Hindu Marriage Act, 1955 — Section 26 — Custody of child —

June 12th, 2014

Hindu Marriage Act, 1955 — Section 26 — Custody of child — Order permitting mother to take child with her to Australia — Justification — Categorical statement of child that he wants to stay with his mother — Career of child is much safe with mother — Thus, in view of welfare of child, impugned order justified and needs no interference.

HELD: The Respondent mother is getting a better job opportunity in Australia. Her autonomy on her personhood cannot be curtailed by Court on the ground of a prior order of custody of the child. Every person has a right to develop his or her potential. In fact a right to development is a basic human right. The respondent-mother cannot be asked to choose between her child and her career. It is clear that the child is very dear to her and she will spare no pains to ensure that the child gets proper education and training in order to develop his faculties and ultimately to become a good citizen. If the custody of the child is denied to her, she may not be able to pursue her career in Australia and that may not be conducive either to the development of her career or to the future prospects of the child. Separating the child from his mother will be disastrous to both.

Insofar as the father is concerned, he is already established in India and he is also financially solvent. His visitation rights have been ensured in the impugned orders of the High Court. His rights have been varied but have not been totally ignored. The appellant-father, for all these years, lived without the child and got used to it.

In the application dated 9.5.2008 filed before the Additional District Judge, Delhi, the mother made it clear in paragraph 12 that she is ready to furnish any undertaking or bond in order to ensure her return to India and to make available to the father, his visitation rights subject to the education of the child. This Court finds that so far as the order which had been passed by the High Court, affirming the order of the Trial Court, the visitation rights of the appellant-father have been so structured as a to be compatible with the educational career of the child. This Court finds that in this matter judicial discretion has been properly balanced between the rights of the appellant and those of the respondent.

In that view of the matter, this Court refuses to interfere with the order passed by the High Court. The appeal is dismissed with the direction that the respondent-mother, before taking the child to Australia, must file an undertaking to the satisfaction of the Court of Additional District Judge-01, (West), Delhi within a period of four weeks from date.

Vikram Vir Vohra v. Shalini Bhalla [Bench Strength 2], Civil Appeal No. 2704/2010 (Arising out of SLP (C) No. 19935/2009) (25/03/2010), 2010 AIR(SC) 1675: 2010(3) SCR 775: 2010(4) SCC 409: 2010(3) JT 213: 2010(3) SCALE 187: 2010(2) Supreme 557: 2010(2) SLT 688 [G.S. Singhvi, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 26 — Custody of child — Visitation rights of father — Modification of terms and conditions regarding — Justification — Modification of terms and conditions of visitation rights of father as a result of permitting mother to take child with her to Australia — Plea of appellant-father that in view of section 26, order of custody of child and visitation rights cannot be changed as they are not reflected in decree of mutual divorce is too hyper-technical objection to be considered in custody proceedings — No infirmity in order modifying visitation rights of father.

HELD: The argument of the learned counsel for the appellant, that in view of the provisions of Section 26 of the Act, the order of custody of the child and the visitation rights of the appellant cannot be changed as they are not reflected in the decree of mutual divorce, is far too hyper technical an objection to be considered seriously in a custody proceeding. A child is not a chattel nor is he/she an article of personal property to be shared in equal halves.

Insofar as the father is concerned, he is already established in India and he is also financially solvent. His visitation rights have been ensured in the impugned orders of the High Court. His rights have been varied but have not been totally ignored. The appellant-father, for all these years, lived without the child and got used to it.

Vikram Vir Vohra v. Shalini Bhalla [Bench Strength 2], Civil Appeal No. 2704/2010 (Arising out of SLP (C) No. 19935/2009) (25/03/2010), 2010 AIR(SC) 1675: 2010(3) SCR 775: 2010(4) SCC 409: 2010(3) JT 213: 2010(3) SCALE 187: 2010(2) Supreme 557: 2010(2) SLT 688 [G.S. Singhvi, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13-B(1) & (2) — Divorce by mutual consent — Waiver of statutory period — Writ petition seeking of — Maintainability — No delay in disposal of case by family court asking parties to wait for six month — Counsel of petitioner unable to explain under what circumstances petition has been filed and as to whether such a petition is maintainable — Counsel unable even to explain that even if court considers to issue writ to whom it be issued as the only parties in case are wife and husband — Petition has been filed without any sense of responsibility either by parties or their counsel — Petition, therefore, to be dismissed — Constitution of India — Articles 32 & 142.

HELD: In the instant case, the Family Court, Delhi has passed an order strictly in accordance with law asking the parties to wait for statutory period of six months to file the second motion in the case. In such a fact-situation, it is not permissible to suggest that the aforesaid order has violated or infringed any of the fundamental rights or any legal right of the parties. Therefore, we are not able to understand as under what circumstances, the writ is maintainable. The learned counsel appearing for the petitioner is not able to explain under what circumstances, the petition has been filed and as to whether such a petition is maintainable or whether relief of dissolution of marriage could be sought by the parties directly from this Court in a case, wherein the marriage had taken place only a year and three months ago. The counsel was not able even to explain that even if the Court considers to issue the writ, to whom it would be issued as the only parties in the case are wife and husband, who are seeking the divorce by consent. The learned counsel is not able to enlighten the Court as to whether the Family Court could be impleaded in this petition. He expressed his inability to answer any question.

The aforesaid facts reveal that application for dissolution of marriage was filed only on 9.9.2009 before the Family Court and the said application was disposed of vide order dated 25.11.2009 asking the parties to wait for six months. Thus, it is not a case that there had been any delay in disposal of the case by the Family Court. The petition has been filed without any sense of responsibility either by the parties or their counsel. Such a practice is tantamount to not only disservice to the institution but it also adversely affects the administration of justice. Conduct of all of them has been reprehensible.

For the reasons aforesaid, this petition is dismissed.

Poonam v. Sumit Tanwar [Bench Strength 2], Writ Petition (Civil) No. 86/2010 (22/03/2010), 2010 AIR(SC) 1384: 2010(3) SCR 557: 2010(4) SCC 460: 2010(3) JT 259: 2010(3) SCALE 266: 2010(2) Supreme 484: 2010(2) SLT 674 [Aftab Alam, J.: B.S. Chauhan, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13-B(2) — Divorce by mutual consent — Second motion — Statutory period, reduction of — Quashing of criminal cases — Matrimonial disputes between parties — Amicable settlement between parties arrived at — Terms and conditions of compromise complied with — Fit case for exercise of powers vested in court under article 142 — Statutory period of second motion reduced — All the criminal cases pending against parties quashed — Direction issued to District Court to grant divorce on the basis of joint petition by parties under Section 13(B)(2) — Constitution of India — Article 142 — Criminal Procedure Code, 1973 — Section 482.

Anaant Dupar v. State of Punjab [Bench Strength 2], Special Leave to Appeal (Crl.) No. 7220/2008 (26/02/2010), 2010(5) SLT 250: 2010(2) JCC 1356 [D.K. Jain, J.: Chandramauli Kumar Prasad, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(ia) — Cruelty — Proof to establish, requirement of, scope — Discussed — Special Marriage Act, 1954 — Section 27(d).

HELD: This is no longer the required standard. Now it would be sufficient to show that the conduct of one of the spouses is so abnormal and below the accepted norm that the other spouse could not reasonably be expected to put up with it. The conduct is no longer required to be so atrociously abominable which would cause a reasonable apprehension that it would be harmful or injurious to continue the cohabitation with the other spouse. Therefore to establish cruelty it is not necessary that physical violence should be used. However continued ill-treatment cessation of marital intercourse, studied neglect, indifference of one spouse to the other may lead to an inference of cruelty.

Manisha Tyagi v. Deepak Kumar [Bench Strength 2], Civil Appeal No. 5387/2007 (10/02/2010), 2010 AIR(SC) 1042: 2010(2) SCR 554: 2010(4) SCC 339: 2010(2) JT 82: 2010(2) SCALE 294: 2010(1) SLT 690 [V.S. Sirpurkar, J.: Surinder Singh Nijjar, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(ia) — Cruelty by wife — Divorce on the ground of, grant of decree of, despite holding failure of husband to establish cruelty, when improper — Marriage between parties held on 17.11.1991 — Mutual cohabitation of parties came to an end on 30.12.1992 — They have a daughter who was born on 2.6.1993 — Divorce petition by husband filed on 24.11.1993 — Trial Court holding the case as a broken marriage — Appellate Court and Trial Court coming to the conclusion that petitioner has been unsuccessful in proving the respondent to have treated him with cruelty of the nature as to entitle him to a decree of divorce — Appellate Court coming to the conclusion that it would be more appropriate to give the couple some time to ponder over the issue especially keeping in view the welfare of his daughter and if the parties continued with their adamant attitudes it would be possible for either party to seek dissolution of marriage on the basis of decree of judicial separation — Husband did not challenge the said decree and after waiting for one year filed proceedings seeking decree of divorce which is still pending — On the other hand wife filed LPA challenging grant of decree of judicial separation to the husband by Appellate Court despite concurring with the finding of trial court that husband has failed to establish cruelty by wife — Held, grant of decree of divorce to husband by Division Bench is wholly inappropriate when it was not a case where it was necessary for the Division Bench to correct any glaring and serious errors committed by court below.

HELD: Taking into consideration the conduct of the parties over a period of time, the Trial Court as well as the Appellate Court concluded that the husband had failed to establish cruelty on the part of the wife which will be sufficient to grant a decree of divorce.

The Appellate Court further came to the conclusion that since both the parties made extremely serious allegations, it would be appropriate as the parties were not compelled to live together. The Appellate Court came to the conclusion that it would be more appropriate to give the couple some time to ponder over the issue especially keeping in view the welfare of their daughter. If in due course they manage to reconcile their differences the decree of judicial separation would be of no consequence. On the other hand, if the parties continued with their adamant attitudes it would be possible for either party to seek dissolution of the marriage on the basis of the aforesaid decree of judicial separation.

As noticed earlier the husband did not challenge the aforesaid decree of the Appellate Court, he was content to wait for one year and there after seeking decree of divorce. In fact upon the expiry of one year he has actually filed the necessary proceedings seeking decree of divorce in the Court of District Judge, Gurgaon on 9.5.2002. These proceedings are still pending.

On the other hand the wife had filed the Latest Patent Appeal challenging the grant of decree of judicial separation to the husband by the Appellate Court. We are of the opinion that the High Court erred in granting a decree of divorce to the husband. She had come in appeal before the Division Bench complaining that the Appellate Court had wrongly granted the decree of judicial separation even after concurring with the findings of the Trial Court that the husband had failed to establish cruelty by the wife. Therefore even if the appeal had been dismissed, the findings recorded by the Trial Court in her favour would have remained intact. The effect of the order passed by the Division Bench is as if an appeal of the husband against the decree of judicial separation has been allowed. Both the parties had failed to make out a case of divorce against each other. The husband had accepted these findings. Therefore he was quite content to wait for the statutory period to lapse before filing the petition for divorce, which he actually did on 9.5.2002. On the basis of the proven facts the Trial Court was more inclined to believe the wife, whereas the learned Single Judge of the High court found both the parties to be at fault. Hence the middle path of judicial separation had been accepted. Therefore, it was not a case where it was necessary for the Division Bench to correct any glaring and serious errors committed by the court below which had resulted in miscarriage of justice. In our opinion there was no compelling necessity, independently placed before the Division Bench to justify reversal, of the decree of judicial separation. In such circumstances it was wholly inappropriate for the Division of High Court to have granted a decree of divorce to the husband.

Manisha Tyagi v. Deepak Kumar [Bench Strength 2], Civil Appeal No. 5387/2007 (10/02/2010), 2010 AIR(SC) 1042: 2010(2) SCR 554: 2010(4) SCC 339: 2010(2) JT 82: 2010(2) SCALE 294: 2010(1) SLT 690 [V.S. Sirpurkar, J.: Surinder Singh Nijjar, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(ia) — Cruelty — Scope — Held, cruelty in matrimonial cases can be of infinite variety it may be subtle or even brutal and may be by gestures and words — Special Marriage Act, 1954 — Section 27(d).

Ravi Kumar v. Julmi Devi [Bench Strength 2], C.A. No. 1868/2007 (09/02/2010), 2010(2) SCR 545: 2010(4) SCC 476: 2010(2) JT 213: 2010(2) SCALE 289(2): 2010(1) SLT 759 [P. Sathasivam, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(ia) — Cruelty — Determination of, relevant consideration for, scope — Held, whether husband is cruel to his wife or the wife is cruel to her husband has to be ascertained and judged by taking into account the entire facts and circumstances of given case and not by any pre-determined rigid formula — Special Marriage Act, 1954 — Section 27(d).

Ravi Kumar v. Julmi Devi [Bench Strength 2], C.A. No. 1868/2007 (09/02/2010), 2010(2) SCR 545: 2010(4) SCC 476: 2010(2) JT 213: 2010(2) SCALE 289(2): 2010(1) SLT 759 [P. Sathasivam, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(ia) — Cruelty — Meaning of — Discussed — Special Marriage Act, 1954 — Section 27(d).

HELD: In matrimonial relationship, cruelty would obviously mean absence of mutual respect and understanding between the spouses which embitters the relationship and often leads to various outbursts of behaviour which can be termed as cruelty. Sometime cruelty in a matrimonial relationship may take the form of violence, some time it may take a different form. At times, it may be just an attitude or an approach. Silence in some situations may amount to cruelty. Therefore, cruelty in matrimonial behaviour defies any definition and its category can never be closed.

Ravi Kumar v. Julmi Devi [Bench Strength 2], C.A. No. 1868/2007 (09/02/2010), 2010(2) SCR 545: 2010(4) SCC 476: 2010(2) JT 213: 2010(2) SCALE 289(2): 2010(1) SLT 759 [P. Sathasivam, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 13(1)(ia), (ib) & 9 — Cruelty and desertion — Specific allegations of, absence of, effect of; proof in case of desertion, requirement of, scope — Absence of specific allegation by husband of wife’s cruelty and in his deposition also husband does not refer to any specific instances of cruelty by his wife — No specific case of desertion also has been pleaded either — Effect of — Held, in order to prove a case of desertion, party alleging desertion must not only prove that the other spouse was living separately but also must prove that there is an animus deserendi on the part of wife and husband must prove that he has not conducted himself in a way which furnishes reasonable cause for the wife to stay away from matrimonial home — Reversal of order of trial court granting divorce by High Court, held valid.

Ravi Kumar v. Julmi Devi [Bench Strength 2], C.A. No. 1868/2007 (09/02/2010), 2010(2) SCR 545: 2010(4) SCC 476: 2010(2) JT 213: 2010(2) SCALE 289(2): 2010(1) SLT 759 [P. Sathasivam, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 13(1)(ia), (ib) & 9 — Cruelty and desertion by wife or husband — Determination of, child testimony, reliance on, scope — In the instant case child has clearly stating the cruelty of appellant-husband towards his wife — Finding of Supreme Court that Trial Court has not properly appreciated the evidence of child — Held, evidence of child is very vital in the facts and circumstances of this case of matrimonial discord, therefore, there is sufficient reason for the wife to stay apart — Under such circumstances one cannot say the wife is guilty of either cruelty or desertion — Special Marriage Act, 1954 — Section 27(b) & (d).

Ravi Kumar v. Julmi Devi [Bench Strength 2], C.A. No. 1868/2007 (09/02/2010), 2010(2) SCR 545: 2010(4) SCC 476: 2010(2) JT 213: 2010(2) SCALE 289(2): 2010(1) SLT 759 [P. Sathasivam, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 13(1)(ia), (ib) & 9 — Cruelty and desertion — Petition for divorce by husband on the ground of, condonation of earlier alleged acts of cruelty of wife, nature of question relating to, scope — Held, condonation is basically a question of fact.

Ravi Kumar v. Julmi Devi [Bench Strength 2], C.A. No. 1868/2007 (09/02/2010), 2010(2) SCR 545: 2010(4) SCC 476: 2010(2) JT 213: 2010(2) SCALE 289(2): 2010(1) SLT 759 [P. Sathasivam, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 28 — Power of High Court under — Nature and scope of — While exercising its power u/s 28, held, High Court, as the first Court of Appeal is both a Court of Law and also of facts — Reversal of finding of trial court by High Court as first appellate court is permissible.

