Case BriefsSupreme Court

Supreme Court: In a case where an Army Officer’s wife made numerous malicious complaints against him to his superiors and various authorities, the 3-judge bench of Sanjay Kishan Kaul, Dinesh Maheshwari and Hrishikesh Roy, JJ held that such conduct cannot be considered to be “squabbles of ordinary middle class married life” and that it amounted to mental cruelty.

Holding that the husband was entitled to dissolution of his marriage, the Court said,

“In circumstances like this, the wronged party cannot be expected to continue with the matrimonial relationship and there is enough justification for him to seek separation.”

Background

The appellant, an Army Officer with M.Tech qualification and the respondent, a faculty in the Government P G College, Tehri with Ph.d degree got married on 27.9.2006 and lived together for few months at Vishakhapatnam and at Ludhiana. But from the initial days of married life, differences cropped up and since 15.9.2007, the couple have lived apart.

In the divorce proceeding, the appellant pleaded that he was subjected to numerous malicious complaints by the respondent which have affected his career and loss of reputation, resulting in mental cruelty. On the other hand, the respondent in her case for restitution of conjugal rights contended that the husband without any reasonable cause had deserted her and accordingly she pleaded for direction to the appellant, for resumption of matrimonial life.

Family Court’s finding

The Family Court gave a finding that the respondent had failed to establish her allegation of adultery against the husband. Further, it was held that the respondent had subjected the appellant to mental cruelty with her complaints to the Army and other authorities. Consequently, the Court allowed the appellant’s suit for dissolution of marriage and simultaneously dismissed the respondent’s petition for restitution of conjugal rights.

High Court’s finding

In appeal, while the Uttarakhand High Court found that the wife did write to various authorities commenting on the appellant’s character and conduct, the Division Bench opined that those cannot be construed as cruelty since no court has concluded that those allegations were false or fabricated. According to the Court, the conduct of the parties against each other would at best be squabbles of ordinary middle class married life. Accordingly, the High Court set aside the decree for dissolution of marriage and allowed the respondent’s suit for restitution of conjugal rights, under the impugned judgment.

Husband’s case

It was argued that the respondent had filed a series of complaints against him before the superior officers in the Army upto the level of the Chief of Army Staff and to other authorities and these complaints have irreparably damaged his reputation and mental peace. He cannot therefore be compelled to resume matrimonial life with the respondent, in the face of such unfounded allegations and cruel treatment. Moreover, the couple have been separated since 15.9.2007 and after all these years, restitution would not be justified or feasible.

Wife’s case

It was argued that the wife wrote letters and filed complaints only to assert her legal right as the married wife of the appellant and those communications should therefore be understood as efforts made by the wife to preserve the marital relationship.

Supreme Court’s analysis and finding

What amounts to Mental Cruelty?

For considering dissolution of marriage at the instance of a spouse who allege mental cruelty, the result of such mental cruelty must be such that it is not possible to continue with the matrimonial relationship. In other words, the wronged party cannot be expected to condone such conduct and continue to live with his/her spouse.

“The degree of tolerance will vary from one couple to another and the Court will have to bear in mind the background, the level of education and also the status of the parties, in order to determine whether the cruelty alleged is sufficient to justify dissolution of marriage, at the instance of the wronged party.”

Whether wife’s conduct in the present case amounts to mental cruelty?

The respondent had made several defamatory complaints to the appellant’s superiors in the Army for which, a Court of inquiry was held by the Army authorities against the appellant. Primarily for those, the appellant’s career progress got affected. The Respondent was also making complaints to other authorities, such as, the State Commission for Women and has posted defamatory materials on other platforms. As a result, the appellant’s career and reputation had suffered.

“When the appellant has suffered adverse consequences in his life and career on account of the allegations made by the respondent, the legal consequences must follow and those cannot be prevented only because, no Court has determined that the allegations were false.”

The Court also found fault with the High Court’s approach in dealing with the issue. The High Court had, without any definite finding on the credibility of the wife’s allegation, held that the wronged spouse would be disentitled to relief.

The Court also noticed that the allegations are levelled by a highly educated spouse and they do have the propensity to irreparably damage the character and reputation of the appellant.

“When the reputation of the spouse is sullied amongst his colleagues, his superiors and the society at large, it would be difficult to expect condonation of such conduct by the affected party.”

Further, the explanation of the wife that she made those complaints in order to protect the matrimonial ties also would not justify the persistent effort made by her to undermine the dignity and reputation of the appellant.

The Court hence held that the High Court was in error in describing the broken relationship as normal wear and tear of middle class married life.

“It is a definite case of cruelty inflicted by the respondent against the appellant and as such enough justification is found to set aside the impugned judgment of the High Court and to restore the order passed by the Family Court.”

Hence, the appellant was held entitled to dissolution of his marriage and consequently the respondent’s application for restitution of conjugal rights was dismissed.

