Case BriefsHigh Courts

Delhi High Court: While addressing an issue of non-compliance of Court’s order with regard to paying maintenance to wife, Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., held that,

The actions/ omissions of the Respondent in choosing to show complete disregard to the orders of the Court cannot be countenanced. If such action is permitted, it will lead to anarchy and the Rule of Law would become a casualty. The orders of the Courts would be taken lightly and breached at the own sweet will of the individual concerned.

Instant contempt petition was filed under Sections 10,11 and 12 of the Contempt of Courts Act, 1971 alleging contempt of order passed by the family court and another order passed by this Court.

Background

Respondent had filed a divorce petition under Section 13(1)(ia) and (ib) of the Hindu Marriage Act and the said petition was still pending adjudication.

Further, the petitioner filed an application under Section 24 of the Hindu Marriage Act, 1955 alongwith her financial affidavit seeking interim maintenance pendente lite at the rate of Rs 1,02,000 per month and a sum of Rs 1,00,000 towards litigation expenses. In addition to this, the petitioner claimed a sum of Rs 2,50,000 towards furnishing the individual household and an independent car.

The above-stated application of the petitioner was allowed.

Respondent failed to comply with family court’s direction with respect to interim maintenance, after which the petitioner preferred the present contempt case.

On being sent notice, the respondent was given two weeks’ time to file a reply to make a full and complete disclosure of his income and expenditure in the last 12 months from all sources.

Respondent was asked to be present in Court, but he made excuses for his absence.

This Court on noting the violations, found the respondent guilty of contempt, and issued show cause notice to him requiring him to show cause why he should not be punished. Hence, he was directed to file an affidavit making a complete and full disclosure of his bank accounts including those highlighted by the petitioner having not been disclosed.

Respondent submitted that he had taken a home loan for his father amounting to Rs 1 Crore and 50 lakhs in his own name and another one for a sum of Rs 1 Crore on his father’s. It was stated that the said loan amounts were entirely repaid by his father through his own personal funds and through his personal bank accounts.

The respondent has also stated that he has outstanding loan liability of Rs 8 lakhs (approx.) to be repaid to various banks and has also stated to have a balance of Rs 1,10,000/- (Rupees One Lakh and Ten Thousand only) cumulatively in all his bank accounts.

Bench took note of the stand of the respondent/his father – that he/his father were not obliged to disclose their bank accounts statements from which such large amounts of the loan – taken by the respondent, had been repaid.

Analysis, Law and Decision

Bench cited the Supreme Court decision in T. Sudhakar Prasad v Govt. of A.P., (2001) 1 SCC 516 wherein it was held that the powers of contempt are inherent in nature. The Supreme Court and the High Courts are courts of record and by virtue of being courts of record have inherent jurisdiction to punish for contempt of themselves, and the provisions of the Constitution Article 129 and Article 215 only recognise the said pre-existing situations. The Supreme Court has also made similar observations in Supreme Court Bar Association v. Union of India, (1998) 4 SCC 409 and recently in Suraz India Trust v. Union of India, 2021 SCC OnLine SC 833.

In the present matter, respondent stubbornly and obstinately refused to comply with the orders of the Court on a completely false premise of his financial inability, Despite the Court’s repeated orders, he failed to make a clean breast of all his accounts, incomes and expenditures.

Loan document from Citi bank, in which the respondent was shown as to be the applicant and his father to be the co-applicant, and another loan document from the Axis Bank, disclosed that the loan had been taken on the behalf of the father of the respondent.

There was no document on record to rebut the presumption that the loan was primarily taken by the respondent and therefore, he repaid the same.

“…in the past transactions disclosed by the respondent, he claims to have advanced large amounts of loans to his parents. Thus, it cannot be accepted that his father had repaid the loans taken by him from the above two banks. He has flatly refused to place on record the bank account details of himself/ his father to substantiate his plea that his father had repaid these loans from his own resources.”

Therefore, it was concluded that the respondent acquired the properties with his own funds with a view to evade his liability towards the petitioner and used the name of his father.

Respondent had chosen to give precedence to his business over the compliance with the orders passed by the family court as well as this Court.

Hence, in Court’s opinion, the respondent suppressed his true income to evade compliance with the orders requiring him to pay maintenance to the petitioner of entire arrears of maintenance.

The judiciary as an institution has garnered faith of the common masses as a trusted institution only because judicial orders are enforced, in an appropriate case, even at the pain of contempt. The faith posed by the people in the judiciary has to be protected in the interest of society, and also to meet the ends of justice.

 Contempt of Court

 If there is wilful disobedience to any judgment, decree direction, order writ or other process of a court, or wilful breach of undertaking given to the court, the contempt court shall take note of such violation, that needs to be punished. The wilful disobedience by the contemnor undermines the dignity and authority of the Courts and outrages the majesty of law.

Therefore, the Bench imposed a fine of Rs 2,000 along with simple imprisonment for a term of 3 months. [Sonali Bhatia v. Abhivansh Narang, 2021 SCC OnLine Del 5114, decided on 25-11-2021]


Advocates before the Court:

For the Petitioner:

Ms Priya Hingorani, Senior Advocate with Mr Himanshu Yadav & Mr Anirudh Jamwal, Advs.

For the Respondent:

Respondent-in-person

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., reiterated the law relating to the territorial jurisdiction of the court to entertain a petition under Section 125 CrPC.

Instant petition was directed against the decision of Family Court wherein it dismissed the application filed by the petitioner husband under Section 126 CrPC stating that based on the documents submitted by the respondent wife, she is presumably staying in Delhi, and therefore, the jurisdiction for purposes of maintenance under Section 125 CrPC would be Delhi. The petitioner stated that the matrimonial home was in fact in Faridabad.

Analysis, Law and Decision

Section 125 of the Code of Criminal Procedure pertains to the Maintenance that is to be given by a man to their wife, parents and children in order for them to sustain themselves.

It is a tool for social justice enacted to ensure that women and children are protected from a life of potential vagrancy and destitution.

The Supreme Court has consistently upheld that the conceptualisation of Section 125 was meant to ameliorate the financial suffering of a woman who had left her matrimonial home; it is a means to secure the woman’s sustenance, along with that of the children, if any.

The statutory provision entails that if the husband has sufficient means, he is obligated to maintain his wife and children, and not shirk away from his moral and familial responsibilities.

In the Supreme Court decision of Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353, Supreme Court examined the underlying purpose as well as the social context of Section 125 of the Code.

Further, while deciding the matter of maintenance, it is important for the Court to bear in mind that technicalities such as jurisdiction should not impede the object that is sought to be achieved by a provision such as Section 125 CrPC which is essentially social welfare legislation.

The Bench stated that the Principal Judge carefully analysed the material on record before coming to the conclusion that territorial jurisdiction of the Court can be conferred in the case which has been instituted by the respondent/wife.

Adding to the above, Court noted that as per Section 126 CrPC, proceedings under Section 125 CrPC may be instituted against any person in any district where he is, or where he or his wife resides, or where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.

Lastly, while concluding the matter, High Court expressed that as per the impugned Order herein, the fact that the parents of the Respondent/wife have two houses, i.e. one in Faridabad and the other in Vasant Kunj, Delhi, can only mean that territorial jurisdiction can be conferred in both Faridabad as well as Delhi.

Hence, the Court opined that the decision of Principal Judge was well-reasoned and there was no legal infirmity in the same. [Shikhar Goel v. Robina Kaushik, 2021 SCC OnLine Del 4989, decided on 16-11-2021]


Advocates before the Court:

For the Petitioner: Roma Bhagat, Advocate along with petitioner-in person

For the Respondent: None

Case BriefsHigh Courts

Delhi High Court: While addressing a matrimonial matter wherein a wife caused cruelty to husband, Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., expressed that,

For a man to see his parents to be taken into custody and being incarcerated even for a single day would have caused immense and untold pain and agony to him.

Instant appeal under Section 19 of the Family Courts Act was directed against the Judgment and Decree. The said petition was preferred by the respondent/husband against the appellant/wife to seek a decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955 on the ground that he was subjected to cruelty.

