Chhattisgarh High Court
Case BriefsHigh Courts

   

Chhattisgarh High Court: In a case relating to the appeal filed by the wife against the decision of the family court allowing the application of husband for seeking divorce on the ground of cruelty, the division bench of Goutam Bhaduri and Radhakishan Agrawal, JJ. observed that in a situation when a wife goes to the office premises of the husband, abuses him and accuses him of illicit relation, naturally it would result in diminishing the image of the husband before the colleagues and the office stature will certainly go down. Further, abusing the in-laws and stopping the husband from meeting his parents would also amount to cruelty.

The Court while taking note off all the evidence observed that the act of pulling back the husband mid-way from his brother's marriage ,whereby he was forced to leave the marriage is also an unnatural cruel act and such act would bring down the image and the prestige of a family in the eyes of public, which may also amount to cruelty. Further, the wife has made void allegation of illicit relationship of the husband with a lady outside the marriage and even made a complaint to the Chief Minister to transfer the husband from a particular posting in the office with allegation of illicit relations.

The Court took note of the ruling in Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511, wherein the court held that no uniform standard can ever be laid down for guidance and defined a non-exhaustive list of instances that constitutes mental cruelty. It further relied on Narendra v. K. Meena (2016) 9 SCC 455, wherein the court held that when the assassination of character is made by either of the parties it would constitute a mental cruelty for which a claim for divorce under S.13(1)(i-a) of the Hindu Marriage Act, 1955 would be sustainable.

[Nalini Mishra v. Surendra Kumar Patel, First Appeal (MAT) No. 8 of 2020, decided on 18.08.2022]


Advocates who appeared in this case :

Shishir Shrivastava, Advocate, for the Appellant;

C. Jayant K. Rao, Advocate, for the Respondent.

Madras High Court
Case BriefsHigh Courts

   

Madras High Court: In a case of marital discord and petitioner-wife, a practicing advocate was seeking removal of respondent-husband from the matrimonial home, R N Manjula, J. granted protection order and directed the husband to move out of the matrimonial home in the best interest and welfare of the children and to ensure peaceful possession and enjoyment of the petitioner wife in the home in any manner.

The petitioner wife filed an Original Petition for dissolution of marriage against the respondent-husband. During the pendency of matrimonial proceedings, the wife filed an interim application seeking mandatory injunction directing the respondent to move out of the matrimonial home in the best interest and welfare of the children till the disposal of the Original Petition which was partly allowed by the Family Court directing the respondent to not disturb the peaceful possession and enjoyment of the petitioner in the matrimonial home in any manner whatsoever where the petitioner living along with her children, till the disposal of the main petition. Assailing this, the revision petitioner preferred the instant Civil Revision Petition.

The Court noted that instead of giving a supportive hand to the petitioner by being accommodative of her demanding profession, the respondent developed a complaining attitude and found fault with the respondent for being engaged with her work.

Placing reliance on Samir Vidyasagar Bhardwaj v. Nandita Samir Bhardwaj, (2017) 14 SCC 583, the Court noted that if the removal of the husband from home alone is the only way to ensure domestic peace, the courts need to pass such orders irrespective of the fact whether the respondent has or has not another accommodation of his own. If the husband has got alternate accommodation, it is fine that he can be asked to accommodate himself in those alternate premises. If he does not have any other accommodation, it is up to him to secure alternate accommodation.

On the impugned order passed by the Family Court, the Court remarked that “Allowing the respondent to be at the same home but directing him that he should not disturb the other inmates of the home is something impractical. A relief for a person who fears about an impending atom bomb, would be just to remove the bomb from his/her vicinity.”

Thus, the Court observed that when a couple lives under one roof, the conduct of one party to the other is always vital in defining the respect and recognition the family would get from others. If domestic peace is disturbed due to unruly acts of one party, namely the husband, there need not be any hesitation in giving the practical enforcement for the protection order by removing the husband from the house.

The Court modified the impugned order passed by the Family Court and directed the respondent-husband to leave the house where the petitioner and the children live and find alternate accommodation within a period of two weeks from the date of receipt of a copy of the order, failing which, the respondent shall be removed from the matrimonial home with the help of police protection.

[V Anusha v. B Krishnan, CRP (PD) No. 1824 of 2022, decided on 11-08-2022]


Advocates who appeared in this case :

S. P. Arthi, Advocate, for the Petitioner;

D. Suresh Kumar, Advocate, for the Respondent.


*Arunima Bose, Editorial Assistant has reported this brief.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: In a case where two adults married against the wishes of the family and now anticipate danger to their lives, Tushar Rao Gedela, J. remarked State is under a Constitutional obligation to protect its citizens especially in cases where the marriage is solemnized between two consenting adults irrespective of caste or community.

The petitioner 1 left her home as her parents and other family members were torturing and harassing her on account of her relationship with petitioner 2 after which petitioners 1 and 2 solemnized their marriage on 13-06-2022 in accordance with the Special Marriage Act and copy of the certificate was placed on record. The father of petitioner 1 is politically a well-connected person in Uttar Pradesh and is capable of influencing the State machinery to their detriment. Thus, apprehending physical harm from the side of parents/family members, a present petition was filed seeking directions to the police to ensure the safety of life, limb and property to the petitioners.

The Court noted that in the present case, the petitioners 1 and 2 are major and the marriage certificate being placed on record prima-facie lends credence to the merits of the case in their favour.

The Court further observed that the Constitutional Courts under its framework are empowered to pass orders to protect the citizens, especially in the cases of the present nature. Our Constitution ensures two consenting adults to live together as husband and wife and there can be perceivably no interference in their lives from third parties, including their family. It is not only the duty of the State but also its machinery and the agencies which ensure law and order to ensure that no harm comes to the citizens of this country.

Thus, the Court directed to provide the mobile numbers of the SHO/Division Officer/Beat Officer(s) attached with PS Malviya Nagar to the petitioners so that in case of any threat/emergency, the petitioners may contact these officials for help.

The Court also directed the police officials to respond immediately in case of any call received from either petitioner regarding any incident of emergency or threat and to visit the residence once in two days only for the next three weeks to ensure the safety of the petitioners.

[Hina v. State, 2022 SCC OnLine Del 2194, decided on 13-07-2022]


Advocates who appeared in this case :

Ms. Mumtaz Ahmed, Mr. Satish Sharma, Advocates, for the Petitioner;

Ms. Kamna Vohra, ASC (Crl.) with Mr. Mukesh Kr, APP and SI Shajid Hussain, HC Harish Kumar, PS Malviya Nagar, Advocates, for State.


*Arunima Bose, Editorial Assistant has reported this brief.

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: A Division Bench of Goutam Bhaduri and Deepak Kumar Tiwari JJ. entitled father-in-law to pay maintenance to widowed daughter-in-law from the estate of the deceased husband which is held under the hands of father-in-law. The maintenance was increased from Rs 2500 to Rs 4000.

The respondent- daughter in law (‘DIL’) was married to the son of the appellant-father-in-law (‘FIL’). After the death of the husband , she was almost deserted in the family and the bank passbook and ATM card, which belong to her husband were kept by the in-laws. It was further pleaded that at village Haretikala, Tahsil Jaijaipur ancestral property of 11.78 acres and at village Jaijaipur 3.97 acres of agricultural land are held by the appellant. In addition, three shops and houses situated in different places of Korba wherein the right of late husband of the respondent is also vested.

According to the respondent, she has no source of income to maintain herself, as such, an amount of Rs.7,000/- per month was claimed towards maintenance which was opposed by FIL contending that in order to treat the ailment of his son , a considerable amount was spent, as such, the appellant does not have any source of income and, therefore, he is unable to pay the maintenance. Thus, the Family Court, after evaluating the evidence by the order impugned, directed the appellant to pay an amount of Rs.2,500/- per month towards maintenance of the respondent. Assailing this, a present appeal was filed.

The Court noted that in order to ensure the maintenance to the daughter-in-law, Section 19 of the Hindu Adoptions and Maintenance Act, 1956 is to be perused.

Placing reliance on Dayali Sukhlal Sahu v. Anju Bai Santosh Sahu, 2010 (3) CGLJ 459 and Parwati v. Danpatra Singh, 2021 (1) CGLJ 328 wherein it was held that the daughter-in-law is required to specifically plead and prove by leading cogent, reliable and clinching evidence that all other sources of income as stated in sub-section (1) of Section 19 Hindu Adoptions and Maintenance Act, 1956 are not available to her, then only the subsequent provisions of subsection (2) of Section 19 Hindu Adoptions and Maintenance Act, 1956 can be pressed into.