Ravi Kumar v. Julmi Devi [Bench Strength 2], C.A. No. 1868/2007 (09/02/2010), 2010(2) SCR 545: 2010(4) SCC 476: 2010(2) JT 213: 2010(2) SCALE 289(2): 2010(1) SLT 759 [P. Sathasivam, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 13-B & 13 — Parallel remedies in respect of same matter at the same time — Impermissibility to avail — Filing of divorce case before family court, Delhi during pendency of divorce case before Gurgaon Court — Justification — Held, such a procedure adopted by petitioner amounts to abuse of process of court.

Manish Goel v. Rohini Goel [Bench Strength 2], SLP (C) No. 2954/2010 (05/02/2010), 2010 AIR(SC) 1099: 2010(2) SCR 414: 2010(4) SCC 393: 2010(3) JT 189: 2010(2) SCALE 332: 2010(2) SLT 291 [Aftab Alam, J.: B.S. Chauhan, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 13-B & 12 — Divorce by mutual consent — Application for waiving required statutory period of six months for filing second petition u/s 13-B(2) — Rejection of — Petition against — Entertainability of — Petitioner unable to advance arguments on the issue as to whether statutory period u/s 13-B(1) could be dispensed with even by High Court in exercise of its writ/appellate jurisdiction — This is not a case where there has been any obstruction to stream of justice or there has been any injustice to parties which is required to be eradicated and this court may grant equitable relief — No question of general public importance raised by parties — No justification to entertain this petition and the same to be dismissed — Constitution of India — Article 142.

HELD: Learned counsel for the petitioner is not able to advance arguments on the issue as to whether, statutory period prescribed under Section 13-B(1) is mandatory or directory and if directory, whether could be dispensed with even by the High Court in exercise of its writ/appellate jurisdiction.

Thus, this is not a case where there has been any obstruction to the stream of justice or there has been injustice to the parties, which is required to be eradicated, and this Court may grant equitable relief. Petition does not raise any question of general public importance. None of contingencies, which may require this Court to exercise its extraordinary jurisdiction under Article 142 of the Constitution, has been brought to our notice in the case at hand.

Thus, in view of the above, we do not find any justification to entertain this petition. It is accordingly dismissed.

Manish Goel v. Rohini Goel [Bench Strength 2], SLP (C) No. 2954/2010 (05/02/2010), 2010 AIR(SC) 1099: 2010(2) SCR 414: 2010(4) SCC 393: 2010(3) JT 189: 2010(2) SCALE 332: 2010(2) SLT 291 [Aftab Alam, J.: B.S. Chauhan, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13-B(2) — Divorce by mutual consent — Statutory period of six months for filing second petition u/s 13-B(2), object of providing — Held, the statutory period of six months for filing the second petition under Section 13-B(2) has been prescribed for providing an opportunity to parties to reconcile and withdraw petition for dissolution of marriage.

Manish Goel v. Rohini Goel [Bench Strength 2], SLP (C) No. 2954/2010 (05/02/2010), 2010 AIR(SC) 1099: 2010(2) SCR 414: 2010(4) SCC 393: 2010(3) JT 189: 2010(2) SCALE 332: 2010(2) SLT 291 [Aftab Alam, J.: B.S. Chauhan, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 13-B & 9 — Transfer petition — Divorce by mutual consent in, grant of, scope — Reference of matter to Lok Adalat conducted by Supreme Court during pendency of transfer petition — Settlement arrived at between parties to file petition for divorce by mutual consent — No chances of reconciliation between them — Dissolution of marriage by mutual consent agreed without any coercion, undue influence or collusion — Held, it is appropriate to accept said application for dissolution of marriage to do complete justice between parties — Transfer petition disposed of accordingly — Civil Procedure Code, 1908 — Section 25 — Constitution of India — Article 142 — Legal Services Authorities Act, 1987 — Section 21.

Sarita Singh v. Rajeshwar Singh [Bench Strength 2], TP (C) No. 20/2005 (20/11/2009), 2009(14) JT 467: 2009(14) SCALE 112: 2009(7) Supreme 422: 2009(8) SLT 316 [R.V. Raveendran, J.: B. Sudershan Reddy, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13-B — Transfer petition — Divorce by mutual consent in, scope — Transfer petition before Supreme Court — Settlement arrived at between parties during pendency of matter — No chance of reconciliation between parties — Therefore, it is proper to entertain their Joint Prayer for divorce by mutual consent waiving period of six months and also for quashing the proceedings initiated by wife — Order accordingly — Civil Procedure Code, 1908 — Section 25.

HELD: It is an agreed position that in terms of the deed of settlement/compromise deed dated 13th June, 2009, the husband has paid a sum of Rs.13,50,000/- to the wife towards full and final settlement by way of permanent alimony/maintenance etc. It is also agreed that the parties have handed over articles mentioned in Schedules I and II attached with Annexure-A.

Keeping in view the fact that there is no chance of reconciliation between the parties and it is not possible for them to live together as husband and wife and also the fact that they have amicably settled all their disputes and are keen to put a quietus to all litigations between them so that they may live peacefully hereafter, we deem it proper to entertain their joint prayer for grant of a decree of divorce by mutual consent and also for quashing the proceedings initiated by the wife.

Accordingly, H.M.A. Petition No. 51 of 2009, pending on the file of the District Judge, Tis Hazari Courts, Delhi is withdrawn to this Court and a decree of divorce by mutual consent is passed in terms of Section 13B of the Act by waiving the requirement of six months period specified in sub-section (2) thereof.

Harpreet Singh Popli v. Manmeet Kaur Popli [Bench Strength 2], TP (Cr) No. 27/2009 (10/11/2009), 2009(14) SCALE 113: 2009(7) Supreme 265: 2009(8) SLT 277: 2009(9) SLT 203 [R.V. Raveendran, J.: G.S. Singhvi, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13-B — Divorce by mutual consent — Grant of, scope — Parties living separately for last more than 4 years and 6 months — No chance of reconciliation between parties — Dissolution of marriage by mutual consent agreed by parties without any coercion or undue influence — It is therefore proper to accept the application — Order accordingly.

Priyanka Singh v. Jayant Singh [Bench Strength 2], TP (C) No. 400/2009 (10/11/2009), 2009(14) SCALE 115: 2009(7) Supreme 264: 2009(8) SLT 276 [R.V. Raveendran, J.: G.S. Singhvi, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 13 & 28 — DNA testing of child on the ground of possibility of re-union of parties — Proper stage for making prayer for, scope — Dismissal of petition — Appeal challenging said dismissal — Prayer for DNA testing of child made by husband cannot be allowed, when such prayer was not made by husband during pendency of divorce proceedings in trial Court — Order allowing application for DNA testing, set aside — Evidence Act, 1872 — Section 45.

HELD: It is an admitted position that during the pendency of the divorce proceedings in trial Court, neither such prayer for performing DNA test to find out the paternity of the child was ever made by the husband/respondent nor any allegation in the plaint was made by him in his pleading. Therefore, it was not open to the High Court at the appellate stage to direct the DNA test to be performed on the child of the wife/appellant.

For the reasons aforesaid, the impugned order is set aside and the application of DNA test to be performed on the child of the wife/appellant is hereby rejected. Considering the facts and circumstances of the case, we request the High Court to dispose of the pending appeal at an early date, preferably within six months from the date of supply of a copy of this order to it.

Ramkanya Bai v. Bharatram [Bench Strength 2], CA No. 7018/2009 (Arising out of SLP (C) No. 27770/2008) (22/10/2009), 2010(1) SCC 85: 2009(13) JT 395: 2009(13) SCALE 400: 2009(7) Supreme 87: 2009(8) SLT 18 [Tarun Chatterjee, J.: R.M. Lodha, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 13 & 28 — DNA testing of child on the ground of possibility of re-union of parties — Rejection of prayer for conducting, when valid — Appeal against dismissal of divorce petition — Prayer for DNA testing of child made by husband cannot be allowed only on ground that there will be a possibility of re-union of parties if such DNA test was made and if it was found from outcome of DNA test that son was born out of wedlock of parties particularly, when husband did not make allegations that child was born as a consequence of illicit relationship with some third person — Order allowing application for DNA testing, set aside — Evidence Act, 1872 — Section 45.

HELD: We are unable to accept the impugned order of the High Court. The High Court was not justified in allowing the application for grant of DNA test of the child only on the ground that there will be a possibility of re-union of the parties if such DNA test was made and if it was found from the outcome of the DNA test that the son was born out of the wedlock of the parties. In the absence of any reason except on the ground that the husband/respondent had made a prestige issue about the paternity of the child, nothing could be found from the impugned order of the High Court which could invite the Court to allow such application.

On a perusal of the application for grant of an order for DNA test of the child, it would also be evident that there was no allegation made by the husband/respondent that as a consequence of illicit relationship with some third person, the child was born to the wife/appellant.

For the reasons aforesaid, the impugned order is set aside and the application of DNA test to be performed on the child of the wife/appellant is hereby rejected. Considering the facts and circumstances of the case, we request the High Court to dispose of the pending appeal at an early date, preferably within six months from the date of supply of a copy of this order to it.

Ramkanya Bai v. Bharatram [Bench Strength 2], CA No. 7018/2009 (Arising out of SLP (C) No. 27770/2008) (22/10/2009), 2010(1) SCC 85: 2009(13) JT 395: 2009(13) SCALE 400: 2009(7) Supreme 87: 2009(8) SLT 18 [Tarun Chatterjee, J.: R.M. Lodha, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13-B — Divorce by mutual consent — Grant of — During the pendency of Criminal appeal, parties decided to put an end to their matrimonial relationship and filed application for seeking mutual divorce — Held, in view of circumstances and settlement between parties with regard to payment of maintenance to wife and minor daughter, parties granted a decree of divorce by mutual consent.

(Para 6)

Dinesh Kumar Srivastav v. Swati Sinha [Bench Strength 2], CrA No. 1922/2009 (Arising out of S.L.P. (Crl.) No. 4317/2007) (19/10/2009), 2011(14) SCC 548 [Dalveer Bhandari, J.: P. Sathasivam, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 13-B & 13 — Remedy under — Availability of, scope — In the instant case, wife has made it very clear that she will not live with the petitioner, but, on the other hand, she is also not agreeable to a mutual divorce — Parties are living separately for more than seven years — As part of agreement between parties husband had transferred valuable property rights in favour of wife and it was after registration of such transfer of property that she withdrew her consent for divorce — In ordinary circumstances, held, petitioner’s remedy would lie in filing a separate petition before Family Court u/s 13 on the grounds available — However, in such circumstances, s.13-B is also applicable — Held, this is a fit case where Supreme Court can exercise the powers vested under Article 142 of Constitution — Stand of wife that she wants to live separately from her husband but is not agreeable to a mutual divorce is not acceptable since living separately is one of the grounds for grant of a mutual divorce — Constitution of India — Article 142.

Sureshta Devi v. Om Prakash, 1991(2) SCC 25, Followed.

HELD: In the present case there are certain admitted facts which attract the provisions of Section 13-B thereof. One of the grounds available under Section 13-B is that the couple have been living separately for one year or more and that they have not been able to live together, which is, in fact, the case as far as the parties to these proceedings are concerned. In this case, the parties are living separately for more than seven years. As part of the agreement between the parties the appellant had transferred valuable property rights in favour of the respondent and it was after registration of such transfer of property that she withdrew her consent for divorce. She will continue to enjoy the property and insists on living separately from the husband.

While, therefore, following the decision in Smt. Sureshta Devi’s case we are of the view that this is a fit case where we may exercise the powers vested in us under Article 142 of the Constitution. The stand of the respondent wife that she wants to live separately from her husband but is not agreeable to a mutual divorce is not acceptable, since living separately is one of the grounds for grant of a mutual divorce and admittedly the parties are living separately for more than seven years.

Anil Kumar Jain v. Maya Jain [Bench Strength 2], C.A. No. 5952/2009 (01/09/2009), 2010 AIR(SC) 229: 2009(14) SCR 90: 2009(10) SCC 415: 2009(14) JT 139: 2009(12) SCALE 115: 2009(8) SLT 204 [Altamas Kabir, J.: Cyriac Joseph, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 13 & 13-B — Conversion of proceeding u/s 13 into one u/s 13-B and passing a decree for mutual divorce without waiting for the statutory period of six months — Power of, proper court for exercising, determination of — Held, although Supreme Court can, in exercise of its extraordinary powers under Article 142 of the Constitution, convert a proceeding u/s 13 of the Hindu Marriage Act, 1955, into one u/s 13-B and pass a decree for mutual divorce, without waiting for the statutory period of six months, none of the other courts can exercise such powers — Constitution of India — Article 142.

Anil Kumar Jain v. Maya Jain [Bench Strength 2], C.A. No. 5952/2009 (01/09/2009), 2010 AIR(SC) 229: 2009(14) SCR 90: 2009(10) SCC 415: 2009(14) JT 139: 2009(12) SCALE 115: 2009(8) SLT 204 [Altamas Kabir, J.: Cyriac Joseph, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13-B — Mutual consent — Divorce on the ground of, pre-requisites for granting, scope — Held, consent given by the parties at the time of filing of joint petition for divorce by mutual consent has to subsist till the second stage when petition comes up for orders and a decree for divorce is finally passed and it is only the Supreme Court, which in exercise of its extraordinary powers under Article 142 of Constitution, can pass orders to do complete justice to the parties — Other courts are not competent to pass a decree for mutual divorce if one of the consenting parties withdraws his/her consent before decree is passed — Constitution of India — Article 142.

Anil Kumar Jain v. Maya Jain [Bench Strength 2], C.A. No. 5952/2009 (01/09/2009), 2010 AIR(SC) 229: 2009(14) SCR 90: 2009(10) SCC 415: 2009(14) JT 139: 2009(12) SCALE 115: 2009(8) SLT 204 [Altamas Kabir, J.: Cyriac Joseph, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 13 & 13-B — Irretrievable break down of marriage — Applicability of doctrine of, scope and determination of proper court for exercising such power — Held, although irretrievable break-down of marriage is not one of the grounds indicated whether u/ss. 13 or 13-B, for grant of divorce, said doctrine can be applied to a proceeding under either of the said two provisions only where the proceedings are before the Supreme Court — In exercise of its extraordinary powers under Article 142 of Constitution Supreme Court can grant relief to the parties without even waiting for the statutory period of six months stipulated in Section 13-B — Doctrine of irretrievable break-down of marriage is not available even to the High Courts which do not have powers similar to those exercised by Supreme Court under Article 142 of the Constitution — Neither civil courts nor even High Courts can, therefore, pass orders before the periods prescribed under relevant provision of Act or on grounds not provided for in Section 13 and 13-B — Constitution of India — Article 142 — Doctrines — Doctrine of irretrievable break down of marriage — Applicability of, scope and determination of proper court for exercising such power.

Anil Kumar Jain v. Maya Jain [Bench Strength 2], C.A. No. 5952/2009 (01/09/2009), 2010 AIR(SC) 229: 2009(14) SCR 90: 2009(10) SCC 415: 2009(14) JT 139: 2009(12) SCALE 115: 2009(8) SLT 204 [Altamas Kabir, J.: Cyriac Joseph, J.] <<LAWPACK SUPREME COURT>>
Civil Procedure Code, 1908 — Section 151 — Inherent powers — Scope, medical examination of parties, permissibility — Direction sought by husband from Family Court for subjecting wife to medical examination — Application for said purpose, cannot be rejected merely on ground that Court has no power to issue said direction under Hindu Marriage Act or any other law governing field — Absence of powers would not preclude Court from issuing direction sought by husband particularly, when such direction can be issued by invoking inherent powers u/s 151 — Family Courts Act, 1984 — Sections 7 & 10 — Hindu Marriage Act, 1955.