Due to certain disputes between the husband and wife, the appellant filed the complaint against the respondent and his parents which resulted in the registration of the FIR under Sections 498A, 406, 323, 34 IPC.

Serious allegations of criminal conduct made against the respondent and his parents were not proved by the appellant. Premised on the said conduct of the appellant, Family Court returned a finding that the respondent was subjected to mental cruelty. Consequently, the decree of divorce was passed in favour of the respondent and against the appellant.

Counsel for the appellant submitted that when the respondent and his parents applied for bail, the same was not opposed by the appellant. The appellant had also filed a petition to seek restitution of conjugal rights under Section 9 of the HMA.

Analysis, Law and Decision

High Court opined that merely because the appellant may not have opposed the bail application moved by the respondent and his parents was not sufficient to effect the irresponsible conduct of the appellant.

Mere fact that wife made serious allegations of criminal conduct against the husband and his parents – which she could not establish before the Court, was sufficient to constitute acts of cruelty against the husband.

 In view of the above, how can the husband be expected to allow the wife into his life in these circumstances?

Court found no merit in the present appeal and dismissed the same. [Neelam v. Jai Singh, Mat. App. (FC) No. 106 of 2021, decided on 9-11-2021]


Advocates before the Court:

For the Appellant:

Inderpal Khokhar, Advocate

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., noted in a matrimonial matter that the wife was being viewed as a cash cow and the husband became interested in her only after she got a job with Delhi Police.

Instant appeal was directed against the decision of lower court preferred by the appellant wife against the respondent-husband under Section 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act, 1955 to seek a decree of divorce.

On finding no grounds of cruelty or desertion, the family court dismissed the divorce petition established by the appellant-wife.

At the time of marriage, the appellant was minor, whereas the respondent was 19 years old. Since the time of marriage till the time she secured a job, she was residing at her parental home. Respondent showed no interest in taking the appellant till the time she secured a job.

Appellants started living with the respondent and experienced that he was unemployed and was an alcoholic, he even used to physically abuse the appellant and demanded money from her. Further, she stated that the respondent and his family were only interested in her salary.

Adding to the above, she stated that since she was subjected to physical and verbal abuse, and she was also finding it difficult to balance her work and family life with an abusive, alcoholic, and demanding husband, the relationship between the parties sored, and the appellant was kicked out from her matrimonial home.

For the above-stated reasons, the appellant had preferred the divorce petition.

Analysis, Law and Decision

High Court on making certain queries noted that the respondents claim that he had funded the education of the appellant and it was on account of the fact that the appellant got educated and found a job in Delhi Police, so what will happen to the amounts spent by him.

Further in Court’s opinion, the respondent was absolutely clear that the respondent only wanted to continue with the relationship on account of the fact that the appellant had a job with Delhi Police, and he viewed the alleged expenditure on the wife as an investment, which would not bear fruit in case parties were to part ways with judicial intervention.

“…respondent is primarily eyeing the income of the respondent which she derives on account of her job from Delhi Police.”

The continued distance between the parties even after the appellant attained majority would, in itself, have caused trauma and resulted in cruelty to the appellant apart from everything else.

Bench expressed that the brazenly materialistic attitude of the respondent, with no emotional ties, would have in itself caused mental agony and trauma to the appellant sufficient to constitute cruelty to her. Court cannot ignore, that generally, it is the desire of every married woman – particularly belonging to the economic strata to which the parties belong, to get married and start a family.

In the present case, the husband was only interested in the income of the wife and not in nurturing the marriage.

In matrimonial matters, the quality and quantity of evidence required to accept the plea by one or the other party, cannot be same as that required in criminal proceedings.

Elaborating further, the Court expressed that the standard of proof in matrimonial proceedings is founded upon the preponderance of probabilities, and not upon a fact being established beyond all reasonable doubts. Looking at the overall circumstances, Court decided that the appellant was able to establish the ground of cruelty and desertion.

Hence, the Court opined that there is a clear case of perpetration of mental cruelty against the respondent and hence the marriage of the parties be dissolved by a decree of divorce under Section 13(1)(ia) of the HMA. [Sanno Kumari v. Krishan Kumar, 2021 SCC OnLine Del 4914, decided on 28-10-2021]


Advocates before the Court:

For the appellant: Pranaynath Jha, Advocate along with appellant in person.

For the respondent: Jitender Ratta, Advocate along with respondent in person.

Case BriefsDistrict Court

Family Court Pune: M.R. Kale, J., granted a decree of divorce by mutual consent to a couple who due to difference of opinion and incompatibility of their temperament could not live together.

Instant petition was filed for dissolving the marriage by a decree of divorce by mutual consent under Section 28 of the Special Marriage Act, 1954.

The petition was filed through petitioners’ power of attorney holders.

Due to the differences of opinion and incompatibility of temperament, both the petitioners have not been able to live together as husband and wife, and hence, they started residing separately. Efforts for reconciliation were made but they failed, hence the petition for divorce by mutual consent was filed jointly and voluntarily.

Whether the present case is fit for granting a decree of divorce under Section 28 of the Special Marriage Act, 1954?

Analysis, Law and Decision

Instant petition was filed by the power of attorney holders of petitioners 1 and 2, six months after filing of the petition.

Petition was filed by power of attorney holders of petitioners 1 and 2 which means the 6-months period was over after filing the petition.

Petitioner 1 had file affidavit which was duly attested before Notary Public, Birmingham as she was residing in England. Petitioner’s advocate filed an application for video conferencing of petitioner 1 as she stayed in England which was allowed.

Affidavit of petitioner 1 was verified through video conferencing. She had been identified by her husband. In support of their statement, petitioner 2 had filed his affidavit in person. Court inquired with petitioner 2 through video conferencing as he stayed at Ahmedabad, Gujarat. It seemed that both petitioners were living separately since last more than one year prior to the presentation of the present petition. Hence. There was no bar to allowing the present petition under the provisions of law.

Court through video conferencing inquired with petitioner 1 about maintenance and immovable properties.

No claim was pending amongst the parties.

Both the petitioners have mentioned in their respective affidavits that they cannot live together and their consent for divorce is voluntary.

Power of attorney holder of petitioners 1 and 2 submitted a copy of the certificate of marriage and copies of their Aadhar card to prove that marriage is solemnized.

Lastly, the High Court concluded by stating that it was evident that due to difference of opinion and incompatibility of their temperament husband and wife cannot live together and there cannot be a happy married life between the petitioners.

Therefore, they were entitled to a decree of divorce by mutual consent. [A v. B, Petition No. F – 675 of 2021, decided on 11-10-2021]


Advocate for petitioners 1 and 2: Mayur and Ajinkya Salunke

Case BriefsHigh Courts

Rajasthan High Court: Chandra Kumar Songara J. allowed the petition of the wife-petitioner on the grounds of having a child, no source of income and residing with her parents.

The instant transfer application was filed under Section 24 of the Code of Civil Procedure, 1908 i.e. CPC on behalf of the petitioner wife seeking transfer of the Divorce Petition No.39/2020 filed under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘HMA1955’) by the respondent-husband from the Court of Additional District Judge, Kekri District Ajmer to the Family Court situated at Kota.

The Court observed that In the present case, the petitioner-wife is residing in Kota at her parental house. The petitioner-wife has a daughter, namely Vaidehi from her first husband. Presently, she is six years old and is being taken care of by the petitioner alone. The petitioner is a house-wife and she is not employed anywhere and has no source of income. The Kekri Court in Ajmer District is at a distance of more than 100 kms. from Kota. The daughter of petitioner is about six years old and parents of petitioner are too old.

The Court relied on judgments Sumita Singh v. Kumar Sanjay, AIR 2002 SC 396 and Rajani Kishor Pardeshi v. Kishor Babulal Pardeshi (2005) 12 SCC 237  and observed that while going into the merits of a transfer application, Courts are required to give more weightage and consideration to the convenience of the female litigants, and transfer of legal proceedings from one Court to another should ordinarily be allowed taking into consideration their convenience and the Courts should desist from putting female litigants under undue hardships. In such type of matters, the convenience of the wife is to be preferred over the convenience of the husband.

