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CALCUTTA HC- The future salary not being a tangible corporeal property the same cannot be attached for recovery of the arrear maintenance.

 

 

In the case of Md. Jahangir Khan Vs. Mst. Manoara Bibi, reported in 1992 Cri L.J. 83, a Division Bench of our High Court held that the future salary not being a tangible corporeal property the same cannot be attached for recovery of the arrear maintenance.

 

 

Form No. J (1)

IN THE HIGH COURT AT CALCUTTA

Criminal Revisional Jurisdiction

Appellate Side

Present:

The Hon’ble Justice Ashim Kumar Roy

C.R.R. NO. 399 of 2007

Amal Mukherjee

versus

Pranati Mukherjee & Anr.

For Petitioners : Mr. Jayanta Nath Saha For O.P. No. 1 : Mr. Subhasish Chakraborty Ms. Shreyashi Biswas

Mr. Soumya Chakraborty

Ms. Sasita Halder

Heard On : August 26th, 2008.

Judgment On : 12-11-2008.

In connection with a maintenance proceeding under Section 125 of the code of Criminal Procedure, the present petitioner was directed to pay a sum of Rs. 2,000/- per month to his wife, the opposite party herein as her monthly maintenance. Since the petitioner allegedly made no payment the wife/opposite party moved an application under Section 125 (3) of the Code of Criminal Procedure before the court concerned for enforcement of the said order and for realization and recovery of the amount due i.e. a sum of Rs. 22,000/- relating to the period from February 2005 to December 2005, which give rise to Misc. Case No. 50 of 2006 and the Learned Additional Presiding Judge, Family Court, Calcutta made an order directing that a sum of Rs. 1,000/- per month be deducted from the pension account of the petitioner and be credited to the savings account of the wife/opposite party on and from January, 2007 during the coming 22 months towards the recovery of arrear maintenance in addition to Rs. 2,000/- per month which has already been directed to be deducted from the pension account of the petitioner towards the payment of future maintenance. The petitioner challenged the said order on the ground in default of payment of maintenance allowance and for recovery of the same the future pension cannot beattached.

2. Heard the learned advocates appearing on behalf of the parties. Perused the impugned order as well as other materials on record. Considered their respective submissions.

3. In the case of Md. Jahangir Khan Vs. Mst. Manoara Bibi, reported in 1992 Cri L.J. 83, a Division Bench of our High Court held that the future salary not being a tangible corporeal property the same cannot be attached for recovery of the arrear maintenance.

4. It may be noted that the Learned Judge also in her order observed that no future income can be attached as she was of the view since same was not salary but was pension to which the petitioner is entitled during her lifetime the same can be attached. In this regard the observations made by the Division Bench of our High Court in the aforesaid case of Md. Jahangir Khan Vs. Mst. Manoara Bibi (supra) would be very relevant and is quoted below; Para 13. “A single Judge of Orissa High Court relying on a Karnataka decision in Rudraiah V. Muddagangamma, 1985 Cri LJ 707 sought to make a synthesis in Surekha V. Ramahari, 1990 Cri LJ 639. His Lordship while agreeing that only tangible corporeal property could be attached held that salary when becomes due was liable to attachment. According to the learned Judge, writ of attachment should remain dormant and would revive at the end of the month. With deep respect to the learned Judge, wecannot accept his view for the foregoing reasons. On similar reasons, we are unable to agree with the finding of the referring Judge.”

5. Thus, the future pension of the petitioner not being tangible and still not been earned by him same cannot be attached.

6. The impugned order is thus set aside and accordingly the criminal revision is allowed.

The Learned Judge is directed to proceed with the matter against the petitioner who is in alleged default of making payment of maintenance allowance and to enforce the order of maintenance in accordance with the provisions of Section 125 (3) of the Code of Criminal Procedure. Both the parties are directed to appear before the court concerned within fortnight from this date and the Learned Magistrate is directed to take necessary steps immediately thereafter. In view of the disposal of the main criminal revision C.R.R. No. 399 of 2007, the application for modification and/or variation of the order dated February 2007 passed by the Hon’ble Mr. Justice P.N. Sinha being CRAN No. 1800 of 2007 stands disposed of.

Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible.

 

( Ashim Kumar Roy, J. )

SC:- Employed Wife not entitle for Maintenance u/s 24 of HMA even if the Husbands Salary is 4 times higher.

Wife employed and earning a salary is NOT entitled to interim maint u/s 24 HMA, even though husband is earning four times MORE than the wife. Child – Daughter gets interim maintenance. Husband does NOT even attend the Supreme court hearing but still wife DENIED interim maintenance !

 

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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.1789-1790 OF 2009

(Arising out of SLP(C) NOS. 24589-24590 of 2007)

Anu Kaul …….. Appellant

Versus

Rajeev Kaul ……..Respondent

ORDER

Leave granted.

2) In the appeal filed by the respondent-husband before the High Court of Punjab and Haryana, being aggrieved by the judgment and decree passed by Addl. District Judge (Ad-hoc), Fast Track Court No.3, Faridabad, dated 04.06.2005, the appellant herein had filed an application under Section 24 of Hindu Marriage Act, 1955, for the grant of interim maintenance of Rs. 10,000/- (Rupees Ten Thousand only) and the litigation expense of Rs. 22,000/- (Rupees Twenty Two Thousand only).

The application is partly allowed by the Court by its order dated 23.08.2006, by granting an amount of Rs.10,000/- towards litigation expense and a sum of Rs.2,000/- for the maintenance of the minor child living with her. The Review Petition is also dismissed by the Court vide its order dated 21.03.2007, leaving it open to the appellant/applicant to claim interim maintenance before an appropriate forum in the capacity as a Guardian of the child.

3) Challenging both the orders, the appellant-wife is before us in these appeals.

4) Though notice of special leave petition is served on the respondent- husband, for the reason best known to him, has not entered appearance either in person or through his counsel.

5) Marriage between the parties and birth of the female child Karmistha Kaul is not in dispute. The assertion of the appellant in the application filed under Section 24 of Hindu Marriage Act, 1955 that the respondent is working as a Senior Head of Mukund Steel Ltd., having its head office at Mumbai and drawing a salary of Rs.40,000/- per month and is entitled to claim perks for the education of his children was not denied by the respondent by filing his counter affidavit or reply statement.

6) In the application filed, the appellant admits that she is employed and drawing a salary of Rs.9,000/- per month. However, she asserts, she has to pay an amount of Rs.3,000/- by way of rent to the tenanted premises which she is presently occupying in view of the lis between the parties. She has also stated, that, Kumari Karmisatha Kaul is now grown up and she is studying in Senior School and due to insufficient funds, her education is being hampered.

7) A sermon on moral responsibility and ethics, in our opinion for disposing of this appeal may not be necessary, since the respondent has not disputed the assertion of the appellant.However, since the appellant is employed and is drawing a salary of Rs.9,000/- per month, we do not intend to enhance the interim maintenance awarded to her by the High Court during the pendency of the appeal filed by the husband. However, taking into consideration the child being the daughter of highly placed officer, the exorbitant fee structure in good Schools and the cost of living, we deem it proper to direct the respondent to pay a sum of Rs.5,000/- per month to the applicant commencing from 1st of April, 2009 for the maintenance of the minor child during the pendency of the appeals before the High Court. 8) The appeals are disposed of accordingly.

