectly without free consent. He further states that the application be rejected and there should be no order to the petitioner-husband to develop physical relations with the wife or a direction to undergo any mode of procreation.

Husband narrated before the High Court a list of cases filed by both the parties against each other in various police stations.

High Court while the hearing was going on, called upon the advocate for the husband to take instructions as to whether his bitter experience could be forgotten and the couple could come together. Advocate submitted that considering the behaviour of the wife to strangulate the husband in his own clinic and what he has suffered, it is impossible for him to even think of cohabiting with her.

Advocate for the wife submitted that she desires a second child from the petitioner-husband. She has filed a proceeding for restitution of conjugal rights as she desires to live with the petitioner husband.

Family Court had issued the following directions:

  • Petitioner and respondent shall meet the Marriage Counselor
  • Marriage Counselor shall assist the petitioner and respondent to seek appointment of Dr Galatri Wadekar, Obstetricians & Gynecologists, IVF Expert, within one month from the date of this order for clinical consultation about the ART procedure in their case.

 Advocate for the husband insists that when he does not even desire the company of the wife, he is not agreeable for having a child by whatever procedure and does not desire to be a party to the wife conceiving a second child per force.

Advocate for the wife submits that the wife has a desire to have a second child and that is her fundamental right and a natural right recognised by the Indian society. There is no perversity in the order passed by the Family Court.

Adding to his above contentions, the advocate for the husband submits that he has suffered untold miseries on account of the behaviour of the wife, especially the manner in which she used to abuse him in filthy language and the incident of assault.

High Court’s observation and conclusion

The High Court on noting the Family Court’s decision stated that it cannot turn a blind eye and appear to be insensitive to the future of the ‘probable child’ which, neither the couple before the Court has considered, nor has been considered by the Family Court.

Court stated that none belonging to the immediate family of the husband has even cared to inquire as to how the son (the child of the couple) is growing up. The child feels neglected and is presently in the company of its mother.

People seldom fathom the effect of stunted mental growth or the mental growth of a child suffering on account of such circumstances.

Court states that it appears from the impugned judgment of the Family Court that it considered the institution of marriage from the angle of the western world and certain writings/literature available in the documents of the International Organization.

High Court expressed the following conclusion of the Family Court to be shocking to the judicial conscience of the Court:

“A woman’s right to procreate, specially when it is a bonafide and legitimate wish, will have to be respected and the right to reproduce is a very intricate feminine right emanating from the woman’s basic human right. Not allowing a fertile woman to procreate is like compelling her to sterlize. To curb or to curtail reproductive right may have subtle and devastating demographic outcome.”

Court adds to its observation that, the trial court has completely lost sight of the fact that the growth of a child is not money centric but is family-centric.

High Court further asked the advocates for the parties to point out a single judgment before the Court that have been cited in the present matter which would suggest or lay down the law that in a marriage or even in a case of marital discord wherein the partners re estranged, Court accepted the wish either of the wife or the husband to compel the partner to forcibly forbear a child.

Court quashed the impugned order of the Family Court allowing the present petition and stated that,

“In my view, as the law stands today, there cannot be such a direction notwithstanding the submission of Mr Salunke that the male sperms are not the exclusive property of a husband.” [KGP v. PKP, 2019 SCC OnLine Bom 5305, decided on 21-11-2019]

Case BriefsHigh Courts

Patna High Court: A Bench of Ahsanuddin Amanullah, J. allowed the quashing of the criminal case owing to the amicable compromise between the parties.

The petitioners have approached this Court under Section 482 of the Code of Criminal Procedure, 1973 for the alleged offence under Section 498-A of the Indian Penal Code and Section 4 of the Dowry Prohibition Act. The petitioner has been alleged for demanding dowry from the opposite party for a motorcycle along with the fact that he assaulted the opposite party. It has also been alleged that he was in an illicit relationship with another woman. He has contended that there was an application filed for restitution of conjugal rights in view of the amicable settlement between the parties under which the petitioner would pay monthly maintenance to the opposite party and her son. Hence when a compromise on mutual terms has been arrived upon between the parties the criminal case shall not be followed upon.

Accordingly, having considered the facts of the case the Court was of the view that the court by using its inherent powers in order to reach the ends of justice simply when it was in the interest of both the parties shall allow for the above application.[Dhananjay Paswan v. State Of Bihar, 2019 SCC OnLine Pat 11, decided on 03-01-2019]

Case BriefsHigh Courts

High Court of Delhi: While examining the question relating to the execution of a decree for restitution of conjugal rights, the Bench comprising of Pratibha Rani and Pradeep Nandrajog, JJ., held that on passing of the decree for the restitution of conjugal rights or for its execution, at the most it can enforce cohabitation between estranged spouses but cannot enforce sexual relations between estranged spouses. The Court further clarified that the object of decree for restitution of conjugal rights is to bring about cohabitation between the parties, so that they can live at the matrimonial home in amity and if a spouse violates the order of restitution of conjugal rights continuously for a year then the order becomes a stepping stone and passage to seek dissolution of marriage under Section 13(1A)(ii) of the Hindu Marriage Act, 1955.

The appeal is preferred by a appellant wife, nearing 60, who has approached the  Court against her estranged husband on coming to know that the respondent husband has filed execution of the decree for the restitution of conjugal rights as she does not want to be forced to have physical relationship with the respondent  husband in execution of the said decree. The appellant wife submitted that the marriage was not consummated because her husband was physically weak and they had lived together for 10 years without any physical relations also, that in such a strained relationship she was is not willing to join the company of her respondent  husband and resume cohabitation.

Dismissing the appeal, the Court  held that the apprehension in the mind of the appellant wife that if the decree is executed, she would be forced to have cohabitation with her husband, is a mistaken notion, referring to her own statement that since the marriage between the parties was not consummated though they lived together as husband and wife for 10 years, the Court does not find any reason for her to apprehend forced cohabitation after more than 23 years of their marriage. The Court further stated that that the decree for restitution of conjugal rights is a stepping stone and a ground to seek dissolution of marriage under Section 13(1A)(ii) of the Hindu Marriage Act, 1955 which provides that if the defaulting/withdrawing spouse is disobedient to the decree of restitution of conjugal rights and the husband and wife continue to live separately as before continuously for a period of one year, then each of them is entitled to seek dissolution of marriage as the defaulting/withdrawing spouse tries to denounce the restitution of conjugal rights but welcome as a ground for seeking dissolution of marriage under Section 13(1A)(ii). Thus, the legal position is that on passing of a decree for restitution of conjugal rights at the most it can be said that the law enforces cohabitation but it does not and cannot enforce sexual intercourse.

The Court stated that since various civil and criminal litigations are pending between the parties thus, the purpose behind filing of a petition under Section 9 of the Hindu Marriage Act for seeking a decree for restitution of conjugal rights or filing the execution appears to be not to force the appellant wife to resume cohabitation but with an objective to be achieved under Section 13(1A)(ii) of Hindu Marriage Act, 1955. [Sudha Gupta v. Har Prasad Gupta, 2016 SCC OnLine Del 5504, decided on 7th October, 2016]