The Court observed that as per the provisions enumerated under Section 19 of the Act, 1956, the right to claim maintenance by widowed daughter-in-law is conditional. The father-in-law having in possession of coparcenary property out of which widowed daughter-in-law has not obtained any share, therefore, the right to receive maintenance from the father-in-law would be limited to the share of coparcenary property held by the father-in-law in his hand in which the widowed daughter-in-law has not taken any share.

The preferential right when is considered under Section 19 (1) (a) would show that the widowed daughter-in-law would be entitled to claim maintenance firstly from the estate of her husband and thereafter, claim can be made from her father or mother. Though the word in Section ‘or‘ is used, which gives the right to a widow to claim from either of the people enumerated in Section, yet the Section is sub divided into part (a) & (b). So, the preferential precedents exist giving an option to widow. Thus, it is crystal clear that the estate of husband comes first to claim maintenance by widow. It is the well settled proposition of law that the manager of a joint Mitakshara family is under a legal obligation to maintain all male members of the family, their wives and their children, and on the death of one of the male members he is bound to maintain his widow and his children.

The Court in view of the facts and circumstances pointed out that when the estate of the husband is held in the hands of the father-in-law; the daughter-in-law cannot be forced to leave the estate of her husband and to follow the estate of her father or mother. Thus, the estate of husband can be preferred to claim over the father or mother of the daughter-in-law.

The Court enhanced the maintenance amount from Rs.2,500/- to Rs.4,000/- per month taking into the consolidated share in the property and estimated proposed income.

[Nand Kishore Lal v. Shrimati Chanchala Lal, 2022 SCC OnLine Chh 1280, decided on 04-07-2022]


Advocates who appeared in this case :

Mr. Sanjay Patel, Advocate, for the Appellant;

Mr. Sourabh Sahu, Advocate, for the Respondent.


*Arunima Bose, Editorial Assistant has reported this brief.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: Asha Menon, J. upheld the maintenance decree granted by the Family Court directing the husband to pay Rs 20,000 monthly to the wife and his child as maintenance keenly analyzing his earning vis a vis his expenditure.

The present petition was filed under Section 482 Criminal Procedure Code i.e., CrPC for quashing of an order dated 11-12-2021, passed by the Family Court, North-East, Karkardooma Courts whereby directions were issued to the petitioner-husband to pay a sum of Rs.20,000/- as a consolidated amount towards the interim maintenance of the respondents i.e., wife and child.

The Court noting that the present petition has no merits observed that the power of the Court under Section 482 CrPC is an extraordinary power, to be used sparingly, carefully and with caution and only when the continuation of the criminal proceedings will lead to miscarriage of justice or there was a disclosure of abuse of process of the court.

Based on evidence available on record and documents placed before Court, it is apparent that it is the petitioner who had inflated his expenditure especially Rs.10,000/- per month for his aged parents, who are admittedly living in their own residence on a 50 sq. yds. plot at Bhajanpura, Delhi owned by his father. The petitioner owns a Hyundai EON car and a smartphone of Samsung yet, he wishes to peg the maintenance of the respondent to Rs.4,000/- (before this Court Rs.5,000/-) i.e., less than half of the sum he allegedly spends on his old parents. A growing child and a mother who is taking care of all the needs of such a growing child is to somehow manage with Rs.4,000/-, whereas the petitioner and his parents can have a greatly enhanced level of comfort by spending Rs.25,000/- to Rs.28,000/- on themselves.

The Court noted that such an attitude is shameful no husband or a father must deny a fair standard of living for a wife who is a homemaker and their child of tender age.

The Court observed that matrimonial relationships can come to an end for a variety of reasons including ego clashes. The creation of Family Courts, the entire set up of Counseling Centers, and the availability of mediation whether before litigation or during litigation, are all intended for a more amiable and less torturous resolution of matrimonial and family problems. To deny maintenance to an estranged wife and child is the worst offence, even from a humanitarian perspective. Yet, it is a sad truth that husbands force their wives to file execution petitions to delay payments, even after a court of law has determined her entitlement, albeit, even if as an interim measure.

The Court dismissed the petition directing Rs 20,000 to be paid to the respondent wife as maintenance on the next date of hearing before the Family Court.

[Pradeep Kumar v. Bhawana, 2022 SCC OnLine Del 2082, decided on 18-07-2022]


Advocates who appeared in this case :

Mr. Pradeep Kumar Yadav, Advocate, for the Petitioner;

Mr. Praveen Goswami and Mr. Vijay Chauhan, Advocates, for the Respondent.


*Arunima Bose, Editorial Assistant has reported this brief.

Karnataka High Court
Case BriefsHigh Courts

   

Karnataka High Court: Hemant Chandangoudar J. quashed the FIR against accused 5 being the woman who had illicit relations with the husband of the complainant, for the offence punishable under Section 498-A Penal Code, 1860 (‘IPC').

An FIR was filed by R2, being the legally wedded wife of accused 1 (‘the husband') for the offence punishable under Section 498-A, 506, 504 and 34 of IPC and Section 3 and 4 of Dowry Prohibition Act, 1961. The FIR was filed against accused 1 to 4 being family members of the husband and accused 5 being the woman alleged of having illicit relations with the husband.

Counsel for accused 5, in this case being the petitioner, submitted that the allegation made against the petitioner does not constitute the commission of the offences alleged and therefore, the registration of the FIR for the aforesaid offences was impermissible.

The Court noted that the only allegation against the petitioner — accused 5 is that she is having an illicit relationship with the accused 1 who is the husband of the respondent 2- complainant. Thus, the Court held that “this allegation does not constitute the commission of the offences alleged against the petitioner — accused 5 and in the absence of any essential ingredients so as to constitute the commission of the said offences, registration of the FIR against accused 5 is without any substance.”

[Shilpa SC v. State of Karnataka, Criminal Petition No. 2743 of 2017, decided on 02-06-2022]


Advocates who appeared in this case :

Nagaraj G., Advocate, for the petitioner;

S. Vishwamurthy, Advocate, for R1;

Babu Reddy, Advocate, for R2.


*Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Rajasthan High Court: Pushpendra Singh Bhati J. modified the impugned order and enhanced the compensation to Rs 75000/- (for wife) and Rs 25000/- (for son).

The facts of the case are such that the marriage was solemnized and a son was born out of the said wedlock. It was further submitted that, on account of the alleged disharmony the wife left her matrimonial home and came back to India along with the son. Thus, the wife filed an application against the husband under Section 125 CrPC before the Court, which was allowed vide the impugned order, while awarding the monthly maintenance to the wife and the son . The petitioner-husband (respondent herein) preferred the petition against the order seeking quashing and setting aside of the said order. The petitioner-wife (respondent herein) preferred instant revision petition challenging the order praying for enhancement of monthly maintenance.

It was submitted that the wife is earning Rs 85, 000/- per month and staying at Hyderabad, and thus, competent to earn her own livelihood, while the husband does not oppose the maintenance granted to the son vide the impugned order. Counsel also submitted that the wife deserted the husband of her own sweet and free will, and thus, she is not entitled to any kind of maintenance.

The Court relied on Supreme Court judgment in Rajnesh v. Neha, (2021) 2 SCC 324, even if the wife is earning, then also she is entitled to the determination of maintenance, in accordance with the lifestyle of her husband in the matrimonial home.

It was submitted that the sustenance does not mean and cannot be allowed to mean a mere survival, and the lifestyle at Hyderabad, where the wife alongwith her son is presently residing, is very costly, and the son is also going in a good and reputed school at Hyderabad, the expenditure whereof is also too high. Thus, even if the wife is earning something, then also she is entitled to claim the necessary and adequate maintenance from her husband.

It was noted that the husband himself took divorce; therefore, the charge of desertion cannot become a ground so as to enable the husband to disqualify the wife from claiming the amount of monthly maintenance, in any manner whatsoever.

This Court finds that the husband is earning about Rs.12,00,000/- per month and the wife is earning Rs.85,000/- per month, and therefore, a very reasonable capacity of the husband to pay the maintenance should be 1/12th of his income, which shall take care of the husband’s claim for the high cost of living in the USA.

