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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.

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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

Supreme Court: “Marriage without sex is an anathema.”

January 23, 2013 Leave a comment

Supreme Court of India

Vinita Saxena
vs
Pankaj Pandit on 21 March, 2006
Author: . A Lakshmanan
Bench: R Pal, . A Lakshmanan

CASE NO.:

Appeal (civil) 1687 of 2006

PETITIONER: Vinita Saxena

RESPONDENT: Pankaj Pandit

DATE OF JUDGMENT: 21/03/2006

BENCH:

Ruma Pal & Dr. AR. Lakshmanan

JUDGMENT:

J U D G M E N T

(Arising out of S.L.P.(C) No.26418 of 2004)

Dr. AR. Lakshmanan, J.

Leave granted.

The above appeal was filed by the appellant, wife of the respondent herein, against the judgment and final order dated 10.9.2004 passed by the High Court of Delhi in F.A.O. No. 235 of 2002 whereby the Civil Writ Petition filed by the appellant was dismissed.

The short facts are as follows:

The marriage between the appellant-Vinita Saxena and the respondent-Pankaj Pandit was soleminzed on 7.2.1993 as per Hindu rites and customs. No child was born out of wedlock. The marriage, according to the appellant, lasted for five months and was never consummated on account of the fact that the respondent was incapable of performing his matrimonial obligations. According to the appellant, from the first day of the marriage, the respondent’s mother treated the appellant with utmost cruelty both mental and physical and that the reason for cruelty was the respondent’s mental disorder. The respondent’s case is a case of Paranoid Schizophrenia and the appellant discovered only after the marriage that the respondent was under constant treatment and observations of different doctors even prior to the marriage for the said ailment. Though the appellant knew the respondent prior to her marriage, in fact, it is only after the marriage, the appellant realised and discovered the mental disorder of the respondent. The appellant was never told by the respondent nor his parents that he was suffering from such serious mental disorder and that he was under the treatment and used to take strong medicines before the marriage. According to Dr. C.R. Samanta, who was a consultant psychiatrist at Aashlok Hospital, the respondent was a case of Schizophrenia and depression. On 4.7.1993, the appellant tried to discuss regarding the problems she was facing with the respondent and her mother- in-law, who objected strongly and accused the appellant of defaming the respondent. At her instance, the appellant was beaten mercilessly by the respondent, which made him nervous to the extent that he consumed “Baygon Spray” to commit suicide. The appellant and her brother immediately took the respondent to the hospital in order to save the respondent’s life. Again, Dr. C.R. Samantha prescribed certain medicines i.e. (1) Triperidol (2) Pacitane (3) Prodep to the respondent. The respondent was hospitalised for four days at Aashlok Hospital, Safdarjung Enclave and was discharged after giving proper treatment on 7.7.1993. According to the appellant, Triperidol is given in case of acute and chronic psychoses anxiety disorders, mania, Schizophrenia as per the medical advise. The situation further became worse on 8.7.1993 and 9.7.1993. Again on the instigation of the respondent’s mother, the respondent slapped and abused the appellant mercilessly and she was not even allowed to have food that day and the next day morning i.e. on 9.7.1993. On 9.7.1993, the appellant was pushed and kicked out of the matrimonial home by her mother-in-law and the respondent and thereafter, the appellant was not permitted to return again.

The appellant filed H.M.A. Petition on 30.6.1994 against the respondent for dissolution of marriage under Section 13(1)(1-a) and (iii) of the Hindu Marriage Act,1955 hereinafter referred to as “the Act” on the grounds of mental and physical cruelty and insanity before the Court of District Judge at Delhi. The trial Court vide its order dated 15.5.1993, relying on the facts and averments made by the parties as well as taking the medical documents placed on record observed that a letter of request should be written to the Medical Superintendent, L.N.J.P. Hospital to constitute a panel of doctors to examine the respondent and to report about his mental state. However, this order was subsequently set aside by the High Court in a Revision Petition filed by the respondent. After the marriage had broken down the appellant pursued further studies and completed M.S. (Structural Engineering) from IIT Delhi and in 1996, left for her Ph.D. programme to U.S.A. Father of the appellant, J.S. Saxena, deposed as PW-II and the appellant as PW-I and Dr. D.S. Arora, Medical Superintendent, Aashlok Hospital and Dr Kuldeep Kumar of Safdarjung Hospital recorded their statement as PW-III and PW-IV respectively supporting the case of the appellant. The respondent, however, got only his statement recorded and before his cross-examination could be concluded, deliberately did not appear in the witness box to complete his deposition. The trial Court, vide order dated 19.3.2001, dismissed the petition filed by the appellant under Section 13(1)(1-a) and (iii) of the Act for the grant of decree of divorce. Being aggrieved by the said order, the appellant filed an appeal before the High Court. The High Court vide order dated 10.9.2004 dismissed the appeal filed by the appellant holding that the respondent is not suffering from Schizophrenia and that there is insufficient material on record to establish the cause of cruelty and further held that the incidents of cruelty is not so grave which come within the scope of concept of cruelty. The High Court also held that the testimonies of the doctors examined by the appellant to prove that the respondent was suffering from Schizophrenia cannot be looked into for the reason that the respondent was not under the treatment of the above doctors. Aggrieved by the said order, the appellant filed this appeal by way of special leave petition before this Court. The respondent filed a counter affidavit. It is stated in the counter affidavit that the special leave petition is devoid of any merit inasmuch as the Courts below have given findings of fact in favour of the respondent and the Courts below have rejected the pleas of the appellant on the ground that she has not made out any case for grant of divorce. It was submitted that the appellant even before the marriage was having intimacy with the respondent from 1986 to 1993 and she did not find any abnormality in the behaviour of the respondent. It was also submitted that the appellant has not made out any case seeking divorce on the ground of causing cruelty to her inasmuch as she has failed to prove any instance leading to causing such cruelty to her by the respondent. It was submitted that the respondent is willing to take the appellant and keep her happy to the fullest and it is the desire of the respondent that the marriage should not break on the ground that she is building up her career in America for the past 12 years. Since concurrent findings of fact is in favour of the respondent, the appellant ought not to be stated that the respondent and his mother were involved in causing cruelty to her and that the Courts below have also disbelieved the version of the appellant that the cruelty was caused by the respondent due to his mental disorder. It was further contended that the appellant did not lead any evidence to prove as a matter of fact that the respondent was suffering from Schizophrenia and that the appellant has filed the petition deliberately and wilfully and with a view to harass the respondent and his mother. It was also contended that the mere branding of spouse as Schizophrenic is not sufficient and that the degree of mental disorder of the spouse must be proved to be such that the appellant  spouse cannot be reasonably be expected to live with the other. It was also submitted that from the evidence and pleadings, it has clearly been stated that the appellant was having sex with the respondent without any problem and there is no truth in the allegation made by the appellant. The other allegations mentioned in the Divorce Petition have not been proved at all and that the appeal filed by the appellant deserves to be rejected. We heard Ms. Kamini Jaiswal, learned counsel appearing for the appellant-wife and Mr. Dhruv Mehta, learned counsel appearing for the respondent-husband. We have perused the pleadings, annexures filed along with the appeal and the orders passed by the courts below and the grounds of appeal. Learned counsel for the appellant while reiterating the averments made in the appeal submitted the following grounds for granting divorce as prayed for by the appellant-wife :

1) Non-consummation of the marriage itself would constitute mental cruelty to a married woman.

2) The respondent attempted to commit suicide also amounts to mental cruelty and harassment.

3) The appellant has lived only for five months after the marriage and she was mercilessly beaten by the respondent and his mother.

4) There was absolutely nothing to show that the documents and prescription given by the doctors have been concocted. They are the official records of the Hospital.

5) The medical prescriptions and the evidence of doctors clearly illustrate that the respondent was under the treatment of Dr. Samantha and was a case of Paranoid Schizophrenia.

6) The respondent, before his cross examination could be concluded, deliberately did not appear in the witness box to complete his deposition and his evidence had to be closed.

7) The appellant was denied the matrimonial bliss of physical relation by the respondent because of his incompetency which itself constitute cruelty for a married woman.

8) The threat to commit suicide by the respondent amounts to cruelty and the Courts below took cognizance of the fact that the respondent consumed “Baygon spray”.

9) Because Dr. Samantha was not alive, the medical record authored by him can only be proved by secondary evidence though Dr. D.S. Arora, medical Superintendent who certified on oath that the respondent was admitted in Aashlok Hospital and stated that he had brought the records in respect of Pankaj Pandit. He also identified the signatures of Dr. Samantha and the medical prescriptions of his having treated the respondent have also been produced and proved by him where it had been categorically stated that the respondent is suffering from Paranoid Schizophrenia.

10) Likewise on the ground of non-availability of Dr. Abhyankar, who had authored the medical prescription as he was no more in service of the hospital cannot be fatal to disregard the evidence of the other doctor, who produced and proved the entire record.