HELD: In our view, the High Court as well as the Family Court was not justified in rejecting the application for medical examination of the wife-respondent. It is difficult to conceive that the Family Court cannot be conferred with jurisdiction to pass an order for medical examination in an appropriate case because when such report is received, that would facilitate the court in giving a positive conclusion on the mental condition of the wife-respondent. It is true that the Hindu Marriage Act or any other law governing the field does not contain any express provision empowering the court to issue direction upon a party in a matrimonial proceeding to compel him to submit herself/himself to a medical examination. But, in our view, it does not preclude the court from passing such an order. The court is always empowered to satisfy itself as to whether a party before it suffers from mental illness or not either for the purpose of taking evidence on the ground for which the matrimonial proceeding was started. It is well settled that the primary duty of the court is to see that the truth comes out. Therefore, although the medical examination for a party is not provided in the Act, even then, the court has complete inherent power in an appropriate case under Section 151 of the Code of Civil Procedure to pass all orders for doing complete justice to the parties to the suit.

Lalit Kishore v. Meeru Sharma [Bench Strength 2], CA No. 5077/2009 (Arising out of S.L.P. (C) No.680/2009) (04/08/2009), 2010 AIR(SC) 1240: 2009(9) SCC 433: 2009(10) SCALE 619: 2009(5) Supreme 788: 2009(6) SLT 315 [Tarun Chatterjee, J.: R.M. Lodha, J.] <<LAWPACK SUPREME COURT>>
Civil Procedure Code, 1908 — Section 151 — Mental illness — Determination of, issuance of directions by court against parties subjecting them to medical examination, permissibility — Powers in this respect are not available to Courts under Hindu Marriage Act or any other law governing field — However, it does not preclude the court from passing such an order — Court is always empowered to satisfy itself as to whether a party before it suffers from mental illness or not either for the purpose of taking evidence on the ground for which the matrimonial proceeding was started — Hindu Law — Matrimonial disputes — Mental illness — Issuance of directions against parties subjecting them to medical examination — Family Courts Act, 1984 — Sections 7 & 10 — Hindu Marriage Act, 1955.

Lalit Kishore v. Meeru Sharma [Bench Strength 2], CA No. 5077/2009 (Arising out of S.L.P. (C) No.680/2009) (04/08/2009), 2010 AIR(SC) 1240: 2009(9) SCC 433: 2009(10) SCALE 619: 2009(5) Supreme 788: 2009(6) SLT 315 [Tarun Chatterjee, J.: R.M. Lodha, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 5 & 7 — Validity of marriage — Long cohabitation and acceptance of man and a woman as husband and wife by society, effect of — A long cohabitation and acceptance of society of a man and woman as husband and wife goes a long way in establishing a valid marriage.

Challamma v. Tilaga [Bench Strength 2], CA No. 4961 2009 (Arising out of Special Leave Petition (Civil) No. 4457/2006) (31/07/2009), 2009(11) SCR 831: 2009(9) SCC 299: 2009(10) JT 246: 2009(10) SCALE 511: 2009(6) SLT 782 [S.B. Sinha, J.: Cyriac Joseph, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 5 & 7 — Validity of marriage — Presumption regarding, nature of — A presumption of a valid marriage although is a rebuttable one, it is for other party to establish same — Such a presumption can be validly raised having regard to Section 50 of Evidence Act — A heavy burden, thus, lies on person who seeks to prove that no marriage has taken place — Evidence Act, 1872 — Sections 50 & 114.

Challamma v. Tilaga [Bench Strength 2], CA No. 4961 2009 (Arising out of Special Leave Petition (Civil) No. 4457/2006) (31/07/2009), 2009(11) SCR 831: 2009(9) SCC 299: 2009(10) JT 246: 2009(10) SCALE 511: 2009(6) SLT 782 [S.B. Sinha, J.: Cyriac Joseph, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 5 & 7 — Validity of marriage — Determination of, requirement for — Conduct of parties can be said to be of some relevance.

Challamma v. Tilaga [Bench Strength 2], CA No. 4961 2009 (Arising out of Special Leave Petition (Civil) No. 4457/2006) (31/07/2009), 2009(11) SCR 831: 2009(9) SCC 299: 2009(10) JT 246: 2009(10) SCALE 511: 2009(6) SLT 782 [S.B. Sinha, J.: Cyriac Joseph, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 5 & 7 — Validity of marriage — Relevant material for determination of, scope — Succession certificate applied for, by widow and two sons of deceased — Validity of marriage between applicant-widow and deceased disputed by mother of deceased — Material revealed that though deceased showed his status as `single’ while applying for his employment, but all subsequent documents including application for allotment of quarter showed that deceased was married to applicant-widow — Finding by Courts below that there was valid marriage between parties, held to be proper particularly, when a long cohabitation and acceptance of society of a man and woman as husband and wife would go a long way in establishing a valid marriage — In facts of case, mother of deceased rightly held entitled to 1/4th share in estate of deceased — Succession Act, 1925 — Section 372.

HELD: It is true, as has been contended by Mr. Chaturvedi, that the appellant had brought on record certain documents to show that the deceased in the year 1986 while applying for his employment in Mysore Power Corporation showed his status as `single, but a specific finding of fact had been arrived at by the courts below that all the subsequent documents clearly showed that not only the deceased married the first respondent but also he sought for allotment of a quarter as a married person. It is of some significance to notice that one Subba Rao, a personnel officer of the KPC while examining himself as P.W.5 categorically stated that in terms of the rules for allotment of quarter by the company commonly known as `Township Committee Rules’ quarters were allotted to married persons only and clubbed accommodation were provided to the bachelors.

It is beyond any cavil of doubt that in determining the question of valid marriage, the conduct of the deceased in a case of this nature would be of some relevance. If on the aforementioned premise, the learned trial judge has arrived at a finding that the deceased Subramanya had married the first respondent, no exception thereto can be taken. A long cohabitation and acceptance of the society of a man and woman as husband and wife goes a long way in establishing a valid marriage.

In view of the fact that the appellant was one of the heirs and legal representatives of the deceased Subramanya, there cannot be any doubt whatsoever that she had been rightly held to be entitled to 1/4th share in the estate of the deceased Subramanya.

Challamma v. Tilaga [Bench Strength 2], CA No. 4961 2009 (Arising out of Special Leave Petition (Civil) No. 4457/2006) (31/07/2009), 2009(11) SCR 831: 2009(9) SCC 299: 2009(10) JT 246: 2009(10) SCALE 511: 2009(6) SLT 782 [S.B. Sinha, J.: Cyriac Joseph, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 5 & 7 — Validity of marriage — Presumption regarding, permissibility, scope — Presumption of a valid marriage having regard to fact that parties had been residing together for a long time and has been accepted in society as husband and wife, could be drawn — Evidence Act, 1872 — Sections 50 & 114.

Challamma v. Tilaga [Bench Strength 2], CA No. 4961 2009 (Arising out of Special Leave Petition (Civil) No. 4457/2006) (31/07/2009), 2009(11) SCR 831: 2009(9) SCC 299: 2009(10) JT 246: 2009(10) SCALE 511: 2009(6) SLT 782 [S.B. Sinha, J.: Cyriac Joseph, J.] <<LAWPACK SUPREME COURT>>
Succession Act, 1925 — Section 372 — Succession certificate — Claim of, validity of marriage, determination of, power of court — Application seeking succession certificate filed by widow and sons of deceased — Validity of marriage between applicant-widow and deceased disputed by mother of deceased — Analysis of evidence brought on record by parties could be made by Court to determine ingredients of valid marriage — Hindu Marriage Act, 1955 — Sections 5 & 7.

Challamma v. Tilaga [Bench Strength 2], CA No. 4961 2009 (Arising out of Special Leave Petition (Civil) No. 4457/2006) (31/07/2009), 2009(11) SCR 831: 2009(9) SCC 299: 2009(10) JT 246: 2009(10) SCALE 511: 2009(6) SLT 782 [S.B. Sinha, J.: Cyriac Joseph, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 5 — Validity of marriage — Dispute over, nature of — Question as to whether a valid marriage took place between parties can be said to be a question of fact.

Challamma v. Tilaga [Bench Strength 2], CA No. 4961 2009 (Arising out of Special Leave Petition (Civil) No. 4457/2006) (31/07/2009), 2009(11) SCR 831: 2009(9) SCC 299: 2009(10) JT 246: 2009(10) SCALE 511: 2009(6) SLT 782 [S.B. Sinha, J.: Cyriac Joseph, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 5 — Valid marriage — Performance of, proof of, nature of — Discussed — Evidence Act, 1872 — Section 50.

HELD: Before the Court, evidence in different forms may be adduced. Information evidence may be one of them. But the purpose of arriving at a conclusion as to whether a valid marriage has been performed or not, the Court would be entitled to consider the circumstances thereof. There may be a case where witnesses to the marriage are not available. There may also be a case where documentary evidence to prove marriage is not available. It is in the aforementioned situation, the information of those persons who had the occasion to see the conduct of the parties they may testify with regard to the information they form probably the conduct of the persons concerned.

Section 50 of the Evidence Act in that sense is an exception to the other provisions of the Act.

M. Yogendra v. Leelamma N. [Bench Strength 2], C.A. Nos. 4818-4819/2009 (Arising out of SLP(C) No. 5964-5965/2008 (29/07/2009), 2009(12) SCR 38: 2009(15) SCC 184: 2009(15) JT 99: 2009(11) SCALE 166: 2009(6) SLT 744 [S.B. Sinha, J.: Deepak Verma, J.] <<LAWPACK SUPREME COURT>>
Penal Code, 1860 — Section 498-A — Cruelty and harassment — Offence of, sufficient allegations for, scope — Involvement of father-in-law — Allegations that he offered divorce by mutual consent on payment of Rs.25 lacs as compensation held to be not sufficient to make out an offence u/s 498-A — Hindu Marriage Act, 1955 — Section 13-B.

Bhaskar Lal Sharma v. Monica [Bench Strength 2], CrA Nos. 1325-1326/2009 (Arising out of Special Leave Petition (Crl.) Nos. 4125-4126/2008) (27/07/2009), 2009(11) SCR 408: 2009(10) SCC 604: 2009(10) JT 109: 2009(10) SCALE 744: 2009(6) SLT 100: 2010(1) SCC(Cr) 383: 2009(3) JCC 2453 [S.B. Sinha, J.: Cyriac Joseph, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13-B (As inserted by 1976 amendment) — Divorce by mutual consent — Continuing consent, requirement of — Absence of one of the parties — Court cannot presume his/her consent — It is only on the continued mutual consent of the parties that decree for divorce u/s 13B of the Act can be passed by the court — If petition for divorce not formally withdrawn and is kept pending — On the date when the court grants the decree, the court has a statutory obligation to hear the parties to ascertain their consent — Absence of one of the parties for two or three days — Court cannot presume his/her consent.

HELD: It is only on the continued mutual consent of the parties that decree for divorce under Section 13B of the said Act can be passed by the Court. If petition for divorce is not formally withdrawn and is kept pending then on the date when the Court grants the decree, the Court has a statutory obligation to hear the parties to ascertain their consent.

From the absence of one of the parties for two to three days, the Court cannot presume his/her consent as has been done by the learned Family Court Judge in the instant case and especially in its facts situation, discussed above.

It is only the mutual consent of the parties which gives the Court the jurisdiction to pass a decree for divorce under Section 13B. So in cases under Section 13B, mutual consent of the parties is a jurisdictional fact. The Court while passing its decree under Section 13B would be slow and circumspect before it can infer the existence of such jurisdictional fact. The Court has to be satisfied about the existence of mutual consent between the parties on some tangible materials which demonstrably disclose such consent. In the facts of the case, the impugned decree was passed within about three weeks from the expiry of the mandatory period of six months without actually ascertaining the consent of the husband, the respondent herein.

It is nobody’s case that a long period has elapsed between the expiry of period of six months and the date of final decree.

The appeal is disposed of as follows:

(i) On receipt of the copy of this judgment, the Family Court is directed to issue notice to both the parties to appear in the Court on a particular day for taking further steps in the case.

(ii) On that day, the parties are at liberty to engage their own counsel and they may be personally present before the Court and inform the Court as to whether they have consent to the passing of the decree under Section 13B of the Act. If both the parties give their consent for passing of the decree under Section 13B, the Court may pass appropriate orders.

(iii) If any of the parties makes a representation that he/she does not have consent to the passing of the decree, the Court may dispose of the proceedings in the light of the observations made by us.

Smruti Pahariya v. Sanjay Pahariya [Bench Strength 3], CA No. 3465/2009 (@ SPECIAL LEAVE PETITION (C) No. 17402/2008) (11/05/2009), 2009 AIR(SC) 2840: 2009(8) SCR 631: 2009(13) SCC 338: 2009(8) JT 146: 2009(7) SCALE 331: 2009(4) SLT 352 [K.G. Balakrishnan, C.J.: P. Sathasivam, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Family Courts Act, 1984 — Section 9 — Ex parte decree of divorce — Pre-poning of date of final hearing by family court, improper — Date of final hearing was pre-poned on unjust demand of wife — Decree of divorce on mutual consent passed on pre-poned date — Whether family court acted contrary to the avowed object of the family courts Act — Held, yes — Hindu Marriage Act, 1955 — Section 13-B.

HELD: The Family Courts Act, 1984 (hereinafter, Act 66 of 1984) was enacted for adopting a human approach to the settlement of family disputes and achieving socially desirable results. The need for such a law was felt as early as in 1974

Almost 10 years thereafter when the said Act 66 of 1984 was enacted, the words of the Chief Justice were virtually quoted in its statement of objects and reasons. Consistent with the said human approach which is expected to be taken by a Family Court Judge, Section 9 of the Act casts a duty upon the Family Court Judge to assist and persuade the parties to come to a settlement.

In the instant case by responding to the illegal and unjust demand of the wife of pre-poning the proceeding ex-parte and granting an ex-parte decree of divorce, the Family Court did not discharge its statutory obligation under Section 13B (2) of the said Act of hearing the parties. When a proceeding is pre-poned in the absence of a party and a final order is passed immediately, the statutory duty cast on the Court to hear the party, who is absent, is not discharged. Therefore, the Family Court has not at all shown a human and a radically different approach which it is expected to have while dealing with cases of divorce on mutual consent.

Smruti Pahariya v. Sanjay Pahariya [Bench Strength 3], CA No. 3465/2009 (@ SPECIAL LEAVE PETITION (C) No. 17402/2008) (11/05/2009), 2009 AIR(SC) 2840: 2009(8) SCR 631: 2009(13) SCC 338: 2009(8) JT 146: 2009(7) SCALE 331: 2009(4) SLT 352 [K.G. Balakrishnan, C.J.: P. Sathasivam, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Civil Procedure Code, 1908 — Order 5 Rule 20 — Substituted service — Direction for, when improper — Improper service of summons, recourse to be taken in case of, scope — Absence of court’s satisfaction that husband was evading service of summons — Court cannot direct substituted service — Petition for divorce by mutual consent — When matter came up before the court after mandatory period of six months, husband was absent — Court directed service of summons on husband on request of wife — Summons sent by court by courier returned with the remark `not accepting’ — Court’s direction for substituted service — Whether justified? — Held, no — If service is not proper, Court should have directed another service in the normal manner and should not have accepted the plea of appellant-wife for effecting substituted service — Family Courts Act, 1984 — Section 9 — Hindu Marriage Act, 1955 — Section 13-B.

HELD: From the sequence of events, it appears that on 19.11.2007 when the matter came up before the Court, the first day after the mandatory period of six months, the husband was absent. The Court directed service of summons on the husband on the request of the wife. The service return was before the Court on 1.12.2007. Looking at the service return, the Court found that service was not a proper one and the Court was also not satisfied with the endorsement of the courier. Under such circumstances, the Court’s direction on the prayer of the appellant-wife, for substituted service under Order 5 Rule 20 of the Civil Procedure Code is not a proper one. Direction for substituted service under Order 5 Rule 20 can be passed only when Court is satisfied “that there is reason to believe that the defendant is keeping out of the way for the purpose of evading service, or that for any other reason the summons cannot be served in the ordinary way”.

In the facts of this case, the Court did not, and rather could not, have any such satisfaction as the Court found that the service was not proper. If the service is not proper, the Court should have directed another service in the normal manner and should not have accepted the plea of the appellant-wife for effecting substituted service. From wife’s affidavit asking for substituted service, it is clear that the servant of the respondent-husband intimated her advocate’s clerk that respondent- husband was out of Bombay and will be away for about two weeks. However, the appellant-wife asserted that the respondent-husband was in town and was evading. But the Court on seeing the service return did not come to the conclusion that the husband was evading service. Therefore, the Court cannot, in absence of its own satisfaction that the husband is evading service, direct substituted service under Order 5 Rule 20 of the Code.