…………………………………J. [ TARUN CHATTERJEE ]

…………………………………J. [ H.L. DATTU ]

New Delhi,

March 23, 2009.

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Categories: HMA 24 Tags: ,

Bombay HC:- Neither Spouse can withdraw the Consent given during filing the Mutual Consent Divorce.

January 28, 2014 Leave a comment

Bombay High Court

Bombay High Court

Mr Rajesh S/O Pratap Sainani Hindu
vs

Mrs Bhavna W/O Rajesh Sainani … on 26 August, 2008

Bench: V.C. Daga

IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE

WRIT PETITION NO. 3556 OF 2008.

Mr Rajesh s/o Pratap Sainani Hindu,

Indian Inhabitant of Mumbai, Aged 33

years, Occu.business, At present residing at 762, Shantivan, Old Lokhandwala Complex, Andheri, Mumbai

400 053. ..Petitioner.

V/s.

Mrs Bhavna W/o Rajesh Sainani Hindu

Inhabitant of Mumbai Aged 31 years,

Occ.Housewife, At present residing at C/o Narain Das Advani, 4/12, Bhagwan

Singh Coloni, Tulsi Pipe Road, Mahim

Mumbai 400 016. .. Respondent.

Mr Rajendra M. Sorankar, Advocate for the Petitioner.

Mr Shailesh Shah i/b J. J. Saxena, Advocate for the Respondent.

CORAM: V.C.DAGA, J.

DATED: 26.08.2008.

JUDGMENT:

——–

1. Rule, returnable forthwith. Perused the petition. Heard finally by consent of parties.

2. This petition, under Article 227 of the Constitution of India, challenges the order passed by the 7th Family Court, Mumbai in Petition No. A-1301 of 2006 refusing to permit the Petitioner to withdraw his consent, which was given at the time of presenting petition for divorce by mutual consent, under Section 13-B of the Hindu Marriage Act, 1955 (“the Act” for short).

THE FACTUAL MATRIX:

——————

3. The petitioner-husband had filed petition under Section 9 of the Act, for decree of restitution of conjugal rights. During pendency of this petition, the respondent-wife made complaint under Section 498-A of the Indian Penal Code (I.P.C.) with the Oshiwara Police Station, Mumbai, against the petitioner. It was under investigation.

4. The troubled marriage had also given rise to reciprocating demand for return of ornaments given in the marriage.

5. Both parties, having realized that marriage is irretrievably broken and there was no possibility to save their marriage, filed application under Section 13B of the Act for decree of divorce by mutual consent, duly signed by them, on 28.10.2006. ( 3 )

6. The settlement of matrimonial dispute by mutual consent was agreed by both spouses resulting, inter alia, wife withdrawing her criminal complaint filed under Section 498-A of the I.P.C. and waiving all claims towards future maintenance for herself and her minor son and agreed to have custody of minor son Dhruva holding herself solely responsible for welfare of the minor son Dhruva. The petitioner-husband agreed not to claim the custody of the minor son Dhruva at any time in future but retained his right to have access.

7. Both parties exchanged jewelleries, gift articles received by them in marriage and declared that they shall have no claim against each other in that behalf. Parties to the dispute acted upon the terms of compromise. Both parties agreed, confirmed and clarified that subject to the compliance of the terms and conditions, the marriage shall stand dissolve by decree of divorce by mutual consent. Both parties declared absence of collusion between them and sought decree of divorce by mutual consent by moving application under Section 13-B of the Act to the Family Court, Mumbai.

8. The petitioner-husband on 23.5.2006, i.e. after lapse of seven months from the date of presentation of the petition, filed an application for cancellation/withdrawal of his consent for mutual divorce contending that he had agreed for consent terms and divorce by mutual consent under pressure, undue influence, and fear about welfare his son. He filed affidavit in support of his application on 16.11.2007 i.e. after lapse of six months from the date of application seeking to withdraw consent for mutual divorce.

9. The above application was strongly opposed by the respondent-wife on various factual and legal grounds pressing into service the doctrine of estoppel.

10. The pleadings of the parties filed before the learned Family Court give a clear indication that both parties agreed for decree of divorce by mutual consent and to compromise all their disputes and made a joint statement in the petition expressing their willingness for a divorce by mutual consent.

11. The learned 7th Family Court heard both parties and vide its reasoned order dated 17.1.2008 dismissed the application of the Petitioner seeking to withdraw his consent holding that it will cause a serious prejudice and/or injustice to the respondent-wife.

12. Being aggrieved by the aforesaid order dated 17.1.2008 refusing to permit the petitioner to withdraw his consent and thereby declining to dismiss the petition filed under Section 13-B (2) of the Act, he has invoked writ jurisdiction of this Court under Article 227 of the Constitution of India.

SUBMISSIONS:

———–

13. The learned counsel for the Petitioner, repeatedly, reiterated that the Petitioner was made to ( 6 ) sign consent terms under coercion and undue influence without disclosing material facts and particulars including the effects thereof.

14. The learned counsel for the petitioner urged that during the pendency of the petition for divorce by mutual consent, in law, it is open for the respondent to withdraw his consent at any time so long as the decree of divorce has not been passed. He submits that the consent must exist on the date when the petition for decree of divorce by mutual consent was filed and it must continue to exist till the orders are passed by the competent Court, dissolving marriage by consent. Reliance is placed on two Judgments of the Division Bench of this Court, one in Family Court Appeal No. 39 of 2008 decided on 29th April, 2008 between Mr Sanjay Pahariya v. Ms Smruti Pahariya (unreported), (unreported of which para 19 was heavily relied upon, which reads as under:

19. “We are not impressed by this submission. We have already quoted extensively from Sureshta Devi’s case (supra). A reading of this judgment leaves no room for doubt that there should be mutual consent when parties move the court under section 13-B(2). No decree under section 13-B(2) can be passed on initial consent and the court must be satisfied about existence of mutual consent at the time it passes the decree. It is true that ordinarily, a motion can be made by one party to a proceeding. But, section 13-B(2) begins with words ” on the motion of both the parties”. Therefore, motion contemplated therein has to be made by both parties. In fact, in Sureshta Devi’s case (supra), the Supreme Court has laid stress on these words and made the observations quoted above. It is not open for us to differently interpret section 13-B of the said Act.”(Emphasis supplied)

15. The another judgment, relied upon by the petitioner arose out of Civil Reference No. 2 of 2007 decided on June,2008 between Principal Judge, Family Court, Nyaya Mandir Premises, Civil Lines, Nagpur vs. Nil taking view similar to the view taken in Sanjay Pahariya’s case (cited supra).

16. Learned counsel for the petitioner, thus, prayed for setting aside the impugned order and dismissal of the petition or divorce by mutual consent filed under Section 13B of the Act.

17. The learned counsel for the respondent-wife supported the impugned order and pressed into service doctrine of estoppel to contend that the petitioner husband is estopped from withdrawing his consent since the respondent-wife acted to her prejudice accepting the representation made by the petitioner-husband that he is ready for divorce by mutual consent if his terms are accepted. That the move on the part of the petitioner is seriously criticised and branded it to be mala fide and dishonest move and prayer for dismissal of the petition in limini with heavy costs is made.

STATUTORY PROVISION:

——————-

18. At this stage, it is necessary to reproduce the relevant statutory provisions of Section 13B (1) and (2) of the Hindu Marriage Act, which read as under: . Section 13B :

(1) Subject to the provisions of this Act, a petition for dissolution of marriage by a decree of divorce may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or  more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. (2) On the motion made by both the parties made not earlier than six months after the date of presentation of the petition referred to in sub-Section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the mean time, the Court shall, on being satisfied, after hearing the parties and making such enquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring a marriage to be dissolved with effect from the date of decree.

