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

Case BriefsHigh Courts

Chhattisgarh High Court: The Division Bench of Prashant Kumar Mishra and N.K. Chandravanshi, JJ., while finding error in trial court’s decision held that wife attempting to commit suicide and consistently showing abnormality in her behaviour by pressing neck of daughter and husband, jumping to neighbour’s roof will amount to mental cruelty forming ground of dissolution of marriage.

Appellant was aggrieved by the impugned judgment and decree passed by the Family Court dismissing his application under Section 13(1)(i—a) of the Hindu Marriage Act for grant of divorce.

Factual Matrix

Parties were married and their daughter was now residing with the respondent/wife.

It was submitted that from the very next day of the marriage respondent insisted to leave the matrimonial house, but on persuasion stayed for 5-6 days and called her mother to return to her parental house and did not come back for 15-20 days.

Later respondent’s mother informed the elderly persons of the society that she is a schizophrenic, which was not informed to the appellant before the marriage.

Incidents of abnormal behaviour

She used to call elderly persons in the in-laws’ family by their name and on one night she jumped to the neighbour’s house from the roof of appellant’s house. She used to leave her matrimonial house every now and then without any rhyme or reason. When the appellant and other family members objected to her behaviour she used to filthily abuse them and locked the door from inside.

Respondent denied all the allegations.

Analysis, Law and Decision

Decisions pertaining to the concept of mental cruelty were referred to. In the Supreme Court decision of Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, illustrative cases where inference of mental cruelty could be drawn was indicated.

Supreme Court decision in V. Bhagat v. D. Bhagat, (1994) 1 SCC 337, held that mental cruelty in Section 13(1)(i—a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other.

Mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together.

In Naveen Kohli v Neelu Kohli, (2006) 4 SCC 558, the Supreme Court held that the word “cruelty” has to be understood in the ordinary sense of the term in matrimonial affairs. If the intention to harm, harass or hurt could be inferred by the nature of the conduct or brutal act complained of, cruelty could be easily established. But the absence of intention should not make any difference in the case.

In view of the above decisions, Court in the present matter stated that in light of the facts of the case, it can be seen that the respondent-wife admitted to attempting to commit suicide and assaulting her mother-in-law.

As per the evidence placed, it was stated that the respondent once jumped from the roof to fall in the neighbour’s house and tried to strangulate her daughter and husband. There have also been instances of respondent-wife leaving the house during the night hours wearing white saree without putting bangles and vermilion on the forehead.

Hence, considering the instance as stated above along with the psychiatrist treatment, Bench held that it was sufficient to prove that her conduct amounted to sustained reprehensible unjustifiable conduct affecting physical and mental health of the appellant.

When she attempts to commit suicide, this singular act by itself amounts to causing such mental cruelty, which is beyond repair.

Bench noted that in the present case there was consistent irresponsible or abnormal behaviour of the respondent, therefore, when the entire married life is reviewed as a whole, inference was that the relationship was being deteriorated and it was extremely difficult for the appellant-husband to live with respondent-wife.

While concluding the decision High Court expressed that the wife was guilty of committing mental cruelty, furnishing a ground for dissolution of marriage.

Trial Court committed an error in not appreciating the evidence, hence the impugned judgment and decree was set aside. [Rajeshwar Prasad Kaushal v. Gayatri Kaushal, 2021 SCC OnLine Chh 799, decided on 31-03-2021]


Advocates before the Court:

For Appellant Mr D.N. Prajapati, Advocate

For Respondent Mr C.K. Sahu, Advocate

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Arindam Sinha and Suvra Ghosh, JJ. confirmed a decree of divorce passed in favour of the husband by the trial court on grounds of cruelty by the wife. The instant appeal, dismissed by the High Court, was preferred by the wife against the judgment of the trial court.

Backdrop and Factual Matrix

The husband filed for divorce against the wife on grounds of cruelty, alleging that she made false allegations against him of having illicit relations with other women as well as their own daughter. The trial court found that no cogent proof of illicit relationship was forthcoming from the wife which could prove the allegations made by her against the husband. Therefore, the trial court held it amounted to cruelty against the husband under Section 13(i)(i-a) of the Hindu Marriage Act, 1955; and granted a decree of divorce in favour of the husband.

Contentions ─ Wife

The wife argued that the allegation of cruelty was erroneously held to be proved against her. She submitted that the persons named were not produced as witness. Extreme financial hardship had prevented her from fully participating at the trial, but that by itself did not justify finding in the trial court’s judgment and decree that the allegation of cruelty was proved against her.