[Joydeep Majumdar v. Bharti Jaiswal Majumdar, 2021 SCC OnLine SC 146, decided on 26.02.2021]


*Judgment by: Justice Hrishikesh Roy

Know Thy Judge | Justice Hrishikesh Roy

Appearances before the Court by: 

For Appellant – Senior Advocate Gopal Sankaranarayanan

For respondent – Advocate Ahmad Ibrahim

Case BriefsHigh Courts

Bombay High Court: The Division bench of A.S. Chandurkar and Pushpa V. Ganediwala, JJ., upheld the family court’s finding that “the behaviour and the conduct of the husband of making wild and unsubstantiated allegations resulted in causing mental cruelty to the wife.”

Factual Matrix

Appellant and the respondent were married since 2008 and a child was born out of the said wedlock. Appellant and his family started ill-treating the respondent. Respondent was driven away from her matrimonial home, after all, her gold articles were taken away.

In view of the above, she proceeded to file a case under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights.

The above proceedings were however withdrawn and later, wife filed a petition seeking divorce on the grounds of cruelty and desertion. She alleged that the appellant and his family members were ill-treating the respondent physically and mentally. Respondent approached the Mahila Cell with her grievances and after understanding given to both the parties, they started residing together, but the same did not continue for long as the respondent found herself in an unsafe environment and proceeded to file the present proceedings.

Family Court held that the respondent had proved that the appellant was treating her with cruelty. Hence by the impugned judgment, the Family Court proceeded to pass a decree for divorce on the ground of cruelty. Being aggrieved the appellant has preferred this appeal.

Issue for Consideration:

Whether in the facts of the case the Family Court was justified in granting a divorce on the ground of cruelty?

Decision

Bench in view of the facts and circumstances found the Family Court’s decision to be justified.

“…making of unfounded allegations against the spouse or his/her relatives in the pleadings or making complaints with a view to affect the job of the spouse amounts to causing mental cruelty to the said spouse.”

Mental Cruelty: What led to it?

Court elaborated on the above point that the conduct of the husband of not pleading that the wife was suffering from epilepsy and stating the same for the first time in his deposition as well as making wild allegation that the wife and her relatives had secured false caste certificate without attempting to substantiate the said allegation resulted in causing mental cruelty to wife.

Bench also added regarding the husband’s conduct that, it appeared from his conduct in one or the other he intended to prejudice the service of the wife.

The impugned judgment was affirmed. [Thalraj v. Jyoti, 2021 SCC OnLine Bom 255, decided on 10-02-2021]


Advocates who appeared for the parties:

P.K. Mishra, Advocate for the appellant.

A.B. Bambal, Advocate for the respondent.

Case BriefsHigh Courts

Madras High Court: T. Raja and G. Chandrasekharan, JJ., addressed a matter wherein wife approaches the wife appealed against the family court’s decision of dissolving her marriage solemnised with the respondent, on grounds of cruelty.

Bhuvaneswari, wife of S.K. Jayakumar brought forth the instant appeal on being aggrieved by the decision of the family court, dissolving the marriage under Section 13(1)(i—a) of the Hindu Marriage Act, 1955 accepting the case of the respondent/husband that the appellant/wife caused mental cruelty under Section 13(1)(i—a) of the Hindu Marriage Act, 1955.

Analysis

High Court while deciding the matter observed that the wife made wrong statements before the Court blowing hot and cold. Further, it was also noted that once when the husband met with an accident and was an inpatient for 45 days, appellant or her family member refused to visit him which clearly implies that the wife miserably failed to show any iota of trust as a dutiful wife to her husband.

Another significant point was that after the decree of divorce by the husband was filed, nothing prevents the wife to move an application invoking Section 9 of the HMA for restitution of conjugal rights.

The above clearly describes that situation wherein the wife at no pint was showing any interest to resume or rejoin the matrimonial home.

Bench noted that the trial court rightly relied on the decision of the Division Bench of this Court in the case of Suguna v. Kubendiran, (2017) 1 CTC 695, wherein it was held that if the acts of the wife are of such quality or magnitude and consequence as to cause pain, agony and suffering on the husband, the same would amount to cruelty in matrimonial law for granting the decree of divorce. Supreme Court in its decision of Pankaj Mahajan v. Dimple, (2011) 12 SCC 1 has laid down several instances of cruelty.

In the present case, the husband has stated that the wife had been insulting his parents and quarrelling with him and abusing him every now and then. Besides she had been behaving in an abnormal manner, causing great mental cruelty to the respondent/husband.

Therefore, the Court stated that the facts and pleadings clearly show that the conduct of the wife towards her husband was substantiated and hence they started to live separately for more than 7 long years.