RELEVANT JUDGMENTS:-

——————

19. Before embarking upon the submissions of rival parties, let me turn to the relevant reported judgments so as to examine settled legal position:- (1) In the case of Nachhattar Singh v Harcharan Kaur, A.I.R. 1996 P and H, 201, it was held that : 201

“The petition can be dismissed as withdrawn only if both the parties who had filed the petition together agree to withdraw the same. Six months after the date of the presentation of the petition and not later than 18 months after the said date, if the petition is not withdrawn by both the parties, the Court has to satisfy itself, after hearing the parties and after making such Inquiries as it thinks fit, that the petition was in fact presented by both the parties to the marriage, that they have mutually agreed that the marriage should be dissolved. If both the parties had voluntarily consented to file the petition for dissolving the marriage by mutual consent and all other conditions mentioned in sub section (1) of Section 13B of the Act are fulfilled, it will not be open to a party to withdraw the consent. In the present case, without making any inquiry under sub Section (2) the Trial Court has to dismiss the petition as withdrawn which could not be done merely on the asking of one party.”

(Emphasis supplied)

(2) A Similar view was taken by the Delhi High Court in Smt Chander Kanta vs. Hanskumar and Anr (I) 1998 D.N.C. 509; 509 wherein it was held that:

19. “A petition presented under Section 13B (1) of the Act cannot be withdrawn by one party unilaterally. Of course, if the Court is satisfied that a consent was not a free consent and it was the result of force, fraud or undue influence then it is a different matter because in such a case the Court is empowered specifically to refuse to grant the decree. If one party is allowed to withdraw the consent, even when other grounds, namely that the parties continued to live separately and have not been able to live together, still subsists and reconciliation is not possible then it will frustrate the very purpose of the enactment. Under Section 23(1)(bb), the Court is empowered to grant the decree even in an undefended case if it is satisfied that the averment in the petition are true and the consent for mutual divorce has not been obtained by fraud, force or undue influence. If unilateral withdrawal of consent is permitted the Court will not be able to pass a decree in an undefended case”.

Thus, it is clear that it is settled law that unless it is shown by one party that his/her consent was as a result of force, fraud or undue influence, consent given for grant of divorce by mutual consent in the petition under Section 13-B (1) of the Act cannot be unilaterally withdrawn by the said party, which position of law has also been followed in volume 41 (1990 Delhi Law Times 266) in the case of Rajrani vs. Roop Kumar.

(Emphasis supplied)

20. In A.I.R. 1997 SC 1266 in Ashok Hura v. Rupa Bipin Zaver, the Hon’ble Supreme Court, while dealing with similar question of withdrawal of consent unilaterally by one party concluded that the marriage between the parties has been irretrievably broken and that there was no chance of their coming together or living together, and went on to observe, as under:- “We are of the view that the cumulative effect of the various aspects in the case indisputably point out that the marriage is dead, both emotionally and practically and there is no chance at all of the same being revived and continuation of such a relationship is only for namesake and that no love is lost between theparties, who have been fighting like “Kilkenny cats” and there is long lapse of years since the filing of the  petition and existence of such a state of affairs warrant the exercise of the jurisdiction of this Court under Article 142 of the Constitution and grant a decree of divorce by mutual consent under Section 13-B of the Act and dissolve the marriage between the parties, in order to meet the ends of justice, in all the circumstances of the case subject to certain safeguards.

Irretrievable breakdown of marriage is now considered, in the laws of number of countries, good ground of dissolving the marriage by granting a decree of divorce. Proof of such breakdown would be that the husband and wife have separated and have been living apart for, say, a period of five or ten years and it has become impossible to resurrect the marriage or to reunite the parties. It is stated that once it is known that there are no prospects of the success of the marriage, to drag the legalities acts as a cruelty to the spouse and gives rise to crime and even abuse of religion to obtain annulment of marriage. The theoretical basis for introducing irretrievable breakdown as a ground of divorce is one with which, by now, lawyers and others have become familiar. Restricting the ground of divorce to a particular offence or matrimonial disability, it is urged, causes injustice in those cases where the situation is such that although none of the parties is at fault, or the fault is of such a nature that the parties to the marriage do not want to divulge it, yet there has arisen a situation in which the marriage cannot be worked. The marriage has all the external appearances of marriage, but none of the reality. As is often put pithily, the marriage is merely a shell out of which the substance is gone. In such circumstances, it is stated, there is hardly any utility in maintaining the marriage as a facade when the emotional and other bounds which are of the essence of marriage have disappeared. After the marriage has ceased to exist in substance and in reality, there is no reason for denying divorce. The parties alone can decide whether their mutual relationship provides the fulfilment which they seek. Divorce should be seen as a solution and not an escape route out of a difficult situation. Such divorce is unconcerned with the wrongs of the past, but is concerned with bringing the parties and the children to terms with the new situation and developments by working out the most satisfactory basis upon which may regulate their relationship in the changed circumstances…”

(Emphasis supplied)

21. In Rachna Jain vs. vs Niraj Jain II (2006) DMC 410 the Delhi High Court had an opportunity to deal with the case involving more or less similar facts wherein the Court refused to permit withdrawal of the consent holding such move on the part of the respondent-husband to be mala fide, baseless and  unjust since the terms of settlement were acted upon by both parties.

22. In Ashok Hura’s case (supra) the Hon’ble Supreme Court dealt with its earlier judgment in Sureshta Devi’s case (supra) and observed as under: “It appears to us, the observations of this Court to the effect that mutual consent should continue till the divorce decree is passed, even if the petition is not withdrawn by one of the parties within the period of 18 months, appears to be too wide and does not logically accord with Section 13-B(2) of the Act, However, it is unnecessary to decide this vexed issue in this case, since we have reached the conclusion on the fact situation herein. The decision in Sureshta Devi’s case AIR 1992 SC 1904, (supra) may require reconsideration in an appropriate case. We leave it there.”

23. The impugned order can be justified on the solitary principle of law laid down by the Apex Court in Ashok Hura’s case (cited supra).

24. Now, turning to the another facet of the submission based on the touchstone of the doctrine of estoppel, it is necessary to examine the reasons recorded by the Family Court in support of its order dated 17.1.2008. The relevant extracts of which are reproduced herein below.

20. “It is important to note that besides bare words of the petitioner, he has not made out any ground of force or coercion used by the respondent on him. Much emphasis is given on the point that the respondent has filed criminal complaint against the petitioner and by taking undue advantage of filing the said complaint, she has pressurised the petitioner. Second, she has used her child against him for obtaining his consent.

21. If we go through the consent terms it clearly reveals that the respondent is withdrawing her right of alimony, secondly, she has agreed to give access of the child, thirdly, she has agreed to withdraw the complaint filed against the petitioner and that the only compliance was remained that too, of passing decree of dissolution of marriage.