The Court thus held “the present transfer application filed by the petitioner-wife is allowed and case bearing No.39/2020 titled as Rajendra Prasad Sharma Vs. Smt. Ekta Dhadhich pending before the Court of Additional District Judge, Kekri District Ajmer is ordered to be transferred to the Family Court, No.1, Kota.”

[Ekta Dhadhich v. Rajendra Prasad Sharma, S.B. Civil Transfer Application No. 72/2021, decided on 30-09-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances

For Petitioner(s): Mr. Abhishek Bhardwaj

For Respondent(s): Mr. Arnav Singh

Case BriefsHigh Courts

Bombay High Court: Convicting a person under Section 304 Part I of Penal Code, 1860 Division Bench of Sadhana S. Jadhav and Sarang V. Kotwal, JJ., held that,

On finding that there was no hope that his beloved wife would return to matrimonial abode, accused got enraged an lost self-control and assaulted his wife with whatever available just nearby.

Appellant was convicted for the offence under Section 302 of the Penal Code, 1860.

Factual Matrix

Appellant was married to the deceased Kamal in 2002, in 2015 PW 4 sister of Kamal lodged a report alleging that her sister had disclosed to her that her husband suspected her chastity and was harassing and ill-treating her.

Later, accused had called upon PW4 and enquired about the whereabout of his wife, however, PW4 had feigned ignorance about the whereabouts of Kamal and then a missing complaint was filed by him.

It was also stated that Kamal had refused to return her matrimonial abode and thereafter, she was assaulted by the accused with pestle.

Analysis, Law and Decision

Bench noted that the present case of the prosecution was that the accused was insisting upon his wife to return to her rightful matrimonial abode with a hope that the crises would be ironed. Though the deceased denied the offer. 

It was as if, there was no hope for the accused that his beloved wife would return with him and being enraged and deprived of self-control, had assaulted his wife with whatever available just nearby.

In view of the above, Court stated that it would be necessary to read the mind of the offender and not consider the offence devoid of emotions.

Therefore, the accused would fall under Section 304 Part I of the Penal Code, 1860 and accused deserved to be acquitted of offence punishable under Section 302 IPC.

Appeal was disposed of accordingly. [Ankush Krishna Chavan v. State of Maharashtra, 2021 SCC OnLine Bom 3022, decided on 22-09-2021]


Advocates before the Court:

Mr Lokesh Zade, Court Appointed advocate for appellant.

Ms G.P. Mulekar, APP for State.

Case BriefsHigh Courts

Bombay High Court: Addressing a matter pertaining to the widow’s right of inheritance on the property of the deceased husband, S.M. Modak, J., observed that,

Both wife and mother will have an equal share in light of Section 24 of the Hindu Succession Act, which was in existence at the time of the dispute.

Substantial Question of Law:

Whether a widow can claim the estate of the husband after re-marriage?

High Court referred to the decision of Supreme Court in Kasturi Devi v. Deputy Director of Consolidation, AIR 1976 SC 2595. In the said decision, “the effect of re-marriage on her right to claim share in the property” was considered, though the status of the woman in the said decision was not of a widow but of a mother. Hence the claim pertained for inheritance not as a widow but as a mother. To this issue it was held that there won’t be any effect on her share of inheritance from a son even after she re-married.

Issue in the present matter was:

What is the effect on widow’s right of inheritance (not in the property of a son) on the property of the deceased husband?

Deceased was married to respondent 1 and the present appellant is the mother of the deceased.

It was stated that deceased had nominated his wife for the dues that he was entitled to from the Indian Railways, though it came on record that the deceased and wife were not living together due to the existence of a dispute between them.

After the death of the husband, defendant-wife re-married.

In view of the above events, the plaintiff claimed dues from Indian Railways and informed Indian Railways about the re-marriage of defendant. On non-provision of marriage certificate, the employer disbursed the dues in favour of the wife.

Trial Court favoured the plaintiff and decreed the suit in toto.

Hence, Indian Railways was directed to pay all the due to the plaintiff, though the Appellate Court recognized the share of defendant and directed the employer to disburse the amount to plaintiff and defendant.

Appellate Court’s decision has been challenged before this Court.

Provisions of Law

It was stated that the dues of employer are nothing but the self-acquired property of the deceased and as per Hindu Succession Act, Section 24, the widow loses rights if she remarries on the date when succession opens. It is also true that the said Section was omitted from the Act o 1956 w.e.f 9th September, 2005.

Since the deceased had expired on 19-04-1991, so we have to see what the position in force at that time was. Section 24 was in existence at that point of time, hence as per the said provision, whether it can be said that defendant can be excluded from succeeding the property of the deceased?

Section 14 of the Act of 1956 makes the female Hindu being absolute owner if she possessed the property. Whereas Section 24 of the said Act disinherits the widow if she re-marries.

A very pertinent fact that was noted by the Bench was that, if the widow had not re-married when the succession opened, the disqualification under Section 24 of the Act of 1956 wouldn’t be applicable.

Defendant-Sunanda re-married in May, 1991 (i.e. after opening of succession on 19-04-1991).

Furthermore, the Court stated that since the plaintiff and defendant were class 1 heirs, they were entitled to get equal share in the property of the deceased and as contemplated under Section 10 of the Act of 1956, the widow and the mother of the intestate takes one share each.

Therefore, both the wife and mother were entitled to get 50% from the property of the deceased.

Doctrine of enrichment

Since the wife is not solely entitled to get the whole amount, she was bound to return 50% of the amount to the plaintiff.

Respondent 1 was to refund the amount with 6% interest.

Appeal was disposed of in view of the above discussion. [Jaiwantabai v. Sunanda, Second Appeal No. 144 of 2007, decided on 23-08-2021]


Advocates before the Court:

Shri Ved Deshpande h/f Shri A.S. Mardikar, Senior Advocate for the Appellant Shri J.B. Gandhi, Advocate for Respondent 1.
Shri N.P. Lambat, Advocate for Respondent 2.

Case BriefsHigh Courts

Jammu & Kashmir and Ladakh High Court:  Rajnesh Oswal, J., dismissed the petition seeking quashment of the criminal challan for the offences under sections 448 and 427 RPC pending before the Trial Court. The Bench expressed,

“…the respondent 3, being the husband of the purchaser of the property has every right to look after and protect the property of his wife and it cannot be said that the respondent 3 is absolutely stranger and has got no locus standi to lodge FIR.”

The brief facts of the case were that respondent 3 and his wife were raising claim over the plot of the petitioner. It was submitted that the wife of respondent 3 filed a suit for permanent prohibitory injunction with regard to her plot against the petitioner and the Trial Court had directed the parties to maintain status quo.

The allegation against the petitioner was that in order to grab the property of the wife of respondent 3, he had trespassed into the plot of the land and broke the boundary wall, gate and room causing loss of 30,000. Pursuant to which a case was registered against him under Sections 448 and 427 RPC. The petitioner assailed the charges on mainly three grounds; civil dispute had been converted into a criminal dispute, plea of alibi and no locus standi of respondent 3.

Contesting the argument of the petitioner that he was not present on the date of occurrence on the spot and was rather present in his office at J&K Bank Branch, Rangreth, the respondent submitted that false ground had been put forth by the petitioner with regard to his absence on the spot on the date of occurrence as he had manipulated the record being the Senior Officer of the Bank. The respondent contended in a contempt petition filed for violating the Trial Court’s order to maintain status co, the petitioner had not made a plea of alibi.

Noticing that it was not the case of the petitioner that one act/transaction had given rise to civil as well as criminal dispute rather, it was evident that during the pendency of the suit between the contesting parties, the petitioner had been alleged to have committed the offence of trespass, the Bench rejected the petitioner’s contention that civil dispute had been converted into a criminal dispute for being without substance.

The second contention raised by the petitioner was that he was not present on spot at the date of occurrence. Relying on the Supreme Court’s decision in Rajendra Singh v. State of U.P., (2007) 7 SCC 378, the Bench stated,

“The petitioner can no doubt raise the plea of alibi but the same is required to be proved like any other fact and cannot be considered as a gospel truth and relied upon by this Court while adjudicating upon the petition under section 482 CrPC.”