Smruti Pahariya v. Sanjay Pahariya [Bench Strength 3], CA No. 3465/2009 (@ SPECIAL LEAVE PETITION (C) No. 17402/2008) (11/05/2009), 2009 AIR(SC) 2840: 2009(8) SCR 631: 2009(13) SCC 338: 2009(8) JT 146: 2009(7) SCALE 331: 2009(4) SLT 352 [K.G. Balakrishnan, C.J.: P. Sathasivam, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13-B — Divorce by mutual consent — Grant of decree in absence of husband — Presumption of continuing consent of husband — Family court granted ex-parte decree by pre-poning date of final hearing — Abuse of judicial process — Whether decree passed is liable to be set aside — Held, yes — Whether impugned decree of divorce passed by family court was vitiated by procedural irregularity.

HELD: Under the provisions of Section 13B (2) of the said Act, a minimum period of six month has to elapse before such petition can be taken up for hearing. In the instant case, the said period expired on or about 19.11.2007. In between, two dates were given, namely, 14.6.2007 and 23.8.2007 when the parties were given a chance for counselling but on both the days parties were absent and no counselling took place.

On 19.11.2007, after the mandatory period of six months, the matter came up before the Family Court. It appears from the affidavit filed by the wife in this proceeding before the Bombay High Court that on 3.11.2007, advocate of the parties informed the husband that the matter will be listed on 19.11.2007 and a draft affidavit of deposition was sent to him through E-mail. It is not in dispute that both the parties had the same advocate. It also appears from the affidavit of the wife that on 18.11.2007 the advocate received a text SMS in his mobile from the respondent-husband that he is unable to attend the court on 19.11.2007. Therefore, on 19.11.2007, when the matter appeared for the first time before the Court, the husband was absent and the Family Court asked the advocate to inform the husband of the next date of hearing of the matter, which was fixed on 1.12.2007.

The petition was thus made returnable on 4.12.2007. It appears that the bailiff pasted the summons on 3.12.2007 outside the door of the husband’s residence and the matter came up before the Family Court on 4.12.2007 and on that day the husband was absent. The Family Court adjourned the matter to 10.12.2007. But on 5.12.2007, the wife, filed a petition before the Family Court with a prayer that the hearing of the matter may be pre-poned and be taken up on the very same day i.e. 5.12.2007. On the aforesaid prayer of the wife, though the matter was not on the board, it was taken on the board by the Family Court on 5.12.2007 and the decree of divorce was passed ex-parte on that date itself.

It may be mentioned in this connection that the Family Court pre-poned the hearing on wife’s application and in the absence of the husband. Admittedly, the pre-ponement was done ex-parte.

This Court strongly disapproves of the aforesaid manner in which the proceeding was conducted in this case. A Court’s proceeding must have a sanctity and fairness. It cannot be conducted for the convenience of one party alone. In any event, when the Court fixed the matter for 10.12.2007, it could not pre-pone the matter on an ex-parte prayer made by the appellant-wife on 5.12.2007 and grant the decree of divorce on that day itself by treating the matter on the board in the absence of the husband. This, in our opinion, is a flagrant abuse of the judicial process and on this ground alone, the decree dated 5.12.2007 has to be set aside.

Smruti Pahariya v. Sanjay Pahariya [Bench Strength 3], CA No. 3465/2009 (@ SPECIAL LEAVE PETITION (C) No. 17402/2008) (11/05/2009), 2009 AIR(SC) 2840: 2009(8) SCR 631: 2009(13) SCC 338: 2009(8) JT 146: 2009(7) SCALE 331: 2009(4) SLT 352 [K.G. Balakrishnan, C.J.: P. Sathasivam, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Penal Code, 1860 — Section 498-A — Cruelty — Scope — Husband living with another woman — It may be an act of cruelty on the part of husband for the purpose of judicial separation or dissolution of marriage — However, it would not attract the wrath of section 498-A, IPC — Hindu Marriage Act, 1955 — Section 13(1)(i-a).

U. Suvetha v. State [Bench Strength 2], CrA No. 938/2009 (Arising out of Special Leave Petition (Crl.) No.7163/2008) (06/05/2009), 2009(7) SCR 902: 2009(6) SCC 757: 2009(7) JT 222: 2009(7) SCALE 149: 2009(3) Supreme 797: 2009(4) SLT 462: 2009 CrLJ 2974: 2009(3) SCC(Cr) 36: 2009(2) Crimes 357(SC): 2009(3) JCC 1677 [S.B. Sinha, J.: R.M. Lodha, J.] <<LAWPACK SUPREME COURT>>
Civil Procedure Code, 1908 — Section 25 — Transfer of petition — Petition seeking divorce pending in Court to at place “A” — Sought to be transferred at place “B” — None of parties residing at place “A” — During subsistence of marriage, parties last resided together at place “B” — Parties now stated to be gainfully employed at Bangalore and Chennai respectively — Husband stated to be residing at present in UAE — In facts and circumstances, case pending at place “A” directed to be transferred to Court at place “B” — Hindu Marriage Act, 1955 — Section 13.

HELD: Having heard the learned counsel for the parties and after going through the transfer petition and considering the admitted fact that both the parties to this petition for transfer are not residing at the place of trial i.e. at Allappuzha and both of them are now stated to be gainfully employed at Bangalore and Chennai respectively and we are informed by the learned counsel for the husband that at present, the husband is now staying in United Arab Emirates (UAE) and further considering the fact that during the subsistence of marriage between the parties, they last resided together at Bangalore, we are of the view that the Divorce Petition being No. 793 of 2007 be transferred from the Family Court at Allappuzha to the Family Court at Bangalore.

Accordingly, we dispose of this application by passing the aforesaid order of transfer and direct the Family Court at Allappuzha to transmit the records of this case to the Family Court at Bangalore within a period of two months from the date of supply of a copy of this order to it positively. The Family Court at Bangalore thereafter shall decide the petition within one year from the date of receiving the records of the present case.

Veronica v. V. Philip James [Bench Strength 2], T.P.(C) No. 531/2008 (28/04/2009), 2009(12) SCC 299: 2009(6) SCALE 372 [Tarun Chatterjee, J.: H.L. Dattu, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 13(1)(a) & 13-B — Divorce petition — Transfer of, disposal of matter in terms of settlement — Settlement between parties in Mediation and Conciliation proceedings — Parties to file a joint petition u/s. 13-B of the Act for grant of a decree of divorce on ground of mutual consent — Husband agreed to pay a sum of Rs. 7,00,000/- to the wife towards all her claims — Petition disposed of in terms of settlement arrived at between the parties — Civil Procedure Code, 1908 — Section 24 — Hindu Adoption and Maintenance Act, 1956 — Section 8.

Mitali v. Dababrata [Bench Strength 2], TP (C ) No. 624/2008 (24/04/2009), 2009(6) SCR 1020: 2009(14) SCC 199: 2009(6) SCALE 647 [Arijit Pasayat, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 24 — Interim maintenance — Quantum of, scope — Husband working as a Senior Head of a Steel Company, drawing a salary of Rs 40,000/- per month — He is also entitled to claim perks for education of his children, not denied by husband — Wife employed, drawing a salary of Rs 9,000/- per month — High Court granted an amount of Rs 10,000/- towards litigation expenses and a sum of Rs 2,000/- for maintenance of minor child, daughter living with mother — Whether amount of interim maintenance awarded to wife by the High Court is liable to be enhanced? — Held, no — Husband directed to pay Rs 5000/- per month for minor child.

HELD: 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.

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.

Anu Kaul v. Rajeev Kaul [Bench Strength 2], Civil Appeal Nos. 1789-1790/2009 [Arising out of SLP (C) Nos. 24589-24590/2007] (23/03/2009), 2009(13) SCC 209: 2009(4) JT 197: 2009(4) SCALE 373 [Tarun Chatterjee, J.: H.L. Dattu, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 13 & 13-B — Divorce — Grounds for granting, scope — Cruelty — Marriage took place between parties in February, 1993 — A female child was born in December, 1993 in house of parents of wife — Husband filed divorce petition alleging cruelty on part of wife — Husband’s claim that soon after marriage, wife was behaving in a cruel manner derogatory to husband and the family members and that she avoided staying in the matrimonial home — Finding of fact by courts below that it was husband who treated the wife with cruelty — Husband pleading that marriage between the parties be dissolved on ground of irretrievable breakdown of marriage — Whether ground of irretrievable breakdown of marriage is provided u/s 13 of the Act? — Held, no — Court cannot add such a ground to section 13 of the Act as that would be amending the Act, which is a function of the legislature — Had both parties been willing, court would have granted divorce by mutual consent — Wife was not willing to agree to a divorce.

Vishnu Dutt Sharma v. Manju Sharma [Bench Strength 2], CA No. 1330/2009 (Arising out of SLP(C) No.13166/2007) (27/02/2009), 2009 AIR(SC) 2254: 2009(3) SCR 891: 2009(6) SCC 379: 2009(7) JT 5: 2009(3) SCALE 425: 2009(2) SLT 382 [Markandey Katju, J.: V.S. Sirpurkar, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 13 & 13-B — Divorce — Grounds for granting, scope — Irretrievable breakdown of marriage not a ground provided by section 13 of the Act — Court cannot add such a ground to section 13 as that would be amending the Act, which is function of the legislature.

HELD: On a bare reading of Section 13 of the Act, reproduced above, it is crystal clear that no such ground of irretrievable breakdown of the marriage is provided by the legislature for granting a decree of divorce. This Court cannot add such a ground to Section 13 of the Act as that would be amending the Act, which is a function of the legislature.

Learned counsel for the appellant has stated that this Court in some cases has dissolved a marriage on the ground of irretrievable breakdown. In our opinion, those cases have not taken into consideration the legal position which we have mentioned above, and hence they are not precedents.A mere direction of the Court without considering the legal position is not a precedent. If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for the Parliament to enact or amend the law and not for the Courts. Hence, we do not find force in the submission of the learned counsel for the appellant.

Vishnu Dutt Sharma v. Manju Sharma [Bench Strength 2], CA No. 1330/2009 (Arising out of SLP(C) No.13166/2007) (27/02/2009), 2009 AIR(SC) 2254: 2009(3) SCR 891: 2009(6) SCC 379: 2009(7) JT 5: 2009(3) SCALE 425: 2009(2) SLT 382 [Markandey Katju, J.: V.S. Sirpurkar, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13-B — Divorce by mutual consent in transfer petition — Effect — Settlement of disputes relating to matrimonial discord — Decree of divorce by mutual consent passed — All proceedings between parties pending in different courts shall stand quashed — Constitution of India — Article 142 — Criminal Procedure Code, 1973 — Sections 125, 320 & 406.

HELD: The parties were married on 20.1.2006 at Surajkund, Haryana. It appears that there were some irreconcilable differences between the parties and despite concerted and serious efforts the parties were not able to resolve their disputes and were living separately since 10.10.2007. It appears that after the transfer petitions were filed before this Court, learned counsel for the parties made efforts to bring about a comprehensive settlement of the disputes relating to the matrimonial discord. The Mediation Centre of the Delhi High Court also played a vital role in arriving at a settlement.

The agreed terms of settlement are as follows:

“That the Petitioner agrees and undertakes that he shall pay an amount of Rs.12 lacs (Rupees Twelve Lacs) to Respondent in the form of a Pay Order in favour of Ms. Bhavna Bhatla, at the time of making of statements/grant of divorce/quashing of all the criminal and civil proceedings as a full and final settlement of all her claims. Further more the petitioner agrees and undertakes to hand over all the household articles as mentioned in settlement agreement”.

In view of the factual situation and the settlement arrived at by the parties we direct that a decree of divorce by mutual consent be passed. All the proceedings referred to above which are pending shall stand quashed. We record our appreciation for the effective manner in which the Mediation Centre of Delhi High Court helped the parties to arrive at a settlement.

Aviral Bhatla v. Bhawna Bhatla [Bench Strength 2], TP (Cr.) No. 431/2008 (With T.P. (C) No. 1052/2008) (18/02/2009), 2009(2) SCR 771: 2009(3) SCC 448: 2009(2) JT 600: 2009(3) SCALE 120: 2009(2) Supreme 520: 2009(2) SCC(Cr) 140 [Arijit Pasayat, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 25, 27, 13 & 28 — Permanent alimony and ownership of property — Proper court to adjudicate issues of, determination of, remand of matter to family court, when proper — Matrimonial proceedings between parties — While affirming divorce decree passed by Family Court, High Court framed certain issues and remanded matter for determination of issues of permanent alimony and ownership of flat — Considering issues and jurisdiction of Family Court, Supreme Court refused to interfere with order of High Court — However, payment of certain amount directed in favour of respondent stayed till disposal of proceedings by Family Court after remand — Constitution of India — Article 136.

HELD: The issues that were framed by the impugned Judgment of the High Court are as follows :-

“(a) Whether the original petitioner will in law be entitled to seek declaration as prayed for from Family Court under Family Court’s Act?

(b) If yes, whether in the facts and circumstances of this case, the original petitioner should be given such declaration of Family Court or any other order as Family Court may deem fit?

(c) Whether Family Court can record any finding about flat at Mhatre Bridge and Triveni Nagar in the absence of Narhari alias Kishor, father of the appellant?

(d) Whether in facts and circumstances of the case, the original petitioner proves that flat at Mhatre Bridge and Triveni Nagar were/are owned by the appellant?

(e) What should be the amount of permanent alimony in the facts and circumstances of this case?”

Considering the issues framed by the High Court, we find that the question of jurisdiction of the Family Court has to be taken into consideration by it and that being the position, at this stage, we are not inclined to interfere with the order passed by the High Court. However, we make it clear that the Family Court shall not be influenced by any of the observations made by the High Court in the impugned Judgment while deciding the issues as directed by the High Court and the Family Court shall decide the same in accordance with law including the question whether Section 27 of the Hindu Marriage Act, which deals with disposal of property is applicable in the facts of this case or not.

However, the amount of Rs. 6,00,000/- (Six Lacs), which has been directed to be paid by the High Court to the respondent, is stayed till the disposal of the Family Court proceeding after remand.

Vishwas Narhari Sahastrabudhe v. Varda Vishwas Sahastrabudhe [Bench Strength 2], CA.447/2009 [Arising out of SLP{C] No. 4916/2007] (27/01/2009), 2009(4) SCC 229: 2009(2) JT 96: 2009(2) SCALE 103: 2009(2) SLT 185 [Tarun Chatterjee, J.: H.L. Dattu, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Section 406 — Transfer of case — Settlement of disputes between parties, disposal of matter in terms of, scope — Prosecution under Sections 406, 498A, IPC sought to be transferred from Court of Chittorgarh to Court of Hissar — Settlement arrived at between parties under guidelines of mediators brought on record — In terms of this settlement a decree for divorce directed to be passed — Transfer petition disposed of in terms of settlement — Penal Code, 1860 — Sections 498-A, 406 & 34 — Hindu Marriage Act, 1955 — Section 13-B.

HELD: The following were the terms of settlement:

A. It is agreed between the parties that Shri Rajesh will pay a sum of Rs.8 lakhs by way of a demand draft to Smt. Sangeeta on or before 30th June, 2009.

B. It is further agreed that the articles, as agreed upon by the parties in a separate list, shall be sent by Shri Rajesh to the house of Smt. Sangeeta at Chitorgarh.

C. It is further agreed that the custody of the minor child named Lucky who is now been with Smt. Sangeeta shall remain with her and Shri Rajesh will not claim anything with regard to child’s custody from Smt. Sangeeta or her family hereinafter.