11) The marriage between the appellant and the respondent hardly lasted for five months and both of them are living separately for the last 13 years. Learned counsel appearing for the appellant cited the following decisions: 1) Shrikant Anandrao Bhosale vs. State of Maharashtra,(2002) 7 SCC 748,

2) A. Jayachandra vs. Aneel Kaur, (2005) 2 SCC 22,

3) Smt. Uma Wanti vs. Arjan Dev , AIR 1995 P&H 312

4) Harbhajan Singh Monga vs. Amarjeet Kaur AIR 1986 MP 41 5) Mrs. Rita Nijhawan vs. Shri Balkishan Nijhawan, AIR 1973 Delhi 200

6) Yuvraj Digvijay Singh vs. Yuvrani Pratap Kumari, AIR 1970 SC

137.

7) Vijay Kumar Ramchandra Bhate vs. Neela vijaykumar Bhate, AIR 2003 SC 2462

8) B.N. Panduranga Shet vs. N. Vijaylaxmi, AIR 2003 Karnataka 357 Mr. Dhruv Mehta, learned counsel appearing for the respondent, per contra, after referring to the grounds of divorce and the findings recorded by the trial Court and the High Court which has affirmed the findings of the trial Court, submitted that in order to make out a ground for divorce under Section 13(1)(iii) of the Act, it is not necessary to establish that the respondent is suffering continuously or intermittently from mental disorder but it must further be established that it is of such a kind and to such an extent that the appellant cannot be reasonably be expected to live with the respondent. In other words, the burden is not discharged by merely establishing that the respondent is suffering from mental disorder which in the present case would include Schizophrenia by virtue of the Explanation to the said provision but the appellant must further lead evidence to establish that the mental disorder is of such a kind and to such an extent that the appellant cannot reasonably be expected to live with the respondent.

According to learned counsel for the respondent, the above contention finds support from a decision of this Court in Ram Narain Gupta vs. Smt. Rameshwari Gupta, 1988(4) SCC 247. For ready reference, the relevant paras from the said judgment are as under:

“20. The context in which the ideas of unsoundness of ‘mind’ and ‘mental disorder’ occur in the section as grounds for dissolution of a marriage, require the assessment of the degree of the ‘mental disorder’. Its degree must be such that the spouse seeking relief cannot reasonably be expected to live with the other. All mental abnormalities are not recognised as grounds for grant of decree. If the mere existence of any degree of mental abnormality could justify dissolution of a marriage few marriages would, indeed, survive in law. xx xx xx

28. The reasoning of the High Court is that the requisite degree of the mental disorder which alone would justify dissolution of the marriage has not been established. This, it seems to us, to be not an unreasonable assessment of the situation – strong arguments of Shri Goel to the contrary notwithstanding.

xx xx xx

30. ..the burden of proof of the existence of the requisite degree of mental disorder is on the spouse basing the claim on that state of facts.

33. This medical concern against too readily reducing a human being into a functional non entity and as a negative unit in family or society is law’s concern also and is reflected, at least partially, in the requirements of Section 13(1)(iii). In the last analysis, the mere branding of a person as schizophrenic will not suffice. For purposes of Section 13(1)(iii) ‘schizophrenia’ is what schizophrenia does.”

It was further submitted that the aforesaid judgment of this Court has been followed by the Karnataka High Court in the case of B.N. Panduranga Shet vs. N. Vijayalaxmi, (supra). Learned counsel also relied on the decision of the Calcutta High Court in the case of Rita Roy vs. Sitesh Chandra AIR 1982 Calcutta 138 and the decision of the Himachal Pradesh High Court reported in (1995) DMC 71 (DB). Learned counsel also cited the judgment of this Court in Rakesh K. Gupta vs. Ram Gopal Agarwala & Ors., AIR 2005 SC 2426 for the proposition that even in a custody dispute between the husband and wife wherein it was alleged by the husband that the wife is suffering from Paranoid Schizophrenia, this Court still awarded custody of the child to the mother.

According to the learned counsel, the evidence which has been brought on record by the appellant is wholly insufficient to infer that the respondent was suffering from the said mental disorder and the doctors who are alleged to have treated the respondent have not been examined as witnesses by the appellant and what has been brought on record are certain prescriptions made by the said doctors and the same are sought to be proved by examining the Medical Superintendent of Aashlok Hospital, Safdarjung Enclave. Therefore, he submitted that in view of the above fact, no inference can be drawn that the respondent was suffering from Paranoid Schizophrenia and that the appellant has not been discharged of the burden as required by the statutory provision. Learned counsel contended that the words used in sub-clause (iii) of Section 13(1) to the effect that “mental disorder of such a kind and to such an extent that the appellant cannot reasonably be expected to live with the respondent” must be given full effect as it is a well accepted principle of statutory interpretation that a Court must make every effort to give effect to all words in a statute since Parliament cannot be held to have been wasting its words or saying something in vain. Learned counsel, for this proposition, relied on the following two decisions of this Court:

(a) Shin Etsu Chemical Company Ltd. Vs. Aksh Optifibre Ltd., (2005) 7 SCC 234.

(b) Union of India vs. Popular Construction , (2001) 8 SCC 470 Concluding his submissions, learned counsel submitted that the appellant having failed to establish the aforementioned requirement of the statute, the appeal must fail on this ground.

In Re : Cruelty

It was submitted that in order to make out a ground for divorce under Section 13(1)( i-a) of the Act, the conduct complained of should be grave and weighty so as to come to the conclusion that the appellant 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”. For this proposition, he relied on the judgment of this Court in A. Jayachandra vs. Aneel Kaur (supra). Para 13 of the aforementioned judgment is as under:

“13. ..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 was argued that the trial Court, after examining the evidence, has come to the conclusion that the acts complained of are not such as would constitute cruelty and in any event the ground for divorce under Section 13(1)(i-a) is not made out. It was submitted that the trial Court had occasioned to see the demeanour of witnesses and, therefore, the view taken by the trial Court unless it can be said to be perverse should not be faulted with. It was also contended that the approach in such cases should be to perverse the matrimonial home. The judgment in the case ofSavitri Pandey vs. Prem Chandra Pandey, (2002) 2 SCC 73 was relied on for this purpose. Answering the contention raised by the counsel for the appellant that the parties have not lived together for a long time and therefore, this is a fit case to pass a decree of divorce, learned counsel for the respondent, submitted that this is a wholly untenable argument and has to be rejected by this Court. For this, he relied on the ruling of this Court in the case of A. Jayachandra vs. Aneel Kaur (supra). Concluding his arguments, learned counsel appearing for the respondent submitted that both the trial Court and the High Court have recorded concurrent findings and have rejected the prayer of the appellant to grant decree of divorce under Section 13(1)(i-a) and (iii) of the Act and, therefore, this Court under Article 136 of the Constitution of India cannot interfere with the said findings unless it is established that the findings recorded by the trial Court and the High Court are perverse. Arguing further, he submitted that the findings of the trial Court are based on the consideration of the entire evidence and well reasoned and in similar circumstances, this Court refused to interfere with the concurrent findings of fact arrived at by the Courts in Savitri Pandey vs. Prem Chandra Pandey (supra).

We have given our thoughtful and anxious consideration for the rival submissions made by the respective counsel appearing on either side. The appellant filed a petition for divorce under Section 13(1)(i-a) and (iii) of the Act on the ground of mental and physical cruelty. It is also her case that on account of Paranoid Schizophrenia that the respondent was suffering from, the appellant could not be reasonably expected to live with the respondent. Section 13 (1)(i-a) and (iii) are reproduced hereunder:

“13. Divorce – (1) Any marriage solemnized, whether

before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-

(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or

(i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or

* * * * *

(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation – In this clause, -

(a) the expression “mental disorder’ means mental

illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(b) the expression “psychopathic disorder” means a

persistent disorder or disability of mind (whether or not including sub- normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or (iv) has been suffering from a virulent and incurable form of leprosy; or

(v) has been suffering from venereal disease in a

communicable form; or

(vi) has renounced the world by entering any

religious order; or

(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive.

Explanation – In this sub-section, the expression

“desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly. (I-A) Either party to a marriage, whether solemnized before or after the commencement of this Act may also present a petition for the dissolution of the marriage by a decree of divorce on the ground -

(i) that there has been no resumption of

cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal

rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.

(2) A wife may also present a petition for the

dissolution of her marriage by a decree of divorce on the ground – (i) in the case of any marriage solemnized

before the commencement of this act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner:

Provided that in either case the other wife is alive at the time of the presentation of the petition; or

(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or (iii) that in a suit under section 18 of the Hindu

Adoptions and Maintenance Act, 1956 (78 of 1956) , or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or

(iv) that her marriage (whether consummated or not)

was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.

Explanation – This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976.