Contentions ─ Husband

The husband submitted that the suit was filed in year 2004. Dilatory tactics were adopted by the wife. He gave evidence and was cross-examined, which could not shake his evidence. Such unshaken testimony was corroborated by their daughter. The daughter was married and living happily in her matrimonial home. Grave and serious allegations against him were made regarding carrying on with several women, including, their daughter. This part of the evidence was also corroborated by the daughter. The daughter took to the witness box and corroborated unshaken testimony of the husband, and therefore the wife did not cross-examine her, nor turn up to give evidence and be cross-examined. In such circumstances, further corroboration was not required and the Court below correctly appreciated the evidence to find cruelty inflicted on him.

It was further submitted that he had allowed the wife to stay in his flat and is regularly paying her enhanced permanent alimony. Eighteen years of separation had happened and there should not now be reversal of the trial court’s judgment and decree. He relied on the Supreme Court decision in Adhyaatmam Bhaamini v. Jagdish Ambala Shah, (1997) 9 SCC 471.

Law, Analysis and Decision

The High Court analysed the facts and allegations in two parts. Firstly, the allegations were regarding the wife having taken up a 9 am to 9 pm job, after which she became very ill. The husband, in his evidence, stated that he put pressure on the wife to leave the job. On the other hand, the wife said that the husband forced her to work on a sales office to earn money to meet family expenses. On examining the record, it appeared to the High Court that the wife took up the job, after which she fell ill, and the husband caused her to leave the job. Therefore, the wife’s account on this point was disbelieved by the Court.

Secondly, the allegation against the wife was that in July-August 2003, she visited the husband’s office, informing the Committee of Housing about him maintaining illicit relationship with their daughter. As a consequence, members of the Committee came to their residence. The wife admitted that on one occasion, she went to her husband’s office, but only to meet him. She did not meet allegations regarding her approaching the Committee members.

The allegations of the husband against the wife, were corroborated by their daughter in her evidence-in-chief. Although some statements in her affidavit were hearsay. The Court opined that:

There are some statements in her affidavit-in-chief, which are hearsay. The parts of her affidavit that can be attributed to be her evidence is in corroboration of what her father said in the petition, his affidavit-in-chief and from the Box, in cross-examination.”    

 On a complete analysis, the High Court held that the wife made reckless allegations against the husband, amounting to cruelty. The Court was convinced that there is no scope of interference in the trial court’s judgment and decree. The appeal was fount without any merit and was therefore dismissed. [Radha Majumder v. Arun Kumar Majumder, 2021 SCC OnLine Cal 1398, decided on 23-03-2021]


Advocates who appeared in this case:

Mr. Pradip Kumar Roy

Ms. Shraboni Sarkar … for appellant wife

Mr. Debabrata Acharyya

Mr. Sital Samanta … for respondent-husband

Case BriefsHigh Courts

Madras High Court: V. Bhavani Subbaroyan, J., while addressing a very significant issue with respect to a divorce being sought, expressed that:

“…concept of marriage in the present generation has been taken very lightly and even for trivial issues, divorce is filed, and marriage is broken.”

Wife filed the present petition against the petition filed by the Husband before the Family Court. The husband’s petition was filed on the ground that the wife was suffering from Polycystic Ovarian Syndrome (PCOS) and was not fit for cohabitation or to give birth to a child.

Husband also filed an interlocutory application seeking for an amendment to include the provision of law from 12(1)(a) and 12(1)(a) and (c). The said petition seeking for amendment was pending before the Family Court for decision.

Petitioners Counsel, S.P. Arthi submitted that PCOS disorder is an endocrine system disorder that affects the capacity of reproduction in women, and which is totally distinct and different from claiming to be impotence.

As per the contention of counsel for the petitioner, the said claim made by the husband was absolutely incorrect and the said usage of terminology of impotency against the wife could not be sustained and on the said ground striking off the petition was sought.

Analysis, Law and Decision

Bench noted the categorical allegation placed by the husband with regard to the issue of PCOS in the wife due to which the husband sought a divorce.

High Court expressed that:

The term ‘PSOS’ by itself cannot be termed as ‘impotency’. Impotency is different and unable to give birth to a child is different, owing to various physical and mental reasons.