22. If we go through the contents of the application exh.17, besides the words that the respondent had used force, influence for signing the consent terms, there is nothing on record to show that the respondent has gained any advantage from the petitioner by compelling him to sign the consent terms. Apart from that, if at all, the respondent would have pressurized the petitioner for signing the consent terms, he could have appeared before the Court even before six months or approach police authorities but he remained silent for about seven months. He has not appeared before the Court even immediately after completion of six months. It clearly reveals that when the respondent has presented the copy of application for withdrawal of her complaint submitted by her to the police, on the very day, when the matter was for appearance, he remained absent on that date and appeared on the next date when the matter was kept after one month. The conduct of the part of the petitioner is such that he has obtained disadvantage by way of agreement by which the respondent has withdrawn the complaint, she has started giving access of the child to the petitioner. In these circumstances, I am of the opinion that the petitioner has failed to establish his consent for converting the petition into the petition for divorce by mutual consent, has been obtained by respondent by playing fraud or coercion on him, as alleged in application Exh.17.

23. Moreover, as I have submitted earlier, the parties have acted upon the consent terms and therefore, it is not desirable at this stage when only the order of dissolution of marriage is remained to be passed. At such stage, if the petitioner is allowed to withdraw his consent, it will cause prejudice or injustice to the respondent. Therefore, the application, deserves to be rejected.” (Emphasis supplied)

25. The finding recorded by the Family Court is that the Respondent-wife acted upon the representation made by the respondent-husband to her prejudice and the petitioner-husband has availed all benefits and enjoyed fruits of the terms of settlement and compromise.

Let me examine as to whether or not the findings are correct.

26. The dissection of the impugned order and material available depict picture, as under:- (i) The respondent-wife, under the garb of said compromise, was made to withdraw her criminal complaint filed under Section 498-A of the I.P.C.

(ii) The respondent-wife was made to return the ornaments which were given to her in marriage by husband’s family.

(iii) The respondent-wife was made to waive her right of present and future maintenance including that of minor son.

(iv) The respondent-wife was saddled with the liability of son’s future education and welfare. In other words, petitioner got himself relieved of the obligations of father towards his minor son; and

(v) The respondent-wife was made to agree to a limited custody of minor son and access to the petitioner-husband for which wife was not agreeable.

27. It is, thus, clear that factually, the respondent-wife has acted upon the terms of compromise to her prejudice accepting the representation made by her husband-petitioner that he was ready for divorce  by mutual consent.

28. Now, let me examine the legal effect of representation made by the husband and accepting terms thereof by the wife to her prejudice based on decided cases.

29. The Apex Court in the case of B.L. Sreedhar vs K.M. Munireddy A.I.R. 2003 S C 578 held as under: “The essential factors giving rise to estoppel are, I think -

(a) A representation or conduct amounting to representation intended to induce a course of conduct on the part of the person to whom the representation was made.

(b) An act or omission resulting from representation whether actual or by conduct, by the person to whom the representation was made.

(c) Detriment to such person as a consequence of the act or omission where silence cannot amount to a representation, but where there is a duty to disclose, deliberate silence may become significant and amount to a representation. The existence of a duty on the part of a customer of a bank to disclose to the bank his knowledge of such a forgery as the one in question was rightly admitted.”

30. In the case of Maddanappa (deceased) after him by his legal representatives vs. vs Chandramma and Anr A.I.R. 1965 S C 1812 the Supreme Court relying upon the judgment of Privy Council in the case of Saratchunder Dey vs. Gopal Chunder Laha 19 Ind App 203 (PC) explained the ingredients of the doctrine of estoppel and went on to hold that a person who sets up an estoppel against the other must show that his position was altered by reason of the representation or conduct of the latter and unless he does that, even the general principle of estoppel cannot be invoked by him.

31. The general principle of estoppel is stated thus by the Lord Chancellor in Cairncross vs. vs Lorimer (1860) 3 H.L.C. 829:

“The doctrine will apply, which is to be found, I believe, in the laws of all civilized nations that if a man either by words or conduct has intimated that he consents to an act which is to be done and that he will offer no opposition to it, although it could not have been lawfully done without his consent, and he thereby induces others to do that from which they otherwise might have abstained, he cannot question the legality of the act he has so sanctioned, to the prejudice of those who have so given faith to his words or to the fair inference to be drawn from his conduct…I am of the opinion that generally speaking, if a party having an interest to prevent an act to be done has full notice of its being done, and acquiesces in it, so as to induce a reasonable belief that he consents to it, and the position of others is altered by their giving credit to his sincerity, he has no more right to challenge the act to their prejudice than he would have had if it had been done by his previous licence.”

32. Having examined the aforesaid legal position, it is clear that the estoppel is a rule of equity flowing out of fairness striking on behaviour deficient in good faith. It operates as a check on spurious conduct by preventing the inducer from taking advantage and assailing forfeiture already accomplished. It is invoked and applied to aid the law in administration of justice.

33. With the above understanding of law, if one turns to the facts of the case in hand, at the cost of repetition, I must observe that the Petitioner, by making representation that he was agreeable for divorce by mutual consent provided – respondent-wife withdraws her criminal complaint, returns his ornaments given to her in the marriage and takes care and custody of the minor child with limited access to him. The said representation made by the husband was accepted and acted upon by the respondent- wife to her prejudice. She withdrew criminal complaint filed against the husband and his family members. She returned ornaments received by her in the marriage. She agreed to have a custody of the minor son and on the top of it waived present and future right to claim maintenance for herself as well as for minor son. Thus, it is clear like a day light that the respondent- wife acted to her prejudice by accepting terms of compromise favourable to the petitioner-husband. The husband is, thus, estopped from withdrawing his consent.

34. The Family Court cannot be helpless spectator and duplicity of the petitioner-husband to induce the hapless wife, the respondent to waive maintenance claim for not only herself and her son, also compelled her to withdraw the criminal complaint in the hope of starting her life afresh. The husband by his conduct has caused the wife huge disadvantage. No spouse can unilaterally, wilfully be allowed to withdraw consent even on the grounds; such as fraud, undue force, representation unless grounds are proved satisfactorily. In the present case, if the withdrawal of consent by the petitioner-husband is upheld, it will cause anamoulous situation and serious prejudice to the respondent-wife, who is law abiding person. She will be left high and dry without recourse to any remedy and saddled with dead marriage. The respondent-husband has resorted to fraud and misrepresentation which cannot be permitted by the Courts of Law and equity.

35. The Family Court has rightly taken into account the wrong sought to be done by the husband and his attempt to cheat his wife depriving her an opportunity to work out and regulate the life of herself and her son in a fresh air. A pedantic interpretation of law might result in a situation resulting in gross miscarriage of justice in denying a woman with her abandoned son an opportunity to start their life afresh as stated.

36. Having said so, I am also prevented by the parameters of interference by the High Court in the petition filed under Article 227 of the Constitution of India to interfere with the impugned order in view of the Law holding field in this behalf enumerated herein below.

37. The Apex Court in the case of T.G. Telang vs. R.S. Bhinde A.I.R. 1977 S C 1222 the Apex Court in para 3 held that:

” As would be apparent from the above narrated, the instant case does not involve any substantial question of law of general or public importance. Although counsel for the appellants has strenuously assailed the correctness of the finding of the Revenue Tribunal and of the High Court, we are unable to accede to his contention. We have not, despite careful consideration of the judgments and objections submitted to us, been able to discern any legal infirmity or error either in the decision of the Revenue Tribunal or of the High Court. It is well settled rule of practice of this Court not to interfere with the exercise of discretionary power under Articles 226 and 227 of the Constitution merely because two views are possible on the facts of a case. It is also well established that it is only when an order of a Tribunal is violative of fundamental basic principles of justice and fair play or where a patent or flagrant error in procedure or law has crept in or where the orders passed results in manifesting justice, that the Court can justifiably interfere under Article 227 of the Constitution.”