It is not in dispute that the marriage has lasted hardly for five months and was never consummated on account of the fact that the respondent was incapable of performing his matrimonial obligations. The appellant has examined herself as PW-1. She has specifically stated in her deposition that the marriage was not consummated at all. It has further come out in her deposition that she accompanied the respondent at AIIMS and met Prof. Dr. Prema Bali, Sexologist and Marriage Counsellor. In her deposition, it had also come out that the Doctor informed her that the respondent cannot perform the marital obligations. She was also informed by the said Doctor that the respondent was a Psychopathic case and he has no power of concentration. She was also informed that the disease is of incurable in nature. The appellant has further deposed that respondent kept on sleeping for three days immediately after solemnization of marriage and the appellant was told that she should not disturb him. It was further stated in her evidence that on 4.7.1993, the appellant was blamed for the respondent’s illness and was mercilessly beaten up and on the same day the respondent consumed “Baygon Spray” to commit suicide and he was taken to Aashlok Hospital, Safdarjung Enclave by the appellant and her brother. In her cross-examination, the appellant has stated that though they were studying together in the Engineering College, however, there were no special meetings between them except meeting in the class. It has also come on record that there was no intimacy between the appellant and the respondent. The appellant has emphatically denied the allegation about the intimacy between the appellant and the respondent prior to marriage w.e.f. 1987. She also stated on oath that it was a marriage though of her choice but solemnized only after her parents had given the consent. In the cross- examination, the respondent has not been able to shake or destroy the case of the appellant.

In support of her case, PW-2, J.S. Saxena  father of the appellant, was examined. He supported the appellant’s case and corroborated her evidence. Even in the cross-examination of PW-2, there is no material change or inconsistency. With regard to the grant of cruelty, there is deposition of the appellant and her father on record which clearly establishes and proves that the appellant was treated with cruelty by the respondent and his mother. With regard to the plea of mental insanity i.e. Section 13(1)(iii), the appellant adduced the evidence of Dr. D.S. Arora, Medical Superintendent, Aashlok Hospital as well as Dr. Kuldeep Kumar of Safdarjung Hospital. Dr. D.S. Arora, a summoned witness produced the entire record pertaining to the respondent. He exhibited the case of the respondent maintained by Dr. C.R. Samantha. Dr. D.S. Arora identified the signatures of Dr. C.R. Samantha and proved Ex. PW-3/1. The original record of respondent was produced in the Court. Dr. D.S. Arora also proved the prescriptions  Ex. PW-3/2 and Ex. PW-3/3. Ex. PW-3/5 was the prescription written by Dr. D.S. Arora and it was bearing his signatures. The entire medical history and record of the respondent pertaining to his medical illness, his visit and admission to Aashlok Hospital on 4.7.1993 and discharge on 7.7.1993 as well as the case history of the respondent maintained by Dr.C.R. Samantha were duly proved and exhibited. According to the medical record, the respondent was admitted with reference to a case of Psychopathic and depression for the last fortnight, now admitted for disturbed consciousness. He was suggested to take Triperidol medicine. The other prescription has been authored by Dr. D.S. Arora who stated that the respondent had consumed “Baygon Spray”. It was also specified that the respondent is a known case of depression. Medicine ‘Triperidol’ was suggested to be administered to him. With regard to the consumption of “Baygon Spray”, a stomach wash was carried out upon the respondent and he was administered injections ‘Atropine’, and ‘Dextrose-1/V and PAM 1 to 1/V. The evidence of Dr. D.S. Arora and the record signed by Dr. C.R. Samantha are admissible in evidence and has been legally proved. The evidence of Dr. Kuldeep Kumar of Safdarjung Hospital also establishes the case of mental insanity and the fact that the respondent was a case of Paranoid Schizophrenia. The said Doctor produced the original record and made necessary deposition. He had brought the originals during his examination and it is recorded that the respondent had visited the Psychiatric Ward on 12.12.1992 along with his mother. Dr. Abhyankar also recorded about the history of respondent’s illness. It was also recorded by the said Doctor that the respondent suffers from delusion of persecution and reference effect and on the physical examination it had been observed that the respondent has clear systematized delusion of persecution and reference and, therefore on the review it is clear that the respondent is suffering from Paranoid Schizophrenia. The medical record of the respondent maintained by the Safdarjung hospital (Outdoor Patient Department) has been established that the respondent visited Hospital on 21.12.1992 and was advised for psychological testing. It was observed in a medical sheet that the respondent was initially diagnosed for psychosis. However, on subsequent visits and after detailed examination it has been confirmed that he suffers from Paranoid Schizophrenia. The appellant has also produced on record a communication dated 9.5.1994 addressed by Professor Dr. Prema Bali, who was working in the Institute of Sexology and Marriage Counselling. Dr. Prema Bali is the relative of respondent and she has communicated to the appellant that the respondent has a psychiatric problem as his case is a case of Paranoid Schizophrenia.

It would be pertinent to observe that there is no evidence whatsoever adduced by the respondent or on his behalf. In fact, after recording of the examination-in-chief and part cross-examination, the respondent refused to come in the witness box and ran away. The observation has been made by the trial Court in the proceedings. A RESEARCH ON THE DISEASE

“Schizophernia is one of the most damaging of all mental disorders. It causes its victims to lose touch with reality. They often begin to hear, see or feel things that aren’t really there (hallucinations) or become convinced of things that simply aren’t true (delusions). In the paranoid form of this disorder, they develop delusions of persecution or personal grandeur. The first signs of paranoid schizophrenia usually surface between the ages of 15 and 34. There is no cure, but the disorder can be controlled with medications. Severe attacks may require hospitalization.

The appellant has filed Annexures L,M,N,O,P and Q which are extracts about the aforesaid disease. The extracts are sum and substance of the disease and on a careful reading it would be well established that the evidence and documents on record clearly make out a case in favour of appellant and hence appellant was entitled to the relief prayed. In the memorandum and grounds of Appeal, some salient features of the disease have also been specified. Some of the relevant part of the extracts from various medical publications are reproduced herein below:

What is the disease and what one should know?

* A psychotic lacks insight, has the whole of his personality distorted by illness, and constructs a false environment out of his subjective experiences.

* It is customary to define ‘delusion’ more or less in the following way. A delusion is a false unshakeable belief, which is out of keeping with the patient’s social and cultural background.’ German psychiatrists tend to stress the morbid origin of the delusion, and quite rightly so. A delusion is the product of internal morbid processes and this is what makes it unamenable to external influences. * Apophanuous experiences which occur in acute schizophrenia and form the basis of delusions of persecution, but these delusions are also the result of auditory hallucinations, bodily hallucinations and experiences of passivity. Delusions of persecution can take many forms. In delusions of reference, the patient feels that people are talking about him, slandering him or spying on him. It may be difficult to be certain if the patient has delusions of self-reference or if he has self-reference hallucinosis. Ideas of delusions or reference are not confined to schizophrenia, but can occur in depressive illness and psychogenic reactions.

Causes

The causes of schizophrenia are still under debate. A chemical imbalance in the brain seems to play a role, but the reason for the imbalance remains unclear. One is a bit more likely to become schizophrenic if he has a family member with the illness. Stress does not cause schizophrenia, but can make the symptoms worse. Risks

Without medication and therapy, most paranoid schizophrenics are unable to function in the real world. If they fall victim to severe hallucinations and delusions, they can be a danger to themselves and those around them.

What is schizophrenia?

Schizophrenia is a chronic, disabling mental illness

characterized by:

* Psychotic symptoms

* Disordered thinking

* Emotional blunting

How does schizophrenia develop?

Schizophrenia generally develops in late adolescence or early adulthood, most often:

* In the late teens or early twenties in men

* In the twenties to early thirties in women

What are the symptoms of schizophrenia?

Although schizophrenia is chronic, symptoms may improve at times (periods of remission) and worsen at other times (acute episodes, or period of relapse).

Initial symptoms appear gradually and can include:

* Feeling tense

* Difficulty concentrating

* Difficulty sleeping

* Social withdrawal

What are psychotic symptoms?

Psychotic symptoms include:

* Hallucinations: hearing voices or seeing things

* Delusions : bizarre beliefs with no basis in reality (for example, delusions of persecution or delusions of grandeur) These symptoms occur during acute or psychotic phases of the illness, but may improve during periods of remission. A patient may experience

* A single psychotic episode during the course of the illness

* Multiple psychotic episodes over a lifetime

* Continuous psychotic episodes

During a psychotic episode, the patient is not completely out of touch with reality. Nevertheless, he/she has difficulty distinguishing distorted perceptions of reality (hallucinations, delusions) from reality, contributing to feelings of fear, anxiety, and confusion. The disorder can prove dangerous for some – especially when symptoms of paranoia combine with the delusional symptoms of schizophrenia. In fact, doctors say paranoid schizophrenics are notorious for discontinuing the treatments which help control their symptoms.

The Indian Drug Review has specified the Drug Trifluoperidol as a sedative and tranquilizer. With regard to administration it has been suggested that it is given to patient suffering from Schizophrenia. Incidentally this drug was being administered on medical advice to the respondent.”