 On careful consideration of the contentions placed on record, it was clear that the husband did not plead the wife’s inability to give birth to a child as ‘Impotency’, but he sought annulment of marriage on the reason that there was no cohabitation and wife could not bear a child. He also submitted that the wife did not cooperate for cohabitation owing to her medical condition, as she was almost 25 days on her menstrual cycle.

Marriage being a bondage between men and women as husband and wife, it not only limits to a biological needs and desires, but also as a companion in life caring forward to the next generation through their children.

Elaborating more in respect to the present set of facts and circumstances, Bench added that Family Courts have increased in numbers to cater to the demand of intolerant couple, who are unmindful of the institution of marriage, break the relationship on unimaginable trivial reasons.

As per the pleadings placed, nowhere the husband used the word connoting impotency towards his wife. He mainly approached with the complaint that the wife could not bear a child for two reasons:

  • No Cohabitation
  • Suffering from ‘PCOS’ due to which wife suffers from improper menstrual cycle.

Legitimate Expectation?

Bench expressed that it is the husband’s legitimate expectation to live with his wife and have cohabitation and bear children and if the same is not achieved owing to some physical or mental problems, it is quite logical that either of the parties will approach the Court for seeking a divorce.

Except for some case wherein the couple are understanding and come forward with the life issue-less or even go for adoption, however, the same has to be proved by the person claiming that his or her partner is incapacitated to give or bear the child.

Petitioner/Wife could not show the husbands averments to be illusive.

Hence, High Court did not find any grounds seeking for the intervention of this Court under Article 227 of the Constitution of India with regard to striking off the petition.[ Annapoorani v. S. Ritesh,  2021 SCC OnLine Mad 1079, decided on 16-03-2021]

Case BriefsHigh Courts

Kerala High Court: The Division Bench of A. Muhamed Mustaque and Kauser Edappagath, JJ., held that to get a decree of divorce under Section 13(1)(iii) of the Hindu Marriage Act, it is necessary for the party seeking divorce to prove that the other party’s unsoundness of mind is incurable or that the mental disorder is of such kind that the petitioner cannot be reasonably expected to live with his/her spouse.

The instant petition was filed by the wife in a marital dispute challenging the Family Court’s Order allowing the application filed by the husband to constitute a medical board and to direct the wife to appear before it for the assessment of her mental condition.

Husband had initiated the divorce proceedings before the Court under Section 13(1)(iii) of the Hindu Marriage Act on the ground of mental order. He added in his submissions that the mental condition of the wife was not normal as she was suffering from obsessive-compulsive disorder as well as a borderline personality disorder.

The husband filed a petition before the Court below to direct the wife to undergo medical examination for borderline personality disorder before a medical board to be constituted for the said purpose, but the wife objected the same.

Analysis, Law and Decision

 Bench while analysing the facts and circumstances of the cases stated that the Court has the power to direct the parties to the litigation to undergo a medical test.

Further, Court referred to the Supreme Court decision in Sharda v. Dharmpal, (2003) 4 SCC 493, wherein it was held that even though the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of the country under Article 21 of the Constitution of India, a matrimonial Court has the power to order a person to undergo a medical test and such a direction need not be in violation of any right to personal liberty.

“…while exercising the power to order a medical test to be undergone by a person, the Court should exercise restraint and there must be strong prima facie case and sufficient material before the Court to pass such an order.”

 In the present matter, wife’s alleged mental order is an issue to be decided.

Divorce Decree

High Court expressed that, in order to get a divorce decree under Section 13(1)(iii) of HMA, the husband must establish that unsoundness of mind of the wife is incurable or her mental disorder is of such kind and to such an extent that petitioner cannot reasonably be expected to live with her spouse.

Family Court

The Family Court has the power to direct a party to appear before a medical board to undergo a medical examination and the question of such action being violative of Article 21 of the Constitution of India would not arise.

It was noted that the husband had produced documents wherein it was stated that the wife was treated by the psychiatrist for the alleged illness. The said documents were perused by the lower court.

“The fact that the wife’s alleged mental disorder is an issue to be decided in the case itself constitutes a prima facie case.”

Medical Board’s opinion regarding the medical condition of the wife may be of utmost importance for granting or rejecting the prayer for a decree of divorce under Section 13(1)(iii) of the HMA.

Further, while concluding its decision, Bench added that the above-stated opinion is relevant under Section 45 of the Evidence Act.

When a party to a litigation alleges existence of certain facts, the Court can draw no inference of its existence unless it is proved through the manner in which the Evidence Act is envisaged.