D. It has been agreed that the cases filed by both the parties:-

(i) Criminal Case filed by Smt. Sangeeta under Section 498(A) of Code of Criminal Procedure, 1973 (in short the `Code’) against Rajesh at Chittorgarh;

(ii) Criminal case filed against Shri Rajesh under Section 125 of the Code at Chittorgarh;

(iii) Petition under Section 13 of Hindu Marriage Act for grant of divorce filed by Shri Rajesh against Smt. Sangeeta pending before the Family Court at Chittorgarh;

(iv) Present Transfer Petition No. 71/2007 filed by Shri Rajesh pending before this Court shall be withdrawn/settled.

It is further agreed that in terms of this settlement arrived at hereinabove a decree for divorce may be passed. No further claim of any kind shall be raised against each other or with regard to the minor child Lucky hereinafter.

It is heartening to note that the parties have settled their disputes amicably and have agreed to the aforesaid terms. The transfer petition is disposed of in terms of the settlement. The petition incorporating the terms of settlement shall form a part of the record.

Rajesh v. State of Rajasthan [Bench Strength 2], Criminal Original Jurisdiction Transfer Petition (Crl.) No. 71/2007 (23/01/2009), 2009(1) SCR 530: 2009(4) SCC 199: 2009(1) JT 624: 2009(2) SCALE 15: 2009(1) Supreme 563: 2009 CrLJ 3041: 2009(2) SCC(Cr) 242 [Arijit Pasayat, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 24 & 13 — Interim maintenance — Enhancement of, disposal of petition for, before disposal of suit for divorce, necessity of — When application for enhancement of maintenance of amount to wife/appellant is pending in the Court, it is the duty of court to go into that question and dispose of the said application before disposal of suit for divorce — Original order granting Rs. 4000/- per month as maintenance to wife — After five years, finding the amount not sufficient for her sustenance, wife filed application seeking enhancement of amount — Parties were married in year 1978 — Husband, a scientist earning more than Rs. 40,000/- per months filed a divorce petition — Wife although highly educated, being housewife, having no source of income — By order dated 30.5.2003, her application u/s 24 was partly allowed — Trial Court awarded her a sum of Rs. 4,000/- per month — In revision, High Court directed the lower court to dispose of matter as expeditiously as possible and also directed the wife not to press enhancement in amount of maintenance till disposal of suit — Held, direction given by High Court to wife not sustainabel — It was the duty of Court to go into the question of maintenance and dispose of the said application before disposal of suit for divorce — Wife held entitled to Rs. 7,000/- per month from the date of filing application u/s 24 — Constitution of India — Article 227 — Criminal Procedure Code, 1973 — Section 125 — Hindu Adoption and Maintenance Act, 1956 — Section 18.

HELD: The High Court was not justified in passing the impugned order in the manner it has done. It is not disputed that the application under Section 24 of the Act was partly allowed by the trial Court in the year 2003 i.e. at least five years back. She has already filed an application before the trial Court for enhancement of her maintenance from Rs. 4000/- per month.

In the application for enhancement, the wife has also claimed that since the husband has been earning more than Rs. 80,000/- per month now, the maintenance amount should also be increased. After examining the impugned order of the High Court, we have no other alternative but to say that virtually, the application filed by the wife/appellant for enhancement of the maintenance, which is pending, has been rejected. Furthermore, it is common experience that in spite of directions given by the High Court, for the reasons best known, directions made by it cannot be carried out. In any view of the matter, when the application for enhancement of the maintenance of the amount to the wife/appellant was pending in the Court, it was its duty to go into that question and dispose of the said application before the suit for divorce is disposed of by it. Mr. Ranjan Mukherjee, appearing on behalf of the husband/respondent, submits that if the impugned order of the High Court at this stage is set aside, the disposal of the Matrimonial Suit shall be unnecessarily delayed. Considering this aspect of the matter, we therefore, dispose of this appeal in the following manner:

(1) The wife/appellant shall be entitled to Rs. 7000/- per month instead of Rs. 4000/- per month from the date of filing the application under Section 24 of the Act.

(2) The arrears of maintenance i.e. difference of Rs. 3000/- per month i.e. from Rs. 4000/- to Rs. 7000/- would be paid/deposited by the husband/respondent within three months from this date to the wife/appellant. Till the decision of the suit, the husband shall go on paying/depositing @ Rs. 7000/- per month to the wife/appellant subject to any further order that may be passed in the event, the suit is not decided by the Court within the time specified herein below or increase of the said maintenance of Rs. 7000/- per month is necessitated for any reason whatsoever.

The Trial Court is directed to dispose of the suit positively within a year from the date of supply of a copy of this order to it without granting any unnecessary adjournments to either of the parties.

Sipra Bhattacharyya v. Apares Bhatacharyya [Bench Strength 2], CA No. 307/2009 (19/01/2009), 2009(4) SCC 366: 2009(1) SCALE 662: 2009(2) SLT 589: 2009(2) SCC(Cr) 296 [Tarun Chatterjee, J.: H.L. Dattu, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Article 142 — Discretionary jurisdiction — Exercise of — Divorce by mutual consent — Dispensation of notice period — Matrimonial discord between parties — Amicable settlement arrived at — Said settlement is taken on record — Notice period under section 13-B dispensed with by exercising jurisdiction under Article 142 — Decree of divorce by mutual consent, passed — Various cases initiated by parties against each other quashed — Hindu Marriage Act, 1955 — Section 13- B.

(Paras 7, 8, 9 & 10)

Aparna Mehta Kapur v. State of Uttar Pradesh [Bench Strength 2], Writ Petition (C) No. 256/2008 (16/01/2009), 2009(17) SCC 591 [D.K. Jain, J.: R.M. Lodha, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 5, 2, 7, 8, 11 & 12(1)(c) — Void marriage — Scope — Marriage between a Hindu and a Christian under the Act — Appellant, a Roman Catholic, allegedly married respondent, a Hindu by tying a `Thali’ in temple – – Marriage subsequently got registered — Respondent-wife, within 6 months of marriage, filed petition for a decree of nullity of marriage on ground of misrepresentation — Dismissal of petition by Family Court — On appeal, High Court, however, held that marriage was a nullity, as marriage between a Hindu and a Christian under the Act is void ab initio — Appellant challenged the impugned order contending that Act does not preclude a Hindu from a person of some other faith under the Act — Whether marriage between parties is void ab initio and parties not governed by Hindu Marriage Act? — Held, yes — Preamble itself indicates that Act was enacted to codify law relating to marriage among Hindus — Mere use of word `may’ does not make the provisions of section 5 optional — Since marriage between parties itself a nullity, subsequent marriage of wife with another has no relevance — Appeal dismissed.

HELD: Although, an attempt has been made to establish that the Hindu Marriage Act, 1955, did not prohibit a valid Hindu marriage of a Hindu and another professing a different faith, we are unable to agree with such submission in view of the definite scheme of the 1955 Act.

In order to appreciate the same, we may first refer to the Preamble to the Hindu Marriage Act, 1955, which reads as follows:

“An Act to amend and codify the law relating to marriage among Hindus”. (Emphasis added)

As submitted by Mr. Rao, the Preamble itself indicates that the Act was enacted to codify the law relating to marriage amongst Hindus. Section 2 of the Act which deals with application of the Act, and has been reproduced hereinabove, reinforces the said proposition.

Section 5 of the Act thereafter also makes it clear that a marriage may be solemnized between any two Hindus if the conditions contained in the said Section were fulfilled. The usage of the expression `may’ in the opening line of the Section, in our view, does not make the provision of Section 5 optional. On the other hand, it in positive terms, indicates that a marriage can be solemnized between two Hindus if the conditions indicated were fulfilled. In other words, in the event the conditions remain unfulfilled, a marriage between two Hindus could not be solemnized.

In the facts pleaded by the respondent in her application under Section 12(1)(c) of the 1955 Act and the admission of the appellant that he was and still is a Christian belonging to the Roman Catholic denomination, the marriage solemnized in accordance with Hindu customs was a nullity and its registration under Section 8 of the Act could not and/or did not validate the same. In our view, the High Court rightly allowed the appeal preferred by the respondent herein and the judgment and order of the High Court does not warrant any interference.

The other question raised regarding the subsequent marriage of the respondent is of little relevance once we have held that the marriage purported to have been performed between the appellant and the respondent on 24.10.1996 was a nullity. Hence, no decision is called for in that regard and we also make no observation in respect thereof.

The appeal is accordingly dismissed.

Gullipilli Sowria Raj v. Bandaru Pavani [Bench Strength 2], Civil Appeal No. 2446/2005 (04/12/2008), 2009 AIR(SC) 1085: 2008(17) SCR 35: 2009(1) SCC 714: 2008(16) SCALE 109: 2009(1) Supreme 145: 2009(1) SLT 159 [Altamas Kabir, J.: Aftab Alam, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 8 — Invalid marriage — Registration of, effect of — Registration not validates an invalid marriage.

Gullipilli Sowria Raj v. Bandaru Pavani [Bench Strength 2], Civil Appeal No. 2446/2005 (04/12/2008), 2009 AIR(SC) 1085: 2008(17) SCR 35: 2009(1) SCC 714: 2008(16) SCALE 109: 2009(1) Supreme 145: 2009(1) SLT 159 [Altamas Kabir, J.: Aftab Alam, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 7 & 5 — Interpretation of s.7 — Scope — Conditions of valid marriage — Provisions of section 7 are to be read along with section 5 — A hindu marriage to be solemnized according to ceremonies indicated therein — Interpretation of Statutes — Hindu Marriage Act, 1955, Section 7.

Gullipilli Sowria Raj v. Bandaru Pavani [Bench Strength 2], Civil Appeal No. 2446/2005 (04/12/2008), 2009 AIR(SC) 1085: 2008(17) SCR 35: 2009(1) SCC 714: 2008(16) SCALE 109: 2009(1) Supreme 145: 2009(1) SLT 159 [Altamas Kabir, J.: Aftab Alam, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 5 — Conditions of marriage — Nature of — Use of expression “may” does not make the conditions directory but mandatory — Non-fulfilment of conditions does not permit a marriage under the Act between two Hindus.

Gullipilli Sowria Raj v. Bandaru Pavani [Bench Strength 2], Civil Appeal No. 2446/2005 (04/12/2008), 2009 AIR(SC) 1085: 2008(17) SCR 35: 2009(1) SCC 714: 2008(16) SCALE 109: 2009(1) Supreme 145: 2009(1) SLT 159 [Altamas Kabir, J.: Aftab Alam, J.] <<LAWPACK SUPREME COURT>>
Civil Procedure Code, 1908 — Order 41 Rule 27 — Application for adduction of additional evidence — Directions to be given in, scope — Application for producing additional evidence by appellant-husband in a maintenance petition — Application disposed of by High Court with direction to appellant to pay maintenance to respondent-wife @Rs. 35,000/- per month and clear the arrears within two weeks — Held, High Court not justified while dealing with said application to direct appellant-husband to pay maintenance to respondent-wife — Impugned order unsustainable and to be set aside — Hindu Marriage Act, 1955 — Section 24.

Anupam Gupta v. Sumeet Gupta [Bench Strength 2], Civil Appeal No. 6713/2008 (19/11/2008), 2009 AIR(SC) 918: 2009(1) SCC 254: 2008(15) SCALE 37: 2008(9) SLT 349 [Tarun Chatterjee, J.: V.S. Sirpurkar, J.] <<LAWPACK SUPREME COURT>>
Hindu Minority and Guardianship Act, 1956 — Sections 13, 6 & 8 — Custody of minor child and visitation rights — Grant of, to mother, scope, flouting various order of court by father, effect of — Petition for guardianship by respondent- mother before District Judge — Opposed by appellant-father pleading that respondent had deserted the child — Dismissal of application for interim custody by District Judge — Revision against allowed by High Court granting visitation right to respondent while continuing the interim custody with appellant — Violation of terms of visitation right by appellant — Contempt petition by respondent allowed by District Judge granting custody of child to respondent — Appeal before High Court was dismissed — Justification — Held, by flouting various orders, leading even to initiation of contempt proceedings, the appellant has managed to keep custody of child and thus he cannot be a beneficiary of his own wrong — Plea of appellant that mother does not have the financial affluence as the appellant has for better education of child can be taken care of if father is asked to pay educational expenses of child in addition to maintenance being paid to respondent — However at the same time father need to have of visitation rights of child — Ordered accordingly — Appeal dismissed subject to said modification — Guardians and Wards Act, 1890 — Sections 17 & 7 — Hindu Marriage Act, 1955 — Section 26.

HELD: Merely because there is no defect in his personal care and his attachment for his children–which every normal parent has, he would not be granted custody. Simply because the father loves his children and is not shown to be otherwise undesirable does not necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him. Children are not mere chattels nor are they toys for their parents. Absolute right of parents over the destinies and the lives of their children, in the modern changed social conditions must yield to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them.

When the court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The Court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. The court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. As observed recently in Mousami Moitra Ganguli’s case (supra), the Court has to due weightage to the child’s ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, the moral and ethical values have also to be noted. They are equal if not more important than the others.

The trump card in appellants’ argument is that the child is living since long with the father. The argument is attractive. But the same overlooks a very significant factor. By flouting various orders, leading even to initiation of contempt proceedings, the appellant has managed to keep custody of the child. He can not be a beneficiary of his own wrongs. The High Court has referred to these aspects in detail in the impugned judgments.

The conclusions arrived at and reasons indicated by the High Court to grant custody to the mother does not in our view suffer from any infirmity. It is true that taking the child out of the father’s custody may cause some problems, but that is bound to be neutralized.

Learned counsel for the appellant submitted that the child’s education is of paramount importance and the father is spending good amount of money for providing him excellent education, and the mother does not have the financial affluence as the appellant claims to have. But that can be taken care of if father is asked to pay the educational expenses of the child in addition to the maintenance being paid to the respondent. But at the same time it cannot be overlooked that the father needs to have visitation rights of the child.

In partial modification of the order passed by the District Judge and the High Court, we direct that the visitation rights shall be in the following terms:

(1) During long holidays/vacations covering more than two weeks the child will be allowed to be in the company of the father for a period of seven days.

(2) The period shall be fixed by the father after due intimation to the mother who shall permit the child to go with the father for the aforesaid period.

(3) For twice every month preferably on Saturday or Sunday or a festival day, mother shall allow the child to visit the father from morning to evening. Father shall take the child and leave him back at the mother’s place on such days.

The appeal is dismissed subject to aforesaid modifications. Costs fixed at Rs. 25,000/-.

Gaurav Nagpal v. Sumedha Nagpal [Bench Strength 2], Civil Appeal No. 5099/2007 with Crl.A. No. 491/2006 (19/11/2008), 2009 AIR(SC) 557: 2008(16) SCR 396: 2009(1) SCC 42: 2008(12) JT 115: 2008(14) SCALE 228: 2008(9) SLT 197 [Arijit Pasayat, J.: G.S. Singhvi, J.] <<LAWPACK SUPREME COURT>>
Hindu Minority and Guardianship Act, 1956 — Section 13 — Custody of minor child — Grant of, paramount consideration for — Held, in determining the question as to who should be given custody of a minor child, the paramount consideration is the `welfare of the child’ and not rights of the parents under a statute for the time being in force — Guardians and Wards Act, 1890 — Sections 17 & 7 — Hindu Marriage Act, 1955 — Section 26.

Gaurav Nagpal v. Sumedha Nagpal [Bench Strength 2], Civil Appeal No. 5099/2007 with Crl.A. No. 491/2006 (19/11/2008), 2009 AIR(SC) 557: 2008(16) SCR 396: 2009(1) SCC 42: 2008(12) JT 115: 2008(14) SCALE 228: 2008(9) SLT 197 [Arijit Pasayat, J.: G.S. Singhvi, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(ia) — “Cruelty” — Scope of — Held, the expression “cruelty” includes both (i) physical cruelty and (ii) the mental cruelty.

A. Jayachandra v. Aneel Kaur, (2005) 2 SCC 22, Vinita Saxena v. Pankaj Pandit, (2006) 3 SCC 778, Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, Referred.