The Court thus held “the amount of monthly maintenance as awarded by the learned court below, vide the impugned order dated 30.08.2018, to the wife and the son, is enhanced to Rs.75000/- (for wife) and Rs. 25000/- (for son).”[Neha Mathur v. Arvind Kishore, 2022 SCC OnLine Raj 943, decided on 26-05-2022]


 Appearances

For Petitioner(s): Mr Parvej Moyal (for wife)

For Respondent(s): Mr Shadan Farasat a/w Mr Harshit Bhurani (for husband)


Arunima Bose, Editorial Assistant has reported this brief.

Gauhati High Court
Case BriefsHigh Courts

Gauhati High Court: While addressing a matter with regard to maintenance of wife, Rumi Kumari Phukan, J., expressed that, the statutory right of a wife of maintenance cannot be bartered, done away with or negatived by the husband by setting up an agreement to the contrary.

Petitioner has challenged the judgment passed by the Sub-Divisional Judicial Magistrate, in a case filed by the petitioner/wife under Section 125 of the CrPC, rejecting her prayer for maintenance by the impugned judgment.

Factual Background


After three months of the marriage of petitioner/wife and respondent/husband, the family members of the respondent started to torture the petitioner, both physically and mentally and demanded 5 lakhs dowry but as she could not fulfil their demand, the respondent abused the petitioner.

Petitioner also stated that the sister-in-law of the respondent also used to abuse the petitioner by using filthy language, assaulting her by pulling her hair and preventing her from talking to her husband.

On being aggrieved with husband’s behaviour, the petitioner lodged an FIR which was registered but on assurance of the family members of the respondent that they won’t harass her in future, the case was compromised, and she was allowed to stay at her parental house for the completion of her studies. Though the respondent never provided any maintenance, nor contacted her and since the petitioner had no income it became difficult for, her to bear the daily expenses.

In view of the above-said grievances, a petition under Section 125 CrPC was filed.

Husband’s Counsel submitted that there was no irregularity in the order so passed by the trial Court in as much as the petitioner herself resided in the parental house, admittedly by making an agreement that during her stay, her maintenance will be borne by her parents.

Analysis and Decision


High Court noted that the uncorroborated testimony of the 1st party and her witnesses established the fact that the 1st party was subjected to torture in her matrimonial house which gave her sufficient ground to live separately from the 2nd party.

The Bench noted that the respondent/husband in his cryptic written objection had not narrated any detail as to under what circumstances, the petitioner began to reside in the parental house and as to why the FIR was also against him and imply it was stated that the matter had been settled between the parties.

In Court’s view, such evasive denial on the part of the husband indicated that he had not taken proper care of his wife, while she was in her parental house.

Since after filing of the FIR, she began to reside in her parental house and that does not itself absolve the respondent/husband to provide maintenance to his wife, even though her parent might have maintained her.

On perusal of the facts and circumstances of the case, it was found that the petitioner had entered into marriage at her tender age, while she was a college-going student and due to some household conflict, the relation between the parties turned sour, as a result of which she returned to her parental house and also filed an FIR.

High Court expressed that,

“…the statutory right of a wife of a maintenance cannot be bartered, done away with or negatived by the husband by setting up an agreement to the contrary. Such an agreement in addition to it being against public policy would also be against the clear intendment of this provision. Therefore, giving effect to an agreement, which overrides this provision of law, that is, Section 125 of Cr.P.C. would tantamount to not only giving recognition to something, which is opposed to public policy, but would also amount to negation of it.”

In the present matter, the respondent/husband could not prove that he had no sufficient means to discharge his obligation and that he did not neglect or refused to maintain his wife, whereas the petitioner had been able to prove that there was neglect on the part of the respondent.

Therefore, the trial Court’s decision was set aside, and a fresh Judgment will be passed in the instant case. [Bulbuli Saikia v. Jadav Saikia, 2022 SCC OnLine Gau 820, decided on 17-5-2022]


Advocates before the Court:

Advocate for the Petitioner: MR. A DUTTA

Advocate for the Respondent: MR. K K BHATRA

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: In a matter with regard to mental cruelty, the Division Bench of Ritu Bahri and Ashok Kumar Verma, JJ., observed that, even if the husband and wife were staying together and the husband stopped talking to the wife, it would cause mental cruelty and a spouse staying away by sending vulgar and defamatory letters or notices by initiating a number of judicial proceedings could make the life of other spouse miserable.

Appellant-wife came up in the present appeal against the decision of the Family Court by the respondent-husband under Section 13 of the Hindu Marriage Act, 1955 seeking dissolution of marriage by a decree of divorce was allowed and he had been granted a divorce.

As per the husband, when he filed a petition under Section 13 of the HMA, the behaviour of the respondent was very cruel, barbaric, rude and crude towards the respondent from the very beginning.

It was stated that, the wife had tried to take forcible possession of the agricultural land owned and possessed by the respondent and a civil suit against the appellant was pending in the District Courts, Karnal.

Further, it was alleged that the appellant was living in adultery with some person in the year 2012 and she forcibly turned out the respondent along with his four children from the house.

When the marriage of the husband and wife was fixed by the respondent, husband had requested the appellant to join the marriage, but she taunted that she had no concern with the respondent and his children.

In view of the above, a divorce petition was filed.

Analysis, Law and Decision

High Court expressed that, even if husband and wife are staying together and the husband does not speak to the wife, it would cause mental cruelty and a spouse staying away by sending vulgar and defamatory letters or notices or filing complaints containing indecent allegations or by initiating a number of judicial proceedings can make the life of other spouse miserable.

The Bench stated that in the present case, after the acquittal in the FIR and dismissal of the domestic violence complaint, enough mental cruelty had been caused to the husband.

Hence, the appellant’s counsel was unable to point out any illegality or infirmity in the impugned judgment.

In view of the above, the appeal was dismissed. [Harbans v. Joginder Pal, 2022 SCC OnLine P&H 1101, decided on 6-5-2022]


Advocates before the Court:

Mr. Avtar Singh Sandhu, Advocate, for Mr. A.S. Rai, Advocate, for the appellant-wife.

Mr. R.S. Budhwar, Advocate, for the respondent-husband.

Case BriefsHigh Courts

Allahabad High Court: Brij Raj Singh, J., while discussing the matter with regard to providing maintenance to a wife, noted that the Court below had made observations on being influenced by factual aspects which were not proved.

The instant revision was preferred to set aside the decision of the Family Court in a criminal case under Section 125 of the Criminal Procedure Code and to direct the OP to pay at least Rs 10,000 as monthly maintenance.

Background

The wife submitted that she was married to OP 1 prior to 40 years and out of the wedlock three children were born. The OP 2 had provided maintenance to her till 1983, but thereafter it was stopped by him. Further, she stated that she was dependent on her brother who used to provide financial assistance but suddenly had gone missing. She had filed the application as she has no source of income, and hence needed maintenance from her husband.

Point Wise Discussion

  • Revisionist stated that the OP 2 had performed second marriage and had deserted her, but the said fact was not dealt with by the lower Court and the finding had been recorded that she was unable to show why she was living separately.
  • The fact that some property was sold by the revisionist and out of that money she was maintaining her children, could not be inferred that the revisionist had lost her opportunity for grant of maintenance under Section 125 CrPC.
  • The finding that revisionist was unable to state as to whether her children were literate or illiterate or how much they were educated, would be a perverse finding for determination of maintenance under Section 125 CrPC.
  • The court below has further recorded a finding that all the three children were settled by her; thus, she was having means to sustain herself. If some income was received by her out of sold property, it does not mean that she would sustain throughout life.
  • The court below has further recorded a finding that the opposite party 2 stated the fact that revisionist had illicit relation with Ram Singh @ Manjeet Singh and the said fact was not denied by her. The said finding is also perverse because statement of fact cannot be relied on because it will have serious repercussions unless it is proved.

In Court’s opinion, the lower Court had rejected the application without application of mind, hence the matter was remanded to the Court below to take a fresh decision. [Krishna Devi v. State of U.P., 2022 SCC OnLine All 303, decided on 4-5-2022]

Saket Court
Case BriefsDistrict Court

Saket Courts, Delhi: While addressing a maintenance matter, Anuj Agrawal, Additional Sessions Judge-05, expressed that, it can not be believed that a person who was capable of supporting a family by getting married, would all of a sudden become devoid of all sources of income.

A complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 was filed by the respondent/wife against the appellant/husband on the ground that she had been subjected to domestic violence by the husband and his father. The said complaint was accompanied with an application under Section 23 of the DV Act seeking interim maintenance, which was disposed of by the Trial Court.

Analysis, Law and Decision

The Court stated that while fixing interim maintenance, Court has to take a prima facie view of the matter and need not critically examine the claims of parties regarding their incomes and assets because for deciding the same, the evidence would be required.

“…an aggrieved person cannot be rendered to lead a life of a destitute till completion of trial.” 

The Bench expressed that for computing the maintenance, a test had been laid by the Supreme Court in Jasbir Kaur Sehgal v. District Judge, Dehradun, (1997) 7 SCC 7.

Wife Well Qualified

The Court while citing the Supreme Court decision in Rajnesh v. Neha, 2020 SCC OnLine SC 903 reiterated that,

The Courts have held that if the wife is earning, it cannot operate as a bar from being awarded maintenance by the husband.

Husband’s Income

In the present matter, the respondent/wife claimed that the monthly income of the respondent was Rs 1.5 lakhs, however, the said claim of the respondent/wife was not supported by any material on record.

The Bench stated that it came on record that the appellant/husband was a well-qualified person having qualification of BUMS and was in the profession of ‘Hakim’, hence even is his income was NIL, but his earning capacity could not be lost sight of.

Further, the Court added that, it could not be believed that a person who was capable of supporting a family by getting married, would all of a sudden become devoid of all sources of income. Hence, the Trial Court’s approach while assessing the monthly income of the husband was correct.

Settled Law

A wife is entitled to the same status and lifestyle that she was enjoying prior to severing the relationship.

Therefore, interim maintenance has to be commensurate with her needs as well as the income of her husband.

On finding no impropriety in the impugned order, the appeal filed by the husband stood dismissed. [Amjad Ali v. Sufia Chaudhary, 2022 SCC OnLine Dis Crt (Del) 13, decided on 5-5-2022]

Case BriefsHigh Courts

Allahabad High Court: Rahul Chaturvedi, J., noted that a lady soon after coming to know that her husband got married in clandestine way with some other lady, committed suicide.

The deceased during her lifetime, lodged an FIR against the husband and all his family members under Sections 323, 494, 504, 506, 379 of the Penal Code, 1860 with the allegation that her husband was already married with some other lady and having two children from her and without divorcing her, rather without disclosing the said fact, he got married with the deceased.

Further, after enticing the informant, who was married lady again solemnized marriage with the consent of both.

The family members after getting to know the above-stated started misbehaving, torturing and abusing her and made her life miserable, the atrocities crossed all the limits when her husband under the pressure of his family members virtually deserted her and kept a new lady.

After lodging the FIR, the deceased consumed some poisonous substance on the same day.

In view of the above circumstances, the deceased took the extreme step by consuming some poisonous substance and committed suicide.

Analysis and Decision

In the present matter, the husband of the deceased was going to marry third time.

High Court opined that the FIR for all the practical purposes could be considered as her dying declaration as the deceased herself was the author of the FIR. After lodging the FIR, she committed suicide just the next day after its lodging.

“No Indian lady is ready to share her husband at any cost. They are literally possessive about their husband.” 

“It would be biggest jolt for any married woman that her husband is being shared by some other lady or he is going to marry some other lady.”

In view of the above, Bench stated that it would be impossible to expect any sanity from them.

High Court found the husband to be the main culprit, and to be tried for the offence under Section 306 IPC.

Bench directed the trial Court to frame the charge as early as possible and initiate the trial of the accused persons. [Sushil Kumar v. State of U.P., 2022 SCC OnLine All 279, decided on 7-4-2022]


Advocates before the Court:

Counsel for Revisionist :- Shailesh Kumar Tripathi

Counsel for Opposite Party :- G.A.

Case BriefsHigh Courts

Delhi High Court: In a matter of dissolution of marriage, the Division Bench of Vipin Sanghi, ACJ and Jasmeet Singh, J., expressed that husband and wife together can deal with any situation, if one gets weak or breaks, the whole crashes down.

Husband preferred an appeal under Section 19 of the Family Courts Act, 1984 to quash and set aside the judgment passed by the Family Court.

On grounds of continuous acts of cruelty, the divorce petition was preferred by the wife and the family Court had allowed the said petition against the husband by the impugned judgment.

Husband stated that the issues which require adjudication in the present matter are as follows:

(i) Whether the Family Court was right in striking off the defence of the appellant?

(ii) Whether the respondent/wife was able to prove the charge of cruelty with cogent evidence against the appellant/husband before the Family Court?

Analysis and Discussion


High Court noted while rejecting the plea of the husband that fresh documents cannot be filed at the stage of evidence and are required to be filed along with a reply or written statement.

Order 8 Rule 1A (1) of Civil Procedure Code, 1908 (hereinafter referred to as CPC) mandates the defendant to file the documents in his possession at the time of filing the written statement. In case the defendant fails to file such documents at the time of presenting the written statement, then the same shall not be allowed to be received in evidence on behalf of the defendant.

Section 14 of the Family Courts Act, 1984 empowers the Family Court to receive any evidence, whether or not the same is relevant or admissible under the Indian Evidence Act if, in its opinion the same would assist it to deal effectually with the dispute before it. 

The Bench stated that, the appellant failed to comply with various orders of this Court, as well as of the Supreme Court, and the Family Court qua payment of the maintenance and preferred to indulge in frivolous litigations instead of paying the outstanding maintenance amount. The appellant was directed by this Court to deposit the maintenance amount.

In Court’s opinion, the Family Court was justified in striking off the defence of the appellant.

High Court cited the Supreme Court’s decision in V. Bhagat v. D. Bhagat, (1994) 1 SCC 337, wherein it was dealing with the divorce petition filed by the husband which he amended later from adultery to cruelty.

The Family Court in the present matter had granted divorce to the respondent under Section 13(1)(ia) of the HMA solely relying on the ground of “mental cruelty‟.

Remarking that “Husband and wife are two pillars of the family”, High Court held that, when one pillar gives up and puts all the burden on the other pillar, then it cannot be expected that one pillar will single-handedly hold the house together.

Hence, Court upheld the observation of the Family Court on noting that the husband had put the entire burden on the wife to manage the house, her job, and look after the children and he failed to discharge his duties as a husband and especially as a father.

Lastly, the High Court found that the bond between the parties has irretrievably broken down and wife was subjected to repeated harassment by the husband. Therefore, the wife had well established the ground of mental cruelty by the husband in light of Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511.

In view of the above, the present appeal was dismissed. [Sunil Kumar Sharma v. Preeti Sharma, 2022 SCC OnLine Del 1263, decided on 2-05-2022]


Advocates before the Court:

For the Appellant:

Md. Azam Ansari, Advocate with Mr Ashfaque Ansari, Advocate

For the Respondent:

Mr Gaurav Goswami with Mr Tarun Goomber and Mr Pankaj Mendiratta, Advocates

Case BriefsHigh Courts

Delhi High Court: While addressing a matter with regard to a wife’s right to maintenance Chandra Dhari Singh, J., expressed that, only continuous and repeated acts of adultery and/or cohabitation in adultery would attract the rigours of the provision under Section 125(4) CrPC.

Factual Matrix


A criminal petition was filed seeking to set aside the decision by Family Court.

Instant petition had been filed against the order of the Additional Principal Judge filed by the respondent under Section 125 of the CrPC, whereby the Additional Principal Judge granted maintenance.

Petitioner impugned the order dated 31-7-2020, which enhanced the maintenance amount.

Analysis, Law and Decision


In the present matter, the maintenance order was challenged on the grounds of cruelty, adultery, desertion without reason as well as the fact that the wife was capable enough of maintaining herself.

Various Supreme Court and High Court decisions have established the position of payment of maintenance holding that the ground of cruelty does not disentitle the wife of her right to maintenance. In fact, in cases where divorce is granted on the ground of cruelty, Courts have awarded permanent alimony to the wife.

Hence,

Ground of cruelty and harassment do no stand ground for non-payment of the maintenance amount.