Lastly, rejecting the third contention that respondent 3 had no locus standi to lodge the FIR, the Bench stated that the contention was misconceived as respondent 3 being the husband of the purchaser of the property had every right to look after and protect the property of his wife and it could not be said that the respondent 3 was absolutely stranger and had no locus standi to lodge FIR. Accordingly, the petition was dismissed. [Sheikh Nasser Ahmed v. State of J&K, 2021 SCC OnLine J&K 518, decided on 28-07-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: Ajay K. Gandotra, Advocate and Sugandha Sawhney, Advocate

For the State of J&K: Aseem Sawhney, AAG, L. K. Sharma, Sr. Advocate with Mohit Kumar, Advocate

Case BriefsHigh Courts

Rajasthan High Court: Rameshwar Vyas, J. allowed the transfer petition and transferred the matter to the Family Court, Ajmer.

 The instant transfer application under Section 24 of the Code of Civil Procedure, 1908 has been preferred by the applicant-wife seeking transfer of the petition for restitution of conjugal rights filed under Section 9 of the Hindu Marriage Act, 1955 (i.e.” the Act of 1955”) read with Section 7 of the Family Court Act and Section 151 of CPC, by the non-applicant –husband before Family Court, Ajmer.

Counsel for the applicant Mr Vivek Goyal submitted that when the applicant-wife was coming to the Court, the non-applicant-husband stopped her way with some mischievous persons and threatened her. It was further submitted that the instant transfer petition was filed on fictitious grounds just to harass and humiliate the applicant-wife. The applicant wife is helpless to attend and contest the matter in the Family Court No. 1, Jaipur as she is having 8 years old daughter, who is residing with her. On the above grounds, the present transfer application has been filed by the applicant-wife.

Counsel for the respondent Mr Rajneesh Gupta submitted that the applicant-wife is playing pressure tactics on the non-applicant. The non-applicant is ready to bear the expenses of her travelling as the Court at Jaipur only has jurisdiction to hear and decide the application filed under Section 9 of the Act of 1955, which has yet not been replied by the applicant- wife. The minor daughter is presently pursuing her study at Jaipur, the fees of which is being borne by the non-applicant. The non-applicant, therefore, prayed for dismissal of the transfer application filed by the applicant-wife.

The Court observed that that the transfer application is required to be decided on the basis of facts and circumstances of each case, hence, the judgments cited by the applicant cannot be made basis as a precedent to infer that the balance of convenience always lies in favour of the wife, other relevant factors have to be taken into consideration while deciding the transfer application.

The Court further observed that it would be in the interest of both the parties that their matrimonial dispute is settled expeditiously at a suitable place in a healthy atmosphere so that future life of the parties as also welfare of the minor daughter is not adversely affected. In the present case, the place of litigation should not be made an issue by the non-applicant because the applicant-wife is a lady and having no source of income for maintaining herself and her daughter.”

The Court thus held “the balance of convenience lies in favour of the applicant-wife in comparison to inconvenience caused to the non applicant- husband in case the proceedings are transferred from Jaipur to Ajmer.”[Anuradha Haldhani v. Sameer Haldhani, 2021 SCC OnLine Raj 779, decided on 13-08-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Bombay High Court: Manish Pitale, J., expressed while addressing the present application that,

“Second marriage cannot come within the definition of domestic violence.”

By the instant application, applicants sought quashing of criminal proceedings filed by sole respondent under the provisions of the Protection of Women from Domestic Violence Act, 2005.

Further, the applicants also prayed for setting aside the orders passed by the Court of Judicial Magistrate.

Applicant 1 got married to the sole respondent and soon after the marriage, there was matrimonial discord between the two, because of which, applicant 1 filed a divorce proceeding on the ground of cruelty.

The divorce decree granted was confirmed upto the Supreme Court and the rejection of the application for restitution of conjugal rights filed by the respondent also stood confirmed.

Bench stated that the contentions raised on behalf of applicant 1 on ground of cruelty were accepted by all the Courts and hence the said findings attained finality.

Question for consideration:

  • Whether respondent is entitled to rely upon incidents pertaining to the same time period and relatable to the allegation and contentions raised to claim that she had suffered domestic violence at the hands of the applicants, as defined under the DV Act.
  • Whether the act of applicant 1 preforming a second marriage after the grant of divorce decree can be said to be an act of domestic violence under the provisions of the DV Act?
  • Whether the proceedings initiated by respondent under provisions of the DV Act can be said to be an abuse of process of law?

Analysis, Law and Decision

High Court stated that on perusal of Sections 12 to 23 of the D.V. Act, respondent has indeed raised the very issues and contentions that she had relied upon during the initial round of litigation pertaining to the divorce petition filed by applicant 1 and application or restitution of conjugal rights filed by respondent.

Hence, respondent cannot be permitted to reiterate the same by filing application under the provisions of the DV Act, 3 months after the Supreme Court dismissed her Special Leave Petition and confirmed the findings rendered by the Family Court and this Court on identical issues.

Second Marriage

 Court rejected the contention that the second marriage performed by applicant 1, after grant of divorce decree amounted to domestic violence.

Section 3 of the D.V. Act defines ‘domestic violence’ in an elaborate manner and it refers to physical abuse, sexual abuse, verbal abuse, emotional abuse and economic abuse. This is in the context of a domestic relation shared between the aggrieved person and respondent.

Family Court granted divorce on the ground of cruelty cannot eb denied in the present matter.

Merely because applicant 1 performed second marriage cannot come within the definition of domestic violence under Section 3 of the D.V. Act.

The manner in which the proceedings were sought to be initiated under the provisions of DV Act was nothing but an abuse of process of law.

Court noted that the respondent appeared to be interested in initiating and continuing the proceedings as a tool of harassment against the applicants.

Prayers pertaining to monthly maintenance, compensation, residence order, etc., have all been made of the contentions raised in the earlier round of litigation.

In view of the above background, High Court held that continuance of the proceedings would amount to permitting abuse of the process of law, hence the same cannot be permitted. [Bhushan v. Nilesha Bhushan Deshmukh, Criminal Application (APL) No. 164 of 2017, decided on 9-08-2021]


Advocates before the Court:

S.A. Mohta, Advocate for applicants

Case BriefsSupreme Court

Supreme Court: A Division Bench comprising of Hemant Gupta and A.S. Bopanna, JJ. reversed the conviction of the accussed−appellant who was convicted for the murder of her husband’s first wife and their children. The Supreme Court held that the chain of circumstantial evidence was not complete, and gave her benefit of doubt.

The Scene

The appellant was married to one Gulab, who was already married to Mandabai (deceased). Gulab and Mandabai had two children, one son and a daughter. The appellant, her husband, the deceased, the children, appellant’s parents-in-law, and their servant, all lived together in one house. The prosecution’s case was that on the intervening night of 2nd and 3rd August 2006, at about 2:30 to 3:00 am, an incident of fire occurred at their house and it was engulfed into flames. The appellant who was also in the house, came out unscathed. Mandabai and her daughter rushed out of the house with burn injuries, while her son burnt to death inside the house. Appellant’s husband and mother-in-law were not present, while her father-in-law was sleeping outside the house who woke up in confusion, instructed the servant to call a jeep, and shifted Mandabai and her daughter to hospital. Unfortunately, both Mandabai and her daughter died on the next day due to burn injuries.

Conviction and Appeal

Appellant’s father-in-law lodged a complaint and implicated her. She was then prosecuted. The Sessions Court found her guilty and convicted her under Sections 302 (Punishment for murder) and 436 (Mischief by fire) IPC. On appeal preferred by the appellant, the Bombay High Court reappreciated the evidence and discarded the alleged extra-judicial confession made by the appellant to her father-in-law and further disbelieved the evidence of the father-in-law which was relied on by the Sessions Court. However, in the ultimate analysis, the High Court concluded that the appellant was guilty and her appeal was accordingly dismissed. Aggrieved, the appellant approached the Supreme Court.

