Case BriefsHigh Courts

Delhi High Court: A Division Bench of Hima Kohli and Subramonium Prasad, JJ., while observing a matrimonial application, observed that,

The plaint must be read as a whole to determine as to whether it discloses a cause of action.

In the instant matter, the husband/appellant sought to challenge the Order passed by Family Court dismissing an application filed by him under Order VII Rule 11(a) and (d) read with Order XIV Rule 2(2) of the Code of Civil Procedure.

Quick Glance — Fact of the Case

Husband and Wife had gotten married as per the Sikh rites and Hindu Vedic rites and ceremonies.

Appellant a US citizen had moved to that country with his parents in the year 1994. After the marriage, respondent/wife applied for permanent resident status.

Petition for Divorce

Appellant/husband and respondent/wife came to India with their child, while they were in India, respondent/wife filed a divorce petition under Section 13(1)(i–a) of the Hindu Marriage Act.

Husband/appellant on returning to USA alone filed for a divorce petition in Chicago, USA. He was granted an ex parte divorce on the ground of irretrievable breakdown of marriage.

Custody of Child

Appellant/Husband also approached the Circuit Court of Cook County, Illinois, USA for the custody of the child which was granted to him ex parte.

Writ of Habeas Corpus

Further, the appellant/husband had filed a writ petition in Delhi High Court for issuance of a writ of habeas corpus for the production and custody of the minor child.

On being aggrieved with the above, wife approached the Supreme Court which was allowed with directions to the parties to appear before the Family Court for the decision in regard to the custody of a minor child.

Order VII Rule 11 CPC

Appellant/Husband had moved an application under Order VII Rule 11 CPC for seeking rejection of the said petition on the plea that the provisions of the Act would apply to persons who are outside the territory of India only if they are domiciled in India.

Since the husband/appellant was domiciled in USA, only the wife/respondent was domiciled in India, the Act is not applicable to them.

Pre-Nuptial Agreement

Husband also contended that prior to their marriage, they had entered into a pre-nuptial agreement, hence they will be governed under that.

Family Court had dismissed the application filed by the appellant/husband under Order VII Rule 11 CPC and stated that appellant/husband cannot be allowed to selectively refer to the pleadings of the respondent/wife.

Further, the family court held that it is for the Court to determine as to whether the facts of a case conclusively establish that the respondent/wife had acquired US Domicile, Family Court rejected the stand of the appellant/husband that the divorce petition filed by the respondent/wife is barred by law.

Counsel for the appellant/husband Prabhjit Jauhar and Malvika Rajkotia, Counsel for the respondent/wife.

Analysis & Decision

A meaningful reading of the entire plaint must be conducted for the court to satisfy itself as to whether the averments made therein if taken to be correct in their entirety, would result in a decree being passed.

For the above-stated position, several Supreme Court’s Decisions were relied on including  in T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467,

Popat and Kotecha Property v. State Bank of India Staff Assn., (2005) 7 SCC 510:

There cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint.

Hardesh Ores (P) Ltd. v. Hede & Company, (2007) 5 SCC 614:

The averments made in the plaint as a whole have to be seen to find out whether Clause (d) of Rule 11 of Order VII is applicable. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense.

Court in view of the above observed that,

A plaint cannot be rejected on the basis of allegations levelled by the defendant in the written statement or for that matter, in an application moved under Order VII Rule 11 CPC.

The Court must be mindful of the underlying object of Order VII Rule 11 CPC which is to nip in the bud, irresponsible and vexatious suits.

In the instant matter, it has to be determined as to whether the divorce petition filed by the respondent/wife deserves to be rejected or not.

Section 19 of the Hindu Marriage Act offers multiple options as to the local District Court where a Divorce petition can be presented. It includes the place where the marriage of the parties was solemnized or where the respondent resides at the time of presentation of the petition or in case the wife is the petitioner, where she is residing on the date of presentation of the petition or where the petitioner is residing at the time of presentation of a petition in a case where the respondent at that relevant point in time, is residing outside the territories to which the Act extends, as contemplated in Section 1(2).