38. The Apex Court in the case of Waryam Singh v. Amarnath A.I.R. 1954 S C 215 considered the scope of  Article 227. It was held that the High Court has not only administrative superintendence over the subordinate courts and tribunals but it has also the power of judicial superintendence. The Court approved the decision of the Calcutta High Court in Dalmia Jain Airways Ltd v. Sukumar Mukherjee A.I.R. 1951 Cal 193 (SB) where the High Court said that the power of superintendence conferred by Article 227 was to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting their mere errors. The Court said that it was, therefore, a case which called for an interference by the Court of the Judicial Commissioner and it acted quite properly in doing so.

39. In Bathutmal Raichand Oswal v. Laxmibai R. Tarta (1975) 1 SCC 858 the Apex Court again reaffirmed that the power of superintendence of the High Court under Article 227 being extraordinary was to be exercised most sparingly and only in appropriate cases. It said that the High Court could not while exercising jurisdiction under Article 227, interfere with the findings of fact recorded by the subordinate court or tribunal and that its function was limited to seeing that the subordinate court or tribunal functioned within the limits of its authority and that it could not correct mere errors of fact by examining the evidence or reappreciating it. The Court further said that the jurisdiction under Article 227 could not be exercised, “as the cloak of an appeal in disguise. It does not lie in order to bring up an order or decision for rehearing of the issues raised in the proceeding.”

40. In Nagendra Nath Bora v. Commr. of Hills Division and Appeals A.I.R. 1958 S C 398 the Supreme Court observed as under: “It is thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi judicial nature, are not greater than the powers under Article 226 the Constitution. Under Article 226, the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority.”

41. In the above view of the matter, it is evident that withdrawal of the consent by the petitioner-husband is tainted with mala fide, baseless and unjust consideration. The judgments of the Division Benches of this Court referred in paras 14 and 15 supra are not applicable to the facts of this case. The view taken by the learned Family Court is a reasonable and possible view. No case is made out to interfere with the order under challenge.

42. In the result, Rule is discharged. The petition is dismissed with costs quantified in the sum of Rs. 25,000/- to be paid by the petitioner-husband to the respondent-wife.

(V.C.DAGA, J.)

 

Kerala HC:-‘Infidelity over phone ground for divorce’

September 5, 2013 1 comment

Divorce can be granted on the ground of cruelty if a spouse maintains illicit relationship over phone, the Kerala high court has held.

The ruling by a division bench comprising Justices Antony Dominic and P D Rajan came while considering an appeal against Thalassery family court’s order denying divorce to a man on the ground of cruelty despite proving on the basis of his wife’s telephone records that she maintained an illicit relationship.

Phone records had shown that the wife used to call her childhood ‘friend’ for long hours during day and night while the husband was working abroad.

Pls find the detail Judgment below-

 

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
&
THE HONOURABLE MR. JUSTICE P.D.RAJAN

WEDNESDAY, THE 16TH DAY OF AUGUST 2013/25TH SRAVANA, 1935

Mat.Appeal.No. 324 of 2013 (C)
——————————

AGAINST THE ORDER/JUDGMENT IN OP 256/2011 of FAMILY COURT, THALASSERY
DATED 28-02-2013

APPELLANT(S)/PETITIONER:
———————————————-

P.V.PRAKASH, AGED 41 YEARS
S/O BALAN, KARIPPADY VATHIKKAL HOUSE, TEMPLE GATE
THIRUVANGAD.P.O, THALASSERY,KANNUR DISTRICT.

BY ADVS.SRI.A.JAYASANKAR
SRI.MANU GOVIND
SRI.JOPHY POTHEN KANDANKARY

RESPONDENT(S)/RESPONDENTS:
—————————————————-

1. R.BINDU,, AGED 37 YEARS
D/O.RAGHAVAN, VINOD VILLA, KUNDILTHADAM
PAYANGADI.P.O, KANNUR DISTRICT-670303.

2. SUNEESH.P.K., AGED 40 YEARS
RESIDING AT KARIKKINKULAM, PAPPINISSERY EAST.P.O
KANNUR DISTRICT-670561.

R1 BY ADV. SRI.SUNIL NAIR PALAKKAT
R1 BY ADV. SRI.K.N.ABHILASH
R1 BY ADV. SMT.R.LEELA
R1 BY ADV. SMT.N.K.SHEEBA
R1 BY ADV. SRI.K.K.ANIL KUMAR

THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON
25.07.2013 ALONG WITH MA NO.385/13 THE COURT ON 16-08-2013 DELIVERED THE
FOLLOWING:

ANTONY DOMINIC & P.D.RAJAN, JJ.
========================
Mat. Appeal Nos. 324 & 385 OF 2013
=========================

Dated this the 16th day of August, 2013

J U D G M E N T
Antony Dominic, J.

Mat.Appeal No.324/13 and Mat.Appeal No.385/2013 are filed by the petitioner and respondent respectively in OP No.256/11 on the file of the Family Court, Thalasserry. For convenience, the appellant in Mat.Appeal No.324/13 is referred to as the husband and the appellant in Mat.Appeal No.385/13 is referred to as the wife.

2. OP No.256/11 was filed by the husband seeking a decree of divorce urging grounds under Section 13(1)(i) and (ia) of the Hindu Marriage Act. From the evidence, it is seen that the husband and wife are the children of brothers and were in love for a period of 10 years. Thereafter, much to the dislike of the members of their family, their marriage was solemnized on 29/1/2001 at Sree Krishna Temple, Guruvayoor. It is also stated that after considerable treatment, the wife gave birth to twins, two female children, who are aged about 6 years now. The relationship between the couple became strained during 2008  February, and since then, the wife and the kids are residing in her paternal house.

3. The OP was filed alleging that the wife was living in adultery with the 2nd respondent and was guilty of cruelty towards the husband. Before the Family Court, on behalf of the husband, himself and another witness were examined as PWs 1 and 2 and the wife and her father were examined as RWs 1 and 2. Exts.A1 to A9 were marked on behalf of the husband and Exts.X1 and X1 (a) are the court exhibits. By its judgment dated 28th of February, 2013, the Family Court declined to accept the case of adultery urged by the husband but however held that the evidence proved that the attitude of the wife towards the husband was cruel in nature. Thereafter, instead of granting a decree of divorce, Family Court ordered judicial separation. It is challenging this judgment of the Family Court that the husband filed MA No.324/13 and the wife has filed MA No.385/13.

4. Before the Family Court, the 2nd respondent, the alleged adulterer remained ex parte and though notice issued in MA No.324/13 was served on him, the 2nd respondent did not choose to enter appearance before this Court also.

5. Learned counsel for the husband contended that the Family Court having accepted that the attitude of the wife was cruel to him, he was entitled to have been granted a decree of divorce instead of judicial separation. On the other hand, learned counsel for the wife contended that except that the wife had made certain phone calls, there was absolutely no evidence to accept the case of cruelty canvassed by the husband. According to him, the Family Court also concluded that the totality of the evidence of Rws 1 and 2 proved that they had no acquaintance with the 2nd respondent, the alleged adulterer and that it was the husband who had foisted such allegations against her in order to have a divorce. He therefore contended that in the light of these findings, the only course which was open to the Family Court was to dismiss the petition.