Discussion and Observations          

The Supreme Court was of the opinion that there is no doubt that if the incident that occurred, if caused by someone with intention to cause death, is certainly gruesome and unpardonable. However, in the instant case where the appellant was proceeded against mainly based on extra-judicial confession alleged to have been made to her father-in-law, and the said evidence of the father-in-law having been disbelieved by the High Court as not trustworthy, the issue would be as to whether the chain of circumstances to convict the appellant was complete.

The Supreme Court extracted the reasons assigned by the High Court and found that it held the appellant guilty more on preponderance of probability rather than reaching a conclusion beyond reasonable doubt. The High Court’s reasoning was based on conjectures and surmises. The sole circumstance noted by the High Court was that the burnt frock of the deceased daughter of Mandabai was sent for chemical analysis and kerosene residue were detected on it. In that circumstance, the High Court held that kerosene was used for setting Madabai’s daughter on fire.

The Supreme Court was of the view that even if the such chemical report is accepted, there was nothing on record to connect that the appellant was responsible for sprinkling kerosene or for kerosene to have come in contact with the frock of Mandabai’s daughter. Further, in her declaration to the police after the incident, Mandabai herself disclosed there was a kerosene lantern in the house. Evidence indicated that diesel used for tractor was also kept in the house. Therefore, it could not be said beyond doubt that it was not an accident but the appellant had set fire by sprinkling kerosene. Following the law laid down in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, the Court reiterated that:

“The position of law is well settled that the links in the chain of circumstances is necessary to be established for conviction on the basis of circumstantial evidence.”

The Court further observed that mere suspicion would not be sufficient, unless the circumstantial evidence tendered by the prosecution leads to the conclusion that it “must be true” and not “may be true”. Reliance was placed on Devilal v. State of Rajasthan, (2019) 19 SCC 447.

The Court found that the Session’s Court as well as the High Court had made suspicion the reason for convicting the appellant without there being any strong basis. It was reiterated that:

“The suspicion, however strong, cannot take place of proof.”

It was noted that there were equal circumstances which raise a doubt whether the appellant could be held guilty only because she was not injured in the incident. The Court said that natural human conduct is that when there is any incident or accident, the immediate reaction is to get away from the scene and save oneself. The Court was of the view that if in the middle of the night, for whatever reason, there was fire and if the appellant had woken up and noticed it a little earlier, the natural conduct was to run out of the house instead of going into the house which was burning, to check on the other inmates. It was observed:

“It takes a person a lot of courage or be overdriven with compassion to get back into the house to save somebody else and not doing so may be considered morally wrong for not coming to aid of fellow human being in distress, but cannot be a circumstance to hold a person guilty of a crime which is as serious as murder unless the other circumstances in the chain point to the accused so as to lead to an irresistible conclusion of being guilty.”

The Court also noted that Mandabai who came out alive and lived for a day did not blame or suspect anybody including the appellant. Her declaration was clear that the house caught fire and she and her children were caught in the fire. She did not state that the fire set on her spread to the house. Further, it was an admitted fact that the servant also lived in the same house, but he too was not injured. Hence, the Court held:

“Therefore, not being injured alone cannot be held as a circumstance to hold one guilty of having set fire to the house.”

Next, according to the High Court, appellant’s motive behind the crime was that her husband executed a document of maintenance out of certain property in favour of Mandabai a day before his second marriage with the appellant. The Supreme Court found itself unable to accept this. The marriage between the appellant and his husband had been registered after an arrangement for maintenance for the first wife, Mandabai, which is a normal thing in such circumstances and it could not be held as a strong motive for the alleged crime.

Lastly, on the point of appellant’s failure to explain the reason for eruption of fire in view of the obligation to explain under Section 106 (Burden of proving fact especially within knowledge) of the Evidence Act, 1872, the Court held that appellant’s obligation to explain would have arisen only if there was any other evidence to the effect that the appellant was already awake and was outside even before the fire erupted.

Thus, in totality of facts and circumstances of the case, the Court was of the opinion that the appellant was entitled to be acquitted as the benefit of doubt weighs in her favour. Accordingly, the judgment of the High Court affirming conviction and sentence ordered by the Sessions Court was set aside. [Parubai v. State of Maharashtra, 2021 SCC OnLine SC 566, decided on 10-8-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Ramesh Sinha and Rajeev Singh, JJ., upheld the capital punishment of a man who murdered his wife and four minor daughters.

Appellant was charged for offence punishable under Section 302 of Penal Code, 1860.

Aggrieved by conviction and sentence, the accused preferred a Criminal Appeal from Jail. Also, the trial court made a reference for confirmation of the death sentence awarded to the accused.

Instant case was based on circumstantial evidence and the appellant had been convicted and sentenced to death by the trial Court for murdering his wife and children vide impugned judgment.

In respect to convict the person in a case of circumstantial evidence, the Supreme Court in the celebrated case of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 3 SCC 116, laid down the conditions to be fulfilled before a case against an accused can be said to be fully established.

Hence, while dealing with circumstantial evidence, the onus is on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea.

In a case of circumstantial evidence, conditions precedent before conviction could be placed on circumstantial evidence, must be fully established such as:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ”must’ or ”should’ and not ”may be’ established;

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(3) the circumstances should be of a conclusive nature and tendency;

(4) they should exclude every possible hypothesis except the one to be proved; and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

In the present case, as is apparent from the evidence on record that there appears to be a motive for the appellant to commit the murder of his wife Sangeeta along with her children, which is established from the evidence of PW2-Chatra Pal Raidas, who is the real brother of deceased Sangeeta. PW2, in his deposition before the trial Court, stated that his sister Sangeeta, who used to come to his house and stayed there for about 1-2 months, had made a complaint to him about the illicit relationship of the appellant with Manju; Manju had become pregnant from the appellant; and the appellant wanted to marry with Manju, which was objected by his sister Sangeeta; and the appellant was adamant to marry with Manju, on account of which, the appellant committed the murder of his wife deceased Sangeeta along with four minor children, who was living along with the appellant in his house. P.W.2-Chatra Pal Raidas further stated that when Sangeeta had come to his house, she told about the aforesaid fact. He also stated, in his evidence, that ten days prior to the incident, the deceased Sangeeta had come to his house and in the presence of his neighbours, namely, Chailbihari and Balgovind, had also disclosed about the illicit relationship of the appellant with Manju. Thus, the motive to commit the murder of the deceased Sangeeta along with her children stood proved from the evidence of PW2 and there is no reason for him to depose falsely against the appellant.

It would also be pertinent to mention that another motive of the appellant to commit the murder of his wife and his children, as has been apparent from the evidence of P.W.1 and P.W.2, that the appellant, on taking advantage of the murder of his wife and children, wanted to get compensation from the State Government as earlier also the appellant had taken the compensation for the murder of his real brother Siyaram, which was paid by the State Government to the tune of Rs 4-5 Lakhs, and which was, in fact, given to the daughter of deceased Siyaram, namely, Gudiya but he managed to take the said compensation from Gudiya, who died on account of illness.

Prosecution proved beyond doubt that the appellant had a motive to commit the murder of his wife and his 4 minor children.

Bench stated that it would be apt to state the principles which would make an extra-judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused.

The principles that come out are as follows:

  • The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution;
  • It should be made voluntarily and should be truthful;
  • It should inspire confidence;
  • An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence;
  • For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities; and
  • Such statement essentially has to be proved like any other fact and in accordance with law.

Bench stated that the accused had strong motive to commit the murder of his wife at the time of the incident, the appellant and the five deceased were the only occupants in the house, in which they were living together; after the arrest of the appellant at his pointing out the weapon of murder and his blood stained clothes were recovered which he had concealed; soon after the incident, the appellant made an extra judicial confession before PW3 and PW 4 admitting his guilt.

From the totality of circumstances and entire evidence on record, it was proved that no one else but the appellant alone committed the murder of his wife and four minor daughters.

Hence, trial court’s order was upheld.

‘Death Sentence’ awarded under Section 302 of IPC

It is true that capital punishment has been the subject-matter of great social and judicial discussion and catechism.