Suman Kapur v. Sudhir Kapur [Bench Strength 2], Civil Appeal No. 6582/2008 (07/11/2008), 2009 AIR(SC) 589: 2008(15) SCR 972: 2009(1) SCC 422: 2008(12) JT 70: 2008(14) SCALE 404 [C.K. Thakker, J.: D.K. Jain, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(ia) — Cruelty — Divorce on the ground of, scope and requirement for grant of; divorce on the ground of cruely on part of wife, grant of, when valid — Mens rea is not necessary element in cruelty — Relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment — Continuous cessation of marital intercourse or total indifference on the part of husband towards marital obligations would lead to legal cruelty — Appellant-wife got her pregnancy terminated thrice without knowledge and consent of husband — Wife was very ambitious and career oriented woman and not ready and willing to perform matrimonial obligations and always attempted to stay away from husband by depriving conjugal rights of husband — No infirmity therefore, in passing of decree of divorce on ground of mental cruelty — Decree of divorce justified and need no interference — However, on facts and circumstances of the case, ends of justice to be met if respondent-husband is directed to pay an amount of Rs. 5 lakhs to appellant-wife — Appeal disposed of accordingly.

HELD: Having heard the learned counsel for the parties, on the facts and in the circumstances of the case, in our opinion, it cannot be said that by recording a finding as to mental cruelty by the wife against the husband, the Courts below had committed any illegality.

The High Court, in contrast, referred to the letters written by the respondent-husband. It noted that those letters were full of love and affection. According to the High Court, the husband tried his level best to keep the marriage tie to subsist and made all attempts to persuade the wife explaining and convincing her about the sacred relations of husband and wife, the need and necessity of child in their life and also feelings of his parents who wanted to become grand parents. According to the High Court, however, nothing could persuade the wife who was only after her career. In the light of the above facts and circumstances, the Court held that the trial Court did not commit any error of fact or of law in passing the decree for divorce on the ground of mental cruelty.

We find no infirmity in the approach of the High Court. The finding relating to mental cruelty recorded by the trial Court and confirmed by the High Court suffers from no infirmity and we see no reason to interfere with the said finding.

Since, we are confirming the decree of divorce on the ground of mental cruelty as held by both the courts, i.e. the trial Court as well as by the High Court, no relief can be granted so far as the reversal of decree of the courts below is concerned. At the same time, however, in our opinion, the respondent-husband should not have re-married before the expiry of period stipulated for filling Special Leave to Appeal in this Court by the wife.

But, since the Constitution allows a party to approach this Court within a period of ninety days from an order passed by the High Court, we are of the view that no precipitate action could have been taken by the respondent-husband by creating the situation of fait accompli. Considering the matter in its entirety, though we are neither allowing the appeal nor setting aside the decree of divorce granted by the trial Court and confirmed by the appellate Court in favour of respondent- husband, on the facts and in the circumstances of the case, in our opinion, ends of justice would be met if we direct the respondent-husband to pay an amount of Rs. Five lakhs to the appellant-wife. The said payment will be made on or before 31st December, 2008.

The appeal is disposed of accordingly.

Suman Kapur v. Sudhir Kapur [Bench Strength 2], Civil Appeal No. 6582/2008 (07/11/2008), 2009 AIR(SC) 589: 2008(15) SCR 972: 2009(1) SCC 422: 2008(12) JT 70: 2008(14) SCALE 404 [C.K. Thakker, J.: D.K. Jain, J.] <<LAWPACK SUPREME COURT>>
Special Marriage Act, 1954 — Sections 36 & 37 — “Maintenance” and “Support” — Meaning of — Suit for a decree of divorce — Application for reimbursement of medical expenses during pendency of, maintainable — Held, the two expressions “maintenance” and “support” in 1954 Act are comprehensive and of wide amplitude and they would take within their sweep medical expenses — No infirmity in order of court below in said respect — Appeal therefore, to be dismissed — Criminal Procedure Code, 1973 — Section 125 — Hindu Adoption and Maintenance Act, 1956 — Section 3(b) — Hindu Marriage Act, 1955 — Sections 24 & 25 — Dissolution of Muslim Marriages Act, 1939 — Section 2 — Muslim Women (Protection of Rights on Divorce) Act, 1986 — Sections 3 & 4 — Parsi Marriage and Divorce Act, 1936 — Sections 39 to 40 — Words and Phrases — Maintenance and support — Meaning of.

HELD: The right of the wife to claim interim maintenance has been upheld by the Court and the said decision has attained finality. Apart from the provisions of Hindu Marriage Act, 1955 or Hindu Adoptions and Maintenance Act, 1956, in our considered opinion, the two expressions, `maintenance’ and `support’ in the Act of 1954 are comprehensive and of wide amplitude and they would take within their sweep medical expenses.

On the basis of material on record, the trial Court, after hearing the parties, held that the wife was entitled to medical expenses which order was slightly modified by the High Court upholding her right to get medical reimbursement from her husband. We see no infirmity in the decision or reasoning of the Courts below which calls for our interference in exercise of discretionary and equitable jurisdiction under Article 136 of the Constitution. The appeal in our view, therefore, has no substance and must be dismissed.

For the foregoing reasons, the appeal deserves to be dismissed and is accordingly dismissed with costs.

The learned counsel for the appellant-husband at this stage prayed for instalments or extension of time to make payment as per the order of the High Court. In our opinion, the prayer is reasonable. On the facts and in the circumstances of the case, ends of justice would be met if we grant some time to the appellant-husband to pay the amount. Let the said amount be paid by the husband latest by December 31, 2008.

Ordered accordingly.

Rajesh Burmann v. Mitul Chatterjee (Barman) [Bench Strength 2], Civil Appeal No. 6443/2008 (04/11/2008), 2009 AIR(SC) 651: 2008(15) SCR 264: 2009(1) SCC 398: 2008(12) JT 145: 2008(14) SCALE 372: 2008(8) SLT 688: 2009(1) SCC(Cr) 506 [C.K. Thakker, J.: D.K. Jain, J.] <<LAWPACK SUPREME COURT>>
Civil Procedure Code, 1908 — Sections 23(3), 24 & 25 (As amended by Amendment Act, 1976) — Transfer of case — Powers of High Court/Supreme Court, scope — Transfer of case, appeal or other proceeding pending in a Court subordinate to one High Court to any Court subordinate to another High Court — High Court has no power, authority or jurisdiction in this respect in purported exercise of power u/s 23(3) — It is only Supreme Court which can exercise said authority u/s 25 — Order passed by High Court, therefore, deserves to be set aside and is accordingly set aside — Hindu Marriage Act, 1955 — Sections 13 & 9.

HELD: The wife preferred an application under Section 23 of the Code of Civil Procedure, 1908 (hereinafter referred to as `the Code’) in the High Court of Madhya Pradesh (Indore Bench) for transfer of Ujjain case instituted by the husband being HMA Petition No. 164A of 2004 titled Durgesh Sharma v. Smt. Jayshree Sharma pending in the Family Court at Ujjain to a Court of competent jurisdiction at Malegaon, District Nasik in the State of Maharashtra.

We hold that a High Court has no power, authority or jurisdiction to transfer a case, appeal or other proceeding pending in a Court subordinate to it to any Court subordinate to another High Court in purported exercise of power under sub-section (3) of Section 23 of the Code and it is only this Court which can exercise the said authority under Section 25 of the Code. The order passed by the High Court, therefore, deserves to be set aside and is accordingly set aside.

The language of Section 25 also supports the view which we are inclined to take. Sub-section (1) of Section 25 of the Code enacts that “On the application of a party”, this Court may pass an appropriate order of transfer. Thus, Section 25 is `self- contained Code’ and comprises of substantive as well as procedural law on the point. It allows a party to move the Court by making an application as also it empowers the Court to make an order of transfer.

The matter can be examined from another angle also. Every Court has its own local or territorial limits beyond which it cannot exercise the jurisdiction. So far as this Court is concerned, its jurisdiction is not circumscribed by any territorial limitation and it extends over any person or authority within the territory of India. But, it has no jurisdiction outside the country. So far as a High Court is concerned, its jurisdiction is limited to territory within which it exercises jurisdiction and not beyond it. On that analogy also, a High Court cannot pass an order transferring a case pending in a Court subordinate to it to a Court subordinate to another High Court. It would be inconsistent with the limitation as to territorial jurisdiction of the Court.

This can be compared with exercise of extraordinary jurisdiction by a writ Court under Article 32 or 226 of the Constitution. It is well settled that this Court can exercise power by issuing writs, directions or orders to every authority within the territory of India (as also those functioning outside the country provided such authorities are under the control of Government of India). But the jurisdiction of a High Court has territorial limitations. It can exercise the power “throughout the territories in relation to which it exercises the jurisdiction”, that is to say, the writs issued by a High Court cannot run beyond the territory subject to its jurisdiction and the person or authority to whom the High Court is empowered to issue such writs must be within those territories which clearly implies that they must be amenable to its jurisdiction in accordance with law.

The counsel for the respondent-wife submitted that provisions of Section 23(3) and 25 of the Code should be harmoniously construed. Referring to Priyavari Mehta, and Lakshmi Nagdev, it was submitted that Section 23(3) of the Code did not stand deleted or superseded by Section 25 of the Code. If it is held that for transfer of a case, appeal or other proceeding from a Court subordinate to one High Court to a Court subordinate to another High Court, only this Court can be approached, Section 23(3) of the Code will become nugatory, redundant and futile. No Court of law will interpret one provision of law which will make another provision superfluous or ineffective. It was, therefore, submitted that it has been rightly held that the parties must be left “to choose the forum” either under Section 23(3) or 25 of the Code.

We are unable to uphold the contention. In our considered view, the fallacy in the argument lies in the fact that it presumes and presupposes that Section 23 of the Code is a substantive provision which authorizes a Court mentioned therein to order transfer. It is not so. The said section, as held by us, is merely a procedural one or a machinery provision and provides mode, method or manner in approaching a Court for making an application. It does not empower a Court to effect transfer. Moreover, Section 25 of the Code is a `complete Code’ dealing with substantive as well as procedural law. Section 23, in our opinion, therefore, cannot be interpreted in the manner suggested by the learned counsel appearing for the wife.

After the commencement of the Constitution and establishment of the Supreme Court (this Court), Parliament thought it proper to amend Section 25 of the Code and accordingly, it was substituted by empowering this Court to order transfer from one High Court to another High Court or to one Civil Court in one State to another Civil Court in any other State. It is, no doubt, true that even when Section 25 in the present form was substituted by the Amendment Act of 1976, sub-section (3) of Section 23 of the Code has neither been deleted nor amended. That, however, is not relevant. Since in our considered view, Section 23 is merely a procedural provision, no order of transfer can be made under the said provision. If the case is covered by Section 25 of the Code, it is only that section which will apply for both the purposes, namely, for the purpose of making application and also for the purpose of effecting transfer. On the contrary, reading of sub- section (3) of Section 23 of the Code in the manner suggested by the learned counsel for the respondent-wife would result in allowing inroad and encroachment on the power of this Court not intended by Parliament. Section 23, therefore, in our considered view, must be read subject to Section 25 of the Code. The decisions taking a contrary view do not lay down correct law. We, therefore, overrule them. Even if such power was with a High Court earlier, it stood withdrawn with effect from January 01, 1977 in view of Section 25 of the Code as amended by Code of Civil Procedure (Amendment) Act, 1976.

Durgesh Sharma v. Jayshree [Bench Strength 2], Civil Appeal No. 5857/2008 (26/09/2008), 2009 AIR(SC) 285: 2008(9) SCC 648: 2008(10) JT 614: 2008(13) SCALE 54: 2008(8) SLT 80 [C.K. Thakker, J.: D.K. Jain, J.] <<LAWPACK SUPREME COURT>>
Civil Procedure Code, 1908 — Section 115 — Revision petition — Dismissal of, without going into the merit of the case merely on the ground of non-payment of some of the amount of maintenance, when improper — Petitioner liable to pay to respondent a total sum of Rs. 4,62,000/- @ Rs. 7000/- per month — Direction of High Court to pay maintenance @ Rs. 10,000/- p.m. — Petitioner paid a total of Rs.3,86,000/- @Rs. 7000/- per month and only Rs. 76,000/- was still due — High Court rejected revision only on the ground of non-payment of maintenance @ Rs. 10,000/- per moth without going into merit of the case — Impugned order therefore unjustified and to be set aside — Matter remitted back to High Court to decide on merits — Hindu Marriage Act, 1955 — Sections 24 & 25 — Hindu Adoption and Maintenance Act, 1956 — Sections 18 to 20.

Sanjay Narain v. Monika [Bench Strength 2], Civil Appeal No. 5647/2008 (15/09/2008), 2008(16) SCC 503: 2008(12) SCALE 490: 2008(8) SLT 67 [Tarun Chatterjee, J.: Aftab Alam, J.] <<LAWPACK SUPREME COURT>>
Guardians and Wards Act, 1890 — Sections 7, 17 & 25 — Custody of minor child — Cases relating to, relevant consideration in, scope of; Grant of custody to maternal grand parents instead of to father, when valid — FIR lodged u/s 498-A and 304 by appellant-maternal grand parents of minor against respondent-father of minor — Arrest of respondent-father and custody of minor handed over to appellants — After release on bail, application by respondent seeking custody of minor — Custody of minor granted to respondent without applying relevant and well-settled principle of welfare of child — Wishes of minor not ascertained by court below as to with whom he wanted to stay — Non-consideration of allegation against respondent and pendency of criminal cases u/s 498-A and 304 IPC — Minor child when asked by this court, unequivocally refused to go with and stay with respondent — Therefore custody of minor given to respondent is not proper and to be set aside — Appeal allowed — Hindu Minority and Guardianship Act, 1956 — Sections 6, 8 & 13 — Hindu Marriage Act, 1955 — Section 26 — Penal Code, 1860 — Sections 304 & 498-A.

HELD: The approach of both the Courts is not in accordance with law and consistent with the view taken by this Court in several cases. For instance, both the Courts noted that the appellants (maternal grand parents) are giving `all love and affection’ to Antariksh but that does not mean that Antariksh will not get similar love and affection from his father. It was also observed that appellants no doubt got Antariksh admitted to a well reputed school (St. Xavier’s Collegiate School, Kolkata). But it could not be said that the father will not take personal care of his son. Both the Courts also emphasized that the father has right to get custody of Antariksh and he has not invoked any disqualification provided by 1956 Act.

We are unable to appreciate the approach of the Courts below. This Court in catena of decisions has held that the controlling consideration governing the custody of children is the welfare of children and not the right of their parents.

As already noted, Antariksh was aged six years when the trial Court decided the matter. He was, however, not called by the Court with a view to ascertain his wishes as to with whom he wanted to stay. The reason given by the trial Court was that none of the parties asked for such examination by the Court.

In our considered opinion, the Court was not right. Apart from statutory provision in the form of sub-section (3) of Section 17 of 1890 Act, such examination also helps the Court in performing onerous duty, in exercising discretionary jurisdiction and in deciding delicate issue of custody of a tender-aged child. Moreover, the final decision rests with the Court which is bound to consider all questions and to make an appropriate order keeping in view the welfare of the child. Normally, therefore, in custody cases, wishes of the minor should be ascertained by the Court before deciding as to whom custody should be given.

In the instant case, on overall considerations we are convinced that the Courts below were not right or justified in granting custody of minor Antariksh to Abhijit-respondent herein without applying relevant and well-settled principle of welfare of the child as paramount consideration. The trial Court ought to have ascertained the wishes of Antariksh as to with whom he wanted to stay.

We have called Antariksh in our chamber. To us, he appeared to be quite intelligent. When we asked him whether he wanted to go to his father and to stay with him, he unequivocally refused to go with him or to stay with him. He also stated that he was very happy with his maternal grand-parents and would like to continue to stay with them. We are, therefore, of the considered view that it would not be proper on the facts and in the circumstances to give custody of Antariksh to his father-respondent herein.

For the foregoing reasons, the appeal deserves to be allowed and is accordingly allowed. The application filed by the respondent Abhijit for custody of his son Antariksh is ordered to be dismissed. In view of the facts and circumstances of the case, however, there shall be no order as to costs.