The Supreme Court decision in Neeraja Saraph v. Jayant V. Saraph, (1994) 6 SCC 461, brought the need for legislation to protect spouses who had been deserted outside the country, wherein the issue that was highlighted was to protect the rights of women deserted by NRI husbands and faced decrees of the annulment of marriage from foreign courts.

Concept of ‘Resident’ and ‘Domicile’:

Union of India v. Dudh Nath Prasad, (2000) 2 SCC 20:

“27. ………..The classical division of domicile is well known. There are the domicile of origin, the domicile of choice and the domicile of dependence. There has been little change in the essential concept of these three domiciles…

28. In view of the above, the concept of “domicile” as canvassed by learned counsel for the appellants with reference to change of nationality or change of domicile from one country to another, cannot be imported in the present case. Moreover, “Domicile” and “Residence” are relative concepts and have to be understood in the context in which they are used, having regard to the nature and purpose of the statute in which these words are used.

(emphasis supplied)

Bench stated that under Order VII Rule 11, CPC, the court can only scrutinize the contents of the plaint taken as a whole but it cannot consider the evidence, if any, or the pleas taken in the written statement.

In the instant matter, the respondent/wife categorically stated in her petition that she wanted to reside in India. After the amendment to the Act in the year 2003 and on insertion of sub-clause (iiia) in Section 19, it cannot be said that Family Courts in Delhi are not vested with the jurisdiction to try and entertain the divorce petition filed by the respondent/wife.

High Court held that the appellant/husband cannot raise an objection to the respondent/wife initiating proceedings of divorce in India under the provisions of the Act only because he is a US citizen and domiciled in the USA.

In the instant case, the respondent/wife remains a citizen of India and therefore, is a domicile of India for all intents and purposes. She has chosen to approach the courts in India for obtaining a decree for divorce.

Divorce petition filed by the respondent/wife read as a whole, does disclose a valid cause of action that can be entertained by the Family Court in India.

No infirmity was found in the impugned judgment. [Karan Goel v. Kanika Goel, 2020 SCC OnLine Del 1319, decided on 12-10-2020]

Case BriefsHigh Courts

Bombay High Court: A.S. Kilor, J., held that contravention of the provision of Section 15 of the Hindu Marriage Act, 1955 does not amount to willful disobedience of ‘other process of a Court’ under the provisions of the Contempt of Court Act, 1971.

Willful Disobedience

The petitioner sought action under Section 12(3) of the Contempt of Court Act, 1971 against the respondent for alleged willful disobedience of ‘other process of a Court’ by performing marriage in contravention of the provision of Section 15 of the Hindu Marriage Act, 1955.

Facts 

Respondent preferred a petition under Section 13 of the Act, 1955 against the petitioner for dissolution of marriage on the ground of cruelty and desertion.

Civil Judge had dismissed the petition holding that the respondent failed to prove cruelty and desertion.

Decree of Divorce

The respondent questioned the Judgment and decree which was allowed and thereby declared the marriage between the petitioner and respondent stands dissolved by a decree of divorce.

Petitioner filed the second appeal which is pending before the Court.

While the appeal was in pendency, the contempt petition had been filed alleging that the respondent had performed second marriage in contravention of the mandate of the provision of Section 15 of the Act, 1995 which is willful disobedience of ‘other process of a Court’ as provided by Section 1(b) of the Act, 1971.

Counsel for the petitioner, T.G. Bansod and S.S. Jagtap Counsel for the respondent.

Bench considered the following questions:

“(i) Whether the performance of second marriage by the respondent on 20-03-2016 during the pendency of appeal is unlawful in view of prohibition stipulated under Section 15 of the Act, 1955, and if yes ?