The ratio laid down by the Supreme Court in Bachan Singh v. State of Punjab, (1980) 2 SCC 684 and Machhi Singh v. State of Punjab, (1983) 3 SCC 470 continue to serve as the foundation-stone of contemporary sentencing jurisprudence though they have been expounded or distinguished for the purpose of commuting death sentence, mostly in the cases of

  • conviction based on circumstantial evidence alone;
  • failure of the prosecution to discharge its onus re: reformation;
  • a case of residual doubts;
  • where the other peculiar ”mitigating circumstances outweighed the ”aggravating circumstances.

In the instant case, the accused/convict Ramanand has committed the murder of his wife and four minor innocent daughters aged about 7 years, 5 years, 3 years and the youngest one aged about one and a half month. It transpires from the evidence on record that the criminal act of the accused/convict was actuated to pave a way to marry one lady, namely, Manju, who was already married. It was the deceased Sangeeta (wife of the appellant), who opposed his marriage with Manju but the accused/convict was adamant to marry with Manju at any cost and in order to marry with Manju, accused/convict murdered not only murder his own wife but also his own four innocent minor daughters aged between one and half month to eight years in a most brutal and barbaric manner without their no-fault and without any rhyme or reason. Before murdering the deceased, the accused/convict had also chopped off various parts of their bodies and inflicted severe incised wounds as is evident from the post-mortem report.

Further, the Court added that the special reasons assigned by the trial Court for awarding extreme penalty of death were that the murder was horrifying as the accused-appellant was in a dominant position; victim was helpless being children aged about 7, 5, 3 years and the youngest one was just one and a half-month-old and the murder was premeditated and pre-planned one with a motive and committed in a cruel, grotesque and diabolical manner. The accused is a menace to the Society and, therefore, imposition of lesser sentence than that of death sentence, would not be adequate and appropriate.

Hence, the Court agreed with trial court and the instant case rightly falls in the category of ‘rarest of rare case’ warranting capital punishment.

Bench confirmed the appellant’ sentence under Section 302 IPC.[State of U.P. v. Ramanand, 2021 SCC OnLine All 451, decided on 9-07-2021]


Advocates before the Court:

Counsel for Appellant: – Govt. Advocate, Amicus Curaie, Rajesh Kumar Dwivedi

Counsel for Appellant: – Jail Appeal, Rajesh Kumar Dwivedi

Counsel for Respondent : – Govt. Advocate

Case BriefsHigh Courts

Calcutta High Court: Bibek Chaudhuri, J., expressed that, voluntary presents given at or before or after the marriage to the bride or the bridegroom, as the case may be, of a traditional nature, which are given not as a consideration for marriage but out of love, affection on regard, would not fall within the mischief of the expression ‘dowry’ made punishable under the Dowry Prohibition Act.

Appellants were convicted for committing an offence under Sections 498-A and 304-B Penal Code, 1860.

It was submitted that the de facto complainant would give a gold chain to the appellants within 6 months of the marriage of his daughter Soma with Netai Ghosh (appellant 1). immediately after marriage, the appellants started abusing Soma with filthy language. The same was conveyed by the daughter to the de facto complainant and other paternal relations. Soma’s husband also physically assaulted her.

Demand of Dowry

Later, de facto complainant came to know that his daughter Soma died consuming poison and according to him Soma committed suicide failing to bear physical and mental torture on demand of dowry inflicted upon her.

Trial judge held the appellant guilty for committing offence under Section 498A and 304B of the Penal Code, 1860.

In the instant case, the marriage of Soma was solemnized only before 44 days of her unnatural death.

Analysis and Decision

In a case of cruelty and dowry death, direct evidence is hardly available, and it is the circumstantial evidence and the conduct of the accused persons to be taken into consideration.

In the present matter, it was alleged in the FIR that the mother-in-law of the deceased used to abuse the deceased with filthy language as her father failed to give a gold chain at the time of the marriage

Allegation of cruelty and unnatural death of the deceased was made by the defacto complainant only after the death of the deceased.

Further, it is significant to note that the de facto complainant did not state in the FIR as well as in course of his evidence that the accused persons demanded dowry as a consequence of marriage.

Definition of expression “dowry” contained in Section 2 of the Dowry Prohibition Act, 1961 cannot be applied merely to the “demand” of money, property or valuable security made at or after the performance of marriage. 

Elaborating more on the concept of dowry, it was expressed that under Section 4 of the Act, mere demand of dowry is not sufficient to bring home the offence of an accused.

Any demand of money, property or valuable security made from the bride or her parents or other relatives by the bridegroom or his parents or other relatives or vice versa would fall within the mischief of “dowry” under the Act where such demand is not properly referable to any legally recognized claim and is relatable only to the consideration of marriage.

 It was noted that there was absolutely no evidence that prior to her death the witnesses being PW1, PW2, PW4 and PW5 and others try to settle the alleged dispute between the parties during the lifetime of Soma.

As per the evidence Soma was ill-tempered, therefore, if at any incident of quarrel broke between the appellants and Soma, her nature was not such that she would silently digest the allegations made against her.

Since trial Judge failed to consider the above circumstances while holding the accused persons guilty and prosecution failed to prove the cause of death of the deceased, High Court set aside the decision of trial court. [Netai Ghosh v. State of West Bengal, 2021 SCC OnLine Cal 1938, decided on 21-06-2021]


Advocates before the Court:

For the Petitioner: Younush Mondal, Adv.

For the State: Swapan Banerjee, Adv., Suman De, Adv.

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., while allowing in part the revision petition filed challenging the Family Court’s maintenance order made a very crucial observation, that father’s obligation to maintain a child cannot come to an end once the child turns 18 years of age. Read more to know why.

Instant petition was directed against the Family Court’s Order declining maintenance to the petitioner 1/wife and granting maintenance only to petitioner 2 and 3.

Since the interim maintenance order was an interlocutory order, the respondent’s counsel submitted that the present application was barred under Section 397(2) CrPC.

Further, the counsel for the petitioners contended that after holding that each of the children is entitled to 25% of the amount of the income of the respondent, the learned Family Court ought not to have further apportioned the amount and limited the liability of the respondent only to 12.5% of the amount of the salary earned by the respondent.

Analysis, Law and Decision

High Court stated that since the purpose of granting interim maintenance is to ensure that the wife and the children are not put to starvation, Courts while fixing interim maintenance are not expected to dwell into minute and excruciating details and fact which are to be proved by the parties.

Further, Bench elaborated with regard to other contention of children being entitled to 25% of salary earned by respondent, that, petitioner 1/wife who was earning and was equally responsible for the child can take care of the balance as respondent was married again and had a child from the second marriage.

Court cannot shut its eyes to the fact that the respondent has equal responsibility towards the child from the second marriage.

Petitioner 1/Wife was working as an Upper Division Clerk in Delhi Municipal Corporation earning Rs 60,000 per month and the two children were living with the mother and after the age of majority, entire expenditure of petitioner 2 was being borne by petitioner 1 as petitioner 2 turned major and was still studying but was not earning anything.

Therefore, the family court failed to appreciate that since the respondent was making no contribution towards the maintenance of petitioner 2, the salary earned by petitioner 1 was not sufficient to maintain herself.

Court cannot shut its eyes to the fact that at the age of 18 the education of petitioner 2 is not yet over and the petitioner 2 cannot sustain himself.

Bench held that it cannot be said that the obligation of the father would come to an end as the son reached 18 years of age and the entire burden of his education and other expenses would fall only on the mother.

Adding to the above analysis, it was stated that It is not reasonable to expect that the mother alone would bear the entire burden for herself and for the son with the small amount of maintenance given by the respondent herein towards the maintenance of his daughter.

Hence, Court granted a sum of Rs 15,000 per month as interim maintenance to petitioner 1 from the date of petitioner 2 attaining the age of majority till he completes his graduation or starts earning whichever is earlier.

In view of the above, the revision petition was allowed in part and disposed of. [Urvashi Aggarwal v. Inderpaul Aggarwal, 2021 SCC OnLine Del 3242, decided on 14-06-2021]


Advocates before the Court:

For the Petitioners: Mr Praveen Suri and Ms. Komal Chibber, Advocates

For the Respondent: Mr Digvijay Rai and Mr. Aman Yadav, Advocates

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., refused to grant relief to the petitioner against orders of the lower court restraining him from dispossessing the respondent from the subject property and also directing him to pay monthly maintenance to her.