In our view, the trial Court failed to appreciate the uncontroverted evidence of the appellant who had proved the case on every count. It has been established beyond doubt by the Medical doctors who had deposed as witnesses and brought the original medical record of the respondent that the respondent is suffering from mental disorder. Further ground for grant of divorce on the plea of mental insanity/mental disorder is different than cruelty. The appellant, in our view, had proved beyond doubt that the respondent suffered from mental disorder and that the appellant suffered cruelty by and at the behest of the respondent.

Learned single Judge of the High Court failed to appreciate that in the absence of any evidence led by the respondent, the appellant’s evidence had to be relied upon and on the basis of the evidence, the decree for divorce was bound to be granted in favour of the appellant. The appellant had also given specific instances of cruelty which clearly establish that she had a reasonable apprehension that it will be harmful or injurious for her to live with the respondent.

 

LEGAL PROPOSITION ON THE ASPECT OF CRUELTY

It is settled by catena of decisions that mental cruelty can cause even more serious injury than the physical harm and create in the mind of the injured appellant such apprehension as is contemplated in the Section. It is to be determined on whole facts of the case and the matrimonial relations between the spouses. To amount to cruelty, there must be such wilful treatment of the party which caused suffering in body or mind either as an actual fact or by way of apprehension in such a manner as to render the continued living together of spouses harmful or injurious having regard to the circumstances of the case.

The word ‘cruelty’ has not been defined and it 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. It is a course of conduct and one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. There may be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the 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.

The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions, their culture and human values to which they attach importance. Judged by standard of modern civilization in the background of the cultural heritage and traditions of our society, a young and well educated woman like the appellant herein is not expected to endure the harassment in domestic life whether mental, physical, intentional or unintentional. Her sentiments have to be respected, her ambition and aspiration taken into account in making adjustment and her basic needs provided, though grievances arising from temperamental disharmony. This view was taken by the Kerala High Court in the case reported in AIR 1991 Kerala 1.

In 1993 (2) Hindu L.R. 637, the Court had gone to the further extent of observing as follows:

“Sometime even a gesture, the angry look, a sugar coated joke, an ironic overlook may be more cruel than actual beating” Each case depends on its own facts and must be judged on these facts. The concept of cruelty has varied from time to time, from place to place and from individual to individual in its application according to social status of the persons involved and their economic conditions and other matters. The question whether the act complained of was a cruel act is to be determined from the whole facts and the matrimonial relations between the parties. In this connection, the culture, temperament and status in life and many other things are the factors which have to be considered.

The legal concept of cruelty which is not defined by statute is generally described as conduct of such character as to have caused danger to life, limb or health (bodily and mental) or to give rise to reasonable apprehension of such danger. The general rule in all question of cruelty is that the whole matrimonial relations must be considered, that rule is of a special value when the cruelty consists not of violent act but of injurious reproaches, complains accusations or taunts. It may be mental such as indifference and frigidity towards wife, denial of a company to her, hatred and abhorrence for wife or physical, like acts of violence and abstinence from sexual intercourse without reasonable cause. It must be proved that one partner in the marriage however mindless of the consequences has behaved in a way which the other spouse could not in the circumstances be called upon to endure, and that misconduct has caused injury to health or a reasonable apprehension of such injury. There are two sides to be considered in case of cruelty. From the appellant’s side, ought this appellant to be called on to endure the conduct? From the respondent’s side, was this conduct excusable? The court has then to decide whether the sum total of the reprehensible conduct was cruel. That depends on whether the cumulative conduct was sufficiently serious to say that from a reasonable person’s point of view after a consideration of any excuse which the respondent might have in the circumstances, the conduct is such that the petitioner ought not be called upon to endure.

As to what constitute the required mental cruelty for purposes of the said provision, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home. If the taunts, complaints and reproaches are of ordinary nature only, the court perhaps need consider the further question as to whether their continuance or persistence over a period of time render, what normally would, otherwise, not be so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance of matrimonial home is not possible any longer.

The modern view of cruelty of one spouse to another in the eye of law has been summarised as follows in (1977) 42 DRJ 270 Halsbury Laws of England Vol.12, 3rd edition page 270:-

“The general rule in all kinds of cruelty that the whole matrimonial relations must be considered and that rule is of special value when the cruelty consists not of violent acts, but of injurious reproaches, complaints, accusations of taunts. Before coming to a conclusion, the judge must consider the impact of the personality and conduct of one spouse on the mind of the other, and all incidents and quarrels between the spouses must be weighed from the point of view. In determining what constitutes cruelty, regard must be had to the circumstances of each particular case, keeping always in view the physical and mental condition of the parties, and their character and social status.”

This Court in Dastane vs. Dastane AIR 1975 SC 1575 observed as under:-

“The Court has to deal not with an ideal husband and an ideal wife, (assuming any such exist) but with the particular man and women before it. The ideal couple or a mere ideal one will probably have no occasion to go to a matrimonial court or, even if they may not be able to drawn their differences, their ideal attitudes may help them overlook or gloss over mutual fault and failures.

Marriage without sex

The Division Bench in the case of Rita Nijhawan vs. Balkrishan Nijhawan in AIR 1973 Delhi 200 at 209 observed as follows:

“Marriage without sex is an anathema. Sex is the foundation of marriage and without a vigorous and harmonious sexual activity it would be impossible for any marriage to continue for long. It cannot be denied that the sexual activity in marriage has an extremely favourable influence on a woman’s mind and body. The result being that if she does not get proper sexual satisfaction it will lead to depression and frustration. It has been said that the sexual relations when happy and harmonious vivifres woman’s brain, develops her character and trebles her vitality. It must be recognized that nothing is more fatal to marriage than disappointment in sexual intercourse.” Section 13(1)(iii) ‘mental disorder’ as a ground of divorce is only where it is of such a kind and degree that the appellant cannot reasonably be expected to live with the respondent. Where the parties are young and the mental disorder is of such a type that sexual act and procreation of children is not possible it may furnish a good ground for nullifying the marriage because to beget children from a Hindu wedlock is one of the principal aim of Hindu Marriage where sanskar of marriage is advised for progeny and offspring. This view was taken in AIR 1991 MP 205. This Court in Digvijay Singh vs. Pratap Kumari, AIR 1970 SC 137 has held as follows

“A party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility. The condition must be one, according to the statute, which existed at the time of the marriage and continued to be so until the institution of the proceedings. In order to entitle the appellant to obtain a decree of nullity, establish that his wife, the respondent, was impotent at the time of the marriage and continued to be so until the institution of the proceedings.”

Lord Denning in Sheldon v. Sheldon (1966) 2 All ER 257, “The categories of cruelty are not disclosed. Each case may be different. We deal with the conduct of human being who are not generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capability to tolerate the conduct complained of. Such is the wonderful realm of cruelty.”

Spouses owe rights and duties each to the other and in their relationship they must act reasonably. In every case where cruelty exists it is possible to say that the spouse at fault has been unreasonable. The list of cruelty, therefore, should be breach of the duty to act reasonably, whether in omission or commission, causing injury to health. Such a list avoids imputing on intention where in fact none may exist. Further all such matters are foresight, desires, wishes, intention, motives, perception, obtuseness, persistence and indifference would remain relevant but merely as matter of evidence bearing upon the requirement to act reasonably or as aggravation of the matters charged.

We can also take note of the fact that the respondent had filed a revision against the order of the trial Court’s direction for setting up of a medical Board to examine the respondent. At the time of hearing, this Court directed the counsel for the respondent to ascertain from the respondent as to whether he is willing to submit himself for medical examination. However, the respondent refused to submit himself for medical examination and go before the medical Board. This would but confirm the contention of the appellant that the respondent is suffering from Paranoid Schizophrenia and that this Court can draw adverse inference in view of the conduct of the respondent. In the case of Smt. Uma Rani vs. Arjan Devi (supra), it has been held that unsoundness of mind may be held to be cruelty.

In the case of Harbhajan Singh Monga vs. Amarjeet Kaur (Supra), it has been held that attempt to commit suicide by one spouse has been found to amount to cruelty to other.

The observation made by this Court in the case of Shobha Rani vs. Madhukar Reddi, AIR 1988 SC 121 can be reproduced to appreciate the facts and circumstances of the case on hand. It reads as follows:

“There has been a marked change in the life around us. In matrimonial duties and responsibilities in particular, there is a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the Court should not search for standard in life. A set of facts stigmatized as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. The Judges and lawyers, therefore, should not import their own notions of life. Judges may not go in parallel with them. There may be a generation gap between the Judges and the parties. It would be better if the Judges keep aside their customs and manners. It would be also better if Judges less depend upon precedents.”

Humane aspects which this Court should consider:

? The appellant was 24 years of age when she got married. ? The marriage lasted for four to five months only when she was compelled to leave the matrimonial home.

? The marriage between the parties was not consummated as the respondent was not in a position to fulfil the matrimonial obligation. ? The parties have been living separately since 1993. 13 years have passed they have never seen each other.

? Both the parties have crossed the point of no return. ? A workable solution is certainly not possible.

? Parties at this stage cannot reconcile themselves and live together forgetting their past as a bad dream.