(ii) Whether contravention of Section 15 of the Act, 1955 amounts to willful disobedience of ‘other process of a Court’ as provided in Section 2(b) of the Act of 1971 ?”

Court referred to Section 15 of the Hindu Marriage Act, 1955, which reads as follows:

“Divorced persons when may marry again — When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.”

High Court noted that the respondent ignored the prohibition and performed the second marriage under an incapacity to marry, stipulated under Section 15 of the Act, 1955.

Ejusdem Generis

Further, to find out the import of the expression ‘other process of a court’ which is a general term, the principle of Ejusdem Generis would be helpful to apply, in the present matter.

Civil Contempt — Section 2(b) of the Contempt Act, 1971

“Civil contempt means willful disobedience to any judgments, decree, direction, order, writ or other process of a Court or willful breach of an undertaking given to a Court.”

The expression ‘willful disobedience of process of a Court’ used under Section 2 (b) of the Act, 1971, must also be related to the disobedience of some command issued by the Court during the process of a Court which includes various stages between the filing of any proceeding to a final decision by the Court.

Bench stated that at any stretch of imagination it cannot be said that contravention of the provision of Section 15, amounts to willful disobedience of ‘other process of a Court’ under the provisions of the Act, 1971.

High Court in view of the above held that during the pendency of the appeal, the performance of second marriage would be a breach of prohibition stipulated under Section 15 of the Act, 1955, but in any case, it would not amount to disobedience of any command of the Court consequently such act would not fall within the ambit of the expression ‘willful disobedience of other process of a Court’ under Clause (b) of Section 2 of the Act, 1971.

No Civil Contempt

In view of the observations laid above, Court stated that the second marriage performed by the respondent in contravention of Section 15 of the Act, 1955 would not fall within the purview of clause (b) of Section 2 of the Act, 1971 and hence no civil contempt has been committed.

Accordingly, the contempt petition was dismissed. [Kanchan v. Prashant Manikrao Bagade, 2020 SCC OnLine Bom 911, decided on 08-09-2020]

Case BriefsHigh Courts

Jharkhand High Court: A Division Bench of H.C. Mishra and Rajesh Kumar JJ., rejected the prayer and dismissed the appeal being devoid of merit.

The facts of the case are such that marriage of the appellant and his wife was solemnized in the year 2007 as per Hindu rites and rituals in the presence of all family friends and relatives and two children are born out of the wedlock. The appellant alleged that wife has been living separately and on numerous incidents caused mental agony to the appellant. He has further alleged in the appeal that the acts of the wife amount to cruelty and desertion of the wife. A suit was filed by the husband for divorce under Section 13 of the Hindu Marriage Act, 1955 on grounds of cruelty, desertion and mental incapacity of the respondent-wife. The Trial Court decided the matter in favour of the wife and aggrieved by the same, the instant appeal was filed challenging the same order.

The appellant represented himself in person and submitted that the wife behaved psychic and rudely and treated him and his parents with utmost cruelty. He cited various incidents to support his argument along with two witnesses, one himself and his mother, namely, Kaushalya Devi but did not produce any documentary evidence.

Counsel Sujeet Neepulam representing the respondent-wife denied allegations of cruelty, desertion and mental illness and submitted further that her actions of leaving home and staying with parents are not willful as the appellant and his family were demanding dowry, refusing which she was ousted from the marital home and brought back and ousted again on many occasions. Four witnesses, namely, Ashok Saw, Naresh Saw, Praveen Kumar and herself were examined to support her argument alongwith documentary evidence i.e. a mutual divorce application dated 13-07-2009 sent by the husband to wife after signing, a letter dated 30-07-2010 to her father giving threat, copy of an FIR instituted by the respondent-wife under Section 498 A of Penal Code, 1860 and Section 3/4 of the Dowry Prohibition Act, 1961  compromise copy after the appellant was arrested subsequent to the filing of FIR and other pertinent documents to support her plea. It was further submitted that the respondent is still willing to lead a respectable conjugal life with her husband, but the husband is not willing to keep her.