Therefore, the Family Court’s decision was justified in its order and no interference was required.[Devika M. v. Shibin Prakash, 2021 SCC OnLine Ker 1235, decided on 10-03-2021]


Advocates before the Court:

Counsel for the petitioner Sri. T.R. Harikumar

Counsel for the respondent Sri. Sharan Shahier.

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., partly allowed a revision petition filed by the husband and reduced the amount of interim maintenance granted to the respondent-wife and son from Rs 12,500 per month to Rs 4,500 per month. While so deciding, the Court held that:

It is trite law that it is for the wife to establish that the petitioner [husband] was earning some amount from the business of his father and that even after the death of the petitioner’s father the business was continued by the family members. Some material ought to have been produced by the respondent to substantiate the contention that the petitioner was also running some business in the name of Rakesh & Company.

The husband filed the instant petition against the order of the Family Court, Saket, whereby he was directed to pay the maintenance at Rs 12,500 per month to the applicant wife and their son (Rs 7,500 for the wife and Rs 5,000 for the son).

Backdrop

The petitioner and respondent 1 got married in 2012. A son was born to them. However, disputes arose, and the husband filed a petition for restitution of conjugal rights against the wife under Section 9 of the Hindu Marriage Act, 1955. On the other hand, the wife filed an application under Section 125 CrPC for grant of maintenance. An application for interim maintenance was also pressed. The wife alleged that the husband was earning Rs 35,000 per month. This included salary of Rs 20,000 drawn by working in a shop and another Rs 15,000 earned from his father’s business. An amount of Rs 18,000 (Rs 10,000 for the wife and Rs 8,000 for the son) was claimed as maintenance.

The husband disputed his income as alleged by the wife. The Family Court, however, estimated the husband’s income at Rs 30,000 per month and fixed the maintenance at Rs 12,500 per month.

On the husband’s inability to pay the amount as awarded by the Family Court, he was taken into judicial custody.

Contentions

The petitioner contended that the judgment of the Family Court was based on conjectures and surmises. He filed an affidavit and stated that his father was running a business of Sesame Oil, but it was closed after the father’s death. The petitioner husband also filed an affidavit of the Manager of the shop where the petitioner was working. The Manager deposed that the petitioner was drawing a salary of Rs 9,000 per month.

On the other hand, the respondent-wife contended that the husband was concealing his actual income.

Law, Analysis and Decision

Perusing the record, the High Court was of the opinion that the entire judgment of the Family Court was based on guesswork. There was no material, whatsoever, for the Family Court to conclude that the husband was earning Rs 30,000 per month. No reason was forthcoming as to why the appointment letter given by the employer of the husband was disbelieved/discarded by the Family Court.

It was held that it is trite law that it is for the wife to establish that the petitioner was earning some amount from the business of his father and that even after the death of the petitioner’s father the business was continued by the family members. Some material ought to have been produced by the respondent to substantiate the contention that the petitioner was also running some business in the name of Rakesh & Company. The Court was of the view that:

“In the absence of any material on record, the judgment of the Family Court fixing the salary of the petitioner at Rs 30,000 per month and awarding Rs 12,500 for the wife and children cannot be sustained.”

Further, the High Court found that it cannot ignore the fact that the husband was in jail because of his inability to pay maintenance to his wife:

Had the petitioner been capable of paying the maintenance, the petitioner would have made the payment rather than going to jail.

In view of the above and in view of the absence of any material to the contrary and the only material being the affidavit filed by the husband that he is earning Rs 9,000 per month, the High Court reduced the amount of maintenance as granted by the Family Court and directed the husband to pay a sum of Rs 4,500 as interim maintenance to the wife and their son from the date of filing of the petition, i.e. 1-3-2016. He was further directed to clear the arrears of maintenance within two months.

It was made clear that all the observations made in the instant order are only restricted for the purpose of calculating the interim maintenance; and the amount of maintenance to be paid under Section 125 CrPC would be arrived at by the Family Court after taking into account the entire evidence adduced by the parties before it. [Amit Kumar Sindhi v. Monika, 2021 SCC OnLine Del 1324, decided on. 23-3-2021]

Case BriefsHigh Courts

Tripura High Court: S.G. Chattopadhyay, J., elaborated on the aspect of economic abuse in term of Section 3 of the Protection of Women from Domestic Violence Act, 2005.