In view of the above chain of marital life, there is no possibility for the parties to unite, hence the decision passed by the trial court was correct and no infirmity was found. [Bhuvaneswari v. S.K. Jayakumar, 2021 SCC OnLine Mad 371, decided on 20-01-2021]


Advocates for the parties:

For Appellant: G. Saravanabhavan

For Respondent: S. Xavier Felix

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 BriefsSupreme Court

Supreme Court: In a case where the husband and wife both sought transfer of cases filed against by both of them against one another, the single judge bench of V. Ramasubramanian, J allowed the transfer petition filed by the wife and transferred the divorce case instituted by the husband in Pune to Delhi on ground wife having no independent source of income. The bench held that the phrase “the petition presented later” under Section 21-A(2)(b) of the Hindu Marriage Act, 1955 does not include a petition filed under Section 9 of the Act for restitution of conjugal rights.


Backstory


Both the parties got married to each other in November, 2015 and started living separately from January, 2019 as dispute arose between them. Soon after, in May 2019, the husband filed a petition for divorce before Family Court, Pune.

The wife filed a transfer petition in the first week of July, 2019, followed by a petition for restitution of conjugal rights before the Family Court, Saket, New Delhi on July 15, 2019. The husband then filed a petition seeking transfer of the petition for restitution of conjugal rights to Pune.

The wife sought transfer on the ground that she has no independent source of income and that since the husband is not even paying any maintenance, she is entitled to have the divorce petition transferred to the Family Court in New Delhi, so that the petition for divorce filed by the husband could be tried together with the petition for restitution of conjugal rights filed by her.

The husband, on the other hand, contended that his own petition for divorce was prior in point of time and that therefore under Section 21-A(2)(b) of the Hindu Marriage Act, 1955, the petition filed by the wife subsequently, is liable to be transferred to Pune. He also offered to bear the expenses for the travel of the wife from Delhi to Pune.

He, further, stated that his father is suffering from seizures and asthma and that his mother has undergone a cervical biopsy recently and that therefore it is not possible for him to leave his aged parents and travel to Delhi, for conducting the proceedings.


Analysis


The Court was of the opinion that the contention that under Section 21-A(2)(b) of the Hindu Marriage Act, 1955[1], a petition filed later in point of time should be transferred to the Court in which a petition under the Act had been filed prior in point of time, is misconceived.

Noticing that Sub¬section (2) of Section 21-A has no independent existence de hors Sub-section (1), the Court explained,

“Sub¬Section (1) of Section 21-A, deals with a situation where one party to a marriage has filed a petition either for judicial separation under Section 10 or for a decree of divorce under Section 13, before a District Court having jurisdiction and thereafter the other party to the marriage, files a petition either under Section 10 or under Section 13, before the same District Court or in a different District Court in the same State or in a different State.”

In the present case, the petition that was filed by the husband, first in point of time, was a petition for divorce and hence his case may fit into clause (a) of Sub-section (1) of section 21-A but,

“… what was filed by the wife later in point of time was only a petition under Section 9 and not a petition either under Section 10 or under Section 13 of the Hindu Marriage Act. Hence, the wife’s petition, though subsequent in point of time, does not fall under Clause (b) of Sub-section (1) of Section 21-A. As a consequence, Sub-section (1) of Section 21-A has no application to the case on hand, as the pre-conditions stipulated therein are not satisfied.”

On the offer made by the husband to meet the travel expenses for the wife, the Court said that the wife may have to travel a distance of more than 1000 km. every time and hence,

“When the contention that the wife is unemployed and her claim that no maintenance is paid, are not seriously disputed, the offer now made by the husband does not convince me.”

The Court, hence, directed the divorce petition from the Family Court, Pune to the Court of Principal Judge, Family Court, Saket, New Delhi and directed that it shall be tried together with the wife’s petition under Section 9 of the Act.

[Shruti Kaushal Bisht v. Kaushal R. Bisht, 2020 SCC OnLine SC 913, order dated 06.11.2020]


[1]21A. Power to transfer petitions in certain cases – 

(1) Where –

(a) a petition under this Act has been presented to a district court having jurisdiction by a party to a marriage praying for a decree for judicial separation under section 10 or for a decree of divorce under section 13; and

(b) another petition under this Act has been presented thereafter by the other party to the marriage praying for a decree for judicial separation under section 10 or for a decree of divorce under section 13 on any ground, whether in the same district court or in a different district court, in the same State or in a different State, the petitions shall be dealt with as specified in sub-section (2).

(2)  In a case where sub-section (1) applies, –

(a) if the petitions are presented to the same district court, both the petitions shall be tried and heard together by that district court;

(b) if the petitions are presented to different district courts, the petition presented later shall be transferred to the district court in which the earlier petition was presented and both the petitions shall be heard and disposed of together by the district court in which the earlier petition was presented.

(3) In a case where clause (b) of sub-section (2) applies, the court or the Government, as the case may be, competent under the Code of Civil Procedure, 1908 (5 of 1908), to transfer any suit or proceeding from the district court in which the later petition has been presented to the district court in which the earlier petition is pending, shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said Code.

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]