The Court observed that appellant was unable to present any substantial evidence except oral evidence of his and his mother whereas the respondent-wife presented various documentary proofs which demolish the case of cruelty from her side instead makes it clear by looking at the mutual divorce application and a written letter of threat to her father or the fact that she compromised to secure bail for the petitioner is enough to indicate the willingness of the respondent-wife to resume the respectable conjugal life with the appellant.

The court relied on judgments titled Jorden Diengdeh v. S.S. Chopra, (1985) 3 SCC 62 and Kaslefsky v. Kaslefsky [1951] P. 38 and held that any husband desirous to get rid of his wife may get desired result by driving out his wife from matrimonial home by force or creating a situation and thereafter taking plea of desertion for more than two years. The law is clear that if one of the parties to the matrimonial home, voluntary and without any plausible explanation has left the matrimonial home giving no option to the other party, then it amounts to desertion. Desertion is a willful and voluntary act by the party to leave something without any rational reason. In the present case, the husband is at fault and this is the reason for separate living of both the parties. Hence, the argument that living separately itself is sufficient in the eyes of law for granting the divorce is not acceptable.

In view of the above, decree for divorce rejected and appeal dismissed.[Sanjay Kumar v. Suman Kumari, 2020 SCC OnLine Jhar 773, decided on 08-09-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Ravi Malimath and Narayan Singh Dhanik, JJ., allowed an appeal which was filed aggrieved by the order passed by the trial court in ordering the medical examination of the wife.

The respondent-wife was alleged to have committed various acts of cruelty; that she had also deserted her husband, therefore, he filed the petition before the Family Court under Sections 13 (ia) and 13 (ib) of the Hindu Marriage Act, 1955. During the pendency of the proceedings, on an application made by the husband, the impugned order was passed by the trial court directing the medical examination of the wife to ascertain whether she was in a position to conceive or not. Thus, the present appeal.

The Counsel for the appellant wife, Harshpal Sekhon contended that wife undergoing a medical test to ascertain whether she can conceive or not is something unheard of and further whether she can conceive or not is irrelevant to the facts and circumstances of the case.

The Court while allowing the appeal quashed the Family Court’s Order and  stated that husband had sought for a decree of divorce on the grounds under Sections 13 (ia) and 13 (ib) of the Hindu Marriage Act, 1955. Section 13 (ia) is with regard to cruelty and Section 13 (ib) is with regard to desertion. Therefore, the husband would have to establish these two facts before the court in order to seek divorce on these grounds. The ability of the wife to conceive or not has no relevance or any nexus with sub-section (ia) or (ib) of Section 13 of the Hindu Marriage Act. Her ability to conceive or not is irrelevant in the present proceedings. [Rashmi Gupta v. Yogesh Babu, 2020 SCC OnLine Utt 339 , decided on 01-07-2020]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Hima Kohli and Asha Menon, JJ., while addressing a matrimonial application stated that,

“Marriage is no doubt a sacrament, but it cannot be a one sided affair.”

Present appeal has been preferred against the Judgment of Family Court wherein the marriage between the appellant/respondent and respondent/petitioner was dissolved as the same was sought on grounds of cruelty and desertion within the meaning of Section 13(1)(i–a) and (i–b) of Hindu Marriage Act.

Facts

Respondent/Petitioner alleged that the conduct of the appellant/respondent was extremely cruel and he possessed a callous and indifferent attitude since the initial years of marriage.

It was also discovered that he had many personality and behavioural problems, wife time and again tried to cope up with husband’s shortcomings an tried to help him acquire stability and status in life, many times forgiving his violence.

On repeated occasions, she found to her consternation, that the appellant/respondent made no effort to either settle down in his job or contribute to the household including taking care of their child’s educational needs.