Factual Matrix

Wife had presented an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005, wherein she referred to several incidents of domestic violence against her husband.

Further, she alleged that her husband subjected her to harassment and torture for dowry and since she was unable to meet his demand, she was physically assaulted by her husband on various dates. Gradually he developed an extramarital affair. When the wife raised a protest against his conduct he assaulted her.

Trial Court found the wife to be entitled to a protection order, residence order and monetary relief, respondents were directed to make payment of Rs 2000/- per month as rent for accommodation to the aggrieved and further payment of Rs 15,000/- per month as monetary relief in the form of maintenance.

Additional Sessions Judge also partly allowed the appeal of the husband, his mother, brother and sister, by which the husband was solely proved to have committed domestic violence upon his wife and others were discharged from the liabilities.

In the present revision petition, husband has challenged the impugned judgment of the Additional Sessions Judge.

Core Issue agitated by the husband’s counsel:

Relief under the DV Act had been provided to the wife in absence of any proof of domestic violence.

Under Section 12 of the DV Act only the aggrieved person or a protection officer appointed under the DV Act or any other person on behalf the aggrieved person may present an application to the magistrate seeking one or more reliefs under this Act.

Allegation of domestic violence is a sine qua non for pursuing a petition under the DV Act.

Further, Court observed that under Section 3 of the DV Act which defines domestic violence, ‘economic abuse’ is a form of domestic violence.

Section 3 relates to ‘economic abuse’ which includes deprivation of all or any economic financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise.

Bench held that in the present matter, wife is obviously legally entitled to maintenance allowance from her husband who is a government employee since she made a good case of justifying why she was living separately.

Denial of maintenance to wife would definitely cause ‘economic abuse’ within the meaning of Section 3 of the Domestic Violence Act, therefore no infirmity in the impugned judgment was found.

Court directed that the monetary relief shall be paid by the husband by depositing the same in the wife’s savings bank account. The Family Court will determine the mode of payment of the outstanding arrear till 31-01-2021 after issuing notice to the parties and hearing them in person.

If the husband fails to pay the arrear, the same shall be deducted from his salary and paid to the wife.

In view of the above. Petition was dismissed. [Ramendra Kishore Bhattacharjee v. Madhurima Bhattacharjee, 2021 SCC OnLine Tri 79, decided on 10-02-2021]


Advocates for the parties:

For the Appellant: Mr B. Deb, Adv.

For the Respondent: Mr S. Debnath, Addl. PP Mr Raju Datta

Case BriefsHigh Courts

Kerala High Court: Mary Joseph, J., while addressing an issue of maintenance under Section 125 of Criminal Procedure Code, 1973, expressed that the said provision does not say that wife, children or parents who are at the mercy of the parents, grandparents or relatives are not entitled to get monthly maintenance or else in the case of a wife, children or parents who are neglected and surviving at the mercy of other near relatives are not entitled to get maintenance.

Respondents in the present matter had sought for enhancement of the sum ordered originally by the Family Court as monthly maintenance which was ordered at the rate of Rs 1,000 but the petitioner defaulted in payment after some time.

Revision petitioner contended that he was physically handicapped and that the eldest of the children being employed and financially affluent were maintaining the respondents. Hence, due to being devoid of any means of livelihood he submitted that he was not liable to maintain the respondents.

Petitioner had proved before the Family Court that the respondent was remarried and respondents contention that he had no means and therefore was not liable to pay maintenance to the petitioners could not be accepted for the sole reason that he got married secondly and begotten children.

Muslim Personal Law is self-contained of the obligation of the husband to maintain his wife by providing her with food, clothing and lodging. In the Code, a legal recognition is given to the right of a deserted wife, son/daughter, and parents who are unable to maintain themselves.

Section 125 CrPC specifically provides that wife, children or parents unable to maintain themselves are entitled to receive monthly maintenance from a male who holds status respectively with reference to them as husband, father or son.

Bench held that the Husband cannot be exonerated from his legal obligation to maintain on the ground that deserted or neglected ones are surviving somehow or else being maintained by someone.

Hence, the Family Court rightly appreciated the evidence and passed the impugned orders modifying the monthly maintenance payable to the petitioner justly and reasonably. [Mohammedkunhi v. Safura, 2021 SCC OnLine Ker 407, decided on 04-01-2021]

Case BriefsHigh Courts

Bombay High Court: The Division Bench of A.S. Chandurkar and N.B. Surawanshi, JJ., upheld the decision of the family court.