? Parties have been fighting the legal battle from the year 1994. ? The situation between the parties would lead to a irrefutable conclusion that the appellant and the respondent can never ever stay as husband and wife and the wife’s stay with the respondent is injurious to her health. ? The appellant has done her Ph.d. The respondent, according to the appellant, is not gainfully employed anywhere.

? As a matter of fact, after leaving his deposition incomplete during the trial, the respondent till date has neither appeared before the trial Court nor before the High Court.

The facts and circumstances of the case as well as all aspects pertain to humanity and life would give sufficient cogent reasons for us to allow the appeal and relieve the appellant from shackles and chain of the respondent and let her live her own life, if nothing less but like a human being.

In our view, the orders of the Courts below have resulted in grave miscarriage of justice to the appellant who has been constrained into living with a dead relationship for over 13 years. The resultant agony and injustice that has been caused to the appellant, it is a fit case for interference under Article 136 of the Constitution of India and reversal of findings of the Courts below which have resulted in grave miscarriage of justice. In the result, the civil appeal stands allowed. There will be a decree for divorce in favour of the appellant-wife and against the respondent-husband. The order of the trial Court as affirmed by the High Court, stands set aside. There will be no order as to costs.

 

http://www.indiankanoon.org/doc/1804316/

Delhi High Court:- DV is not maintainable once there is decree of Divorce. Also, parents of Husband cannot be made Respondents in DV if the Husband and Wife have not stayed with Parents under one roof.

January 11, 2013 Leave a comment

-There can be no domestic relationship of the wife of son with the parents when the parents are not living along with the son and there can be no domestic relationship of a wife with the parents of her husband when son along with the wife is living abroad, maintaining a family there and children are born abroad.

-The definition of “wife” as available under Section 125 Cr.P.C could not be imported into Domestic Violence Act. The Legislature was well aware of Section 125 Cr.P.C. and if Legislature intended, it would have defined “wife” as in Section 125 Cr.P.C in Domestic Violence Act as well. The purpose and object of Domestic Violence and provision under Section 125 Cr.P.C. is different. While Domestic Violence Act has been enacted by the Parliament to prevent acts of domestic violence on women living in a shared household.

Delhi High Court

Nagesh Malik vs Payal Malik on 29 July, 2010

Author: Shiv Narayan Dhingra

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: 6th July, 2010

Date of Order: 29th July, 2010

+ Crl. Rev. P. No. 253/2010

29.07.2010

Harbans Lal Malik … Petitioner Through: Mr. Dharam Raj, Advocate

Versus

Payal Malik … Respondents Through: Mr. R.Jain, Mr. Deepak Aggarwal &

Mr. D.Jain, Advocates

+ Crl. Rev. P. No. 252/2010

% 29.07.2010 Varun Malik … Petitioner Through: Mr. Dharam Raj, Advocate

Versus

Payal Malik … Respondents Through: Mr. R.Jain, Mr. Deepak Aggarwal &

Mr. D.Jain, Advocates

+ Crl. Rev. P. No. 338/2010

% 29.07.2010 Nagesh Malik … Petitioner Through: Mr. Dharam Raj, Advocate

Versus

Payal Malik … Respondents Through: Mr. R.Jain, Mr. Deepak Aggarwal &

Mr. D.Jain, Advocates

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment? Yes.

2. To be referred to the reporter or not? Yes.

3. Whether judgment should be reported in Digest? Yes.

JUDGMENT

These petitions arise out of order passed by the learned Additional Sessions Judge on 7th May, 2010 while disposing of two appeals against the order dated 27th July, 2009 passed by the learned MM. Nagesh Malik vs Payal Malik on 29 July, 2010

2. The undisputed facts are that Ms. Payal Malik used to live with her parents before marriage at Hissar. Her marriage took place with Mr. Nagesh Malik whose parents used to live at Panipat. Marriage of the parties was solemnized at Panipat on 30th August, 2001. Nagesh Malik was already working in USA and after marriage both of them went to USA on 20th September, 2001 where they settled their matrimonial home and lived together. On 24th October, 2002 a female child was born to the couple at USA, who was named as Vanishka. The parties continued living together in USA till 2008. It seems deep differences arose between the parties and they could not pull on together. There are allegations and counter allegations made by wife and husband which are not relevant for the purpose of deciding this petition. However, husband alleged that on 6th August, 2008 due to these differences, parties executed a post-nuptial agreement and decided to obtain divorce from each other, sticking to the agreement. Wife refutes having signed the agreement voluntarily and alleges that she was turned out from USA by her husband on 22nd August, 2008. Whereas the husbandâ..s contention is that she of her own left USA without joining the husband for obtaining divorce through a Court in USA. The husband filed a divorce petition before Superior Court of New Jersey Chancery Division Family Court USA on 27th August, 2008. The notice of divorce suit was duly served on her. The Court of New Jersey allowed the divorce petition and a decree of divorce was granted on 4th December, 2008.

3. On 13th January, 2009 wife filed a complaint before CAW Cell Hissar against husband and in-laws. Ms. Sushila, Inspector of CAW Cell Hissar, vide her report dated 20th January, 2009, observed that the allegations in the complaint were not true and it was useless to keep the complaint pending further. Thereafter, wife filed a complaint in the Court of MM at Delhi making her husband (Nagesh Malik), father-in-law (Harbans Lal Malik), mother-in-law (Neelam Malik) and brother-in-law (Varun Malik) as parties under Section 12 of Protection of Women from Domestic Violence Act, 2005 [in short - Domestic Violence Act] with a prayer that Court should pass a protection order under Section 18, residence order under Section 19,  monetary relief order under Section 20, compensation order under Section 22 and interim orders under Section 23 of the Act. She made allegations of mal-treatment at the hands of respondents from day one of the marriage till she left USA and came to India. She stated, after coming back from USA she went to her in-lawsâ.. house at Panipat but found the house locked as her parents-in-law had gone to USA. She also stated that her husband had sent a complaint to SP Panipat leveling certain scandalous allegations against her. She graduated from Delhi University in 1998 and had done interior designing course from South Delhi Polytechnic. She alleged that her in-laws had three houses and an industrial unit in Panipat. They had properties in Delhi as well and respondent no.1 (her husband) had share in properties of her in- laws. She submitted that her complaint at CAW Cell Hissar could not be pursued by her as her in-laws had tried to mislead Haryana police and also because of a tragedy in her family. She left her parents.. house and came to Delhi to pursue her career prospects. She was presently residing at Malviya Nagar, Delhi. Till the time she was not given back her matrimonial home (at Panipat), she would live in Delhi, so the Court of MM at Delhi had jurisdiction. She prayed that custody of child Vanshika should be given to her. She should be given shares in properties at Panipat and Delhi as well as a house in New Jersey, USA. She should be given Rs.20,000/- per month for her maintenance and education as she intended to pursue further study and Court should direct for return of her dowry articles. Along with main application under the Domestic Violence Act, applications for interim reliefs were made. She in the application under Section 23 of the Act prayed for a residence or in lieu thereof a sum of Rs.20,000/- per month and Rs.50,000/- as onetime payment to meet education expenses, a car or Rs.8,000/- per month in lieu of the car and Rs.20,000/- per month for her day-to-day expenses and Rs.50,000/- as onetime payment to repay her debts.

4. The learned MM, by her order dated 27th July, 2009 directed that an amount of Rs.50,000/- per month be paid to wife as interim maintenance jointly or severally by respondents no. 1,2 & 4. She dropped respondent no.3 from the array of respondents on the ground that petition against a female respondent was not maintainable.

5. It was pleaded before the learned MM by the petitioner that there was a decree of divorce granted by a Competent Court of New Jersey, Chancery Division after following due procedure as laid down in USA. After grant of divorce there was no domestic relationship of Ms. Payal Malik with any of the respondents. (It is noted in the order of MM that the decree of divorce passed by the Court of US was placed on record.) Reliance was also placed by the petitioner on post nuptial agreement as entered into between husband and wife. The learned trial Court did not think it proper to deal with the issue whether an application under Section 12 of Domestic Violence Act could be entertained at all in respect of a divorced wife and whether the decree of divorce granted by the foreign Court where the parties had lived together for more than seven years, had some value or not.

6. The trial Court after discussing the objects and aims of The Protection of Women Against Domestic Violence Act, 2005 and after reproducing a quote from novelist Joseph Conrad “being a woman is a terribly difficult task, since it consists principally in dealing with men” [as if men, though given birth by women, are ferocious animals and not human beings, but cannibals] passed an order for grant of maintenance.

7. In appeal before the learned Sessions Judge, an argument was pressed that the judgment given by New Jersey Court was conclusive evidence of status of the parties and in view of Section 14 of Code of Civil Procedure and Section 4 of The Indian Evidence Act, unless the judgment was set aside the trial Court Crl. Rev. P. No.252/2010, 253/2010 & 338/2010 Page 4 of 16 should not have entertained the petition under Section 12 of The Protection of Women Against Domestic Violence Act. It was pleaded that only an application under Section 125 Cr.P.C. (which is applicable to divorced wife) could have been entertained by a Court, if moved. It was argued by wife that decree of divorce was obtained by fraud and was hit by Section 13 CPC and therefore could not stand in the way of entertaining an application under Section 12 of Domestic Violence Act.