Factual Matrix

Respondent had filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005. It was stated that the respondent met petitioner in the year 2009 when she was already married. In the year 2014 after obtaining divorce, the respondent got married to the petitioner.

It is further stated that the petitioner in order to induce respondent to marry him did not disclose his marital status to her. Though petitioner executed a Marriage Agreement to how his genuineness and responsibility towards the respondent and her child from a prior marriage.

Respondent was subjected to physical and mental abuse by the petitioner. Hence, respondent had filed an FIR against the petitioner. Respondent also sought a restraining order from being evicted from the rented accommodation.

Analysis, Law and Decision

High Court expressed that DV Act is meant to provide for the rights of women to secure housing.  The Act also provides for the right of a woman to reside in her matrimonial home or shared household, whether or not she has any title or rights in such home or household.

What does the aggrieved have to show?

Aggrieved person has to show that the aggrieved person and the respondent (man) lived together in a shared household.

Marriage Deed was filed which recorded that after the marriage parties will reside together as husband and wife and will be faithful towards each other. There were photographs of the petitioner and respondent that gave the impression that the parties were living together as husband and wife and had married each other.

As per the school record of the child, petitioner was the father of the child. Copies of the bank accounts were filed wherein the petitioner has been shown as a nominee of the account held by the respondent.

High Court noted that the couple held themselves out in the society as being akin to spouses which fact was evident from marriage-cum-agreement deed, affidavits, the school records of the child and the bank statements of the respondent.

In the present matter, respondent was told that the wife of the petitioner was on dialysis and that she would die soon.

Petitioners’ contention was that he had not entered into any rental agreement and the agreements, affidavits and the photographs produced by the respondent were not genuine.

Bigamous and Adulterous Relationship?

Bench expressed that question as to whether the respondent herein has been duped by the petitioner or whether she was a party to an adulterous and bigamous relationship or not and whether her conduct would not entitle her to any protection under the DV Act can be determined only after the evidence is led.

Metropolitan Magistrate, after the evidence led, had concluded that the respondent was not entitled to the protection of the DV Act and hence shall return the respondent the amount received by her as interim maintenance.

High Court held that the matter be heard by the trial court and should be decided finally within a period of 1 year. [Parveen Tandon v. Tanika Tandon, 2021 SCC OnLine Del 3044, decided on 7-06-2021]


Advocates before the Court:

For the Petitioner: Utkarsh and Anshu Priyanka, Advocates.

For the Respondent: Kamal Anand, Advocate

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., while addressing a revision petition in regard to maintenance of wife, held that

Magazine covers are not sufficient evidence to demonstrate that the respondent /wife can sustain herself.

Instant revision petition is against the Family Court’s decision directing the husband to pay maintenance at the rate of Rs 17,000 per month to the wife.

The daughter of husband and wife in the present matter passed away in the year 2010 and at present, they have two major adult sons who are well settled.

Parties have been living separately since the year 2012. Wife filed the petition under Section 125 CrPC for grant of maintenance stating that she was treated with cruelty and was thrown out of the house in the year 2012 and she was unable to sustain herself, hence required maintenance from the husband.

It was stated that the husband was earning an income of Rs 50,000 from the post of Head Constable and also had some agricultural land from which he was earning an income.

Wife claimed Rs 25,000 per month as maintenance.

Husband submitted that the wife was a working lady earning handsomely. Adding to this he stated that she participates in Jagrans and does TV Serials and was in a position to take care of herself. Both the parties filed their respective affidavits of income.

Counsel for the petitioner submitted that as per the Statement filed by the wife under Section 165 of the Evidence Act, she herself stated that she was doing modelling and it was for her to establish that income earned by her was so less that she couldn’t maintain herself.

Petitioners counsel also presented certain magazine covers and newspaper articles to establish that the respondent was employed and capable of maintaining herself.

Bench stated that law laid down by Supreme Court decision in Rajnesh v. Neha, (2021) 2 SCC 324, indicates that proceedings under Section 125 CrPC have been enacted to remedy/reduce the financial suffering of a lady, who was forced to leave her matrimonial house, so that some arrangements could be made to enable her to sustain herself.

It is the duty of the husband to maintain his wife and to provide financial support to her and their children. A husband cannot avoid his obligation to maintain his wife and children except if any legally permissibly ground is contained in the statutes. 

Court noted that in the present matter, petitioner relied only on the statement given by the respondent/wife under Section 165 Indian Evidence Act. In the said statement she clearly mentioned her employment adding that her income was very low on which her sustenance was difficult.

In view of the above position, the onus to show how much the respondent/wife was earning shifts on the petitioner to show that it was enough for her sustenance. But petitioner failed to bring any evidence.

Court reiterated the Supreme Court’s position that newspaper clippings, etc. are not evidence.

 It was noted that the petitioner was working as an ASI and both the children were well settled, and he was not under any obligation to maintain his children but the wife.

On asking about divorce, it was stated that the petitioner’s children did not want him to take divorce from his wife, hence it becomes the moral and legal obligation of the husband to maintain his wife.

Bench while dismissing the revision petition held that no material was placed on record to show that respondent/wife was able to sustain herself. [Jaiveer Singh v. Sunita Chaudhary, 2021 SCC OnLine Del 1488, decided on 05-04-2021]


Advocates before the Court:

For the Petitioner: Neerad Pandey, Advocate

For the Respondent: D.K. Sharma, Advocate

Case BriefsHigh Courts

Madras High Court: T. Raja, J., in the present matter while considering the long separation of parties for almost a quarter-century, granted a decree of divorce by dissolving the marriage between the parties.

Factual Matrix

In the present matter, appellant was married to the respondent and a male child was born out of wedlock. During the pregnancy of respondent, it was alleged that even after doctor’s advise, the respondent/wife had not taken proper care. Ultimately, the respondent delivered a handicapped male child.

Further, it was also alleged that from the date of marriage, the respondent was adamantly raising disputes and quarrels even for cohabitation due to which the appellant was subjected to mental agony.

Although the appellant tolerated all the unlawful activities of the respondent on the belief that she would change her attitude in due course, no improvement thereon had occurred.

No Response for 7 long years

Respondent later left the matrimonial house and never came back even after a lot of requests and visits by the appellant and his parents. When there was no response from the respondent for 7 long years and thereby deserted the appellant, petition was filed before the Family Court seeking divorce on the ground of cruelty and desertion under Section 13(1)(i—a) and (i—b) of the Hindu Marriage Act to dissolve the marriage between the appellant and respondent.

Respondent had sought restitution of conjugal rights under Section 9 of the Hindu Marriage Act. Trial Court concluded that husband, wanted to get rid of the special child and mother and no cruelty was caused by the respondent/wife and no desertion was accused of the simple reason that only the appellant has taken both the respondent with the son by car to her parental house and left them there with the promise that he would come and take them back. But he did not turn up to take them back to the matrimonial home.

When the lower appellate court came to the conclusion that no case of cruelty or desertion was made out, aggrieved thereby, the present appeal was filed by the appellant raising the following substantial questions of law:

  • Whether the appellant/husband is entitled to divorce on the ground of cruelty and desertion and whether the respondent/wife is entitled to the relief of restitution of conjugal rights?
  • Whether the Courts below have properly applied the law of evidence as the question of proof of cruelty and desertion can always be decided only on oath?
  • Whether the finding of the lower appellate Court in putting the blame on the appellant in not taking care of the spastic child is not contrary to the evidence available on record?

Analysis, Law and Decision

Bench expressed that a human problem can be properly resolved by adopting a human approach and applying the same ratio in the cases on hand, when the parties are living separately for 25 long years, not to grant a decree of divorce would be disastrous for the parties.

Adding to the above, Court stated that preservation of a ruined marriage is totally unworkable, as this would be a source of misery for the parties. During the pendency of the matters, the parties declined to accept the proposal for re-union.