Present appeal was filed under Section 19 of the Family Courts Acts, 1984 by the appellant-husband, in view of his petition being dismissed by the Family Court for judicial separation and in the alternative for a decree of divorce on cruelty and desertion ground.

According to the husband, he was Mangalik as per his horoscope and hence was in search of a girl who was having a Mangalik horoscope. As per the girl’s biodata, she was depicted as Mangalik.

After her marriage with the appellant she started living in the joint family of her husband where she usually used to stay aloof. Further, it has been stated that she avoided giving her educational certificates on the pretext that they were lost.

On receiving her educational certificates from her father, the husband was shocked to know her actual date of birth therefore she was Non-Mangalik. She had even failed BA-II.

The wife left the matrimonial house at midnight without informing anyone and during the search, she was found with her brother and brother in law who were taking her to her maternal home.

The husband along with his family members went to bring the wife back, but her parents refused to send her and also threatened to involve them in a false case. According to the husband, the wife lodged false complaint on that day.

Husband alleged that the wife caused mental and physical harassment to the husband. He, therefore, contended that the wife deserted him on account of false complaint lodged by the wife and the husband from time to time.

Due to the continuous torture by the wife, the life of the husband had become miserable. He was not in a position to concentrate on his work due to continuous harassment by the wife. The husband, therefore, lost all the hopes that the smooth relations between him and wife were possible. Hence, he filed the petition seeking divorce on the ground of cruelty and desertion.

Wife while declining all the above allegations claimed that she was ready to cohabit with the husband and hence prayed for the dismissal of the petition filed by the husband.

Family Court dismissed the petition of the husband, hence the husband preferred the present appeal.

Analysis, Law and Decision

Points for determination:

  1. Whether the appellant is entitled for decree of divorce?
  2. Whether the learned Family Court dismissing the petition of husband is legally correct?

Bench noted in the cross-examination of the appellant that he admitted that prior to his marriage there were negotiations as well as internal talks and his sister had inquired about the education of the respondent as well as her family background. The appellant also admitted that he married the respondent as he liked her. He also stated that he did not take decision in his life on the basis of horoscope. The marriage was performed after verifying the background, houses and all the details of both the families. His father in his evidence admitted that the horoscopes of the appellant and the respondent were not tallied. Further, he deposed that he did not have any document to show that the appellant was a Mangalik. He even admitted that at the time of marriage the age of the appellant was beyond marriageable age.

Hence, all these admissions belie the case of the appellant that there was cheating on the part of the respondent and her parents at the time of settlement of marriage.

In view of the above, Bench observed that there was no fraud played by the wife or her family.

Appellant failed to make out a case of fraud and even if it is assumed that there was misrepresentation in respect of the date of birth, it does not affect the matrimonial relations between the appellant and the respondent, as the appellant failed to prove that he was Mangalik and he intended to marry the girl having Mangalik Yog.

Father of appellant, admitted that for initial two years of the marriage, there was no dispute between the appellant and the respondent in respect of age difference as well as the respondent being non-mangalik. According to the respondent, the ill-treatment started only after the appellant got government job.

Therefore, evidence laid by the respondent did not spell out cruelty caused by the respondent to him.

With regard to Desertion, Court noted that as per the evidence led by the respondent she was beaten and her sister and her husband saw the marks of beating on her person. After they left, she was again beaten and threatened with life. Apprehending danger to her life, she had to take shelter in the house of neighbour Shri Gordey. From there, she called her parents and her brother, sister Kiran, her husband and others took her from the house of Shri Gordey to her parent’s house

Further, there was no material that depicted that the appellant tried to bring the respondent back for cohabitation.

 “…since the appellant attributed cheating and fraud to the respondent and her parents, it is not possible to believe that he tried to bring the respondent back for cohabitation.”

Therefore, family court rightly appreciated the evidence on record and appellant failed to prove cruelty and desertion on the part of respondent-wife.

In view of the above discussion. The appeal against the family court’s decision was dismissed. [Kartik Narayan Dhawle v. Vaishali Kartik Dhawle, 2021 SCC OnLine Bom 241, decided on 23-02-2021]


Advocates who appeared before the Court:

B.R. Hindustani, Advocate holding for A.N. Ansari, Advocate for the appellant,

S.N. Thengari, Advocate for the respondent.