6. We have considered the submissions made and have also gone through the pleadings and the evidence adduced by the parties.

7. Evidence of PW1 shows that at the time of marriage and even now, he is employed in Saudi Arabia. While the relationship between the couple was cordial and peaceful, he started receiving anonymous phone calls from a person claiming that he had illicit relationship with his wife. When he received such calls during August, 2007, he made enquiries about the caller and came to know that it was a person from Pappinissery, which is near to Pazhayangadi, where the wife’s parental house is situated. He says that he was surprised when the caller revealed some private matters which is known only to the husband and wife and that he also used to reveal the details about the matters which took place in the bed room of the couple.

8. During November 2007, the husband came on leave and was in his house till February, 2008. At that time, the wife had two mobile phones with Nos.9895296217 and 9447690214. The husband found that most of the calls received by the wife and most of the outgoing calls were to a specific number and when he asked about it, the wife had no reasonable explanation except stating that the person concerned was a staff of the school where she is employed. He also stated that during February to May, 2005, the wife stayed with his mother in his parental home. During that period, the telephone bills were very high and therefore his brother obtained call details from the BSNL, which revealed that most of the outgoing calls were to a particular number viz., 9447371797. The details thus obtained also revealed that most of the calls continued for long and were made during mid night and odd hours.

9. It is stated that during February, 2008, the husband used to get anonymous calls repeatedly. When he informed this to his brother and also told him about the nature of the messages that he used to get, his brother gave him the call details obtained by him during 2005. Thereupon the husband made enquiries about the holder of phone number 9447371797 and it was revealed that it was the number of the 2nd respondent. At that time, the husband asked the wife about the 2nd respondent and the wife confessed that they were in good relationship for several years and that the relationship started from their school days. According to the husband, it was thereupon that he realised that his wife was still maintaining illicit relationship with the 2nd respondent and that it was she who was sharing the details of their relationship between the husband and wife. This according to the husband caused great mental pain and disgrace. The call details received from BSNL has been produced before the Family Court as Ext.A2 and Ext.A3 is the reply obtained from the BSNL under the Right to Information Act regarding the name and address of the owner of mobile phone bearing No.9447371797.

10. PW2 Sreekanth is a neighbour and a friend of the husband. Both of them have worked together in Saudi Arabia. He has deposed that during 2007 August, they were together in Damam. At that time, the husband had received anonymous phone calls and that the husband had informed him about the same. According to him, he advised him to ignore the phone calls. He has also stated that husband was surprised that the caller used to describe about what took place in the bed room of the husband and that the husband had shown him Ext.A2 call details during 2008 February, when he reached his house. He has also stated that both Sreekanth and the husband and his relatives had gone to meet the 2nd respondent and enquired about the details of the phone calls. Thereupon the 2nd respondent revealed that he was in love with the wife since from school days. He also stated that even after the marriage, their relationship continued and that recently the wife started keeping distance from him giving rise to enmity in him. He stated that it was therefore that he called to her husband and disclosed the details. PW2 also stated that when the details of what was revealed by the 2nd respondent were revealed to the wife, the wife admitted her relationship with the 2nd respondent and requested the husband to apologize her.

11. However, the case of RW1, the wife was that after marriage only she came to know that the husband was a selfish man who did not even like her talking to other men or her relatives. She also stated that he is not providing any maintenance to her or the children and that when he constructed a house, her relatives had contributed lakhs and lakhs of rupees and had given entire wooden articles necessary for the house. She alleged that after accepting lakhs and lakhs of rupees and her 50 sovereigns of gold ornaments, husband filed this petition for dissolution of marriage to marry another lady. According to her, the 2nd respondent is a close acquaintance of the husband and they colluded together to file this petition for dissolution of marriage.

12. In general, the above was the evidence that was available before the Family Court and evaluating the evidence available, the Family Court held that although the husband and PW2 were subjected to detailed cross examination, there was nothing to discredit either their testimony or to conclude that they fabricated a case for getting the marriage dissolved as alleged by the wife.

13. As far as the ground of cruelty urged by the husband is concerned, the Family Court has referred to the evidence adduced and found that maintaining a relationship with another person during the subsistence of the marriage with the husband has caused mental cruelty to the husband. In so far as this case is concerned, Exts.A2 and A3 and the oral evidence of PW1 and PW2 proved the subsistence of an illicit relationship between the wife and the 2nd respondent or else she would not have made calls to him for long durations and at odd hours and he would not have come to know the details of the sexual acts between the husband and the wife.

14. As far as the case of selfishness of the husband pleaded by the wife is concerned, his evidence amply demonstrated his concern for the wife and children. As far as the allegation that after obtaining lakhs and lakhs of rupees, husband has now fabricated a case for getting divorce is concerned, there again, the evidence of wife herself disproves this case. She has admitted before the Family Court that the husband used to send money to her account in SBI, Kannur from which she and her father used to withdraw substantial amounts. The husband had deposited `3,00,000/- in the Post Office, Pazhayangadi in her name from which she was getting `3,000/- per month. She also admitted that in Madayi Co-operative Bank, there is a Fixed Deposit of `5,00,000/- in her name made by the husband. She has also admitted that her children’s birthday used to be celebrated in an extravagant manner. She has confessed that her mother-in-law and the sister-in-law were cordial to her. Her evidence also showed that the husband had given her 14 sovereigns of gold and that the children were given chains weighing 1 sovereigns each at the time of their birthday. This therefore showed that the husband was a generous man and a loving and affectionate father.

15. It is true that the counsel for the wife referred to the observations of the Family Court that “from a totality of the evidence of RW1, it can be seen that it was PW1 who has foisted such allegations against her in order to have a divorce”. He also referred to the sentence “a totality of the evidence of RWs 1 and 2 proved that they have no acquaintance with the 2nd respondent.”

16. According to him, in view of these findings, the Family Court could not have granted any relief to the husband. However, if these findings are read in the context in which these observations are made, it can very well be seen that all that the Family Court was trying to convey was that this was the version of RWs 1 and 2 and were not findings arrived at by the Family Court.

17. This is a case where mental cruelty is pleaded and found by the Family Court. Concept of mental cruelty and the standard of proof that is required has come up for consideration of the Apex Court in Jayachandra v. Aneel Kaur (2005(1) KLT 26) and in para 10 to 13 of the judgment, the Apex Court has held thus;

10. The expression “cruelty” has not been defined in the
Act. Cruelty can be physical or mental. Cruelty which is
aground for dissolution of marriage may be defined as
willful and unjustifiable conduct of such character as to
cause danger to life, limb or health, bodily or mental, or
as to give rise to a reasonable apprehension of such a
danger. The question of mental cruelty has to be
considered in the light of the norms of marital ties of the
particular society to which the parties belong, their
social values, status, environment in which they live.
Cruelly, as noted above, includes mental cruelly, which

falls within the purview of a matrimonial wrong. Cruelty
need not be physical. If from the conduct of his spouse
same is established and/or an inference can be
legitimately drawn that the treatment of the spouse is
such that it causes an apprehension in the mind of the
other spouse, about his or her mental welfare then this
conduct amounts to cruelty. In delicate human
relationship like matrimony, one has to see the
probabilities of the case. The concept, a proof beyond
the shadow of doubt, is to be applied to criminal trials
and not to civil matters and certainly not to matters of
such delicate personal relationship as those of husband
and wife. Therefore, one has to see what are the
probabilities in a case and legal cruelty has to be found
out, not merely as a matter of fact, but as the effect on
the mind of the complainant spouse because of the acts
or omissions of the other. Cruelty may be physical or
corporeal or may be mental. In physical cruelty, there
can be tangible and direct evidence, but in the case of
mental cruelty there may not at the same time be direct
evidence. In cases where there is no direct evidence,
Courts are required to probe into the mental process and
mental effect of incidents that are brought out in
evidence. It is in this view that one has to consider the
evidence in matrimonial disputes.