Nil Ratan Kundu v. Abhijit Kundu [Bench Strength 2], Civil Appeal No. 4960/2008 (08/08/2008), 2008(11) SCR 1111: 2008(9) SCC 413: 2008(8) JT 592: 2008(11) SCALE 437: 2008(6) SLT 785 [C.K. Thakker, J.: D.K. Jain, J.] <<LAWPACK SUPREME COURT>>
Guardians and Wards Act, 1890 — Sections 7, 17 & 25 — Custody of minor children — Determination of, welfare of minor children vis-a-vis the father’s fitness in respect of, scope — Held, the father’s fitness cannot override considerations of the welfare of the minor children — In such cases, it is not the `negative test’ that the father is not `unfit’ or disqualified to have custody of his son/daughter is relevant but the `positive test’ that such custody would be in the welfare of the minor which is material and it is on that basis that the Court should exercise the power to grant or refuse custody of minor in favour of father, mother or any other guardian — Hindu Minority and Guardianship Act, 1956 — Section 13 — Hindu Marriage Act, 1955 — Section 26.

Nil Ratan Kundu v. Abhijit Kundu [Bench Strength 2], Civil Appeal No. 4960/2008 (08/08/2008), 2008(11) SCR 1111: 2008(9) SCC 413: 2008(8) JT 592: 2008(11) SCALE 437: 2008(6) SLT 785 [C.K. Thakker, J.: D.K. Jain, J.] <<LAWPACK SUPREME COURT>>
Guardians and Wards Act, 1890 — Sections 7, 17 & 25 — Custody of minor children — Determination of, pendency of criminal case against proposed guardian or passing, effect — Held, the pendency of criminal cases against proposed guardian did not ipso facto disqualify him to act as guardian — However, it is relevant factor and a court of law must address to said circumstances while deciding custody of minor in favour of such person — Hindu Minority and Guardianship Act, 1956 — Section 13 — Hindu Marriage Act, 1955 — Section 26.

HELD: The pendency of the case did not ipso facto disqualify him to act as the guardian of Antariksh.

One of the matters which is required to be considered by a Court of law is the `character’ of the proposed guardian. In Kirit Kumar, this Court, almost in similar circumstances where the father was facing the charge under Section 498-A, IPC, did not grant custody of two minor children to the father and allowed them to remain with maternal uncle. Thus, a complaint against father alleging and attributing death of mother and a case under Section 498-A, IPC is indeed a relevant factor and a Court of law must address to the said circumstance while deciding the custody of the minor in favour of such person. To us, it is no answer to state that in case the father is convicted, it is open to maternal grand parents to make an appropriate application for change of custody. Even at this stage, the said fact ought to have been considered and appropriate order ought to have been passed.

Nil Ratan Kundu v. Abhijit Kundu [Bench Strength 2], Civil Appeal No. 4960/2008 (08/08/2008), 2008(11) SCR 1111: 2008(9) SCC 413: 2008(8) JT 592: 2008(11) SCALE 437: 2008(6) SLT 785 [C.K. Thakker, J.: D.K. Jain, J.] <<LAWPACK SUPREME COURT>>
Guardians and Wards Act, 1890 — Sections 7, 17 & 25 — Custody of minor children — Determination of, requirement for court to ascertain the wishes of minor, scope — Held, if the minor is old enough to form an intelligent preference or judgment, the Court must consider such preference as well, though the final decision should rest with the Court as to what is conducive to the welfare of the minor — Hindu Minority and Guardianship Act, 1956 — Section 13 — Hindu Marriage Act, 1955 — Section 26.

Nil Ratan Kundu v. Abhijit Kundu [Bench Strength 2], Civil Appeal No. 4960/2008 (08/08/2008), 2008(11) SCR 1111: 2008(9) SCC 413: 2008(8) JT 592: 2008(11) SCALE 437: 2008(6) SLT 785 [C.K. Thakker, J.: D.K. Jain, J.] <<LAWPACK SUPREME COURT>>
Guardians and Wards Act, 1890 — Sections 7, 17 & 25 — Custody of minor children — Cases relating to, obligation for court while dealing with, scope — Held, a Court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents — In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child — Hindu Minority and Guardianship Act, 1956 — Section 13 — Hindu Marriage Act, 1955 — Section 26.

HELD: In our judgment, the law relating to custody of a child is fairly well-settled and it is this. In deciding a difficult and complex question as to custody of minor, a Court of law should keep in mind relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a humane problem and is required to be solved with human touch. A Court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the Court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child’s ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the Court must consider such preference as well, though the final decision should rest with the Court as to what is conducive to the welfare of the minor.

Nil Ratan Kundu v. Abhijit Kundu [Bench Strength 2], Civil Appeal No. 4960/2008 (08/08/2008), 2008(11) SCR 1111: 2008(9) SCC 413: 2008(8) JT 592: 2008(11) SCALE 437: 2008(6) SLT 785 [C.K. Thakker, J.: D.K. Jain, J.] <<LAWPACK SUPREME COURT>>
Penal Code, 1860 — Sections 109, 120-B & 494 — Criminal proceeding — Quashing of, when permissible — Complaint u/ss. 15 & 28(4) of Hindu Marriage Act, u/ss 3 & 4 of Dowry Prohibition Act, 1961 and u/ss.109, 120-B & 494 of IPC — Marriage of appellant- husband with appellant no.3 the second wife is protected u/s 15 of H.M. Act as done after dissolution of marriage with first wife and no appeal against said order was filed by first wife thus proceeding u/s 494 IPC not maintainable — Further, dowry demand alleged to be made for the first time in 1994 while dowry torture alleged to be made in 1992 and no explanation for inaction for more than two years — Impleadment in complaint apart from husband, mother of husband, subsequently married wife and some others while no role specifically ascribed to any body except husband — High Court therefore not justified in dismissing petition u/s 482 — Appeal to be allowed and proceedings against appellant to be quashed — Criminal Procedure Code, 1973 — Section 482 — Hindu Marriage Act, 1955 — Sections 15 & 28(4) — Dowry Prohibition Act, 1961 — Sections 3 & 4.

State of Haryana v. Bhajan Lal, 1952 (Supp.) 1 SCC 335, Referred.

Priya Vrat Singh v. Shyam Ji Sahai [Bench Strength 2], Criminal Appeal No. 1230/2008 (05/08/2008), 2008(11) SCR 897: 2008(8) SCC 232: 2008(9) JT 151: 2008(11) SCALE 20: 2008 CrLJ 4367: 2008(3) SCC(Cr) 463: 2008(3) JCC 2069 [Arijit Pasayat, J.: P. Sathasivam, J.] <<LAWPACK SUPREME COURT>>
Contempt of Courts — Breach of undertaking — Divorce, permanent alimony, inability to pay, effect of — Grant of divorce to husband — Undertaking of husband before court for payment of Rs. 8 lakhs towards permanent alimony to wife and daughter — On basis of undertaking, criminal complaints filed by wife, quashed — Despite undertaking, husband not paid a single rupee to wife within specified time — Filing of contempt petition — Application by husband seeking reduction of quantum of maintenance — Inability of husband to pay amount of Rs. 8 lakhs — No ground to modify quantum of maintenance — Since contemnor expressed his inability to pay, not appropriate to proceed with contempt petition — Appeal against grant of divorce decree placed for consideration on merits — Quashed — Criminal complaint, restored to file — Hindu Marriage Act, 1955 — Section 13 — Contempt of Courts Act, 1971 — Sections 2(b) & 12.

HELD: According to the directions given in the aforesaid order, the respondent-husband was required to pay the sum of Rupees five lakhs to the wife by way of permanent alimony and another sum of Rupees three lakhs towards the expenses of the marriage of the second daughter begotten by the respondent from the appellant. Time was also fixed for payment of the aforesaid amount, i.e., Rupees four lakhs by 31st August, 2006, and the balance amount by 30th April, 2007. As the contemnor agreed to pay the permanent alimony for the maintenance of the wife and expenses towards the marriage of the daughter, this Court quashed the prosecution pending against Vijay Kumar, brother of the contemnor, in the criminal case, bearing C.R. No.719 of 2003, under Sections 448 and 379 of the Indian Penal Code, 1860, pending in the court of the IIIrd Metropolitan Magistrate, Vijayawada, within the State of Andhra Pradesh.

In this contempt petition, it has been stated that, in spite of the undertaking given before this Court to pay Rupees eight lakhs to the wife, the contemnor has not paid a single penny. This fact has not been controverted by the contemnor by filing reply to the show cause notice. On the last date, the contemnor who is an officer of the rank of Joint Secretary in the Government of India appeared in person and stated that he is not in a position to pay the amount of maintenance in terms of the undertaking.

When we were going to pass the order, Mr. R.K. Kapoor, learned counsel intervened and made a prayer that he may be allowed to appear in this case as an amicus curiae. His prayer was granted. Today, Mr. R.K. Kapoor made a prayer that the quantum of maintenance may be reduced from Rupees eight lakhs to Rupees two lakhs wherefor an application for modification of order dated 22nd February, 2006 has also been filed. We do not find any ground to modify the quantum of maintenance. However, as the contemnor has expressed his inability to pay the amount of maintenance in terms of the order passed by this Court, we do not consider it appropriate to proceed with the contempt case. At the same time, we consider it just and expedient to recall order dated 22nd February, 2006 passed in Civil Appeal No.6352 of 2004.

Accordingly, I.A. No.2 of 2008 filed by the contemnor for modification of order dated 22nd February, 2006 is rejected. The order passed by this Court on 22nd February, 2006 is hereby recalled. Civil Appeal No.6352 of 2004 shall now be placed for consideration on merits. It is made clear that in view of recall of order dated 22nd February, 2006, the criminal proceedings in C.R. No.719 of 2003 against Vijay Kumar, which was quashed by this Court, shall stand revived and shall proceed in accordance with law. The contempt petition stands, accordingly, disposed of.

Let a copy of this order be sent to the IIIrd Metropolitan Magistrate, Vijayawada, within the State of Andhra Pradesh, for taking further steps in C.R. No.719 of 2003 against Vijay Kumar by fax as well.

Chintala Syamala v. Chintala Venkata Satyanarayana Rao [Bench Strength 2], CP(C) No. 34/2007 in CA No. 6352/2004 (28/07/2008), 2008(10) SCC 711 [B.N. Agrawal, J.: G.S. Singhvi, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Article 142 — Marriage — Dissolution of, power of Supreme Court, scope — Whether this court exercising power u/Article 142 can direct dissolution of marriage broken down irretrievably — Held, yes — Hindu Marriage Act, 1955 — Section 13.

Anjana Kishore vs. Puneet Kishore, (2002) 10 SCC 194, Swati Verma vs. Rajan Verma and ors., (2004) 1 SCC 123, Durga Prasanna Tripathy vs. Arundhati Tripathy, (2005) 7 SCC 352, Referred.

Satish Sitole v. Ganga [Bench Strength 2], CA No. 7567/2004 (10/07/2008), 2008 AIR(SC) 3093: 2008(10) SCR 767: 2008(7) SCC 734: 2008(10) SCALE 54: 2008(6) SLT 289: 2008(3) SCC(Cr) 225: 2008(4) JCC 2530 [Altamas Kabir, J.: Aftab Alam, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(ia) — Cruelty — Continuance of marriage when amounts to cruelty — Held, when a marriage is dead emotionally and practically and there is no chance of its being retrieved, the continuance of such a marriage would amount to cruelty.

Romesh Chander V. Savitri, (1995) 2 SCC 7, Relied.

Satish Sitole v. Ganga [Bench Strength 2], CA No. 7567/2004 (10/07/2008), 2008 AIR(SC) 3093: 2008(10) SCR 767: 2008(7) SCC 734: 2008(10) SCALE 54: 2008(6) SLT 289: 2008(3) SCC(Cr) 225: 2008(4) JCC 2530 [Altamas Kabir, J.: Aftab Alam, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 10, 13, 13-A, 13-B & 25 — Dissolution of marriage — On the ground of irretrievable breakdown of marriage on payment of permanent alimony, when valid — Out of 16 years of marriage, parties had been living separately for 14 years — Despite the attempts at reconciliation the Gordian Knot could not be untied and clearly the marriage has broken down irretrievably — Submission on behalf of both the parties that, it would perhaps be to the best interest of the parties to have the marriage tie dissolved with adequate provision by way of permanent alimony for the respondent — Any further attempt at reconciliation will be futile — In exercise of power under Article 142, direction given for dissolution of marriage subject to payment by appellant of Rs. 2 lacs to respondent-wife as permanent alimony and cost of Rs. 25,000/- — Appeal disposed of accordingly — Constitution of India — Article 142.

HELD: Having dispassionately considered the materials before us and the fact that out of 16 years of marriage the appellant and the respondent had been living separately for 14 years, we are also convinced that any further attempt at reconciliation will be futile and it would be in the interest of both the parties to sever the matrimonial ties since the marriage has broken down irretrievably.

In the said circumstances, following the decision of this Court in Romesh Chander’s case (supra) we also are of the view that since the marriage between the parties is dead for all practical purposes and there is no chance of it being retrieved, the continuance of such marriage would itself amount to cruelty, and, accordingly, in exercise of our 10 powers under Article 142 of the Constitution we direct that the marriage of the appellant and the respondent shall stand dissolved, subject to the appellant paying to the respondent a sum of Rupees Two lakhs by way of permanent alimony. In addition, the appellant shall also pay the costs of this appeal to the respondent, assessed at Rs.25,000/-. The appeal is disposed of accordingly.

Satish Sitole v. Ganga [Bench Strength 2], CA No. 7567/2004 (10/07/2008), 2008 AIR(SC) 3093: 2008(10) SCR 767: 2008(7) SCC 734: 2008(10) SCALE 54: 2008(6) SLT 289: 2008(3) SCC(Cr) 225: 2008(4) JCC 2530 [Altamas Kabir, J.: Aftab Alam, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 8 — Compulsory registration of marriages — Framing of necessary statutes for, direction for — Directions given to States and Union Territories vide orders dated 14.2.2006 and 25.10.2007 for framing necessary rules regarding compulsory registration of marriages — Compliance of — States and Union Territories are directed to give specific details and file affidavits within 4 months.

Seema v. Ashwani Kumar, 2006(2) SCC 578, Referred.

Seema v. Ashwani Kumar [Bench Strength 2], Transfer Petition No. 291/2005 (09/07/2008), 2008(10) SCR 566: 2008(7) JT 535: 2008(9) SCALE 813 [Arijit Pasayat, J.: P. Sathasivam, J.] <<LAWPACK SUPREME COURT>>
Penal Code, 1860 — Sections 498-A & 494 — Dowry demand — Allegation of, long time after customary divorce between parties, when not sustainable; existence of good custom, question of, to be adjudicated in civil proceedings — Appellant, an advocate got married to R1 in the year 1993 — Parties are living separately since 1996 and entered into a customary divorce agreement (registered) whereby appellant received Rs. 25,000/- towards permanent alimony — Respondent no. 1, thereafter got married and has two children — Appellant in the year 2006, filed a complaint against R-1 and his parents — Registration of FIR — Admittedly, parties living separately for more than 10 years — Case under section 498-A not made out that too at such a distant point of time, particularly in view of the bar of limitation — Divorce agreement and receipt of Rs. 25,000/- admitted — Appellant being in legal profession must be aware of its implications — Customary divorce may be legal or illegal — Question in regard to the existence of good custom may have to be gone into in a civil proceeding but criminal prosecution not lie — Mala fide intention of appellant, apparent — Proceedings if allowed to continue, result in abuse of process of court — Exercise of jurisdiction by High Court u/s 482 CrPC, justified — Customary Law — Existence of good custom — Remedy to adjudicate question of, scope — Criminal Procedure Code, 1973 — Sections 482 & 468 — Hindu Marriage Act, 1955 — Section 13(1)(a) — Civil Procedure Code, 1908 — Section 9.

HELD: The customary divorce may be legal or illegal. The fact that such an agreement had been entered into or the appellant had received a sum of Rs.25,000/- by way of permanent alimony, however, stands admitted. The document is a registered one. Appellant being in the legal profession must be held to be aware of the legal implication thereof. If the contents of the said agreement are taken to be correct, indisputably the parties had been living separately for more than ten years. How then a case under Section 498A of the Indian Penal Code can be said to have made out and that too at such a distant point of time is the question, particularly in view of the bar of limitation as contained in Section 468 of the Code of Criminal Procedure. Even otherwise it is unbelievable that the appellant was really harassed by her husband or her in-laws.