The Bench expressed that the codified law and judgments of various High Courts settle the position with respect to the bar of adultery for grant of maintenance in favour of the wife.

Law mandates that in order to extract the provision under Section 125(4) CrPC the husband has to establish with definite evidence that the wife has been living in adultery, and one or occasion acts of adultery committed in isolation would not amount o ‘living in adultery’.

The Bombay High Court decision in Pandurang Bakru Nathe v. Leela Pandurang Nathe, 1997 SCC OnLine Bom 264 made an observation with regard to the provision under Section 125(4) CrPC was relied on by the Court.

Another decision of the Kerala High Court in Sandha v. Narayanan, 1999 SCC OnLine Ker 64 was also relied on.

High Court found that the law as interpreted by the High Courts, evinces that only continuous and repeated acts of adultery and/or cohabitation in adultery would attract the rigours of the provision under Section 125(4) CrPC.

The petitioner could not establish prima facie that the respondent was living in adultery, hence the respondent was not entitled to any maintenance.

Concluding the matter, Court declined to allow the instant petition, since the petitioner had failed to show any ground for challenging the order under the revisional jurisdiction of this Court.

Therefore, Bench did not find any cogent reason to interfere with the impugned order and judgment. [Pradeep Kumar Sharma v. Deepika Sharma, 2022 SCC OnLine Del 1035, decided on 13-4-2022]


Advocates before the Court:

For the Petitioner:

Annu Narula, Vishal Singh, Ravi Kumar and Shiva Chauhan, Advocates

For the Respondent:

Shamikh, Advocate

Case BriefsHigh Courts

A man is a man; an act is an act; rape is a rape, be it performed by a man the “husband” on the woman “wife”

Karnataka High Court: M Nagaprasanna J. dismissed and disposed of WP Nos. 48367 of 2018, 12976 of 2017, 10001 of 2018 and partly allowed 50089 of 2018.

Factual Background

The facts of the case, as according to the narration of the victim, clearly indicates as to how brutally the petitioner used to have sex, anal sex with the complainant/wife in the presence of his daughter who was 9 years old at that point in time and later used to touch the private parts of the daughter and also indulged in sexual acts against the daughter. The complaint was filed by the victim wife and the charge sheet was filed by the Police for offences punishable under Sections 498A, 376, 354, 506 of the Penal Code, 1860 i.e. IPC and Section 5(m) and (l) of the Act. The petitioner, on filing of the final report, filed an application under Section 216 of the Criminal Procedure Code i.e. Cr.P.C seeking a prayer to drop the first charge framed under Section 376 of the IPC, as the offence would not get attracted in the case of the petitioner who is the husband of the complainant which was rejected by the Sessions Court in terms of its order dated 16-10-2018. Thus the petitioner knocked the doors of the instant Court in the subject petition in the garb of calling in question the Constitutional validity of clauses of presumption under Sections 29 and 30 of POCSO Act.

Issues:

(i) Whether cognizance being taken against the petitioner-husband for offence punishable under Section 376 of IPC is tenable in law?

(ii) Whether the allegation against the petitioner for other offences is tenable in law?

(iii) Whether the prosecution notwithstanding the presumption under Sections 29 and 30 of the Act has to prove the foundational facts beyond all reasonable doubt?

(iv) Whether the designated Court to try the offences under the Act has jurisdiction to try both the offences under the IPC and the Act in the facts of this case?

(v) Whether charge sheet against the petitioner should be altered to include addition of the offence punishable under Section 377 of IPC?

(vi) Whether proceedings under the POCSO Act against the petitioner need to be interfered with?

Issue 1

History of Section 375 Penal Code, 1860

The genesis of Section 375 of the IPC and its exception has its roots in the Code propounded by Macaulay in 1837. It is Macaulay’s Code that becomes the basis for the Indian Penal Code of 1860, which governs the penal provisions even as on date with certain changes on certain occasions. Exception to Section 375 has existed in the IPC since the time of its enactment by the British in the year 1860. Exception-2 then was guided by the laws that were existent in all the countries where the British had their foot on. They were several decades ago. It was founded and remained on the premise of a contract in the medieval law that husbands wielded their power over their wives. In the Victorian era women were denied the exercise of basic rights and liberties and had little autonomy over their choice. Their statuses were nothing beyond than that of materialistic choices and were treated as chattels.

Post Republic, India is governed by the Constitution. The Constitution treats woman equal to man and considers marriage as an association of equals. The Constitution does not in any sense depict the woman to be subordinate to a man. The Constitution guarantees fundamental rights under Articles 14, 15, 19 and 21 which are right to live with dignity, personal liberty, bodily integrity, sexual autonomy, right to reproductive choices, right to privacy, right to freedom of speech and expression. Under the Constitution, the rights are equal; protection is also equal.

Justice JS Verma Committee: Recommendations

79. We, therefore, recommend that:

i. The exception for marital rape be removed.

ii. The law ought to specify that:

a. A marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation;

b. The relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity;

c. The fact that the accused and victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape.

80.We must, at this stage, rely upon Prof. Sandra Freedman of the University of Oxford, who has submitted to the Committee that that “training and awareness programmes should be provided to ensure that all levels of the criminal justice system and ordinary people are aware that marriage should not be regarded as extinguishing the legal or sexual autonomy of the wife”.

Section 375 of the IPC came to be amended with effect from 10-05-2013 after introduction of Criminal Law Amendment Bill before the Parliament, pursuant to the constitution of J.S.Verma Committee for suggesting amendments to criminal law.

The Exception to pre-amendment reads as follows:

“Exception.—Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

The Exception to post-amendment reads as follows:

Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

 The Court thus remarked, “a woman being a woman is given certain status; a woman being a wife is given a different status. Likewise, a man being a man is punished for his acts; a man being a husband is exempted for his acts. It is this inequality that destroys the soul of the Constitution which is Right to Equality. The Constitution recognizes and grants such equal status to woman as well.”

The Court observed that the Code practices discrimination. Under the Code every other man indulging in offences against woman is punished for those offences. But, when it comes to Section 375 of IPC the exception springs. Thus, the expression is not progressive but regressive, wherein a woman is treated as a subordinate to the husband, which concept abhors equality.

Therefore, the situation now emerges is equality pervades through the Constitution, but inequality exists in the Code qua – Exception-2 to Section 375 of the IPC.

The Court held “I find no error committed by the learned Sessions Judge in taking cognizance, framing the charge under Section 376 of the IPC and also rejecting the application to drop the said charge.”

Issue 2

The Court held “Other offences alleged against the petitioner, the ones punishable under Sections 498A, 354, 506 of the IPC are clearly brought out in the complaint and in the charge sheet. This is again a matter of trial” 

Issue 3

The Court relied on GS Venkatesh v. State of Karnataka, (2020) 3 KCR 2276 wherein it was observed “In a case where an offence is committed against a child, having regard to the very nature of the offence where it is difficult for the prosecution to prove the facts and circumstances in which the offence had taken place, the Act has cast the burden on the accused to prove the facts within his knowledge as it is easier for the innocent accused to produce evidence contrary to the case proved by the prosecution. This is called reverse burden whereby the burden is shifted to the accused to disprove the facts established by the prosecution. The question of discharging the reverse burden by the accused would arise only when the initial burden cast on the prosecution is discharged to the satisfaction of the Court. Therefore it follows that without the proof of basic facts constituting the offence charged against the accused, the accused cannot be called upon to disprove the case of the prosecution.”

The Court thus held the prosecution has to prove the foundational facts beyond all reasonable doubt and cannot rest its case on preponderance of probability, merely because the statute imposes reverse burden upon the accused on proving innocence in place of the prosecution proving the guilt.

Issue 4

The Court relied on judgment Vivek Gupta v. CBI, (2003) 8 SCC 628 and held “I am of the considered view that the trial that is now sought to be held before the POSCO Court by the Sessions Judge can also try the offences alleged under the Code. Therefore, the point that has arisen for consideration is answered against the petitioner.” 

Issue 5

The Court observed and held that the finding that when the allegations made against the husband attracts Section 376 of the IPC and a charge is also framed in respect of the said offences, question of considering the request to frame a charge under Section 377 of the IPC does not arise, is erroneous. The allegations clearly make out an offence punishable under Section 377 of the Code which deals with unnatural sex. Therefore, the order under challenge is to be set aside allowing the application filed by the prosecution under Section 216 of the Cr.P.C. with a direction to the trial Court to frame the charge for the offence punishable under Section 377 of the IPC as well.