8. The learned Sessions Judge while deciding appeal observed that the provisions of Domestic Violence Act are to be interpreted taking help of Section 125 Cr.P.C. and the explanation given under Section 125 Cr.P.C. of “Wife” is to be read in Domestic Violence Act also. He further observed that the Court has to take pragmatic approach and unless the dissolution of marriage was proved by evidence, the Court has not to act on the decree. He therefore dismissed the appeal filed by husband and other respondents observing that there was no illegality in the order of learned trial Court in granting maintenance. He allowed an appeal filed by wife in respect of execution of the order of of MM and directed that Ministry of External Affairs be sent a request to execute the order dated 27th July, 2009 as per law.

9. The first issue arising in this case is whether an application under Section 12 of Domestic Violence Act made by the respondent could have been entertained against all the respondents (petitioners herein) as arrayed in her application and whether the Court without discussing the domestic and legal relationship of different respondents with the petitioner, could have passed an order against the petitioners making them jointly and severally liable to pay maintenance of Rs.50,000/-.

10. Under Section 12, an „aggrieved person‟ can file an application to Magistrate against the respondents. The respondent has been defined under Section 2 (q). The definition reads as under:

“respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.

11. It is apparent that in order to make a person as respondent in a petition under Section 12, there must exist a domestic relationship between the respondent and the aggrieved person. If there is no domestic relationship between the aggrieved person and the respondent, the Court of MM cannot pass an order against such a person under the Act. Domestic relationship is defined under Section 2 (f) of the Act and is as under:

“domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;

12. It is apparent that domestic relationship arises between the two persons, who have lived together in a shared household and when they are related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. The definition speaks of living together at any point of time however it does not speak of having relation at any point of time. Thus, if the domestic relationship continued and if the parties have lived together at any point of time in a shared household, the person can be a respondent but if the relationship does not continue and the relationship had been in the past and is not in the present, a person cannot be made respondent on the ground of a past relationship. The domestic relationship between the aggrieved person and the respondent must be present and alive at the time when complaint under Domestic Violence Act is filed and if this relationship is not alive on the date when complaint is filed, the domestic relationship cannot be said to be there. The first respondent made by the wife in her complaint before the learned MM in this case was husband with whom the wife had lived under the same roof in a shared household till 22nd August, 2008 in USA. She had not lived for last 7 ½ years with respondent no.1 in India. Respondent No.4 is Varun Malik who is brother of the husband. Under no circumstances it can be said that brother of husband, who was a major and independent, living separately from this husband and wife, had any kind of domestic relationship or moral or legal responsibility/obligations towards his brother‟s wife. He had not lived in domestic relationship with Payal Malik at any point of time. Merely because a person is brother of the husband he cannot be arrayed as a respondent, nor does an MM gets authority over each and every relative of the husband, without going into the fact whether a domestic relationship or shared household was there between the aggrieved person and the respondent.

13. The other respondent made in this case is Harbans Lal, father of Nagesh Malik. Nagesh Malik was living in USA he came to India to solemnize his marriage with an appropriate person. After marriage was solemnized he left India and went to USA. He lived all along with his wife in USA, birth of the child had taken place in USA. In all such cases where boy lives abroad and is settled abroad but comes to India for marriage, it is known to the girl as well as to the parents of the girl that they are choosing a groom who is not living with his parents but settled abroad. His links with the parents are only as with any other relative. He is not dependent on parents may be parents, if poor, take financial help from him.

14. The girl and the parents of the girl knew it very well that they had selected a person for marriage with whom the girl was going to live abroad and the matrimonial home and the shared household was going to be outside India. This act of marrying a person settled abroad is a voluntary act of the girl. If she had not intended to enjoy the fat salary which boys working abroad get and the material facilities available abroad, she could have refused to marry him and settled for a boy having moderate salary within India. After having chosen a person living abroad,  putting the responsibility, after failure of marriage, on the shoulders on his parents and making them criminals in the eyes of law because matrimonial ties between the two could not last for long, does not sound either legally correct or morally correct. How can the parents of a boy who is working abroad, living abroad, an adult, free to take his own decisions, be arrayed as criminals or respondents if the marriage between him and his wife failed due to any reason whatsoever after few years of marriage. If the sin committed by such parents of boy is that they facilitated the marriage, then this sin is equally committed by parents of the girl. If such marriage fails then parents of both bride and groom would have to share equal responsibility. The responsibility of parents of the groom cannot be more. Shelter of Indian culture and joint family cannot be taken to book only relatives of boy. A woman‟s shared household in India in such cases is also her parents‟ house where she lived before marriage and not her in-laws‟ house where she did not live after marriage.

15. When the shared household of husband and wife had not been in India for the last 08 years at any point of time, it is strange that the learned MM did not even think it proper to discuss as to how the father or the brother of the boy could be made respondents in proceedings of domestic violence, after husband and wife had not been able to pull on together. In the present case, Mr. Harbans Lal Malik petitioner could not be said to have shared household with the respondent since the respondent had not lived in his house as a family member, in a joint family of which Harbans Lal Malik was the head.

16. It is important to consider as to what “family” is and what “joint family” is. As per Black‟s Law Dictionary (VI Edition) “family” means a collective body of persons who live in one house under one head or management. Dictionary states that the meaning of word “family” necessarily depends on field of law in which word is used, but this is the most common meaning. “Family” also means a group of blood relatives and all the relations who descend from a common ancestor or who spring Crl. Rev. P. No.252/2010, 253/2010 & 338/2010 Page 8 of 16 from a common root. However, for the purpose of domestic violence act where the object is to protect a woman from domestic violence, “family” has to be defined as a collective body of persons who live in one house under one head or management. In Chamber‟s Dictionary (1994-95) again the “family” is defined as all those who live in one house i.e. parents, children servants; parents and their children. In Shorter Oxford English Dictionary (1993 ed.) “family” is defined as a group of persons living in one household including parents and their children, boarders, servants and such a group is a organizational unit of society.

17. A Hindu Joint Family or Hindu Undivided Family (HUF) or a Joint Family is an extended family arrangement prevalent among Hindus of the Indian subcontinent, consisting of many generations living under the same roof. All the male members are blood relatives and all the women are either mothers, wives, unmarried daughters or widowed relatives, all bound by the common sapinda relationship. The joint family status being the result of birth, possession of joint cord that knits the members of the family together is not property but the relationship. The family is headed by a patriarch, usually the oldest male, who makes decisions on economic and social matters on behalf of the entire family. The patriarch‟s wife generally exerts control over the kitchen, child rearing and minor religious practices. All money goes to the common pool and all property is held jointly. The essential features of a joint family are:

 Head of the family takes all decisions

 All members live under one roof

 Share the same kitchen

 Three generations living together (though often two or more brothers live together or father and son live together or all the descendants of male live together)

 Income and expenditure in a common pool – property held together.

 A common place of worship

 All decisions are made by the male head of the family – patrilineal, patriarchal.

18. Thus, in order to constitute a family and domestic relationship it is necessary that the persons who constitute domestic relationship must be living together in the same house under one head. If they are living separate then they are not a family but they are relatives related by blood or consanguinity to each other. Where parents live separate from their son like any other relative, the family of son cannot include his parents. The parents can be included in the family of son only when they are dependent upon the son and/or are living along with the son in the same house. But when they are not dependent upon the son and they are living separate, the parents shall constitute a separate family and son, his wife and children shall constitute a separate family. There can be no domestic relationship of the wife of son with the parents when the parents are not living along with the son and there can be no domestic relationship of a wife with the parents of her husband when son along with the wife is living abroad, maintaining a family there and children are born abroad. I, therefore consider that Harbans Lal Malik could not have been made as a respondent in a petition under Domestic Violence Act as he had no domestic relationship with aggrieved person even if this marriage between her and her husband was subsisting.

19. I, also consider that the definition of “wife” as available under Section 125 Cr.P.C could not be imported into Domestic Violence Act. The Legislature was well aware of Section 125 Cr.P.C. and if Legislature intended, it would have defined “wife” as in Section 125 Cr.P.C in Domestic Violence Act as well. The purpose and object of Domestic Violence and provision under Section 125 Cr.P.C. is different. While Domestic Violence Act has been enacted by the Parliament to prevent acts of domestic violence on women living in a shared household. Section 125 of Cr.P.C. is to prevent vagrancy where wife is left high and dry without maintenance. Law gives a right to claim maintenance under Civil Law as well as Section 125 Cr.P.C. even to a divorced wife, but an act of domestic violence cannot be committed on a divorced wife, who is not living with her husband or family and is free to live wherever she wants. She has a right to claim maintenance and enforce other rights as per law. She has a right to claim custody of children as per law but denial of these rights do not amount to domestic violence. Domestic Violence is not perceived in this manner. The definition of “Domestic Violence” as given in Section 3 of The Protection of Women from Domestic Violence Act, 2005 and is under:

3. Definition of domestic violence.- For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it -

(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or (b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

Explanation I.-For the purposes of this section,-

(i) “physical abuse” means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;

(ii) “sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;

(iii) “verbal and emotional abuse” includes- insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and

(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.