Therefore, when the parties were living separately for 25 long years and the mediation efforts were undertaken also proved to be of no avail, this Court following the decision of the Supreme Court in Naveen Kohli v. Neelu Kohli, 2006 (2) CTC 510, Bench decided to dissolve the marriage between the parties.

Moving forward, Court being aware and conscious of the fact that the interest of the respondent needs to be safeguarded, elaborated that Section 25 of the Hindu Marriage Act states that at the time of the passing of any decree or at any tie subsequent, on an application made to it, may order one party to pay the monthly sum as maintenance to other party.

Since the appellant had been paying a sum of Rs 10,000 per month to the wife as maintenance without any default and taking care of his son with the assistance of a helper by paying from his pension bearing in mind that the appellant is a retired Bank Officer, this Court directs the appellant to continue to pay the said sum of Rs.10,000/- per month as maintenance to the respondent without fail.

Lastly, the wife was granted visitation rights and the matter was disposed of in view of the above terms. [V. Ramasamy v. L. Priya, 2021 SCC OnLine Mad 1674, decided on 26-04-2021]


Advocates before the Court:

For Appellant: Mrs K.Sumathi

For Respondent: Mr E.Raj Thilak

Case BriefsHigh Courts

Bombay High Court: The Division Bench of S.S. Shinde and Manish Pitale, JJ., quashed proceedings initiated against the petitioner (daughter) by her mother under the Protection of Women from Domestic Violence Act, 2005.

In the present matter, a daughter sought the quashing of proceedings initiated by her mother under the provisions of the Protection of Women from Domestic Violence Act, 2005 (DV Act) claiming that she was facing the ire of her mother due to matrimonial discord between her mother and father.

Further, she added that she has been unnecessarily dragged into the said proceedings pending before the Magistrate Court which is resulting in a detrimental effect on her career as also her prospects of studying abroad.

Respondent 1, Mother of the petitioner had filed an application against the husband under Sections 12,18, 19, 20 and 22 of the DV Act before the Metropolitan Magistrate. Respondent 1 had raised various grievances seeking protection order, monetary relief, residence order and order for grant of compensation.

Petitioner has plans to go abroad for further studies and for that in the application forms while seeking Visa a declaration was to be given regarding pendency of criminal cases against the applicant. But due to the pendency of said proceeding initiated under the DV Act by her mother are creating hurdles for the petitioner to successfully seek Visa.

In view of the above circumstances, present petition was filed to seek quashing of the said proceedings by her mother, insofar as she was concerned.

Analysis, Law and Decision

The intent of the DV Act is to ensure that a woman who faces abuse at the hands of her husband or a male partner has an avenue to raise her grievance against such person and also any relative of such person. Ordinarily, this would include the relatives on the side of the husband or male partner.

In the present matter, only at place of the application filed by respondent 1 under the DV Act before the Magistrate, allegation was made against the petitioner.

It is only at one place in paragraph (m) of the application that an allegation is made against the Petitioner that on the husband of Respondent No.1 (father of the Petitioner) instigating the Petitioner, she allegedly assaulted the Respondent No.1.

As per the material on record, petitioner continued to live with her father, and this was perhaps a reason why she added the petitioner as a party to the proceedings initiated under the DV Act.

Bench stated that it appeared that a single allegation made against the petitioner was an exaggeration and it had arisen out of anger of respondent 1 against the petitioner, as she continued to reside with her father, i.e. the husband of respondent 1.

“…bitterness in the matrimonial relationship between Respondent No.1 and her husband has spilled over to the children, particularly against the Petitioner”

Respondent 1 developed bitterness and anger, not only against her husband but her daughter.

Bench was surprised to note that petitioner’s own mother was hell-bent upon creating obstructions in her progress. This was evident from the affidavit filed by respondent 1, wherein it was stated that it is not necessary for the petitioner to go abroad for higher education and that the said ground was being raised only as an excuse to avoid legal proceedings initiated by respondent 1.

High Court opined that the said allegation raised against the petitioner was exaggerated and her anger and bitterness arose from the matrimonial discord with her husband leading to serious impediment in the progress of her own daughter.

“…allegations seem to be made in a fit of anger and they could be said to be improbable in the peculiar facts and circumstances of the case.”

Bench referred to the Supreme Court decision in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, with regard to exercising jurisdiction to quash the proceedings.

Following categories of cases by way of illustrations wherein such power could be exercised either to prevent abuse of the process of any court or otherwise are:

“(1)Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

 (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 

(5)Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

Observing the above-stated, and in view of the facts and circumstances of the case, Bench held that the allegations levelled by respondent 1 against the petitioner, borne out of the matrimonial discord with her husband, can be said to be inherently improbable and therefore, they fall in Category-5 laid down in the above-quoted portion of the Supreme Court decision.

High Court held that the present case was fit to exercise jurisdiction to quash the proceedings initiated by respondent 1 under the DV Act, insofar as they pertain to the petitioner. [Vanisha Vincent Rodrigues v. Jyoti Vincent Rodrigues, 2021 SCC OnLine Bom 613, decided on 20-04-2021]

Case BriefsHigh Courts

Calcutta High Court: Shampa Sarkar, J., expressed that Hindu Marriage Act is a gender-neutral provision and further expressed the scope of maintenance.

In the present revisional application, the issue was with respect to the wife being aggrieved with the quantum of maintenance.

Wife had filed an application under Section 24 of the Hindu Marriage Act and maintenance pendente lite @Rs 30,000 per month and Rs 75,000 as litigation cost was prayed.

Wife was aggrieved that the lower court allowed 1/5th of the husband’s income as maintenance pendente lite and considering the husband’s income as Rs 60,000, Court proceeded to grant an amount of Rs 12,000 as maintenance.

Hindu Marriage Act provides for the rights, liabilities and obligations arising from a marriage between two Hindus.

Sections 24 and 25 make provisions for providing maintenance to a party who has no independent income sufficient for his or her support and necessary expenses. This is a gender-neutral provision, where either the wife or the husband may claim maintenance. The pre-requisite is that the applicant did not have independent income which is sufficient for his or her support during the pendency of the lis.

Justice Krishna Iyer’s decision of Supreme Court in Captain Ramesh Chander Kaushal v. Veena Kaushal, (1978) 4 SCC 70 was referred to regarding the object of maintenance laws.

Supreme Court’s decision in Rajnesh v. Neha, (2021) 2 SCC 324 discussed the criteria for determining the quantum of maintenance and the relevant factors to be taken into consideration in order to quantify the amount. The object behind granting maintenance is to ensure that the dependent spouse was not reduced to destitution or vagrancy on account of failure of the marriage and not as a punishment to the other spouse.

In the instant case, wife’s potential to earn may exist as she had a post-graduate degree but as per the evidence, it appeared that she had been out of employment Since May, 2014. Records revealed that the husband had been appointed at a salary of Rs 23,000. It was expected that in the intervening period, husband’s income must have gone up by at least 3 times.

Supreme Court noted that some guesswork could not be ruled out estimating the income when the sources or correct sources are not disclosed. Hence, Trial Court rounded the figure at Rs 60,000 as the expected income of the husband at present.

Bench considered it prudent to award Rs 20,000 to the wife as maintenance pendente lite.

Bench dismissed Mr Chatterjee’s contention that wife should be directed to disclose her present income and file the affidavit of assets.

Further, the Court stated that in the absence of any evidence on the part of the husband, this Court is of the opinion that taking into consideration the criteria as laid down by several judicial precedents on the subject from time to time, Rs 20,000/- as maintenance pendete lite per month is just and proper.

High Court modified the impugned order to the above extent. It was directed that the current maintenance shall be paid with effect from April, 2021 within 20th of the month.  Thereafter on and from May 2021 the maintenance shall be paid within 15th of every month as directed by lower court.[Upanita Das v. Arunava Das, C.O. No. 4386 of 2019, decided on 09-04-2021]


Advocates before the Court:

For the Petitioner: Mr Srijib Chakraborty and Ms Sudeshna Basu Thakur

For the Opposite Party: Mr Aniruddha Chatterjee and Mr Sachit Talukdar