Issue 6

The Court held Allegations against the petitioner-husband for offences punishable under the POCSO Act for alleged sexual acts on the daughter cannot be interfered with. It is yet again a matter of trial.”

[Hrishikesh Sahoo v. State of Karnataka, 2022 SCC OnLine Kar 371, decided on 23-03-2022]


Appearances:

For petitioner: Mr. Hashmath Pasha and Mr. Ranjan Kumar

For respondent: Mrs. Namitha Mahesh., R D Renukaradhya, Mr. Madanan Pillai, and A D Ramananda


Arunima Bose, Editorial Assistant ahs reported this brief.

Case BriefsHigh Courts

Delhi High Court: While addressing a matter surrounding the issue of cruelty by wife, the Division Bench of Vipin Sanghi, ACJ and Dinesh Kumar Sharma, J., expressed that,

“It has repeatedly been held that accusations of unchastity or extra marital relationship is a grave assault on character, status, reputation as well as health of the spouse against whom such allegations were made.”

Appellant invoked this Court’s jurisdiction under Section 19 of the Family Courts Act, 1984 assailing the impugned judgment whereby Family Court granted a decree of divorce in favour of respondent/husband under Section 13(1)(ia) of the Hindu Marriage Act, 1995.

Background


Husband had filed a divorce petition on the ground of cruelty and on the basis of the same, Family Court had granted divorce decree.

Husband’s allegations were with regard to wife’s lifestyle, attitude and strange behaviour towards his parents.

Appellant/wife in her defense stated that she was tortured and harassed by her in-laws on account of their dowry demands and father-in-law had also sexually assaulted her. She added that the husband used to force her to commit suicide, for which she had filed a complaint.

In furtherance to the above, the appellant stated that she wanted to continue with the matrimonial alliance, and thus she filed the petition under Section 9 of the HMA.

Analysis and Decision


In Court’s opinion, the Family Court had correctly appreciated the evidence and rightly found that the appellant by making unfounded allegations amounting to character assassination against the husband inflicted mental cruelty upon the husband.

Further, the Court expressed that, accusations of unchastity or extra marital relationship causes mental pain, agony suffering and tantamount to cruelty.

The allegations of extra marital affairs in relationship are serious allegations, which have to be made with all seriousness. The tendency of making false allegations has to be deprecated by the Courts.

While concluding the matter, the High Court held that there was no material on the record to upset or set aside the order of the Family Courts.

The marriage is solemn relation and it’s purity must be maintained for a healthy society.

In view of the above, the matter was dismissed. [Jyoti Yadav v. Neeraj Yadav, 2022 SCC OnLine Del 795, decided on 21-3-2022]


Advocates before the Court:

For the Petitioner: Mr Rajeev Pratap Singh, Adv. with appellant in person.

For the Respondent: Ms Zubeda Begum, Ms Sana Ansari and Ms Ishita Mohanty, Advocates

Case BriefsHigh Courts

Rajasthan High Court: Dinesh Mehta, J.,  dismissed the petition.

The facts of the case are such that the petitioner and the respondent, who got married on 17-02-1976, have been living separately since 1986. The instant petition was filed under Section 482 Criminal Procedure Code i.e. CrPC challenging order dated 06-01-2022, whereby the Gram Nyayalay, Aspur, District Dungarpur partly allowed the application for interim maintenance filed by the respondent (wife) and directed the petitioner to pay a sum of Rs 5,000/- per month as interim maintenance.

Counsel for the petitioner submitted that the present petition under Section 125 of CrPC that has been filed in the year 2021, is clearly an abuse of the process of law. It was further submitted that the Court has treated petitioner’s income to be Rs 1,00,000/- whereas his return of income tax shows that his income is approximately Rs 40,000/- per month.

The Court observed that an order under Section 125 of CrPC is in the nature of interim maintenance and husband, who admittedly earns Rs 40, 000/- per month cannot be absolved of his obligation to pay interim maintenance, merely because the respondent – wife has chosen to file the application after 36 years of marriage.

The Court held “This Court does not find any reason to interfere in the present petition, particularly when the petitioner has failed to point out any jurisdictional error or apparent error on the face of record and when a meagre sum of Rs.5,000/- has been ordered to be paid.”

[Chandrakant Jain v. Veermati Jain, S.B. Criminal Misc(Pet.) No. 986/2022, decided on 11-03-2022]


Appearances:

For Petitioner(s): Mr. Mohit Singhvi

For Respondent(s): Mr. Mahipal Bishnoi


Arunima Bose, Editorial Assistant has reported this brief.

Saket Court
Case BriefsDistrict Court

Saket Courts, New Delhi: Sonu Agnihotri, Additional Sessions Judge – 03, addressed a matter, wherein a wife using improper means procured the information of bank accounts of father-in-law and mother-in-law but it was noted that her intention was not dishonest.

A criminal revision under Section 397/399 of the Code of Criminal Procedure was preferred by the accused against the impugned order passed by the Metropolitan Magistrate whereby the order of framing of charge under Section 72A of the IT Act and Section 409 of Penal Code, 1860 was passed against the accused.

Complainants were the father-in-law and mother-in-law of the petitioner and due to issues between their son and daughter-in-law, the son left the company of his wife and started living at his matrimonial home.

Petitioner had filed a complaint under Section 12 of the PWDV Act against the son of the complainant wherein she sought maintenance from her husband.

It was stated that 12 Court proceedings have been pending between the petitioner and son of the complainants with regard to matrimonial disputes.

Vide the impugned order, the charge had been ordered to be framed against the petitioner under Section 72A of the IT Act and Section 409 of Penal Code, 1860

Analysis, Law and Decision

Section 72 A of the Information Technology Act provides as:

Punishment for disclosure of information in breach of lawful contract. -Save as otherwise provided in this Act or any other law for the time being in force, any person including an intermediary who, while providing services under the terms of lawful contract, has secured access to any material containing personal information about another person, with the intent to cause or knowing that he is likely to cause wrongful loss or wrongful gain discloses, without the consent of the person concerned, or in breach of a lawful contract, such material to any other person, shall be punished with imprisonment for a term which may extend to three years, or with fine which may extend to five lakh rupees, or with both.

Section 409 IPC:

Criminal breach of trust by public servant, or by banker, merchant or agent.—Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 

Further, Section 405 IPC defines Criminal Breach of Trust.

Whether Section 72 of the IT Act will be attracted in the present case?

Petitioner was the daughter-in-law of the complainants who was working with ICICI Bank and as per the case of prosecution, petitioner while misusing her position accessed bank accounts and FDR details of complainants with ICICI Bank and used the said details in an application filed before MM in a complaint filed by her under provisions of Domestic Violence Act.

Complainants further alleged that the petitioner in connivance with ICICI Bank jeopardized the safety and security of property and person of the complainants who were senior citizens.

Though the allegations were against both the petitioner and ICICI Bank, surprisingly, the charge-sheet was silent about any investigation made qua role of higher officials of ICICI Bank.

In Court’s opinion, without proceeding against ICICI Bank was obligated to maintain secrecy regarding the financial information of the complainants, the petitioner could not have solely proceeded.

It was noted that the petitioner used her ID to access the financial information of the complainants.

High Court expressed that,

Manner of bringing the information before Court of law may not be morally right but it cannot be said by this act of petitioner that, petitioner caused or intended to cause any wrongful loss to petitioners or to cause wrongful gain to herself as merely by disclosing this information, no pecuniary benefit is stated to have been received by petitioner and if any maintenance or any other amount is granted by Court of law, that cannot be termed to be wrongful gain to petitioner.

 In view of the above observation, the petitioner’s act did not fall within the definition of wrongful gain or wrongful loss as defined under Section 23 of the Penal Code, 1860.

The second limb of ingredients of an offence under Section 72 A of the IT Act was that the petitioner was in breach of lawful contract divulged financial information of complainants to any other person.

Bench stated that, breach of lawful contract if any was made by ICICI Bank and not by the petitioner directly. So, the act of the petitioner does not satisfy the ingredients of the offence under Section 72A of the IT Act.

With respect to framing of charge under Section 409 IPC is concerned, the commission of a criminal breach of trust by the banker is a must.

As per Section 405 IPC, it requires entrustment of property or with any dominion over property coupled with dishonest misappropriation or conversion to one’s use that property or disposal of the property in violation of the direction of law prescribing the mode in which such trust is to be discharged or of any legal contract, expressed or implied which the person has made touching discharge of such trust or willfully suffers any other person so to do.

In the instant case, the petitioner was not directly entrusted with property which was bank accounts and FDR information pertaining to complainants. Hence no dishonest misappropriation or conversion to petitioner’s use of the information pertaining to complainants bank accounts by use of same in judicial proceedings, as by bringing the said information before the Court she wanted to bring before the conduct of complainants’ son

There can not be said to be any dishonest use or disposal of information pertaining to bank accounts of complainants and their FDRs.

Therefore, in view of the above discussion, it was noted that the trial court failed to meet the parameters of the law and required the impugned order to be set aside. [Chavi Anurag Goyal v. State, Criminal Revision No. 19 of 2021, decided on 24-2-2022]

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: The Division Bench of Goutam Bhaduri and Rajani Dubey, JJ., expressed that,

“If the husband keeps another lady; gives shelter to her; and proceeds to have child with the said lady and for that reason if the first wife has to leave the matrimonial home because of physical and mental torture meted out to her it cannot be presumed as a desertion on the part of wife.”

Husband was rejected decree of divorce on the ground of desertion by the Family Court’s order, but the said decision has been challenged.

Factual Matrix

Husband/Appellant was married to respondent/wife prior to 26 years from the filing of the suit. He submitted that for the last 25 years the wife had been living in the village and had deserted him without any lawful cause, in view of which he was entitled to get a divorce decree.

Whereas, the wife pleaded that she was subjected to physical and mental torture, she also added that the husband kept one lady as his wife and asked the wife to go away and stay at her parental village.

Analysis

It was noted that the appellant came to know on 10-1-2014 that the respondent’s name i.e. his wife is recorded in the service book though she left him 25 years back and was residing at a different place.

Wife submitted that the husband had kept one concubine, which led to the family dispute and forced the respondent to stay at her parental village along with her three children, she maintained the stand that she had not deserted the husband and because of the fact that she was mentally and physically tortured she was forced to stay separately.

Another pleading was that in proceedings under Section 125 CrPC an amount of Rs 500 was granted towards her maintenance.

The Bench remarked, when the marriage was solemnized 26-27 years back and three children were born thereafter, how it can be presumed that the wife deserted the husband for 25 years i.e. immediately after marriage.

Husband also admitted the fact that he kept Urmila as second wife and out of that relationship he was blessed with two children.

Therefore, it was clear that during the subsistence of the first marriage, husband kept another lady as his wife and as per the provisions of the Hindu Marriage Act, 1955 keeping another lady during subsistence of first marriage is illegal, however, Court denied to deliberate on the said issue.

Decision

High Court held that the wife was subjected to mental and physical cruelty and was forced to leave her matrimonial home as the husband had kept one concubine, hence the said was a reasonable cause for the wife to stay at the village of her parents though she was not intending to do so and hence the same cannot be stated that the desertion was made by the wife.

In Court’s opinion, no ground for desertion was made out by the husband, therefore the lower Court’s decision warranted no interference. [Uttamram v. Kayaso Bai, 2022 SCC OnLine Chh 255, decided on 7-2-2022]


Advocates before the Court:

For Appellant Mr. Parag Kotecha, Advocate

For Respondent Mr. Sachin Singh Rajput, Advocate

Op EdsOP. ED.

The headlines reporting of a judgment rendered by the Gauhati High Court concerning a matrimonial wedlock dissolution can be cited as a prime example of click bait journalism. The learned authors of the various columns are making a rather fervent effort to superimpose upon general public their interpretation of the judgment rather than what the Court has apparently held. The headlines of some leading newspapers read; Gauhati High Court Grants Divorce to Man After Woman Refuses to Wear “Sindoor”[1], “Shakha”[2],[3] Gauhati High Court Grants Divorce for Woman’s Refusal to Wear “Sindoor”, “Shakha”.[4] The instant reaction to such tit-bits infuriates a progressive and liberal mind, while at the same time, can soothe the orthodox and make them feel entitled to such a judicial dicta.

            The author’s attempt herein is merely to disillusion the mist of myriad traversing over the subject, out of an ingeniously erroneous interpretation, which may evoke a legally instructed mind rather disdainfully.

            A fresh law school entrant would not find it difficult to read the 12 page judgment of the Gauhati High Court[5] and any indiscrete eye would rather assimilate its sentiment in true valour, yet an extreme distortion of the judgment may be paving new opportunities for tyrants. The moot question before the High Court was:

  1. Whether the respondent wife subjected the appellant husband to cruelty and deserted him?
  2. Whether the appellant husband is entitled to a decree of divorce?

The brief facts of the case, leading to the appeal before the High Court has been encapsulated  at the very opening of the judgment in the following manner:

“3. The case of the appellant husband …  is that he is a contractual labourer … He lives with his mother, sisters and brother in Digboi. His marriage with the respondent wife was solemnised on 17-2-2012. After marriage, the appellant and the respondent started their conjugal life in the matrimonial house of the appellant. After about a month into their marriage, the respondent wife demanded to reside separately with the appellant husband … However, the appellant being a contractual labourer was not able to sustain separate accommodation … Around the month of June 2013, the respondent wife declared that she was not willing to continue her matrimonial life with the appellant. As a consequence, the respondent wife insisted on going back to her parental home … contrary to her assurance, instead of returning back to the matrimonial house, she filed a case under Section 498-A[6] IPC before Digboi Police … The appellant husband further contended that the respondent wife compelled the appellant to execute a written agreement to the effect that the couple will stay in a separate rental house together away from the joint family of the husband and further that the appellant husband’s family members will not visit them or maintain any relation with them.

4. The respondent wife contested the case … she stated that she was subjected to cruelty to meet illegal demands of dowry in the form of cash and kind….

                           *                                     *                                          *

  1. During her cross, she maintained the evidence adduced by her in her evidence-in-chief. She stated that she had filed three cases against the appellant. She further stated that she does not want to stay with the appellant or compromise with the appellant. She also admitted to the existence of the agreement entered by and between the appellant and the respondent pursuant to filing of the FIR although she denied that the agreement stipulated that the appellant will live separately with her in a rented house and that no one from his family members can come and meet them. It is also evident from her cross-examination that she had categorically stated that either the appellant will come to Dibrugarh to live with her or fulfil her demands i.e. monetary demands or only then she will divorce him….

                           *                                  *                            *

  1. The Family Court below has accepted the evidence of both the parties that there were indeed criminal cases filed by the respondent wife under Section 498-A IPC besides two other cases. In the case lodged under Section 498-A IPC, the SDJM (Margherita) acquitted the appellant husband, his stepmother and his sisters. However, the criminal cases filed under Sections 471/420[7] IPC and under Section 125[8] CrPC are presently pending disposal….[9]

            In an uncanny manner, the entire thrust of media reports was on certain observations (obiter dicta) made by the Court at para 15 of its judgment; projecting it in a manner, as done and by reading it out of context and de hors the facts; without even glancing over the preceding paragraphs, resulting in distortion of the court’s verdict. It is elementary jurisprudence that one cannot pick or choose a line from the judgment to buttress their claim; a judgment must be read as a whole. The observations made by the Court were in the backdrop of facts obtaining in the case which have been transcribed in the text of the judgment. The judgment reproduces the testimony of the lady/wife/respondent at para 13 wherein she categorically states:

“That I am not wearing/putting sindoor right now because I do not consider him as my husband.”

It is only after considering such categorical statement of the lady/wife/respondent that the Court observes/remarks at para 16 that:

  1. … Under the custom of Hindu marriage, a lady who has entered into marriage according to Hindu rituals and customs, and which has not been denied by the respondent in her evidence, her refusal to wear “shakha and sindoor” will project her to be unmarried and/or signify her refusal to accept the marriage with the appellant. Such categorical stand of the respondent points to the clear intention of the respondent that she is unwilling to continue her conjugal life with the appellant. Under such circumstances compelling the appellant-husband to continue to be in matrimony with the respondent wife may be construed to be harassment inflicted by the respondent upon the appellant and his family members.[10]

The Court finds and observes that the conduct of wife; refusal to adhere with such custom, voluntarily and in an unambiguous manner; arising out of loss of relationship, as above, reflects her will. She is not being lambasted for denying to follow a custom. It is merely a reflection of her will and desire i.e. to come out of wedlock. The Court finds that, in the facts and circumstances of the case at hand, the wife’s refusal to wear the sindoor amounts to her not wanting to continue with the marriage which stands corroborated by her statement during the cross-examination.

            The judgment is in no way suggestive or accords sanction to a man, that he may walk up to a court of law and ask for divorce if his wife does not wear the customary sindoor. The decision is liable to be understood and confined to the facts of the case.

            It is important to note that ratio decidendi (legal grounds/reasons of rendering a judgment) of the case is NOT “divorce to be decreed upon wife’s refusal to wear sindoor and the shakha” as projected in the media reports. Rather, the fact of non-observance of custom i.e. refusal to wear sindoor and the shakha, is only indicative of wife’s will in context of the surrounding facts of the case. She considers the particular custom sacred and the court also takes note of the fact that she is unwilling to follow the custom as she wants to exit the wedlock. The sanctity and enforceability of custom is a question of fact in each case. In the set of facts present before the court in the instant case, the court finds that the wife’s unwillingness to remain married is demonstrated by the omission to follow the particular custom and to force the parties to remain in wedlock “may” amount to harassment to the husband/appellant and his family.

            The Court clearly observes that this overt act demonstrates the wife’s unwillingness to be part of the matrimonial home, in the facts of the case. The Court does not return a finding that the act of omission; refusal to wear sindoor and shakha, amounts to legal cruelty entitling the husband for divorce. All that the judgment holds is that this categorical statement in cross-examination, of non-observance of custom; demonstrating the wife’s will to detach herself from the wedlock, was not looked into by the Family Court while refusing the divorce petition of the appellant-husband.

            Now consider a scenario where the wife wants to apply the sindoor, shakha, mangalsutra, etc., as per the Hindu customs, but the husband forbears her from doing so or where husband refuses to wear the customary wedding ring. Will the wife be entitled for divorce on the ground of cruelty on part of the husband in such circumstances; citing the instant judgment as a precedent? The answer would be a resounding no. To follow a custom or not is NOT  the determinative test for constituting legal cruelty under matrimonial laws. For a court of law to reach to a conclusion that an act complained off amounts to legal cruelty requires satisfaction of separate parameters.

            It is only when custom has been identified and acknowledged as a legally binding principle, based on various factors, that its non-adherence can result in a legal wrong. A distinction needs to be understood between social customs and legal customs, both have acknowledgement in law, but for separate purposes. While the former’s non-observance may result in social sanctions, the disobedience of the latter attracts legal consequences. Irrespective, since the same was not a moot question before the court, the judgment simply refers to the overt act of the party to the dispute, in an attempt to decipher the empirical desire of the couple. Non-adherence with such custom had no bearing, per se, on the matrimonial wedlock, but was reflective and indicative of will of the parties. Not following a custom or not allowing someone else to follow the same, ipso facto, does not translate into legal cruelty under matrimonial laws.

            Legal cruelty in a matrimonial home is the creation of such circumstances, by either or both party/s, which makes it absolutely impossible for the other party to cohabit. Thus, constantly nagging the other spouse to follow or not follow a particular ritual or custom can amount to mental and legal cruelty, depending on the factual matrix of each case.[11] Even in such cases, it is the act of consistent, grave and weighty interference that may amount to legal cruelty and NOT the observance or non-observance of a particular custom. To hold that an act amounts to legal cruelty, each case is considered individually as there is no conduct which can be said always to amount to legal cruelty.[12]

            What the Court has, in fact and in law, held as legal cruelty in this present case is the act of lodging unsubstantiated FIR under Section 498-A IPC; clean acquittal of the appellant husband. The Court has placed reliance on the decision of the Supreme Court in Rani Narasimha Sastry v. Rani Suneela Rani[13], wherein it was held that filing of frivolous criminal cases like case under Section 498-A IPC, etc. against the husband and the family members and which are subsequently dismissed/rejected by the Family Court, is sufficient to be construed as an act of cruelty by wife.

            Another aspect considered by the Court in granting divorce to the appellant husband was that the Family Court completely ignored that the respondent compelled and prevented the appellant from performing his statutory duties towards his aged mother under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007[14]. Such evidence is sufficient to construe an act of cruelty as the non-compliance/non-adherence to the provisions of the 2007 Act has criminal consequences leading to punishment or imprisonment as well as fine.

            The decision of the High Court was challenged in a review petition, apparently based on such media reports, on inter alia the ground that, “not wearing or refusal to wear ‘sindoor’ by wife cannot constitute cruelty so as to justify dissolving the marriage.[15] The review petition was dismissed and the Court held that the act of the wife and her statement on oath, about the sindoor, only demonstrates her unwillingness to remain in the wedlock and it would be considered as an incident of cruelty, however might not be sufficient in itself, and in isolation as a ground of cruelty for grant of divorce. The Court also points out and observes that, the review application has been argued as if this was the only ground considered by the Court for dissolving the marriage, however as explained hereinabove it is not so. The Court granted divorce in the instant case on settled legal principles as opposed to some dogmatic cultural ideals, which have been attempted to be projected. Ironically, there was no reporting about the dismissal of the review petition nor did any of the legal reporters found it right to acknowledge their misreporting in the first instance.

            It is disheartening to see such news reports in an era where the press is considered as the fourth pillar of democracy. The news reports suggest that courts still consider such customs and practices as unshakable norms and any deviation therefrom is frowned upon which is diametrically opposed to the sentiments expressed by the judiciary. The Bombay High Court, while deciding a matrimonial appeal, highlights and observes that, in 21st century, a man would not be entitled to seek a divorce solely on the grounds that his wife does not cover head with the pallu or sometimes removes mangalsutra and sindoor.[16] In contemporary times, courts are proactive to eliminate any obsolete and redundant practices which reek of high-handedness and try to achieve parity between the sexes.

            As a word of caution, it is felt necessary that before a decision is reported, much restraint be exercised to avoid mischief; judgments having force of law. It is not a matter to be lightly inferred. The present case had so many facts which have been overlooked while creating headlines resulting in misleading and incomplete communication.

            In a growing democracy like ours, the press should be mindful of the way they present a news item, specially a judgment of the highest court of law in a State. Projecting the courts as orthodox and opinionated only results in people loosing faith in the judicial institution. It is hoped that the news reporters will be mindful of their cardinal duty of reporting unbiased facts while engineering sensational headlines in the future.


Junior Research Fellow, Faculty of Law, University of Allahabad, former Law Clerk-cum-Research Assistant,  Supreme Court of India. Author can be reached at bhavna1988@gmail.com.

[1] Vermillion.

[2] A conch shell bangle.

[3] Available at <https://economictimes.indiatimes.com/news/politicsandnation/gauhatihighcourtgrantsdivorcetomanafterwomanrefusestowearsindoorshaka/articleshow/76705018.cms>.

[4] Available at  <https://thewire.in/law/gauhatihcgrantsdivorceforwomansrefusaltowearsindoorshaka>.

[5] Bhaskar Das v. Renu Das, 2020 SCC OnLine Gau 2954.

[6] Penal Code, 1860, S. 498-A.

[7] Penal Code, 1860, Ss. 471 and 420.

[8] Criminal Procedure Code, 1973, S. 125.

[9] Bhaskar Das v. Renu Das, 2020 SCC OnLine Gau 2954.

[10] Bhaskar Das v. Renu Das, 2020 SCC OnLine Gau 2954.

[11] Boparai, Harinder, “The Expansion of Matrimonial Cruelty”, 23 JILI 87 (1981), available at <http://14.139.60.114:8080/jspui/handle/123456789/16723> (last visited on 11-10-2020).

[12] Boparai, Harinder, “The Expansion of Matrimonial Cruelty”, 23 JILI 87 (1981), available at <http://14.139.60.114:8080/jspui/handle/123456789/16723> (last visited on 11-10-2020) at 57.

[13] 2019 SCC Online SC 1595.

[14]  Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

[15] Renu Das v. Bhaskar Das, 2020 SCC OnLine Gau 4971.

[16] Anurag v. Sarita, 2017 SCC OnLine Bom 10126.