We are not oblivious of the fact that there does not exist any period of limitation in respect of an offence under Section 494, as the maximum period of punishment which can be imposed therefor is seven years.

But no allegation has been made out in regard to commission of the said offence so far as the respondent Nos. 2 and 3 are concerned. If even for exercising its jurisdiction under Section 482 of the Code of Criminal Procedure, the High Court has taken into consideration an admitted document, we do not see any legal infirmity therein. If it is a case of customary divorce, the question in regard to the existence of good custom may have to be gone into in a civil proceeding. But a criminal prosecution shall not lie. It was initiated mala fide. Thus, it is allowed to continue, the same shall be an abuse of the process of court.

For the reasons aforementioned, there is no legal infirmity in the impugned judgment. The appeal is dismissed accordingly.

M. Saravana Porselvi v. A.R. Chandrashekar [Bench Strength 2], Criminal Appeal No. 967/2008 (27/05/2008), 2008 AIR(SC) 2462: 2008(9) SCR 937: 2008(11) SCC 520: 2008(7) JT 245: 2008(9) SCALE 411: 2008(5) SLT 565: 2008 CrLJ 3034: 2009(1) SCC(Cr) 404: 2008(2) Crimes 301(SC): 2008(3) JCC 1597 [S.B. Sinha, J.: Lokeshwar Singh Panta, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13 & 13-B — Divorce by mutual consent by converting suit u/s 13 to one u/s 13-B — Grant of, scope — Marriage had broken down irretrievably between parties — No useful purpose in continuing the same — Dissolution of marriage by a decree of divorce by mutual consent u/s 13-B granted.

Swati verma vs. Rajan Verma, 2004(1) SCC 23, Sanghamitra Ghosh vs. Kajal Kumar Ghosh, 2007(2) SCC 220, Followed.

Ashita Pancholia v. Viral M. Pancholia [Bench Strength 2], TP(C) No. 7/2008 (14/05/2008), 2008(15) SCC 114: 2008(13) SCALE 652 [Altamas Kabir, J.: Harjit Singh Bedi, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Sections 397, 401 & 125 — Revisional jurisdiction — Directions in, power to issue, scope — Involvement of issue relating to double marriage by appellant — While exercising revisional jurisdiction it is not open to the High Court to give direction for initiation of departmental proceedings — Such a direction is beyond the scope of revisional jurisdiction under the Code — High Court was clearly in error in directing initiation of departmental proceedings; while dealing with an application for revision in the matter relating to Section 125 — Directions given in this regard both in the original order and the subsequent order stand quashed — Service and Labour Law — Departmental enquiry — Initiation of, no power of High Court to issue direction for, while exercising revisional jurisdiction under CrPC — Penal Code, 1860 — Section 494 — Hindu Marriage Act, 1955 — Section 5(i).

Tarakanath Kar v. Lipika Kar [Bench Strength 2], Criminal Appeal No. 836/2008 (07/05/2008), 2008 AIR(SC) 2310: 2008(7) SCR 964: 2008(5) SCC 387: 2008(7) JT 126: 2008(7) SCALE 246: 2008(5) SLT 297: 2008(2) SCC(Cr) 618: 2008(2) JCC 1414: 2008(5) SLR 1 [Arijit Pasayat, J.: P. Sathasivam, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Sections 406 & 320 — Transfer of case — Petition for, compromise, effect of — Matrimonial disputes — Petition by husband for transfer of case from Delhi to New Mumbai — With the intervention of the Court and during the pendency of these proceedings, parties have compromised their disputes — As per the terms of compromise deed, all the litigations pending in various courts inter-se the parties are to be disposed of — In view of compromise and in exercise of authority under Article 142 of Constitution, Court withdrawn all the litigations (except the matrimonial petition pending in the Court at Panwel Maharashtra) to this Court and pass orders in terms of the compromise thus ending all litigations inter- se — Court also directed the parties to move an application under Section 13-B of the Hindu Marriage Act, 1956 before the appropriate Court which shall take up the matter on a priority basis and dispose of the same in terms of the compromise — Held further that no further claim shall remain to be settled inter-se the parties — Constitution of India — Article 142 — Hindu Marriage Act, 1955 — Section 13-B.

Vimal Kumar v. Ruchi Rastogi [Bench Strength 2], TP(Cr) No. 59/2007 with TP(C) No. 568/2006 (29/04/2008), 2008(12) SCC 62: 2008(4) JT 596: 2008(6) SCALE 584: 2008(4) SLT 753: 2009(1) SCC(Cr) 327 [Tarun Chatterjee, J.: Harjit Singh Bedi, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(ia) & (ib) — Cruelty and desertion — Scope — Finding of family court holding wife guilty of cruelty and desertion after considering evidence in detail, interference by High Court in cryptic order without considering evidence at all, improper — Marriage between appellant and respondent was solemnized on May 27, 1974 as per Hindu rites and ceremonies — For some time the relations between the parties went on well — A female child Seema was born from the said wedlock in 1980 — Allegation of husband that the wife did not co-operate with him and his family members — She started pressurising the husband to live separately from his parents, brothers and sisters — Family Court considered the evidence in detail — It also considered the circumstances why the case of the husband was believed that there was desertion on the part of the wife and that her conduct and behaviour towards the husband, his family members and daughter Seema was cruel — It was a case of physical and mental cruelty — In the pleadings as well as in the evidence, the appellant-husband has given details how the wife behaved with him and his family members; how she deserted him and deprived him of conjugal rights; how ‘fake’ case was filed against him alleging that he wanted to perform second marriage during the subsistence of first marriage; how she left matrimonial home leaving not only the husband and his family members, but her own daughter who was of a tender age of 4-5 years and never took care thereafter; how she did not attend the marriage of Seema, why the evidence of plaintiff was believed and evidence of defendant and her witnesses was not reliable — High Court, on the other hand, did not consider the evidence at all — Since, there is non-consideration of the principles laid down by this Court in various cases, held, only course available to this Court is to remit the matter to the High Court so as to enable it to pass an appropriate order afresh.

HELD: The High Court, on the other hand, did not consider the evidence at all. In fact, the High Court was wrong in observing that there were no specific instances of cruelty or desertion. The High Court also relied upon the defence evidence without considering the fact that the Family Court recorded reasons for not relying upon such evidence.

Unfortunately, in the instant case, the said exercise has not been undertaken by the High Court. So-called conclusions reached by the High Court, therefore, cannot be endorsed and the decree passed in favour of the wife setting aside the decree of divorce in favour of the husband cannot be upheld. The order, therefore, deserves to be quashed and set aside and is hereby set aside.

Since, there is non-consideration of the principles laid down by this Court in various cases, some of them have been referred to hereinabove, the only course available to this Court is to remit the matter to the High Court so as to enable it to pass an appropriate order afresh.

For the foregoing reasons, the appeal is allowed, the judgment and decree passed by the High Court in First Appeal No. 1008 of 1999 is set aside and the matter is remanded to the said Court for fresh disposal in accordance with law. The High Court will decide it as expeditiously as possible.

Before parting with the matter, we may clarify that all the observations made by us in this judgment are only for the limited purpose to show that the High Court was not right in setting aside finding of facts recorded by the Family Court without recording reasons for such reversal and without keeping in view the scope of powers of first appellate Court. But we may not be understood to have expressed any opinion finally one way or the other on the merits of the matter. As and when the matter will be placed before the High Court it will be decided on its own merits without being influenced by any observations made by us.

Jagdish Singh v. Madhuri Devi [Bench Strength 2], Civil Appeal No. 2997/2008 (28/04/2008), 2008 AIR(SC) 2296: 2008(6) SCR 1176: 2008(10) SCC 497: 2008(5) JT 498: 2008(6) SCALE 646: 2008(5) SLT 55 [C.K. Thakker, J.: D.K. Jain, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 28 — Re-appreciation of evidence by High Court as appellate court — Power of, not to be exercised by Supreme Court — Held, when the law has conferred the power of re-appreciation of evidence on facts and on law on the first appellate court, it would not be appropriate for this Court to undertake that task — Constitution of India — Article 136 — Civil Procedure Code, 1908 — Order 41 Rule 33.

HELD: It would be better if we allow the appellate court to exercise the power, discharge the duty and perform the function under the Code. We are, however, conscious and mindful that since about a quarter century, the parties are staying separately. We, therefore, request the High Court to give priority to the case and decide it as expeditiously as possible.

Jagdish Singh v. Madhuri Devi [Bench Strength 2], Civil Appeal No. 2997/2008 (28/04/2008), 2008 AIR(SC) 2296: 2008(6) SCR 1176: 2008(10) SCC 497: 2008(5) JT 498: 2008(6) SCALE 646: 2008(5) SLT 55 [C.K. Thakker, J.: D.K. Jain, J.] <<LAWPACK SUPREME COURT>>
Appeal — Finding of trial court — Reversal of, by appellate court, pre-requisites for — Held, three requisites should normally be present before an appellate court reverses a finding of the trial court; (i) it applies its mind to reasons given by the trial court; (ii) it has no advantage of seeing and hearing the witnesses; and (iii) it records cogent and convincing reasons for disagreeing with the trial court — Civil Procedure Code, 1908 — Sections 96, 97, 100 & Order 41 Rule 33 — Hindu Marriage Act, 1955 — Section 28.

HELD: When the Court of original jurisdiction has considered oral evidence and recorded findings after seeing the demeanour of witnesses and having applied its mind, the appellate court is enjoined to keep that fact in mind. It has to deal with the reasons recorded and conclusions arrived at by the trial court. Thereafter, it is certainly open to the appellate court to come to its own conclusion if it finds that the reasons which weighed with the trial Court or conclusions arrived at were not in consonance with law.

Jagdish Singh v. Madhuri Devi [Bench Strength 2], Civil Appeal No. 2997/2008 (28/04/2008), 2008 AIR(SC) 2296: 2008(6) SCR 1176: 2008(10) SCC 497: 2008(5) JT 498: 2008(6) SCALE 646: 2008(5) SLT 55 [C.K. Thakker, J.: D.K. Jain, J.] <<LAWPACK SUPREME COURT>>
Civil Procedure Code, 1908 — Sections 96, 97 & Order 41 Rule 33 — Appeal to High Court as first appellate court — Power of High Court, scope — Held, High Court while exercising power as first appellate court can enter into not only questions of law but questions of fact as well — Hindu Marriage Act, 1955 — Section 28.

Jagdish Singh v. Madhuri Devi [Bench Strength 2], Civil Appeal No. 2997/2008 (28/04/2008), 2008 AIR(SC) 2296: 2008(6) SCR 1176: 2008(10) SCC 497: 2008(5) JT 498: 2008(6) SCALE 646: 2008(5) SLT 55 [C.K. Thakker, J.: D.K. Jain, J.] <<LAWPACK SUPREME COURT>>
Civil Procedure Code, 1908 — Section 25 — Transfer petition — Settlement between parties after filing, disposal of transfer petition in terms of — Petition filed for transfer of matrimonial case pending in court of civil judge — Pending transfer petition, parties filed a joint petition of compromise, thereby agreeing for passing of a mutual consent divorce decree and for dismissal of wife’s petition for restitution of conjugal rights — In view of the same, mutual consent divorce decree passed and wife’s petition under section 9, dismissed — Transfer petition disposed of accordingly — Hindu Marriage Act, 1955 — Sections 13-B & 9.

Ruchira v. Shaswat Babu [Bench Strength 2], TP(C) No. 655/2007 (16/04/2008), 2008(3) Supreme 70 [B.N. Agrawal, J.: G.S. Singhvi, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 12 — `Voidable marriage — Meaning and scope of — Held, any marriage solemnized before or after the commencement of the Act shall be voidable and may be annulled by a decree of nullity on any of the grounds enumerated in the Section — In the case of a marriage covered by Section 12, the marriage is not void ipso-jure from its inception, but a decree would have to be obtained from the competent court declaring the marriage to be void and so long as such declaration is not made, the marriage will continue to subsist — Words and Phrases — Voidable marriage.

Chand Patel v. Bismillah Begum [Bench Strength 2], Criminal Appeal No.488/2008 (14/03/2008), 2008 AIR(SC) 1915: 2008(5) SCR 1: 2008(4) SCC 774: 2008(3) JT 627: 2008(4) SCALE 7: 2008(2) Supreme 614: 2008(3) SLT 416: 2008(2) SCC(Cr) 490: 2008(2) Crimes 108(SC): 2008(2) JCC 862 [Altamas Kabir, J.: J.M. Panchal, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 11 — “Void marriage” — Meaning and scope — Explained.

HELD: Section 11 of the 1955 Act, defines “Void Marriages” and provides that any marriage solemnized after the commencement of the Act shall be null and void and on a petition presented by either party thereto, be so declared by a decree of nullity if it contravened any one of the conditions specified in clauses (i), (iv) and (v) of Section 5 of the Act. In Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhav, AIR 1988 SC 644, this Court had held that marriages covered by Section 11 are void ipso-jure, that is void from the very inception and have to be ignored as not existing in law at all. A marriage in contravention of Section 11 must be treated as null and void from its very inception.

Chand Patel v. Bismillah Begum [Bench Strength 2], Criminal Appeal No.488/2008 (14/03/2008), 2008 AIR(SC) 1915: 2008(5) SCR 1: 2008(4) SCC 774: 2008(3) JT 627: 2008(4) SCALE 7: 2008(2) Supreme 614: 2008(3) SLT 416: 2008(2) SCC(Cr) 490: 2008(2) Crimes 108(SC): 2008(2) JCC 862 [Altamas Kabir, J.: J.M. Panchal, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 28, 13(1)(i-a), (i-b) & 21-B — Appeal to High Court — Dismissal of, at admission stage without issuing notice and looking into evidence and considering propriety of findings of trial court, improper — Suit by wife for divorce on the grounds of cruelty and desertion — Dismissal of — Appeal to High Court — Dismissal of appeal at admission stage — Challenge to — High Court erred in dismissing first appeal at admission stage, without issuing notice and looking into evidence and considering propriety of findings of trial court — Judgement of High Court set aside — Matter remitted back to High Court for fresh determination — Civil Procedure Code, 1908 — Section 96.

Arundhati v. Iranna @ Veerendra [Bench Strength 2], Civil Appeal No. 1584/2008 (25/02/2008), 2008(3) SCC 181: 2008(3) JT 197: 2008(3) SCALE 264: 2008(2) SLT 678 [Tarun Chatterjee, J.: Harjit Singh Bedi, J.] <<LAWPACK SUPREME COURT>>
Hindu Law — Second marriage — Legitimacy of children born out of, during subsistence of his first marriage, scope — Held, children born out of such second marriage would still be legitimate though the second marriage itself would be void — Hindu Marriage Act, 1955 — Section 5.

Rameshwari Devi v. State of Bihar & Ors., (2000) 2 SCC 431, Referred.

Vidyadhari v. Sukhrana Bai [Bench Strength 2], Civil Appeal No. 575/2008 (22/01/2008), 2008 AIR(SC) 1420: 2008(1) SCR 1030: 2008(2) SCC 238: 2008(1) SCALE 580: 2008(1) Supreme 460: 2008(4) SLT 186 [S.B. Sinha, J.: V.S. Sirpurkar, J.] <<LAWPACK SUPREME COURT>>
Succession Act, 1925 — Section 372 — Succession certificate — Grant of, in favour of first or second wife, scope — Two separate application for grant of, one by first wife and other by second wife — Grant in favour of first wife — Finding of High Court that first was a legally wedded wife of deceased — Question whether there was a customary divorce between first wife and deceased husband — Determination — Held, no pleadings about existence of customs and alleged divorce thereunder — There is neither any divorce deed nor even the assertion on the part of second wife that deceased husband divorced first wife — Therefore there is no customary divorce between first wife and deceased — Finding of High Court justified — Hindu Marriage Act, 1955 — Section 5.

Vidyadhari v. Sukhrana Bai [Bench Strength 2], Civil Appeal No. 575/2008 (22/01/2008), 2008 AIR(SC) 1420: 2008(1) SCR 1030: 2008(2) SCC 238: 2008(1) SCALE 580: 2008(1) Supreme 460: 2008(4) SLT 186 [S.B. Sinha, J.: V.S. