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Bombay HC : Wife or husband’s attorney cannot appear in family courts u/s 13 of Family Courts Act.

August 29, 2013 Leave a comment

Bombay High Court

Neelam Dadasaheb Shewale vs Dadasaheb Bandu Shewale on 17 February, 2010

Bench: R. S. Dalvi

1

Amk

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 8954 OF 2009

Neelam Dadasaheb Shewale .. Petitioner Vs.

Dadasaheb Bandu Shewale .. Respondent Mr. Milind N. Jadhav i/b Mr. Sagar G. Talekar for the Petitioner. Mr. R. T. Lalwani for the Respondent.

CORAM : MRS. R. S. DALVI, J.

DATE : 17TH FEBRUARY, 2010

JUDGMENT:

 

1. This writ petition challenges three interim orders passed in MJ Petition No.A1633/97 which was for enhancement of maintenance under 25 (2) of the Hindu Marriage Act.

2. It may be mentioned that an application under that provision can be filed only upon change in the circumstances of either party which would require modification of the order of permanent alimony passed.

3. Two orders are passed upon three applications of the parties.

4. One application was filed by the ex-husband (husband) seeking to restrain his ex-wife (wife) from using his surname (name) since divorce decree has been already passed and has became final. This application came to be filed as an interim application in the fresh petition filed by the wife after divorce.

5. The Advocate on behalf of the wife argued that the separate petition only should have been filed. Both these reliefs, permanent and interim, are between the same parties pursuant to the same marital relationship which has since ceased. Under Section 7 of the Family Courts Act the Family Court has jurisdiction to decide the petition-application as well as a suit or proceeding (permanent or interim), for injunction arising out of the marital relationship. The husband can, therefore, file a separate application/petition for injunction or take out an application in the wife’s application/petition already filed. In fact, the husband can file a counterclaim in any petition with regard to any relief arising out of the marital obligation. An application which may be in the nature of counterclaim, can therefore be allowed an interim application.

6. The substance of the application is required to be considered rather than its form. The substance of the application of the husband is that the wife should not use his name.

 

7. The Advocate on behalf of the wife fairly concedes that since the marriage has been dissolved by a decree for divorce which has become final, the wife cannot use the name of the husband. That is the only substance to be considered by the Family Court. Under the impugned order dated 23rd September, 2009 the Family Court has considered that aspect as an application arising out of a marital relationship. It is correctly considered. The order needs no interference.

8. In fact, the Advocate on behalf of wife mentioned that the bank account of the wife stands in both her names. That statement itself shows that the wife uses the name of the husband even after their marital relationship has been dissolved by an order of the Court. The description of the bank account is therefore improper. It is, therefore, clarified that the wife cannot use the husband’s name anywhere including in her bank account. The injunction granted by the Family Court in the application of the husband shall be effectuated for all purposes.

 

9. The writ petition also challenges another order of the same date between the same parties but in two different applications. One was the application filed by the wife for her to be represented by her constituted attorney on the ground that she is ill, does not know English, she has been mentally tortured at the hands of the husband and she would not be able to stand the court proceeding. The other application is filed by her constituted attorney asking for permission to represent the wife as she cannot financially afford a lawyer, lawyers are otherwise not permitted and that she would be entitled to assistance of the person she has faith in.

10.The legal right of a party in Family Court to be represented by her constituted attorney in place of her Advocate who is registered legal practitioner is required to be seen. Under Section 13 of the Family Courts Act no party is entitled as of right to be represented by a legal practitioner. However, the Court may appoint legal expert as amicus curie to assist her/him. A party has full right to appear before the Family Court. None can object to such appearance. The wife does not desire to have an Advocate. She has refused legal aid offered to her. She contends that she has faith only her constituted attorney. The extent of the right of a constituted attorney is laid down in Order III Rule 1 of the Civil Procedure Code as follows :

ORDER III :

1. Appearances, etc., maybe in person, by recognized agent or by pleader. – Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader [appearing, applying or acting, as the case may be,] on his behalf :

Provided that any such appearance shall, if the Court so directs, be made by the party in person.

(emphasis supplied)

 

11.What is appearance, application or act has been considered by Chief Justice Chagla, as he then was, in the case of Aswin Shambhuprasad Patel and others Vs. National Rayon Corporation Ltd. (AIR 1955 BOMBAY 262). The provision of the aforesaid order was considered taking into account the Bar Councils Act and the Bombay Pleaders Act. It has been held that the aforesaid rule would not apply where a law for the time being in force otherwise expressly provided. It is held that pleading is not included in the expression “appearance, application or act in or to any Court”. This is so because, the right of audience in Court, the right to address the Court, the right to examine and cross-examine the witnesses are dealt with in other parts of the Civil Procedure Code and not under Order 3. It was further held the right of audience in Court is a part of pleading in Court and not “acting” as provided under Order 3. It is further observed that a party in person would have a right of audience in Court and not his recognized agent who would be “appearing, applying or acting” on his behalf. 7

 

12.Further the right of pleaders to plead in a Court of law under authority of the client and to have a right of audience in Court as a member of Bar is not dealt with under Order 3. The members of the Bar have a right in clause 10 of the Letters Patent as they are qualified to plead in Court as required by specific legislation and rules. Under that clause no person except Advocates, Vakils or Attorneys would be allowed to act or plead for and on behalf of any suitor except the suitor himself. Considering Section 8 of the Bar Councils Act under which no person was entitled to practice as an Advocate unless his name was entered in the roll of Advocates, it was observed that the expression “practice” is wider than the expression “plead”. Similarly Section 9 of the Bombay Pleaders Act, which was similar to the above section, was considered. The proviso to that section allowed a party to appear, plead or act on his own behalf but a recognized agent of the party was allowed to only appear or act (and not plead). It was therefore observed that proviso made a distinction between appearing, pleading or acting and appearing or acting. Whereas the party could do all three of the above her/his constituted attorney 8

could do only the above two. Consequently it was held that in the District Courts a recognized agent had no right to plead by relying on provision 9 of the Bombay Pleaders Act. It was observed that the right of audience is a natural and necessary concomitant of the right to plead and as the recognized agent had no right to plead, it follows that he has no right of audience in Court.

 

13.The law that is laid down in the aforesaid judgment holds true and good till now and even within Section 13 of the Family Courts Act. The object of Section 13 of the Family Courts Act is to allow a party to represent her/his case and consequently right of the lawyer to plead, appear and have audience in Court is limited but the right given to the party to appear is not extended to that parties’ constituted attorney. Hence, the general law of procedure under Order 3 Rule 1 as also the special laws contained in the Bar Councils Act and the Bombay Pleaders Act would apply even in a Family Court. The object of that provision is that only qualified persons are entitled to appear in Courts and represent the case of their parties. The qualification is of the knowledge of the law and 9

the enrollment under the Act. If constituted attorneys of all the parties are allowed to appear, the Court would be overrun by any number of unqualified, unenrolled persons. Since Civil Procedure Code would generally apply to a Family Court under Section 10 of the Act, the restraint upon appearance under Order 3 of the Code must hold good.

 

14.In the case of Pavithra Vs. Rahul Raj (AIR 2003 MADRAS 138 it has been held that the recognized agent of the party in a Family Court proceedings cannot be allowed to prosecute it. Considering the various provisions of the Family Courts Act which follow the procedure different from the Civil Courts, it is observed that the parties themselves can be heard. Some times legal assistance can be provided. However, personal appearance of the parties is inevitable to comply with the mandatory provisions of the Family Courts Act. Though the authorized agent, who is not a legal practitioner can file a petition, he can only prosecute or defend it or represent the party only until the Family Court passes an order directing the party to appear in person depending upon the facts and stage of the case. In that case the constituted attorney sought 10

permission to defend the case on the ground that she was not able to come to India to contest the case. Such a permission, it was held, could not be granted.

 

15.In the case of Sudha Kaushik Vs. Umesh prasad Kaushik (AIR 2005 GUJARAT 244) upon considering the law under normal circumstances as aforesaid it was held since that case the petitioner’s life was in danger his father was allowed to represent his son in the interest of justice though it was held that in normal circumstances any citizen or party is not allowed to be represented by his power of attorney unless he is an Advocate of the Court.

 

16.Consequently both the orders of the Family Court, Bandra, Mumbai dated 23.09.2009 are correct and cannot be interfered with. Writ petition is dismissed.

(R. S. DALVI, J.)

Advertisements

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 of India: Father wins the custody of Daughter, Parental Alienation Symdrome (PAS) had been first cited in SC

January 22, 2013 Leave a comment

Parental Alienation Symdrome (PAS) had been first cited in SC intrestingly
by the mother (a paediatrician doctor) against father (A lawyer) in GAWA
—————–
full text

HEAD NOTES
Disposing of the appeal with some modifications of the order of the Family Court, this Court

HELD: 1.1. The child, who is a little more than 12 years of age, is highly
intelligent, having consistently done extremely well in her studies in
school, and this Court is convinced that despite the tussle between her
parents, she would be in a position to make an intelligent choice with
regard to her custody. She has no animosity as such towards her mother, she would prefer to be with the father with whom she felt more comfortable. The minor child also informed the Court that she had established a very good relationship with her paternal aunt who was now staying in her father’s house and she was able to relate to her aunt in matters which would concern a growing girl during her period of adolescence. [355-c-e]

1.2. There is no reason to consider the respondent ineligible to look after
the minor. In fact, after having obtained custody of the minor child, the
respondent does not appear to have neglected the minor or to look after all her needs. The child appears to be happy in the respondent’s company and has also been doing consistently well in school. The respondent appears to be financially stable and is not also disqualified in any way from being the guardian of the minor child. No allegation, other than his purported apathy towards the minor, has been levelled against the respondent by the appellant. Such an allegation is not borne out from the materials and is not sufficient to make the respondent ineligible to act as the guardian of the minor. This Court, therefore, feels that the interest of the minor will be best served if she remains with the respondent but with sufficient access to the appellant to visit the minor at frequent intervals but so as not to disturb and disrupt her normal studies and other activities.[355-f-g;
356-a-b]

Hoshie Shavaksha Dolikuka v. Thirty Hoshie Dolikuka, AIR (1984) SC 410;
Kumar v. Jahgirdar v. Chethana Ramatheertha, [2004] 2 SCC 688 and Rosy Jacob v. Jacob A.Chakramakkal, AIR (1973) SC 2090, referred to.

Kurian C. Jose v. Meena Jose, (1992) 1 KLT 818 and                   Saraswatibai Shripad Ved v. Shripad Vasanji Ved, AIR (1941) Bombay 103, referred to.

Appellant-In-Person.

M.P. Vinod, Sajith and A. Raghunath for the Respondents.

SUBJECT

Guardians and Wards Act, 1890; Sections 7 and 25-Hindu Minority and
Guardianship Act, 1956; Section 6-Claim of custody of child by father and mother after divorce-Child preferred to stay with her father-Family court holding in favour of father as per child’s wishes-High Court dismissing the appeal of the mother-Correctness of-Held, on facts, after having custody of the child, the father looked after all her needs and the child appears to be happy with her father-Hence, the interest of the child will be best served if she remains with her father but with sufficient access to the mother to visit her child at frequent intervals as directed by the Court.

Appellant-doctor and respondent-lawyer got married under the provisions of the Special Marriage Act, 1954 and a girl child was born to them. The appellant left her matrimonial home alongwith the child without informing the respondent. The respondent filed a Writ of Habeas Corpus in High Court which was disposed of upon an undertaking given by the appellant to bring the child back to her matrimonial home. Thereafter, the respondent filed two applications before Family Court under sections 7 and 25 of the Guardians and words Act, 1890 and under sections 6 of the Hindu Minority and
Guardianship Act, 1956. The respondent also filed an application before the Family Court for interim custody of the minor child. After interviewing the minor child to elucidate her views with regard to the respondent’s prayer for interim custody, the Family Court allowed the two applications of the respondent by giving certain directions and directed the appellant to give the custody of the child to the respondent.

The appellant filed an appeal in High Court wherein the order of the Family Court was stayed. The respondent filed an application before the High Court for review of the order of stay. The High Court directed the Family Court to interview the minor child. The Family Court interviewed the minor child and gave a report the High Court stating that the minor child preferred to stay
with the respondent. The High Court vacated the interim stay and granted
custody of the minor child to the respondent till the disposal of the appeal. The respondent, thereafter, filed an application for divorce before the Family Court. The appellant filed a special leave petition before the Supreme Court against the order of the High Court granting custody of the minor child to the respondent, which was dismissed. The High Court thereafter dismissed the appeal of the appellant. Immediately thereafter, the Family Court granted divorce to the parties.

In appeal to the Court, the appellant-mother contended that the minor child
was of tender age and would soon attain puberty when she would need the
guidance and instructions of a woman to enable her to deal with both
physical and emotional changes which take place during such period; that
she, being a doctor, would be in a better position to take care of the needs
of the minor child in comparison to the respondent who had little time to
look after the needs of the minor child; that the minor child was extremely
happy with her till the respondent-father began to claim custody of the
child and soon after obtaining the custody, the respondent influenced his
child to tell the Family Court that she preferred to stay with her father;
that the child has been exposed by the respondent to “Parental Alienation
Syndrome” and hence the minor child, inspite of her being with the appellant
for 7 years, had expressed a preference to be with the respondent after she
was placed in his custody; that section 6 of the Hindu Minority and Guardianship Act, 1956 recognised the mother also as the natural guardian of
the minor; that she paid school admission and tuition fees for the child’s
schooling in a good school and for extracurricular activities; that she made
various financial investments for the benefit of the minor child; that, although she was granted visitation rights by an interim order of this Court, she was unable to remain in contact with her because of distance and that the respondent never allowed her to meet the minor child and spend sufficient time with her.

The respondent-father, denying the various allegations of the appellant,
contended that the minor child was suddenly and surreptitiously removed from his custody by the appellant who left her matrimonial home without informing the appellant; that the minor child made her preference to be with her father before the Family Court even though the appellant forcibly removed the minor child from the respondent; that he made arrangements with his elder sister to look after his minor child’s needs which was duly considered by the Family Court and the High Court; and that he had sufficient finances to look after and provide for all the needs of the minor child. The
respondent submitted that the appellant was welcome to visit the minor child
either at the respondent’s house or in some neutral place and to even keep
the child with her on specified days if she was ready and willing to stay
with the appellant.

CITATIONS
2006 AIR 1343, 2006(2 )SCR342 , 2006(3 )SCC62 , 2006(2 )SCALE388 ,
2006

CASE NO.:
Appeal (civil) 6626 of 2004

PETITIONER:
Sheila B. Das

RESPONDENT:
P.R. Sugasree

DATE OF JUDGMENT: 17/02/2006

BENCH:
B.P. Singh & Altamas Kabir

JUDGMENT:
J U D G M E N T

ALTAMAS KABIR,J.

The appellant, who is a paediatrician by profession, was married to the respondent, who is a lawyer by profession, on 29th March, 1989, at Thrissur in Kerala under the provisions of the Special Marriage Act. A girl child, Ritwika, was born of the said marriage on 20th June, 1993.
As will appear from the materials on record, the appellant, for whatever reason, left her matrimonial home at Thrissur on 26th February, 2000, alongwith the child and went to Calicut without informing the respondent.
Subsequently, on coming to learn that the appellant was staying at Calicut, the respondent moved an application in the High Court at Kerala for a writ in the nature of Habeas Corpus, which appears to have been disposed of on 24th March, 2000 upon an undertaking given by the appellant to bring the child to Thrissur. On 24th March, 2000, the respondent, alleging that the minor child had been wrongfully removed from his custody by the appellant, filed an application before the Family Court at Thrissur under Sections 7 and 25 of the
Guardians and Wards Act, 1890, and also Section 6 of the Hindu Minority and Guardianship Act, 1956, which came to be numbered as OP 193 of 2000 and OP 239 of 2000.
Before taking up the said two applications for disposal, the learned Judge of the Family Court at Thrissur took up the respondent’s application for interim
custody of the minor child and on 27th April, 2000 interviewed the minor child in order to elucidate her views with regard to the respondent’s prayer for interim custody. No order was made at that time on the respondent’s application for interim custody. On 20th March, 2001, the learned Judge of the Family Court at Thrissur took up the two applications filed by the respondent under Sections 7 and 25 of the Guardians and Wards Act and under Section 6 of the Hindu Minority and Guardianship Act for final disposal. While disposing of the matter the learned Judge had occasion
to interview the minor child once again before delivering judgment and ultimately by his order of even date the learned Judge of the Family Court at Thrissur allowed the applicati16ons filed by the respondent by passing
the following order:-

“1. The respondent is directed to give custody of the child to the petitioner the
father of the child, the natural guardian immediately after closing of the schools for summer vacation.

2. The father shall take steps to continue the study of the minor child in
CSM Central School Edaserry and steps to restore all the facilities to the minor child to enjoy her extra curricular activities and studies also.

3. The respondent mother is at liberty to visit the child either at the home of the petitioner or at school at any time.

4. If the mother respondent shifts her residence to a place within 10 kms.
radius of the school where the child is studying the child can reside with the
mother for not less than three days in a week. The petitioner father shall not,
object to taking of the child by the mother to her own house in such condition.

5. The father the petitioner shall meet all the expenses for the education, food
and cloths etc. of the minor child and the mother of her own accord contribute to the same anything for the child and the father should not prohibit the mother from giving the child anything for her comfort and pleasant living.

6. If the mother the respondent fails to stay within 10 kms. radius of the CSM
central School, Edasserry however she is entitled to get custody of the child for 2 days in any of the weekend in a month and 10 days during the Summer vacation and 2 days during the Onam hoilidays excluding the Thiruvonam day.

7. This arrangement for custody is made on the basis of the prime consideration for the welfare of the minor child and in case there is any change in the situation or circumstance affecting the welfare of the minor child, both of the parties are at liberty to approach this court for fresh directions on the basis of the changed circumstance.

OP 239/2000 is partly allowed prohibiting the respondent husband by a
permanent injunction from removing or taking forcefully the “B” schedule articles mentioned in the plant. The parties in both these cases are to suffer their costs.”

Being dissatisfied with the order of the Family Court, the appellant herein filed an appeal in the High Court of Kerala, being M.F.A.No.365/01, wherein by an order dated 21st May, 2001, the order of the Family Court was stayed. The respondent thereupon filed an application before the High Court for review of the said order and in the pending proceedings, a direction was
given by the High Court to the Family Court at Calicut to interview the minor child. The report of the Family Court was duly filed before the High Court on 5th July, 2001.
From the said report, a copy of which has been included in the paperbook, it is evident that the minor child preferred to stay with her father and ultimately by its order dated 25th July, 2001 the High Court vacated the stay granted by it on 21st May, 2001.

On the application of the appellant herein, one Dr. S.D. Singh, Psychiatrist, was also appointed by the High Court on 14th September, 2001, to interview the appellant and the respondent in order to make a psychological evaluation and to submit a report. On such report being filed, the High Court by its order dated 31st May, 2002, granted custody of the minor child to the respondent till the disposal of the appeal.
Soon thereafter, in June 2002, the respondent filed an application for divorce before the Family Court at Thrissur. While the same was pending, the appellant filed a Special Leave Petition being S.L.P.( C) C.C.No.6954/2002 against the order of the High Court granting custody of the minor child to the respondent till the disposal of the appeal. The said Special Leave Petition was dismissed on 9th September, 2002. The appeal filed by the appellant before the High Court against the order of the learned Judge of the Family Court allowing the respondent’s application under Sections 7 and 25 of the Guardians and Wards Act, being M.F.A. No.365/01, was also dismissed on 16th June, 2003. Immediately, thereafter, on 28th June, 2003, the Family Court granted divorce to the parties. Being aggrieved by the dismissal of her appeal, being M.F.A.No.365/01, the appellant herein filed the instant Special Leave Petition, being SLP ) No. 18961/2003, which after admission was re- numbered as Civil Appeal No.6626/2004. On 20th July, 2004, the appellant herein filed a petition in the pending Special Leave Petition for interim visitation rights in respect of her minor child for the months of August and September, 2004. After considering the submissions made by the appellant, who was appearing in person, and the learned counsel for the respondent, this Court passed the following order:-

“This petition has been filed by the mother of minor girl-Ritwika, aged about
12 years, challenging the impugned order of the High Court dated 16th June, 2003. By the impugned order the High Court confirmed the order of the Family Court holding that it is in the best interest of the child that she be in the custody of the father. The High Court, however, permitted the petitioner to visit the child at the house of the father once in a
month, that is, first Sunday of every month and spend the whole day with the
child there with a further stipulation that she will not be removed from the father’s house. The petitioner and the respondent have not been living together since February, 2000. The divorce between them took place by order dated 26th June, 2003.

On question of interim custody, in terms of the order dated 30th April, 2003,
the Family Court Trichur, was directed to make an order regarding the visitation rights of the petitioner for the months of May, June and July, 2004 so that the petitioner may meet her daughter at the place of some neutral person and, if necessary, in the presence of a family counsellor or such other person deemed just, fit and proper by the Family Court.
The Family Court was directed to fix any two days, in months of May, June and July of 2004, considering the convenience of the parties, when the petitioner may be in a position to spend entire day with her child.

Pursuant to the above said order the Family Court had fixed two days in the
months of May, June and July, 2004 so that the petitioner could meet her
daughter on those days. The Family Court directed that the said meeting shall
take place in the room of family counsellor in Court precincts. According
to the petitioner the said arrangement was not satisfactory, so much so that
ultimately she made a request to the Family Court that instead of meeting her
daughter in the room of the family counsellor, the earlier arrangement of
meeting her at father’s house was may be restored. The Family Court, however, did not modify the order having regard to the orders passed by this Court on 30th April, 2004. It is, however, not necessary at this stage to delve any further on this aspect.

Ritwika is studying in 7th class in a school in Trichur. Having heard
petitioner-in-person and learned counsel for the respondent and on perusal of
record, we are of the view that without prejudice to parties’ rights and contentions in Special Leave Petition, some interim order for visitation rights of the petitioner for the months of August and September, 2004 deserves to be passed. Accordingly, we direct as under:

(1) The petitioner can visit the house of the respondent at Trichur on every
Sunday commencing from 1st August, 2004 and be with Ritwika from 10.00
a.m. to 5.00 p.m. During the stay of the petitioner at the house of the respondent, only the widowed sister of the respondent can remain present. The respondent shall not remain present in the house during the said period. It would be open to the petitioner to take Ritwika for outing, subject to the condition that Ritwika readily agrees for it. We also hope that when at the house of the respondent, the petitioner would be properly looked after, insofar as, normal facilities and courtesies are concerned;

(2) We are informed that the school in which Ritwika is studying shall be closed for 7 days in the month of August, 2004 during Onam festival. It would be open to the petitioner to take the child for outing during those holidays for a period of three days. After the expiry of three days, it will be the responsibility of the petitioner to leave the child at the house of the respondent.

The arrangement about meeting on every Sunday would also continue in the
month of September, 2004.
List the matter on 5th October, 2004”

The question relating to the appellant’s visitation rights pending decision of the Special Leave Petition came up for consideration before this Court again on 5th October, 2004, when on a reference to its earlier order dated 20th July, 2004, this Court further directed that the appellant would be at liberty to move appropriate applications in M.F.A.No.365/01, which had been decided by the High Court on 16th June, 2003, and the High Court on hearing the parties or their counsel would pass such orders as it considered appropriate in respect of the interim custody of Ritwika during the Christmas Holidays. It was also clarified that till the matter was finally decided by this Court, it would be open to the appellant to make similar applications before the High
Court which would have to be considered on its own merits, since it was felt that the High Court would be in a better position to consider the local conditions and pass interim orders including conditions, if any, required to be
placed on the parties.
As mentioned hereinbefore, on leave being granted, the Special Leave Petition was renumbered as Civil Appeal No.6626/04, which has been taken up by us for final hearing and disposal.
The appellant, who appeared in person, urged that both the Family Court and the High Court had erred in law in removing the minor child from the custody of the mother to the father’s custody, having particular regard to the fact that the minor girl was still of tender age and had attained the age when a mother’s care and counseling was paramount for the health and well-being of the minor girl child. The appellant submitted that the minor child would soon attain puberty when she would need the guidance and instructions of a woman to
enable her to deal with both physical and emotional changes which take place during such period.
Apart from the above, the appellant, who, as stated hereinbefore, is a doctor by profession, claimed to be in a better position to take care of the needs of the minor in comparison to the respondent who, it was alleged, had little time at his disposal to look after the needs of the minor child.

From the evidence adduced on behalf of the parties, the appellant tried to point out that from morning till late at night, the respondent was busy in court with his own work and activities which left the minor child completely alone and uncared for. According to the appellant, the respondent who had a farm house some distance away from Thrissur, spent his week- ends and
even a major part of the week days in the said farm house. The appellant urged, that as a mother, she knew what was best for the child and being a professional person herself she was in a position to provide the minor not only with all such comforts as were necessary for her proper and complete upbringing, but also with a good education and to create in her an interest in extra- curricular activities such as music and dancing. The appellant strongly urged that the respondent had never had any concern for the minor child since her birth and till the time when the appellant left with her for Calicut.
The appellant contended that for 7 years after the birth of the minor child, the appellant had single-handedly brought up the minor since the respondent was too pre- occupied with other activities to even notice her.
According to the appellant, the minor child was extremely happy to be with her till the respondent began to claim custody of the minor and soon after obtaining such custody, he was able to influence the minor to such an extent that she even went to the extent of informing the learned Judge of the Family Court that she preferred to stay with her father.
On this aspect of the matter, the appellant urged that the minor had been exposed by the respondent to what she termed as “Parental Alienation Syndrome”. She urged that such a phenomenon was noticeable in parents who had been separated and who are bent upon poisoning the mind of their minor children against the other party. According to the appellant, there could otherwise be no other explanation as to why even after being with the appellant for 7 years, the minor child had expressed a preference to be with her father after she was placed in his custody. The appellant laid stress on
her submissions that not only till the age of 8 years, when custody of the minor child was given to him, but even thereafter the respondent had all along been an absentee father taking little or no interest in the affairs and upbringing of the minor child. According to the appellant, in view of the peculiar habits of the respondent, the minor child was left on her own much of
the time, which was neither desirable nor healthy for a growing adolescent girl child.
Urging that she had the best interest of the minor child at heart, the appellant submitted that although under the provisions of Hindu Law by which the parties were governed, the father is accepted as the natural guardian of a minor, there were several instances where the courts had accepted the mother as the natural guardian of a minor in preference to the father even when
he was available. Referring to Section 6 of the Hindu Minority and Guardianship Act, 1956, which provides that the natural guardian of a Hindu minor in the case of a boy or an unmarried girl is the father and after him
the mother; provided that the custody of a minor who has not completed the age of 5 years shall ordinarily be with the mother, the appellant submitted that the aforesaid provision had recognized the mother also as the natural
guardian of a minor. It was urged that in various cases the Courts had considered the said provision and had opined that there could be cases where in spite of the father being available, the mother should be treated to be the natural guardian of a minor having regard to the incapacity of the father to act as the natural guardian of such minor.
In support of her aforesaid submission, the appellant referred to and relied on the decision of this Court in Hoshie Shavaksha Dolikuka vs. Thirty Hoshie
Dolikuka, reported in AIR 1984 SC 410, wherein having found the father of the minor to be disinterested in the child’s welfare this Court held that the father was not entitled to the custody of the child.

The appellant also referred to and relied on a Division Bench decision of the Kerala High Court in the case of Kurian C. Jose vs. Meena Jose, reported in
1992 (1) KLT 818, wherein having regard to the fact that the father was living with a concubine who was none else than the youngest sister of the mother, it was held that the father was not entitled to act as the guardian of the minor. On a consideration of the provisions of Section 17 (3) of the Guardians and Wards Act, 1890, it was also held that a minor’s preference need not necessarily be decisive but is only one of the factors to be taken into consideration by the court while considering the question of custody.
Reference was also made to another decision of this Court in the case of Kumar V. Jahgirdar vs. Chethana Ramatheertha, (2004) 2 SCC 688, wherein in consideration of the interest of the minor child, the mother, who had re-married, was given custody of the female child who was on the advent of puberty, on the ground that at such an age a female child primarily requires a mother’s care and attention. The Court was of the view that the absence of female company in the house of the father was a relevant factor in deciding the grant of custody of the minor female child. The appellant urged that the courts in the aforesaid cases had considered the welfare of the minor to be of
paramount importance in deciding the question of grant of custody. The appellant urged that notwithstanding the fact that the minor child had expressed before the learned Judge of the Family Court that she preferred to
be with the father, keeping in mind the fact that the welfare of the minor was of paramount importance, the court should seriously consider whether the minor child should be deprived of her mother’s company during her period of adolescence when she requires her mother’s counselling and guidance. The appellant submitted that while the respondent had indulged Ritwika so as to win over her affection, the appellant had tried to instill in her mind a sense of discipline which had obviously caused a certain amount of resentment in Ritwika. The appellant submitted that the court should look behind the curtain to see what was best for the minor girl child at this very crucial period of her growing up. In support of her aforesaid submission, the appellant referred to and relied on a decision of the Bombay High Court in the case of Saraswatibai Shripad Ved vs. Shripad Vasanji Ved, AIR 1941 Bombay 103,
wherein in a similar application under the Guardians and Wards Act, it was held that since the minor’s interest is the paramount consideration, the mother was preferable to the father as a guardian. The appellant emphasized the observation made in the judgment that if the mother is a suitable person to take charge of the child, it is quite impossible to find an adequate substitute for her for the custody of a child of tender years notwithstanding the fact that the father remains as the natural guardian of the minor.
A similar view was expressed by this Court in the case of Rosy Jacob vs. Jacob A. Chakramakkal, AIR 1973 SC 2090, wherein in the facts and circumstance of
the case, the custody of the daughter (even though she was more than 13 years of age ) and that of the youngest minor son, was considered to be more beneficial with the wife rather than with the husband. The appellant submitted that during the child’s growing years, she had from out of her own professional income, provided her with amenities which a growing child needs, including admission and tuition fees for the child’s schooling in a good school and for extra- curricular activities. The appellant submitted that she
had made fixed deposits for the benefit of the minor and had even taken out life insurance policies where the minor child had been made the nominee. The appellant submitted that apart from the above, she had also made various financial investments for the benefit of the minor so that the minor child would not be wanting in anything if she was allowed to remain with the appellant.
The appellant submitted that although she had been granted visitation rights by the different interim orders, since she was residing in Calicut and the
respondent was residing in Thrissur, she was unable to remain in contact with her minor daughter on account of the distance between Calicut and Thrissur. In fact, the appellant complained of the fact that on several occasions when she had gone to meet her minor child at the residence of the respondent, she had not been allowed to meet the child or to spend sufficient time with her. The appellant submitted that the interest of the minor child would be best served if her custody was given to the appellant. The claim of custody of the minor child made by the appellant was very strongly resisted by the respondent who denied all the various allegations levelled against him regarding his alleged apathy towards the minor and her development. It was submitted on his behalf that till the age of 7 years, the child had been living with both the parents, and was well cared for and looked after during this period. The minor child was suddenly and surreptitiously removed from the respondent’s custody by the appellant who left her matrimonial home on 26th
February, 2000 without informing the appellant who had gone out of Thrissur on his professional work. It was submitted that only after coming to learn that the appellant had removed the child to Calicut that the respondent was compelled to file a Habeas Corpus Petition in the Kerala High Court which ended upon an undertaking given by the appellant to bring the minor child to Thrissur. It was only thereafter that the respondent was compelled to file the application under Sections 7 and 25 of the Guardians and Wards Act and
under Section 6 of the Hindu Minority and Guardianship Act,1956.
According to the respondent, even though the appellant had forcibly removed the minor to Calicut, thereby depriving the respondent of the minor child’s
company, the said minor during her interview by the learned Judge of the Family Court at Thrissur made her preference to be with the father known to the learned Judge.

On behalf of the respondent, it was also submitted that keeping in mind the fact that the girl child was attaining the age of puberty, the respondent had
arranged with his elder sister, who was a retired headmistress of a school, to come and stay with him and to attend to the minor’s needs during her growing years when she required the guidance and counselling of a woman. It was submitted that the said aspect of the matter was duly considered by the Family Court as well as by the High Court on the basis of an affidavit filed by
the respondent’s sister expressing her willingness to stay with the respondent to look after the minor child.
In addition to the above, it was submitted on behalf of the respondent that the Court had found on evidence that he had sufficient finances to look after and provide for all the needs of the minor child. In any event, what was of paramount importance was the welfare of the minor and the court had also taken into consideration the preference expressed by the minor in terms of
Section 17 (3) of the Guardians and Wards Act, 1890.

On behalf of the respondent it was submitted that the respondent was quite alive to the fact that the minor child should not be deprived of her mother’s company and that for the said purpose, the appellant was welcome to visit the minor child either at the respondent’s house or in some neutral place and to even keep the child with her on specified days if she was ready and willing to stay with the appellant. What was sought to be emphasized on behalf of the respondent was that in the interest of the child she should be allowed to remain with him since he was better equipped to look after the minor, besides being her natural guardian and also having regard to the wishes of the minor herself.
Having regard to the complexities of the situation in which we have been called upon to balance the emotional confrontation of the parents of the minor child and the welfare of the minor, we have given anxious thought to what would be in the best interest of the minor. We have ourselves spoken to the minor girl, without either of the parents being present, in order to ascertain her preference in the matter. The child who is a little more than 12 years of age is highly intelligent, having consistently done extremely well in her studies in school, and we were convinced that despite the tussle between her parents, she would be in a position to make an intelligent choice with regard to her custody. From our discussion with the minor, we have been able
to gather that though she has no animosity as such towards her mother, she would prefer to be with the father with whom she felt more comfortable. The minor child also informed us that she had established a very good relationship with her paternal aunt who was now staying in her father’s house and she was able to relate to her aunt in matters which would concern a growing girl during her period of adolescence.
We have also considered the various decisions cited by the appellant which were all rendered in the special facts of each case. In the said cases the father
on account of specific considerations was not considered to be suitable to act as the guardian of the minor. The said decisions were rendered by the Courts keeping in view the fact that the paramount consideration in such cases was the interest and well-being of the minor. In this case, we see no reason to consider the respondent ineligible to look after the minor. In fact, after having
obtained custody of the minor child, the respondent does not appear to have neglected the minor or to look after all her needs. The child appears to be happy in the respondent’s company and has also been doing consistently well in school. The respondent appears to be financially stable and is not also disqualified in any way from being the guardian of the minor child. No allegation, other than his purported apathy towards the minor, has been levelled against the respondent by the appellant. Such an allegation is not borne out from the materials before us and is not sufficient to make the respondent ineligible to act as the guardian of the minor.

We, therefore, feel that the interest of the minor will be best served if she remains with the respondent but with sufficient access to the appellant to visit the minor at frequent intervals but so as not to disturb and disrupt her normal studies and other activities. We, accordingly dispose of this appeal by retaining the order passed by the learned Judge of the Family Court at
Thrissur on 20.3.2001 while disposing of O.P.No.193/2000 filed by the respondent herein under Sections 7 and 25 of the Guardians and Wards Act,
1890 with the following modifications:-

1. The respondent shall make arrangements for Ritwika to continue her studies in her present school and to ensure that she is able to take part in
extra-curricular activities as well.

2. The respondent shall meet all the expenses of the minor towards her education, health, care, food and clothing and in the event the appellant also wishes to contribute towards the upbringing of the child, the respondent shall not create any obstruction to and/or prevent the appellant from also making
such contribution.

3. The appellant will be at liberty to visit the minor child either in the respondent’s house or in the premises of a mutual friend as may be agreed upon on every second Sunday of the month. To enable the appellant to meet the child, the respondent shall ensure the child’s presence either in his house
or in the house of the mutual friend agreed upon at 10.00 A.M. The appellant will be entitled to take the child out with her for the day, and to bring her
back to the respondent’s house or the premises of the mutual friend within 7.00 P.M. in the evening.

4. In the event the appellant shifts her residence to the same city where the minor child will be staying, the appellant will, in addition to the above, be
entitled to meet the minor on every second Saturday of the month, and, if the child is willing, the appellant will also be entitled to keep the child with her overnight on such Saturday and return her to the respondent’s custody by the following Sunday evening at 7.00 P.M.

5. The appellant, upon prior intimation to the respondent, will also be entitled to meet the minor at her school once a week after school hours for about an hour.

6. The appellant will also be entitled to the custody of the minor for 10 consecutive days during the summer vacation on dates to be mutually settled
between the parties.

7. The aforesaid arrangement will continue for the present, but the parties will be at liberty to approach the Family Court at Thrissur for fresh directions should the same become necessary on account of changed circumstances.

The parties will each bear their own costs.

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Bombay High Court:- Making reckless, Wild allegations made by the wife against the husband about illicit relations between him and his sisters amounts to Cruelty. Divorce Granted to the Husband.

October 8, 2012 Leave a comment

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.28 OF 2012

Bhavana N.Shah,
aged about 47 years, Hindu Indian Inhabitant,
Occ.Housewife/Beautician,
residing at c/o.Champaklal Hemchand Shah,
A-204, Shelter C.H.S. Ltd. Ambadi Road,
Near Kalpana Hospital,
Opp.Kuldip Dewankar Garden,
Vasai Road (West), Dist.Thane-401202. … Appellant                 (Ori.Respondent)
Versus
Nitin Chimanlal Shah,
aged about 46 years, Hindu Indian Inhabitant,
residing at 303, Darshan C.H.S.Ltd.
Love Lane, Opp.B.I.T. Chawl,
Mazgaon, Mumbai – 400 010. …. Respondent                                (Ori.Petitioner)

AND
FAMILY COURT APPEAL NO.29 OF 2012
WITH
CIVIL APPLICATION NO.41 OF 2012
IN
FAMILY COURT APPEAL NO.29 OF 2012

1. Bhavana N.Shah,
aged about 47 years, Hindu Indian Inhabitant,
Occ.Housewife/Beautician,
residing at c/o.Champaklal Hemchand Shah,
A-204, Shelter C.H.S. Ltd. Ambadi Road,
Near Kalpana Hospital,
Opp.Kuldip Dewankar Garden,
Vasai Road (West), Dist.Thane-401 202.
2.Chi.Palak Nitin Shah,
aged about 19 years, Indian Inhabitant,
residing at C/o.Champaklal Hemchand Shah,
A-204 Shelter C.H.S. Ltd. Ambadi Road,
Near Kalpana Hospital,
Opp.Kuldip Dewankar Garden,
Vasai Road (West), District Thane-401 202. … Appellants
(Ori.Petitioners)
Versus
Nitin Chimanlal Shah,
aged about 46 years, Hindu Indian Inhabitant,
residing at 303, Darshan C.H.S.Ltd.
Love Lane, Opp.B.I.T. Chawl,
Mazgaon, Mumbai – 400 010. …. Respondent
……
Mr.Ajit Karwande for the Appellants.
Respondent-husband present in-person.
……

CORAM: A.M. KHANWILKAR &
A.R.JOSHI, JJ.

JUDGMENT RESERVED ON : 15TH JUNE, 2012
JUDGMENT PRONOUNCED ON : 21ST JUNE, 2012
JUDGMENT (Per Khanwilkar, J.) :
1. We propose to dispose of both these Appeals together by this
common Judgment.
2. Appeal No.28/2012 is directed against the Judgment and Decree
passed in Petition No.A-1082/2007 dated 1st December, 2011 passed by
Family Court No.VII, Mumbai, whereby, the Family Court allowed the
Petition filed by the respondent-husband for dissolution of marriage and
divorce under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955.
3. The other Appeal being Appeal No.29/2012 is also filed by the wife along with daughter challenging the common Judgment dated 1stDecember, 2011 passed by the Family Court No.VII, Mumbai in Petition No.C-136/06 praying for maintenance and separate residential accommodation for herself and minor daughter Palak Nitin Shah under Section 18(2)(a), (b), (g) and 20 of the Hindu Adoptions and Maintenance Act, 1956.
4. The Family Court by the common Judgment has dismissed the petition filed by the wife and minor daughter for maintenance and residential accommodation but has allowed the Petition filed by the husband for dissolution of marriage and decree of divorce. We would first examine the challenge to the decree of divorce by the appellant wife.

5. The respondent husband in his Petition filed under Section 13(1) (ia) and (ib) of the Hindu Marriage Act has stated that the marriage between the parties took place on 5th February, 1990. They were blessed with one daughter named Palak. After few years, discord between the spouses took place as a result of very rude behaviour of the wife. The wife was uninterested in domestic work. She picked up quarrels on unessential matters and created unhealthy atmosphere in the house. The wife was in the habit of making false, frivolous and concocted allegations against the husband and his family members. She went to the extent of making false allegations against the husband having illicit relationship with his two real sisters. That on 1st June, 2005, the wife left her
matrimonial home on her own and inspite of persuasion by the husband and his relatives, she refused to join the company of the husband. On the basis of these allegations, the husband prayed for dissolution of marriage between the parties solemnized on 5th February, 1990 at Mumbai and the decree of divorce.
6. The appellant wife filed written statement to oppose the said Petition. The parties adduced evidence in support of their respective claim. The Family  ourt adverting to the relevant evidence and placing emphasis on the admissions given by the appellant wife in her crossexamination, accepted the claim of the respondent husband. The Family Court in the common Judgment has highlighted the admissions of appellant in her cross-examination wherein she has admitted that she did not lodge any complaint before police against respondents or his family members. Further, she does not have any evidence to show that she was tortured mentally as well as physically. She admitted that she got her daughter admitted in Nazareth School without consent of her husband and she had never discussed with husband about the same. She has also admitted that the husband and his family members approached her and
tried to convince her to come back to her matrimonial home on two occasions. She has admitted in the cross-examination that she saw the illicit relations between her husband and his real sisters. The Family Court has then  considered the admission of appellant’s witness PW 2 i.e. daughter Palak. It has then noted that besides the oral admissions of the appellant and her witness, even the documentary evidence goes against the appellant. It took into account the pleadings and oral evidence of the parties, more particularly, in respect of the allegation about the illicit relations of husband with his sisters. The appellant had made those allegations in her letters sent to the husband and reiterated the same in the pleading and also in the oral evidence and justified the same on the ground that that was her inner feeling. The Family Court,
therefore, opined that the allegations by the appellant wife about illicit relation between husband and his sister were unsubstantiated and frivolous. The Family Court has noticed the letters Exhibit 62 and Exhibit 63, in addition to the stand taken in the written statement as well as oral evidence of the appellant. The Family Court on analysis of the above material then proceeded to authoritatively hold that the wild allegations made by the wife against the husband about illicit relations between him and his sisters, coupled with the fact that inspite of attempt made by the husband and his family members to persuade the appellant wife to come back to her matrimonial home and resume
cohabitation/conjugal rights, she failed to do so, answered the issue against the appellant wife and therefore, dissolved the marriage between the parties on the ground of cruelty within the meaning of Section 13(1) (ia) and Section 13(1)(ib) of the Hindu Marriage Act. This is the sum and substance of the finding and the conclusion reached by the Family Court to answer the matter in issue.

7. We have heard Mr.Karwande for the appellant wife and the respondent husband who has appeared in-person. No doubt, Mr.Karwande made strenuous effort to persuade us to take the view that the common Judgment of the Family Court is completely unsustainable as it fails to analyse the evidence properly and to record finding of fact in the context of the separate issue that was required to be answered before concluding that the petition filed by husband for dissolution of marriage and divorce deserves to be allowed. The argument is attractive at the first blush. However, as aforesaid, the Family Court has adverted to the substance of the pleading and oral and documentary evidence adduced by the parties. The Family Court has deduced its conclusion on that basis. After having perused the relevant pleadings and the evidence on record,
which this Court in appeal is expected to do, the conclusion reached by the Family Court in dissolving the marriage between the parties and passing decree of divorce is inevitable. We are inclined to uphold the order of dissolution of marriage and the decree of divorce.
8. We would first deal with the ground ascribable to Section 13(1) (ia) of the Hindu Marriage Act. The Family Court has adverted to different allegations found in the petition filed by the husband. In our opinion, the decree passed by the Family Court ought to be upheld on the ground of cruelty considering the fact that the appellant wife in her communication dated 11th May, 2006 in response to the letters sent by the respondent husband dated 5th December, 2005 and 11th January, 2006 has stated about the incidents she had personally noticed indicative of illicit relations between the respondent husband and his sisters. We refrain from reproducing those allegations in this Judgment. Suffice it to mention that the same are serious and disparaging remarks. The respondent husband in his petition has pointedly referred to the said communication, being one of the acts committed by the appellant wife
which had caused immense mental agony and cruelty to him. The appellant wife in the written statement went on to reiterate those allegations and gave justification that the letters sent by her on 11 th May, 2006 was a privileged communication between the husband and wife. She has further justified her stand on the ground that she had stated those facts in the said letter on the basis of “her inner feelings”. This defence is found in paragraph XIV of the written statement. The husband in his evidence has reiterated the position that making of such malafide, reckless and frivolous allegations by the wife constituted severe mental cruelty to him. Nevertheless, the appellant wife in her oral evidence (cross-examination) went on to assert that she personally saw the illicit relations between the respondent husband and his real sisters and she had written about the same in her communication dated 11th May, 2006 sent to respondent husband on the basis of her inner feelings. Admittedly, no contemporaneous evidence has been produced by the appellant wife to corroborate her version. The facts stated by her in her communication dated 11th May, 2006 on which she has placed reliance have not been substantiated by the appellant at all, except her bare words. The making of such false, frivolous and unsubstantiated allegations against the
husband in the communication as well as reiterating the same in the written statement and also in the oral evidence given by the wife before the Court was bound to cause mental cruelty to the husband. It was clearly an attempt to  sully the reputation not only of the respondent husband but also of the two sisters who were in the profession of Medicine and Law respectively. That, by itself, is a good and germane ground to dissolve the marriage between the parties and to grant decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act. We need not deal with the other allegations concerning ground of cruelty. Even the Family Court has not touched upon those allegations but in substance has opined that this ground established from the record was sufficient to grant decree of divorce. In other words, the decree of divorce under Section 13(1)(ia) deserves to be upheld in the fact situation of the present case.
9. The Family Court has also dissolved the marriage between the parties and granted decree of divorce on the ground under Section 13(1) (ib) i.e. desertion. As an appellate Court, having upheld the decree of divorce on one count, which is formidable one and unassailable on any count, it may not be necessary to dilate on other grounds to sustain the decree. Be that as it may, we find that even though the Family Court has not thoroughly analysed the pleadings and evidence on record in the context of Section 13(1)(ib), but has certainly referred to the substance of the pleadings and the evidence. The Family Court has noted that appellant wife left the matrimonial house on her own on 1st June, 2005 and that inspite of persuasion by the respondent husband and his family members on two different occasions, she refused to resume cohabitation/conjugal rights. The fact that she left her matrimonial home on 1st June, 2005 is admitted by the wife. She has also admitted that after leaving the matrimonial home, she stayed with her father. Further, she
took away her daughter along with her and got her admitted in Nazareth
School without consulting her husband or informing him about the same.
She has also admitted that the husband and his family members had come
to her on two occasions to convince her to resume cohabitation/conjugal
rights, but she did not go back to her matrimonial house. On the basis of
these admitted facts, the Family Court has granted decree of divorce also
on the ground of desertion under Section 13(1)(ib).
10. As aforesaid, on reading the impugned Judgment, it may appear that it has straightway jumped to conclusion against the appellant wife. Notably, the Court has rightly noted the essential factors to constitute the ground of “desertion”. Such as, factum of separation, intention to bring cohabitation permanently to an end, the element of persuasion. In the communication sent by the wife to the husband and more so in her pleading and oral evidence before the Court, the appellant wife has given admission on the above aspects. The fact that the parties separated on 1st June, 2005 is indisputable. The husband having approached appellant wife as also his family members on two occasions to persuade the appellant to resume cohabitation/conjugal rights has been admitted by the appellant wife. However, she refused to go back. It necessarily follows that the appellant wife had shown intention to bring cohabitation permanently to an end. Even persuasion by respondent husband and his family members did not work with the appellant. She steadfastly refused to join the matrimonial home. In this backdrop, the finding as well as the conclusion reached by the Family Court of dissolving the marriage between the parties and granting decree of divorce under Section 13(1) (ib) is also unexceptionable.
11. As aforesaid, no interference is warranted with the final order passed by the Family Court in dissolving the marriage between the parties and granting decree of divorce on the ground of cruelty and desertion under Section 13(1)(ia) and 13(1)(ib) in favour of respondent husband and against the appellant wife.
12. That takes us to the other Appeal arising out of the dismissal of Petition filed by the appellant wife, for maintenance and separate residential accommodation, by the common judgment and decree. Indeed, this Petition
was filed by the appellant wife in earlier point of time. The Petition for dissolution of marriage and divorce was filed by the husband, during the
pendency of the maintenance petition. The claim in the maintenance petition
was founded on the ground under Section 18(1) and 18(2) (a), (e) and (g). In
other words, appellant wife claimed separate residential accommodation from
her husband without forfeiting her claim of maintenance, on the ground of
desertion by the husband and of abandoning her without reasonable cause and
without her consent or against her wish, or willfully neglecting her. The second
ground was that she was treated with such cruelty as to cause reasonable
apprehension in her mind that it will be harmful or injurious to live with her
husband and, thirdly, that there are other causes justifying living separately. The
Trial Court has examined the subject issues while considering the question of
awarding maintenance amount to the wife and the daughter as well as of
separate residence to the wife, together. Indubitably, these issues were distinct
and were required to be analysed and decided separately. Further, the same
have been disposed of together by cryptic judgment, in the following words:
“Issue Nos. 1 to 4 (in Petition No. C-136/2006)
22. The evidence is already discussed above. To avoid repetitions and the issues involved in this case, it is sufficient to mention that Bhavna(wife) left the matrimonial home on her own. She took with her minor daughter, who has attained majority today. She even failed to inform the husband. She admits that she has no proof of physical or mental cruelty. She has not proved reasonable
cause to reside separately.
23. There is sufficient evidence on record to show that Nitin(husband) was willing to continue matrimonial relations. He has made request in writing (Exh 62 and Exh 63) Bhavana (wife) has not bothered to reply it. Palak (P. W. No. 2) admits that sister of respondent had come to convince her and mother to come to reside with them. Bhavana(wife) also admits that on two occasions the husband and his family members came to bring her back. Sec. 18(1) of Hindu Adoption and Maintenance Act, 1956 provides wife shall shall be entitled to be maintained by her husband during her life time. Sub-clause (2) provides – a Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance:-
a) If he is guilty of desertion,
b) If he has treated her with cruelty,
c) If he is suffering from a virulent from of leprosy,
d) If he has any other wife living,
e) If he keeps a concubine in the same house,
f) If he ceased to be a Hindu by conversion, if there is any other cause justifying her living separately.
24. The rights and liabilities are co-relative. If any one want rights, then he has to perform liability. No doubt, the wife is entitled to live separately for any of the just grounds as provided under sec. 18(2) of The Hindu Adoptions and Maintenance Act, 1956. The entire evidence on record shows that Bhavana(wife) is at fault. She herself treated the husband with cruelty. She has deserted him without reasonable cause. She has failed to prove her claim.
25. The argument (Exh. 86) advanced by wife is mainly relating to properties or without any factual or legal support. Hence, need no reply. Therefore, I answer point nos. 3 to 4 in the negative.”

13. In substance, the Family Court was influenced by the fact that, in the
accompanying Petition, it was already found that appellant wife had left the
matrimonial home on her own, along with her minor daughter and was not
willing to return back, even though the respondent husband was willing to
continue with the matrimonial relation. Thus, the Family Court held that the
appellant wife is dis-entitled from claiming maintenance from her husband. As
regards the maintenance amount payable to daughter Palak, the Family Court
noted that she has attained majority. The fact that she was still unmarried, has
not been reckoned at all. Be that as it may, we are of the considered opinion
that the manner in which the Petition for maintenance and separate residence,
filed by the appellant, has been decided, is undesirable. The Family Court ought to have analysed the pleadings and evidence in the context of the claim
of maintenance by wife and unmarried daughter, though attained adulthood.
14. The respondent has placed emphasis on the decision of the Rajasthan
High Court in Shimla Devi vs. Kuldeep Sharma AIR 1999 Rajasthan 181. In
that case, the Court proceeded on the finding that the wife was unwilling to
reconcile and resume cohabitation. Notably, the said judgment considered the
correctness of the decision of the Family Court by which the marriage between
the parties came to be dissolved and decree of divorce was passed. The
observations found in Paragraph 7 and 8 of the said decision, on which
emphasis has been placed, will be relevant in the context of the issue of
dissolution of marriage and passing of decree of divorce. Reliance was then
placed on the decision in the case of Deb Narayan Halder vs. Smt. Anushree
14 of 18fca28.12.sxw
Halder AIR 2003 SC 3174. The Court found that the reasons given by the
wife, about her ill treatment, were non existent and unsubstantiated. The Court
then proceeded to hold that the wife left the matrimonial home without any
justification. On that basis, the Court answered the issue of maintenance under
Section 125 of the Code of Criminal Procedure, which is attracted when the
person, having sufficient means, neglects or refuses to maintain his wife and
unmarried daughter, though they are not able to maintain themselves. Section
18(1) of the Hindu Adoption and Maintenance Act, 1956 bestows right in the
Hindu wife, being entitled to be maintained by her husband during her life
time. Indeed, the opening words of the said Section are of some significance,
which read – “subject to the provisions of this section”. Sub-Section (1) of
Section 18, distinctly deals with issue of maintenance of Hindu wife, by her
husband, during her lifetime. Whereas, Section 18(2) of the Act bestows right
in the Hindu wife to be entitled to live separately from her husband without
forfeiting her claim of maintenance. In the present case, besides the issue of
maintenance of wife, it was necessary to examine the independent claim of the
unmarried daughter – who at the time of institution of the petition was
admittedly minor.
15. As regards the claim of the appellant wife for providing separate
residential accommodation, even if we were to take the view that the Family
Court in substance has found that the appellant wife has not substantiated the
15 of 18fca28.12.sxw
requirements specified in Clause (a) and Clause (b) of Sub-Section (2), even
then, the Court was obliged to analyse the pleadings and evidence of the parties
in the context of the requirements of Clause (g) of Section 18(2), which entitles
the Hindu wife to live separately from her husband without forfeiting her claim
to maintainance on account of any other cause justifying living separately. That
was one of the ground pressed into service by the appellant for her claim of
separate residence, in her Petition, which is noted even in the opening part of
the Judgment. The Family Court ought to have considered the matter in that
context.
16. On a bare perusal of Section 18, it is amply clear that the sweep of
each requirement under Sub-Section (2) is markedly different. In other words,
each of these causes in clauses (a), (b) and (g), invoked by the appellant wife,
operate in different spheres. It was but appropriate that the Family Court ought
to have analysed the material on record to answer the same independently and
not to jump to a conclusion.
17. Considering the fact that the Family Court has not properly dealt with
the issues of maintenance and separate residence, we deem it appropriate to
quash and set aside the reasons and the conclusion on these two issues, which
have been considered in Petition No. C-136/2006, filed by the wife along with
the daughter. Instead, the parties will have to be relegated before the Family
16 of 18fca28.12.sxw
Court for reconsideration of the said matter afresh from the stage of oral
arguments, on its own merits, in accordance with law, uninfluenced by any
observation made in the impugned decision on the said issues.
18. We may place on record that we are not specifically touching upon
the arguments canvassed by the parties, in relation to these two issues of grant
of separate residence to wife and maintenance amount payable to the wife and
daughter, unmarrried though. Inasmuch as, any observation made in that
behalf would affect the parties one way or the other. In other words, all the
contentions available to the parties, in Petition No. C-136/2006, are kept open.
19. Accordingly, we proceed to pass the following order:
O R D E R
(1) The Appeal No.28/2012 filed by the wife challenging the decree of dissolution of marriage between the parties and divorce is dismissed. Instead, the said decree, passed by the Family Court at the instance of the  Respondent/husband, is upheld and maintained.
(2) The Family Court Appeal No.29/2012 is allowed. The judgment and decree, passed in Petition No. C-136/2006 is quashed and set aside. Instead, the parties are relegated before the Principal Judge, Family Court, Mumbai for reconsideration of the said Petition afresh from the stage of oral arguments. All questions therein are left open.
(3) The parties shall appear before the Principal Judge of the Family Court, Mumbai on 2nd July, 2012, who may take up the said Petition No.C-135/2006 himself or assign it to any other Judge of the Family Court at Mumbai for denovo reconsideration from the stage of arguments. The Concerned Judge shall dispose of the said Petition expeditiously.
(4) No order as to costs.
(5) In view of the above order, Civil Application stands disposed of.
(A.R.JOSHI,J.) (A.M.KHANWILKAR,J.)

 

http://www.bombayhighcourt.nic.in/data/judgements/2012/CFCA545312.pdf

Categories: Divorce, HAMA Tags: ,

Bombay HC:- Once the interim maintenance is granted either under section 24 of the Hindu Marriage Act or under section 18 of the Hindu Adoptions and Maintenance Act, then, there is no question of entertaining the application under the other Act.

Bombay High Court
Sangeeta Piyush Raj
vs
Piyush Chaturbhuj Raj
on 13 January, 1998
Equivalent citations: 1998 (3) BomCR 207, II (1998) DMC 443
Author: M Shah
Bench: M S C.J., R Kochar

ORDER

M.B. Shah, C.J.

1. After considering the various decisions cited at the hearing of the Notice of Motion, by order dated 17th January, 1997, Variava, J., referred to the Division Bench the following two questions for determination:–

“1. Whether in proceedings under section 18 of the Hindu Adoptions and Maintenance Act, the Court can grant interim maintenance?

2. Whether if matrimonial proceedings are pending between the parties then an application for interim maintenance must be made only to the Family Court under the provisions of section 24 of the Hindu Marriage Act?”

2. With regard to the first question, after considering the various decisions, the Division Bench of this Court (V.P. Tipnis & Mrs. R.R Desai, JJ.) by judgment and order dated (16th and 17th December, 1997 in Appeal No. 14 of 1997) has arrived at the conclusion that, in a suit filed under section 18 of the Hindu Adoptions and Maintenance Act, 1956, the Court has jurisdiction and power to pass appropriate interim and ad-interim orders. We agree with the said conclusion.

3. Further, it is to be noted that the Hindu Adoptions and Maintenance Act, 1956 codifies the law relating to adoptions and maintenance among Hindus. It only declares and codifies the law with regard to adoptions and maintenance by Hindus. The basis of such obligation to maintain wives, widowed daughter-in-law, children and aged parents may be a pious obligation of Hindus. The provisions relating to maintenance are in Chapter III. Section 18 deals with maintenance of a wife during her life time under certain circumstances, as provided in sub-section (2) thereof. Section 19 provides for maintenance of a widowed daughter-in-law to the extent that she is unable to maintain herself out of her own earnings or other property by her father-in-law. Similarly, section 20 provides for maintenance of his or her legitimate or illegitimate children and his or her aged or infirm parents. The liability to pay maintenance to children is on the father or mother. Similarly, liability to pay maintenance to infirm parents is on the son or the daughter. Section 22 further provides that the heirs of a deceased Hindu are bound to maintain the defendants of the deceased (as defined in section 21) out of the estate inherited by them from the deceased. Section 23 provides for the objective criteria for determining the amount of maintenance. Further, the requirement is that no person shall be entitled to claim maintenance if she or he has ceased to be a Hindu by conversion to any other religion (section 24). Section 25 empowers the alteration of the amount of maintenance on change of circumstances justifying such alteration. Further, the proceedings initiated for getting maintenance would be under the Civil Procedure Code. Hence, there is no reason why inherent jurisdiction of the Court cannot be exercised for providing interim maintenance. If a deserted wife, widowed daughter-in-law, minor children and aged parents are not provided with interim maintenance, it would cause lot of hardship for a long period. The entire purpose of the enactment would be defeated because of the proverbial delays in disposal of cases resulting in grave hardship to the applicants who may have no means to survive until final decree is passed. There is no provision under the Hindu Adoptions and Maintenance Act or under the Civil Procedure Code that interim maintenance cannot be granted; there is no provision under the said Act which would meet the necessities of the case in question. Therefore, for doing real and substantial justice, Court can exercise power under section 151 of the Civil Procedure Code for grant of interim maintenance. It would also prevent abuse of the process of the Court.

4. Even in proceedings under section 125 of the Code of Criminal Procedure, in the case of Savitri v. Govind Singh Rawat, 1986 Cri. L.J. 411, the Court held as under :–

“Having regard to the nature of the jurisdiction exercised by a Magistrate under section 125 of the Code, we feel that the said provisions should be interpreted as conferring power by necessary implication on the Magistrate to pass an order directing a person against whom an application is made under it to pay a reasonable sum by way of interim maintenance, subject to the other conditions referred to, pending final disposal of the application. In taking this view we have also taken note of the provisions of section 7(2)(a) of the Family Courts Act, 1984 (Act No. 66 of 1984) passed recently by Parliament proposing to transfer the jurisdiction exercisable by Magistrates under section 125 of the Code to the Family Courts constituted under the said Act.”

For arriving at the above conclusion, the Court has observed that every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective. The Court further observed that whenever anything is required to be done by law and it is found impossible to do that thing unless something not authorised in express terms be also done, then that something else will be supplied by necessary intendment. In a civil suit filed for maintenance on the basis of the law applicable under the Hindu Adoptions and Maintenance Act, such power is required to be exercised. In our view, there is no reason not to apply the ratio laid down by the Supreme Court in Savitri’s case (supra) to the question involved in the present case.

5. Re: The Second Question :

In our view, even if matrimonial proceedings are pending between the parties, it is not the requirement that the application for interim maintenance must be made only to the Family Court under the provisions of section 24 of the Hindu Marriage Act. Once we arrive at the conclusion that an application under section 18 of the Hindu Adoptions and Maintenance Act is maintainable during the pendency of proceedings under the Hindu Marriage Act, then, obviously, the result would be that the application (or interim maintenance could be filed before the Court dealing with the right arising under provisions of section 18 of the Hindu Adoptions and Maintenance Act.

6. With regard to the provisions of section 18 of the Hindu Adoptions and Maintenance Act and provisions of the Hindu Marriage Act, the Apex Court, in the case of Chand Dhawan v. Jawaharlal Dhawari, 1993(3) Supreme Court Cases 4061, has held that, without affection or disruption of the marital status, a Hindu wife sustaining that status can live in separation from her husband, and whether she is living in that state or not, her claim to maintenance stands preserved in codification under section 18(1) of the Hindu Adoptions and Maintenance Act. She may also be entitled to relief under section 125 of the Code of Criminal Procedure; but this is an alternative measure. The Court clarified that, in a petition under the Hindu Marriage Act, the Court is empowered to grant interim maintenance; but, in those cases where the marital status is to be affected or disrupted, then the Court would pass orders for maintenance. In other cases, the Hindu Adoptions and Maintenance Act would be applicable. Hence, in our view, even if matrimonial proceedings are pending between the parties in the Family Court, it is not necessary that for getting interim maintenance, an application must be made to the said Court under the provisions of section 24 of the Hindu Marriage Act.

7. We, however, make it clear that, once the interim maintenance is granted either under section 24 of the Hindu Marriage Act or under section 18 of the Hindu Adoptions and Maintenance Act, then, there is no question of entertaining the application under the other Act. This would avoid multiplicity of proceedings, because the criteria for awarding maintenance under both the provisions would be the same.

8. Reference stands disposed of accordingly.

 

http://indiankanoon.org/doc/785025/

Categories: CrPC 125, HAMA, HMA 24 Tags: , ,
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