Case BriefsHigh Courts

Bombay High Court: Revati Mohite Dere, J., while addressing a very significant issue of assault, expressed that:

“There is imbalance of gender roles, where wife as a homemaker is expected to do all the household chores.”

Factual Matrix

Appellant was married to Manisha (deceased) and they both used to reside with the appellant’s mother.

According to the prosecution, the appellant was suspecting Manisha’s character as a result of which, there used to be frequent quarrels between them.

On 19-12-2013, Manisha was leaving the house without preparing tea on account of which, there was an exchange of words between the appellant and the deceased. Since the appellant was suspecting Manisha’s character and as she refused to make tea for the appellant, it was alleged that the appellant had given a blow on Manisha’s head from behind, with a hammer.

Further, it was alleged that the said incident was witnessed by Rohini, the appellant and Manisha’s daughter.

Prosecution submitted that after Manisha was assaulted, the appellant gave her a bath, wiped the bloodstains from the spot and thereafter took Manisha to Vitthal Hospital.

At the time when Manisha was admitted, her uncle visited, during that time appellant informed Manisha’s uncle that he had assaulted Manisha. Hence a complaint was lodged and a charge sheet was filed against the appellant for the offence punishable under Sections 302 and 201 of the Penal Code, 1860.

Sessions Judge convicted the appellant for the above-stated offences.

Analysis, Law and Decision 

High Court observed that on the day of the incident on being refused tea, the appellant assaulted Manisha with a hammer, but in Court’s opinion:

“…deceased-Manisha, by refusing to make tea for the appellant, by no stretch of imagination, can be said to have offered grave and sudden provocation for the appellant to assault her, much less, such a brutal assault.”

Bench also observed that:

“…a wife is not a chattel or an object.”

Cases as the present one, reflect the imbalance of gender – skewed patriarchy, the socio-cultural milieu one has grown up in, which often seeps into a marital relationship.

While making very essential observations, Bench quoted from a study, ‘The Man Who Mistook His Wife For Chattel’ by Margo Wilson and Martin Daly:

“by `proprietary’, we mean first that men lay claim to particular women as songbirds lay claim to territories, as lions lay claim to a kill, or as people of both sexes lay claim to valuables. Having located an individually recognizable and potentially defensible resource packet, the proprietary creature proceeds to advertise and exercise the intention of defending it from rivals. Proprietariness has further implication, possibly peculiar to the human case, of a sense of right or entitlement”. 

Medieval notion of the wife being the property of the husband to do as he wishes, unfortunately, still persists in the majority mindset. Nothing but notions of patriarchy.

Bench refused the appellant counsel’s argument the deceased by refusing to make tea for the appellant offered grave and sudden provocation.

In view of the present set of circumstances and arguments, Court stated that appellant not only assaulted his wife, but also after assaulting her, he wasted precious and crucial time by wiping the blood from the spot and bathing Manisha before taking her to hospital, if the deceased would have been rushed to the hospital, her life could have been saved.

Therefore, Court found no infirmity in the impugned judgment and dismissed the present appeal.[Santosh Mahadev Atkar v. State of Maharashtra, 2021 SCC OnLine Bom 248, decided on 02-02-2021]


Advocates who appeared before the Court:

Sarang Aradhye for the Appellant

V. Gavand, A.P.P for the Respondent–State

Case BriefsHigh Courts

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

Factual Matrix

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

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

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

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

Issue for Consideration:

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

Decision

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

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

Mental Cruelty: What led to it?

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

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

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


Advocates who appeared for the parties:

P.K. Mishra, Advocate for the appellant.

A.B. Bambal, Advocate for the respondent.

Case BriefsHigh Courts

Madras High Court: K. Murali Shankar, J., addressed the issue with regard to payment of maintenance, whether from the date of application or date of order.

Factual Matrix

In the present matter, the second respondent is the mother and respondents 3 and 4, brothers of the first respondent who had married the petitioner. After a while misunderstandings arose between the petitioner and first respondent due to which they started living separately.

Petitioner had filed a maintenance case earlier and the Magistrate passed an order directing the first respondent to pay monthly maintenance at Rs 5,000 per month to the petitioner and her minor children.

Petitioner’s case

Petitioner stated that in order to avoid the payment of maintenance, respondents conspired and took the petitioner and her children to Chennai so as to resume their cohabitation. In the period of two months that the petitioner lived with first respondent, she was harassed and tortured physically and mentally and the petitioner was forcefully sent out of the matrimonial home by forcibly retaining the minor children.