11. The expression `cruelty’ has been used in relation to
human conduct or human behaviour. It is the conduct in
relation to or in respect of matrimonial duties and
obligations. Cruelty is a course or conduct of one, which
is adversely affecting the other.
The cruelty may be menial or physical, intentional or
unintentional. If it is physical, the Court will have no
problem in determining it. It is a question of fact and
degree. If it is mental, the problem presents difficulties.
First, the enquiry must begin as to the nature of cruel
treatment, second the impact of such treatment in the
mind of the spouse, whether it caused reasonable
apprehension that it would be harmful or injurious to live
with the other. Ultimately, it is a matter of inference to
be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct

complained of itself is bad enough and per se unlawful
or illegal. Then the impact or injurious effect on the
other spouse need not be enquired into or considered.
In such cases, the cruelty will be established if the
conduct itself is proved or admitted {See Sobh Rani v.
Madhukar Reddi (AIR 1988 SC 121)).

12. To constitute cruelty, the conduct complained of
should be “grave and weighty” so as to come to the
conclusion that the petitioner spouse cannot be
reasonably expected to live with the other spouse, It
must be something more serious than “ordinary wear
and tear of married life”. The conduct, taking into
consideration the circumstances and background has to
be examined to reach the conclusion whether the
conduct complained of amounts to cruelty in the
matrimonial law. Conduct has to be considered, as noted
above, in the background of several factors such as
social status of parties, their education, physical and
mental conditions, customs and traditions. It is difficult
to lay down a precise definition or to give exhaustive
description of the circumstances, which would constitute
cruelty. It must be of the type as to satisfy the
conscience of the Court that the relationship between
the parties had deteriorated to such an extent due to
the conduct of the other spouse that it would be
impossible for them to live together without mental
agony, torture or distress, to entitle the complaining
spouse to secure divorce. Physical violence is not
absolutely essential to constitute cruelty and a
consistent course of conduct inflicting immeasurable
mental agony and torture may well constitute cruelty
within the meaning of S. 10 of the Act. Mental cruelty
may consist of verbal abuses and insults by using filthy
and abusive language leading to constant disturbance of
mental peace of the other party.

13. The Court dealing with the petition for divorce on the
ground of cruelty has to bear in mind that the problems
before it are those of human beings and the
psychological changes in a spouse’s conduct have to be

borne in mind before disposing of the petition for
divorce. However, insignificant or trifling, such conduct
may cause pain in the mind of another. But before the
conduct can be called cruelty, it must touch a certain
pitch of severity. It is for the Court to weigh the gravity.
It has to be seen whether the conduct was such that no
reasonable person would tolerate it. It has to be
considered whether the complainant should be called
upon to endure as a part of normal human life. Every
matrimonial conduct, which may cause annoyance to
the other, may not amount to cruelty. Mere trivial
irritations, quarrels between spouses, which happen in
day-to-day married life, may also not amount to cruelty.
Cruelty in matrimonial life may be of unfounded variety,
which can be subtle or brutal. It may be words, gestures
or by mere silence, violent or non- violent.

18. If the evidence in this case is appreciated in the light of

the principles laid down by the Apex Court, we are satisfied that

the evidence clearly indicated that the conduct of the wife

rendered it impossible for the husband to live with her without

mental agony, torture or distress. It is true that the couple have

twin daughters and it is unfortunate that their parents fell apart

and that too for reasons which are not only stigmatic to the

parents, but also to the children. However, the wife is an

educated lady and she having maintained an illicit relationship

cannot avoid the consequences nor can the husband be expected

to suffer on the ground that he has two children.19. In our view, the ground of cruelty having been proved,

there was no reason for the Family Court to have declined divorce

as prayed for by the husband.

20. In the result, MA No.324/13 filed by the husband will stand allowed. The judgment of the Family Court to the extent judicial separation is allowed is set aside. OP No. 256/11 will stand allowed and the marriage between the husband and wife solemnized on 29/1/2001 will stand dissolved by a decree of divorce with effect from today.

Mat.Appeal No.385/13 filed by the wife will stand dismissed.

Sd/-
ANTONY DOMINIC, Judge

Sd/-
P.D.RAJAN, Judge
Rp
//True Copy//

PA TO JUDGE
 

Bombay HC:- Service of Notice of Maintenance Case should be served to the Respondent (Husband) personally or to the Family of the Respondent and not to the advocate appearing on behalf of Respondent in other matters.

August 27, 2013 Leave a comment

Bombay High Court

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL REVISION APPLICATION NO.74 OF 2012.

 

Atul S/o. Bhaskarrao Thakre (Deshmukh),
aged about 34 years, R/o. C/o.
Bhaskarrao Sheshrao Thakre, Near Samaj
Mandir Khedkar Nagar, Akola, Dist. Akola. …. APPLICANT.
…..VERSUS…..

1. Sau. Anuja W/o. Atul Thakre,
(Deshmukh), Aged 31 years,
Occu. Housewife, R/o. S.B.I. Colony,
No.4, Gajanan Peth, Akola, Tq. and
Distt. Akola.
2. The State of Maharashtra, through
P.S.O. Akola.                      …. RESPONDENTS.
_____________________________________________________________________
Mr. A.V.Bhide, Advocate for Applicant.
Mr. U.J.Deshpande, Advocate for Respondent No.1.
Mr. V.A.Thakre, Additional Public Prosecutor for Respondent No.2.
_____________________________________________________________________
CORAM : M.L. TAHALIYANI, J.
DATED   : MARCH 01, 2013.
ORAL JUDGMENT :
1. Heard.
2. ADMIT.
3. Heard finally by consent.
4. The applicant is aggrieved by the order passed by learned Family Court   in   Petition   No.E­11/2011   directing   the   applicant   to   pay   a   sum   of Rs.8,300/ per month to respondent No.1 by way of maintenance.  Respondent No.1 is wife of the applicant.  Respondent No.1 has filed an application for grant of maintenance under Section 125 of the Code of Criminal Procedure before  the  Family Court.    The  said  application was  finally  decided  by  the impugned order.
5. During   the   course   of   hearing   it   was   pointed   out   by   learned counsel Mr. Bhide  that  the application  filed by non­applicant under Section 125 of the Code of Criminal Procedure was not served upon the applicant in
accordance with law.  He has brought to my notice contents of the impugned judgment at paragraph No.10 which can be reproduced as under :
“10.   The   non   applicant   had   filed   the   petition   for   divorce  which was pending in this Court.  His advocate received the service  of  the  notice  of   the  present   proceeding.     The  non­ applicant did not remain present nor filed his say inspite of various  opportunities  given  to  him  hence  by  an  order  dtd 16.6.2011 the applicant was directed to proceed without say.”
6. It   is,   thus,   clear   that   there   was   no   service   of   maintenance  application on the applicant personally or on any of his family members.  The application  was served through the Advocate who was appearing on behalf of the applicant in separate proceedings under the Hindu Marriage Act, 1955.
7. In my considered view, the service effected by the Family Court was not ‘good service’ in law.  For this reason the order passed by the Family Court cannot be sustained.  The applicant will have to be given opportunity of being heard and the application will have to be decided afresh.

i. The application is allowed.
ii. The   order   passed   by   Family   Court   in   Petition   No.E­11/2011 directing  the  applicant  to  pay  a  sum  of Rs.8,300/­  by way of maintenance   to   respondent   No.1   and   all   other   consequential orders are set aside.
iii. The application filed by respondent No.1 shall be heard afresh.
iv. The applicant and respondent No.1 both shall appear before the Family Court on 18th March, 2013 at 11.00 a.m.
v. It is made clear that now Family Court is not under obligation to effect fresh service on the applicant.
The application stands disposed of accordingly.

JUDGE.

RRaut..

Kerala HC- ‘Infidelity over phone ground for divorce’

August 20, 2013 4 comments

KOCHI: Divorce can be granted on the ground of cruelty if a spouse maintains illicit relationship over phone, the Kerala high court has held.

The ruling by a division bench comprising Justices Antony Dominic and P D Rajan came while considering an appeal against Thalassery family court’s order denying divorce to a man on the ground of cruelty despite proving on the basis of his wife’s telephone records that she maintained an illicit relationship.

Phone records had shown that the wife used to call her childhood ‘friend’ for long hours during day and night while the husband was working abroad.

To decide the question whether maintaining such close relationship with another person over phone amounts to cruelty for granting divorce, the high court relied on a decision by the Supreme Court in 2004.

In A Jayachandra v Aneel Kaur case of 2004, the SC had held, “To constitute cruelty, the conduct complained of should be ‘grave and weighty’ so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than ‘ordinary wear and tear of married life’.”

Granting divorce to the husband, the high court held, “If the evidence in this case is appreciated in the light of the principles laid down by the apex court, we are satisfied that the evidence clearly indicated that the conduct of the wife rendered it impossible for the husband to live with her without mental agony, torture, or distress.”

The wife is an educated lady and she having maintained an illicit relationship cannot avoid the consequences nor can the husband be expected to suffer on the ground that he has two children, the court held.

http://bit.ly/14X0jBE

 

To get entire Judgment pls Click Here

Bombay HC:- Once the Decree of Divorce is granted then the Application u/s 18 of HAMA becomes infructuous.

“7. It may be mentioned that in view of the merits of the case of the parties in the divorce petition, the wife would not have been granted alimony. Hence she did not prosecute any application for alimony in that petition and chose to maintain a separate application in another Court. “

 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO. 86 OF 2013
IN
CRIMINAL APPLICATION NO. 608 OF 2012
IN
CRIMINAL WRIT PETITION NO. 1280 OF 2011

Shri. Ganesh Madhukar Mestry ..  ApplicantVs.

Smt. Surekha Ganesh Mestry & Ors. ..  Respondents
Mr. Pramod Pawar for the Applicant.
Mr. P. N. Kulkarni for Respondent No.1.
Mr. A. B. Shinde for Respondent Nos.4, 5 & 6.
Mrs. A. A. Mane, APP for the Respondent­State.
AND
CRIMINAL APPLICATION NO. 608 OF 2012
IN
CRIMINAL WRIT PETITION NO. 1280 OF 2011
AND
CRIMINAL WRIT PETITION NO. 1280 OF 2011
Smt. Surekha Ganesh Mestry & Ors. ..  Applicant
Vs.
The Senior Inspector of Police & Ors. ..  Respondents
Mr. P. N. Kulkarni for the Applicant/Petitioner.
Mr. A. B. Shinde for Respondent Nos.4, 5 & 6.
Mrs. A. A. Mane, APP for the Respondent­State.
CORAM :  MRS. ROSHAN DALVI, J.
DATE :  7
th MARCH, 2013.
P.C.
1. This writ petition is filed by the petitioner­wife for production of
the respondent­husband through the Senior Inspector of Police on the ground
that the order of the Family Court dated 6th December, 2004 directing him to
pay maintenance and which was brought into execution has not been satisfied
or complied and the respondent­husband has not been found.
2. The order of maintenance of the Family Court dated 6th December,
2004 is an ex parte order.   It was passed when the husband and wife both
were absent.  The wife’s Advocate was present.  Upon the averments in the
affidavit of evidence filed by the wife and without any cross­examination the
order of maintenance came to be passed granting her the maintenance prayed
for.  That was sought to be carried in execution.
3. The application of the wife was under Section 18 of the Hindu
Adoption and Maintenance Act (HAMA).  The petitioner­wife was no longer
wife at the time of  the passing of  the order.   She was already divorced on
21.04.2003 by Civil Judge Senior Division, Ratnagiri on the ground of mental
cruelty made out by the husband.  The decree of divorce was not ex parte.  It
was upon contest.  It was contested by the wife and the wife was represented
by her Advocate.  She had cross­examined the husband.  The learned Judge
found from the evidence that there was mental cruelty and granted a decree of
dissolution of marriage on the ground of mental cruelty.  The wife knew about
decree.  Yet the wife did not inform the Family Court about the decree.  It was
for  the wife  to  apply  for  permanent maintenance under  Section  25 of  the
Hindu Marriage Act.  She has not filed a counter claim.  She did not apply for
such maintenance.  She did not lead evidence.  She did not cross­examine the
husband on the ground of alimony and permanent maintenance.  Issue in that
behalf was not raised.  It did not even have to be answered.  The wife did not
contest or apply for that at all.
4. The   wife’s  petition   separately   filed  in   the   Family  Court   under
Section  18  of  the HAMA would  become infructuous when  the marriage is
dissolved  by  a  decree  of divorce  by  the  competent Court.   That decree of
divorce   was   not   challenged.     Hence   the   wife’s   application   becomes
infructuous.     Yet   the   Advocate   on   behalf   of   the   wife   prosecuted   that
application ex parte and the order came to be passed.
5. Thereafter the wife laboured over that order in execution.
6. The husband had remained at large.  He neither appeared before
the Court nor did he inform that the wife’s application had become infructuous
nor complied with the order.   The husband appears  to have challenged the
order belatedly.  He filed his appeal in this Court in 2007 before the Division
Bench. It was delayed.  The delay was not condoned.  Hence the appeal came
to  be  dismissed.    On  that  premise  the  wife  continued  her  application  for
execution of the order of the Family Court obtained ex parte.  That order could
not have been passed in view of her divorce on the ground of her own mental
cruelty held to have been perpetrated upon the husband.  Hence the order is a
nullity.  The entire effort in execution is in vain.
7. It may be mentioned that in view of the merits of the case of the
parties in the divorce petition, the wife would not have been granted alimony.
Hence she did not prosecute any application for alimony in that petition and
chose to maintain a separate application in another Court.
8. Consequently the main prayer in the writ petition itself cannot be
granted.
9. The  husband  has  been  procured  by  the  relevant  police  officer
upon   a  warrant  executed  by   the   Court.    The   warrant is   cancelled.   Writ
petition is dismissed.
10. Criminal Application of the husband is accordingly granted.
11. Criminal Application of the wife is dismissed.
12. Execution Application in the Family Court itself does not survive
and cannot continue.
(ROSHAN DALVI, J.)

http://bombayhighcourt.nic.in/generatenew.php?path=./data/criminal/2013/&fname=WP128011070313.pdf&smflag=N

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