(iv) “economic abuse” includes-

(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;

(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the

aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and (c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.

20. This definition pre supposes that the woman is living with the person who committed violence and domestic relationship is not dead buried or severed. This does not speak of past violence which a woman suffered before grant of divorce.

21. The next question which arises is whether the learned Court of MM could have ignored the decree granted by the Court of New Jersey, USA. Section 14 of CPC reads as under:

14. Presumption as to foreign judgments. – The Court shall presume upon the production of any document purporting to be a certified copy of a foreign judgment that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction.

22. It is evident from the reading of this provision that the Court has to presume, if a certified copy of foreign judgment is produced that such judgment was pronounced by a Court of competent jurisdiction unless the contrary appears on record or is proved. Obtaining of divorce by husband from New Jersey Court is not denied in this case. Prima facie New Jersey, USA Court had jurisdiction is evident from the fact that husband and wife lived together in New Jersey for 7 ½ years. The laws of New Jersey provided that the jurisdiction in a matrimonial matter can be assumed by the Court if the parties have ordinarily lived there for one year. In the present case admittedly the parties lived there for 7 ½ years thus prima facie there was no issue whether the Court of New Jersey had jurisdiction or not.

23. Section 13 of CPC provides as under:

13. When foreign judgment not conclusive.

A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-

(a) where it has not been pronounced by a Court of competent jurisdiction;

(b) where it has not been given on the merits of the case; (c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of 1[India] in cases in which such law is applicable; (d) where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) where it has been obtained by fraud;

(f) where it sustains a claim founded on a breach of any law in force in 1[India].

24. It is evident that a foreign judgment has to be on the face of it considered to be final. The explanations as mentioned in Section 13 are to be proved by a person who alleges that the foreign judgment was not to be relied on and should not be considered. A foreign judgment can be set aside by a competent Court, only when the person aggrieved from foreign judgment asks for a declaration that the judgment should not be acted upon. So long as the foreign judgment is not set aside and the issue regarding foreign judgment is not adjudicated by a competent Court, the judgment cannot be ignored and a Court cannot brush aside a foreign judgment as a non- consequential. Section 13 & 14 of CPC provide how a foreign judgment is to be dealt with. A Court in India has to presume that the judgment delivered by a foreign Court where the parties had lived for 7 ½ years and given birth to a girl, is a judgment given by a competent court and if anyone wants that this judgment be disregarded, he has to prove the same before the Court. So long as he does not prove it, the judgment is considered as a valid judgment and has to be given effect to.

25. It was argued by the respondent Counsel that the respondent did not participate in proceedings before the Court of New Jersey, USA. Participating or not participating before the Court is not a ground for setting aside its judgment. The grounds for setting aside a foreign judgment are given in Section 13 CPC and this is not one of the grounds.

26. The question of jurisdiction was considered by the Court of New Jersey, USA that awarded decree of divorce and it is not shown by the Counsel for respondent how Court of New Jersey had no jurisdiction when the two parties lived there for 7 ½ years and gave birth to a US citizen within the jurisdiction of that Court. Learned Counsel for the respondent relied upon Y. Narasimha Rao v. Venkata Lakshmi (1991) 3 SCC 451 to press the point that a decree of divorce granted by a foreign Court should not be relied upon since the parties were married in India and they were governed by Hindu Marriage Act. A bare perusal of the judgment of New Jersey Court would show that the divorce was granted on the ground of cruelty which is one of the grounds available under Hindu Marriage Act.

27. In Y. Narasimha Rao‟s case (supra), decree of divorce was obtained by husband from the Circuit Court of St. Louis Country Missouri, USA by creating a jurisdiction of that Court as the condition for invoking jurisdiction of that Court was 90 days residence. Supreme Court observed that the residence does not mean a “temporary residence” for the purpose of obtaining divorce but it must be “habitual residence “which is intended to be a permanent residence for future as well, since it was not the case, the decree was found to be null and void. It is not the position in this case. The parties had made New Jersey as their home for 7 ½ years thus the Court of New Jersey could not be said to have assumed jurisdiction only on the basis of temporary residence of husband. I also consider that issue of assuming jurisdiction on the basis of temporary residence may have no force today when statutory provisions in India allow assumption of jurisdiction on the basis of a temporary residence [Section 27(1)(a) of Protection of Women from Domestic Violence Act, 2005].

28. I am surprised that the Courts below did not give weight to the judgment of New Jersey where parties lived for 7 ½ years but assumed jurisdiction under Domestic Violence Act because of the pure temporary residence (as pleaded by her) of wife in Delhi who is otherwise resident of Hissar. The Court of ASJ wanted that the order of the Court of MM should be honoured by the US while the Court here would not honour a decree of Court of USA where the husband and wife lived for 7 ½ years.

29. I consider that the decree of divorce granted by the Court of New Jersey, USA where husband and wife lived together for 7 ½ years and gave birth to a child could not be ignored and it could not be said that domestic relationship of the wife continued with her husband in New Jersey or her in-laws living at Panipat.

30. The learned MM and learned ASJ committed jurisdictional error by assuming jurisdiction under Domestic Violence Act, in view of admitted fact that the wife had all along, before filing the petition under Domestic Violence Act, lived with her husband in USA. Her shared household had been in USA, her husband was still living in USA the child was born in USA. The courts below also committed grave error by making brother or father of the husband and father of the husband jointly responsible for payment of Rs.50,000/- to the wife. There was no justification for directing brother of the husband to pay this amount. Once a son grows and he starts earning, marries, makes his separate home, and sires children the burden of his wife cannot be put on the shoulders of his father or brother on an estrangement between husband and wife. This burden has to be borne by the husband alone and not by the parents or bothers or sister of the husband, unless and until the husband had been contributing to the joint family as a member of HUF and has a right of deriving benefits from the joint family. If the husband had not been contributing or deriving benefits from the joint family, had not been member of the joint family and the parents had been treated like any other relative, how can the parents be burdened with the responsibility of his wife.

31. In view of my above discussion, order dated 27th July, 2009 passed by learned MM and order dated 7th May, 2010 passed by learned ASJ, directing payment of Rs.50,000/- jointly and severally, ignoring the decree of divorce and without devolving upon the domestic relationship are illegal and not tenable. The orders are set aside. No order as to costs.

July 29, 2010

SHIV NARAYAN DHINGRA, J. vn

Mumbai High Court:- WIFE OR HER PARENTS Cannot claim Marriage expense. Also the right to claim permanent alimony is dependent on the conduct and the circumstances involved.

December 14, 2012 Leave a comment

Mumbai High Court

Sudha Suhas Nandanvankar vs Suhas Ramrao Nandanvankar

on 15/9/2004

JUDGMENT                                               S.B. Mhase, J.

1. This appeal is directed against the Judgment and Order passed in    Misc. Application No. 60 of 2000 on 5-8-2000 by the Family Court,    Bandra in an application preferred under Sections 27 and 25 of the    Hindu Marriage Act, inter alia, making prayer that the stridhan of the    applicant be returned and also permanent alimony be granted. The said    application was partly allowed by the Family Court. However, in respect    of part rejection of the application, this appeal has been preferred.

2. The applicant was married with the opponent on 21-5-1995 according    to Hindu Laws. The said marriage has been annulled by a-decree of    nullity dated 16-3-1996 on a ground that the applicant-wife was    suffering from epilepsy at the time of marriage. Even though the said    decree was ex-parte, the said decree was not challenged by the    applicant-wife. However, after passing of the said decree, the notice    was issued by the applicant for return of the articles which were    presented to her at the time of marriage by her parents as per the    list. It is further claimed that the expenses incurred for the said    marriage of Rs. 31,876/- be returned. During the pendency of this    application the applicant-wife further submitted the application    (Exh.16) for return of the articles and jewellery which was presented    to her by her in-laws at the time of marriage. She has further claimed    permanent alimony. The Family Court has rejected the claim of Rs.    31,876/- which was incurred by the parents of the’ applicant-wife for    the purposes of marriage expenses on the ground that there is no    provision to return such amount. At the time of argument of this    matter, the learned Counsel for the appellant-wife fairly conceded that    there is no provision for return of such marriage expenses and    therefore, unless there is a provision to that effect, the trial Court    was justified in rejecting the claim for the marriage expenses to the    extent of Rs. 31,876/-. The trial Court has also rejected the claim in    respect of the golden articles and jewellery as listed in (Exh.16).    This appeal is mainly directed against the said finding of the trial    Court. We need not go to list of those articles but what we find that    all these articles, as per the claim made by the applicant-wife, have    been presented to her by the in-laws viz. mother-in-law, sister-in-law    i.e. (sister of the husband), another sister-in-law i.e. the wife of    the brother of the husband and so on. Naturally, as these Articles have    been presented by the in-laws, the applicant has not produced any    evidence to demonstrate that these articles were purchased by her    in-laws at any point of time. However, she had entered into witness box    and stated that these articles were presented to her. In order to    support her testimony, she has produced the photographs which were    taken at the time of marriage wherein these articles were reflected as    having been put on her and thereby claiming that these articles were    with her and they have not been returned by the husband. Since they    found to be stridhan, she is entitled to return of the same. The    husband has denied that such articles were ever presented to the    applicant-wife. According to him these articles were not presented at    any point of time and he further made a suggestion in the    cross-examination that these articles were of the parents of the    appellant-wife which were put on by her parents in order to have a show    of the presentation of such articles and he calls it as a “mandap    show”. Such suggestion has been denied by the applicant-wife. However,    it is pertinent to note that if these articles were presented to her,    she should have examined some witnesses who were present at the time of    marriage in the presence of whom these articles were presented by her    in-laws. However, she has not examined her father and mother. She has    not examined any friend who may be accompanied her at the time of said    marriage ceremony to demonstrate that such articles were presented    during the marriage ceremony to her. As against this, what we have    noticed that the respondent-husband has entered into witness box to    depose that such articles were not presented. Apart from that    respondent-husband has examined his parents. The parents have also    stated that such articles were not presented to the appellant-wife and    therefore, the respondent has brought on record the primary evidence to    demonstrate that such articles were never presented. Learned Counsel    for the applicant tried to submit that since these articles will have    to be returned to the appellant-wife, the respondent and his parents    are making statements that such articles were not presented. However,    what we find that in that eventuality, these witnesses have been    cross-examined and nothing have been brought in the cross-examination    to demonstrate that these witnesses were supressing the truth. We have    gone through the evidence of the parents and noticed that the evidence    is convincing one and the trial Court has rightly appreciated the    evidence. Therefore, we find that appellant has failed to establish    that such articles were presented by her in-laws in the marriage    ceremony.

3. Apart from this, we have taken into consideration that when the    first notice was given the articles mentioned in the list Exh.16 were    not demanded. Not only that when the application was filed, in the said    application there was no demand for the articles. It is during the    pendency of the application, the Exh.16 was submitted to the Family    Court making claim towards specific articles. Those articles were    golden and jewellery articles and such important stridhan will not be    forgotten by the appellant-wife till the pendency of the application.    In that context it is reflected that it is a after thought decision to    claim the articles and we find that the observation and finding    recorded by the Family Court are proper and justified one and we find    that there is no merit in the submission of the learned Counsel that    the Family Court should have allowed the list (Exh.i6).

4. So far as the articles which are directed to be returned to the    appellant-wife, we find that the findings have been rightly recorded    and no interference is called for. Apart from that there was a counter    appeal filed by the first party challenging the said order. The said    appeal is withdrawn by the respondent-husband as not pressed and    therefore, we confirm that part of the Family Court’s order.

5. The last question which requires consideration is in respect of the    alimony. It is an admitted fact that the decree for nullity has been    passed under Section 5(ii)(c) since the appellant was suffering from    epilepsy. Since the learned Advocate for the appellant submits that    under Section 25 the alimony has to be paid at the time of passing of    the final decree. He relied on the decision in the case of Shantaram    Tukaram Patil and anr. vs. Dagubai Tukaram Patil and ors. reported in    1987 Mh.LJ. 179. He further pointed out that the said Judgment is    relied upon by the single Judge in a subsequent Judgment in the case of    Krishnakant vs. Reena reported in 1999 (1) Mh.LJ. 388 and submitted    that even though the decree of nullity was passed the petitioner is    entitled to claim alimony under Section 25.

The learned Counsel for the respondent submitted that both these Judgments have considered the    aspect that the entitlement of the party for permanent alimony and more specifically right of the wife. However, he submitted that the said    right is available on condition that taking into consideration the conduct and the circumstances of case the Court is satisfied that    alimony shall be granted. According to him after marriage, immediately    there was a “Satyanarayan Pooja” and for the first time husband and    wife came together. The respondent-husband found that the appellant-wife is a patient of epilepsy and on the next day, he has    called on to the parents of appellant-wife and the father of the appellant came along with the Doctor to discuss. Learned Counsel    further stated that the father requested respondent to allow the appellant to stay with respondent and the medical expenses will be    borne by the father of the appellant. He submitted that thus the fact    that the appellant was suffering from epilepsy was not disclosed at the    time of settlement of marriage and till the marriage is performed. He    further submitted that even though on 1 or 2 occasions, prior to the    marriage there was a meeting of respondent husband and appellant-wife,    still the appellant wife has not disclosed that she is a patient of    epilepsy. Thus he submitted that the conduct of the appellant and her    parents in not disclosing that the appellant wife is suffering from    epilepsy is itself a fraudulent and therefore, the party which takes    the benefit of it, shall not be allowed to take such benefit and this    circumstance may be taken into consideration. Relevant portion of    Section 25 of the Hindu Marriage Act, 1955 is as follows :-       Section 25.- Permanent alimony and maintenance – (1) Any Court      exercising jurisdiction under this Act may, at the time of passing      any decree or at any time subsequent thereto, on application made to      it for the purpose by either the wife or the husband as the case may      be, order that the respondent shall pay to the applicant for her or      his maintenance and support such gross sum or such monthly or      periodical sum for a term not exceeding the life of the applicant      as, having reward to the respondent’s own income and other property,      if any, the income and other property of the applicant, (the conduct      of the parties and other circumstances of the case), it may seem to      the Court to be just, and any such payment may be secured, if      necessary, by a charge on the immovable property of the respondent.     In the facts and circumstances of the present case what we find that    since the decree for nullity of marriage is passed under Section    5(ii)(c) we have to consider as to whether order for amount of alimony    is to be passed. In view of the above referred 2 Judgments which have    been relied by the Counsel for the appellant, we do not find any    difficulty to conclude that in such a decree the wife is entitled to    have a permanent alimony. However, whether the conduct of the parties    and other circumstances involved in this case will allow us to pass    such order is the main question. It is an admitted fact that the    marriage was celebrated on 21-5-1995 and within 4 days from the date of    marriage, ‘Satyanarayan Pooja’ was performed in the matrimonial home    and thereafter husband and wife were allowed to stay with each other.    However, when it was found that the appellant-wife is suffering from    epilepsy the marriage was not consumated and on 27-5-1995 the    respondent-husband has contacted the appellant’s father. The    applicant’s father and mother accompanied by the Doctor attached to the    Poddar hospital came to the house of the respondent-husband and    thereafter they discussed about the fact of suffering of the epilepsy.    The appellant’s father showed willingness to incur the medical expenses    for the treatment of the appellant. However, he requested the    Respondent to allow the appellant to stay in the house of the    respondent-husband. This was not accepted by the respondent and    therefore, the father of the appellant has taken the appellant and    thereafter, a petition for nullity of marriage was filed in which    ex-parte decree was passed. The said decree is not challenged.    Thereafter, the applicant has filed this application for the permanent    alimony. It is pertinent to note that the parents and/or father of the    appellant have not entered into a witness box either to depose that the    fact of the epilepsy was disclosed to the respondent husband at the    time of settlement of carriage nor the appellant has stated in her    evidence that at any point of time prior to the marriage when they have    seen each other said fact was disclosed to the respondent-husband.    Therefore, the only inference is that till the marriage is performed    the respondent was not aware of the fact that the appellant is a    patient of epilepsy. The moment he got knowledge, he has not    consummated the marriage and called the parents of the appellant and    thereafter appellant was taken by the parents. This shows that had the    fact been disclosed prior to the performance of the marriage, the    respondent-husband would not have conducted such marriage with the    appellant-wife. The non disclosure by the parents of the appellant and    the appellant accepting the decree as it is without making any grudge    that in respect of the ground that the appellant was suffering from the    epilepsy prior to the marriage reflects upon the conduct of the    appellant and if we take into consideration this aspect what we find is    that the appellant is trying to take advantage of her wrong or fraud    and is trying to harass the respondent by claiming the amount of    alimony. But what we find is that after a decree of annulment the    respondent has married and he is having a child. Now this appears to be    an attempt on the part of the appellant and her parents to disturb the    marital life of the respondent which he has tried to settle after    annulment of the marriage. This is an attempt to shift the liability of    maintenance by the appellant-wife on a husband who was not at fault and    who has not consummated the marriage. Even though the law permits the    right of the alimony in favour of the appellant, however, the conduct    and the circumstances involved in the present case does not permit us    to pass an order of permanent alimony in favour of the appellant. We    find that the findings recorded by the Family Court are just and proper    and no interference is called for.

6. In the result, we find that there is no substance in the appeal and    hence, appeal is hereby dismissed with no order as to costs.

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