In view of the above petitioner invoked the provisions of the Protection of Women from Domestic violence Act, 2005.

Trial Court passed impugned order, wherein first respondent was directed to pay the maintenance of Rs 5,000. On not being satisfied with the maintenance amount also the order of the trial court directing the first respondent to pay maintenance from the date of the order, petitioner/wife came forward with the present revision.

Analysis

Section 12 of the Protection of Women from Domestic Violence Act, 2005 does not provide the date from which the maintenance to be awarded and there is no provisions in the Hindu Adoption and Marriage Act with respect to the date from which the maintenance order may be made effective. But, at the same time, Section 125(2) CrPC, contemplates that the Magistrate may award maintenance either from the date of order or from the date of application.

 In the Supreme Court decision of Jaiminiben Hirenbhai Vyas v. Hirenbhai Rameshchandras Vyas, (2015) 2 SCC 385, it was held that Section 125 CrPC, impliedly requires the Court to consider making the order for maintenance effective from either of the two dates, having regard to the relevant facts.

It is neither appropriate nor desirable that a Court simply states that maintenance should be paid from either the date of order or the date of the application in matters of maintenance.

As per Section 354(6) of the CrPC, the Court should record reasons in support of the order passed by it, in both eventualities and that the purpose of the provision is to prevent vagrancy and destitution in society and the Court must apply its mind to the options having regard to the facts of the particular case.

Supreme Court in its decision of Rajnesh v. Neha,2020 SCC OnLine SC 903, after analyzing the provisions in various enactment of the Judgments of the appeal and considering the divergent views taken by the various Courts issued necessary direction to bring about the uniformity in the orders passed by all the Courts.

Right to claim maintenance must date back to the date of filing of the application, since the period during which maintenance proceedings remained pending is not within the control of the applicant. Considering the above, the Supreme Court categorically directed that all the Courts award maintenance from the date of application.

 Conclusion

In the present matter, the petitioner had filed the case in the year 2014 and the impugned order was passed on 11-07-2017.

In view of the above discussion, Court held that it has no hesitation to hold that the impugned order granting maintenance from the date of order is liable to be set aside and the petitioner would be entitled to get maintenance from the date of application.

Hence, criminal revision case was partly allowed. [Mohamed Nisha Banu v. Mohamed Rafi, 2021 SCC OnLine Mad 801, decided on 17-02-2021]


Advocates who appeared for the parties:

For petitioner : S.M. Jinnah

For Respondent: No appearance

Case BriefsHigh Courts

Punjab and Haryana High Court:  In a revision petition filed against the enhanced amount of alimony H.S. Madaan, J., upheld Family Court’s decision that,

If salary of the husband increases the wife would be entitled to increased maintenance as well.

The Petitioner, one Varun Jagotta had filed the instant revision petition against his wife Diksha Kapur, feeling aggrieved by the order of the Family Court whereby the Court had granted interim maintenance at Rs 20,000  per month till September, 2019 and thereafter at Rs 28,000 per month. The petitioner was basically aggrieved by the portion of the impugned order granting maintenance at Rs 28,000 w.e.f. October, 2019 onwards.

Taking note of the fact that there had been increase in the salary of the respondent from Rs 95,000 per month to Rs 1,14,000 per month in September, 2019 and there had been increase in rent being paid by the petitioner at the rate of Rs.1,500 per month, the Family Court opined that  if the petitioner is awarded a sum of Rs 20,000/- per month by way of interim maintenance from the date of filing the application (on 03.10.2018) till September, 2019 and henceforth, at the rate of Rs 28,000/- per month, it would suffice the purpose and ends of justice would be met.

The petitioner contended that as per pay slip of the petitioner for the month of December, 2019, his net carry home salary after all the deductions came out to Rs 92,175, therefore, grant of maintenance at Rs 28,000 per month was not justified.

Noticing that salary of the petitioner had increased from Rs 95,000 per month to Rs 1,14,000 per month, the Bench held that,

 “Increase in maintenance by Rs.8,000 when there was increase in salary of revision petitioner by 19,000, was justified.”

Hence, it was held that the impugned order did not suffer from any illegality or infirmity and was not perverse or passed in an arbitrary manner. The instant petition was dismissed. [Varun Jagotta v. Diksha Kapur, CRR(F)-28 of 2021, decided on 05-02-2021]


Kamini Sharma, Editorial Assistant has put this story together.