Things reached a breaking point when despite the request of the respondent/petitioner not to invite his parents to their transit accommodation at Jawahar Lal Nehru University which had limited space and to request them to stay with his sister who was residing in Gurgaon, the appellant/respondent threw a tantrum and left the house in October 2011 without understanding that the reason for the said request was only the pre- board exams of their daughter.

Premised on the above-stated facts, respondent/petitioner filed for divorce.

Appellant/respondent preferred the present appeal on the ground that the petition for divorce has been filed by the respondent/petitioner after nearly 20 years of the marriage and therefore, it ought to have been dismissed.

Counsel for the appellant contended that, language used by respondent/petitioner in her letters does not demonstrates any hard feelings between the couple and thus the story of cruelty was just a figments of imagination of respondent/petitioner on which marriage could not have been dissolved.

Analysis and Decision

A drowning man clutching on to a straw

It is quite evident from the letters written by the respondent/petitioner that while she was doing her very best to preserve the marriage, there was no reciprocation from the appellant/respondent.

“I have been writing to you every week regularly. There is no reply from you? I have left 4-5 inlands in our room letter holder. Pick one of them and write back soon.” In the letter dated 29.07.2000, once again, it starts “how are you? There is yet no letter from you.” Therefore, to submit that these letters disclose a ‘happy family’ scenario, is to blink at the truth.

Bench while noting the log list of instances of cruelty, stated that,

repeated onslaught on her emotions even subsequent to these instances took a toll on the physical and mental health of the respondent/petitioner.

All the relevant events that have continuously occurred in the lives of the parties, reflect a one sided relationship where the appellant/respondent took everything for granted, with no sense of responsibility, while the entire burden of trying to keep the marriage alive was left for the respondent/petitioner to shoulder.

Court also added that, this is a typical case that showcases as to what would amount to cruel behaviour on the part of one spouse to the utter detriment of the other.

Material on record goes to amply demonstrate the sincere efforts made by the respondent/petitioner to salvage the marriage and show that she did more than what was her duty, to preserve it.

Thus in light of the above observations, Family Court’s decision is upheld. [Venkatesh Narasimhan v. V. Sujatha, 2020 SCC OnLine Del 571 , decided on 01-05-2020]

Case BriefsHigh Courts

Karnataka High Court: Alok Aradhe, J. admitted the petitions under Article 227 of the Constitution of India for quashment of the order of the Judge of the Principal Family Court, Bengaluru.

In the instant case, parties got married on 29.05.1998 as per Hindu rites. The petitioner – husband sought for dissolution of marriage under Section 13 of the Hindu Marriage Act, 1955 whereas respondent-wife for restitution of conjugal rights under Section 9.

These petitions are pending before the Principal Judge, Family Court.

In respect of the proceeding under Section 13 of the Act, the Family Court granted maintenance of Rs 8,000 per month and Rs 20,000 for litigation expenses by an order on 16.10.2017. Without taking note of the order already passed, the same Court passed an order on 05.12.2017 under Section 9 of the Act and again awarded a sum of Rs 8,000 towards maintenance and Rs 10,000 towards one-time litigation expenses.

The Court after hearing H. Ramachandra, Counsel for the petitioner and Adithya Kumar H.R. for the respondent observed that the Family Court did not take note of its earlier order before passing the order on 05.12.2017. Therefore, the order passed on 05.12.2017 cannot be sustained in the eyes of law.

The Court further directed the Family Court to decide the respondent’s application afresh.

Moreover, the Court observed that the provisions in Karnataka (Case Flow Management in Subordinate Court) Rules, 2005 provide that matrimonial disputes should be decided within one year. The proceeding under Section 13 of the Act was initiated in the year 2014. Therefore, the Court directed the Family Court to expeditiously conclude the proceedings within four months of the order of this Court. [Chandrashekar v. Shylaja, 2019 SCC OnLine Kar 1828, decided on 12-09-2019]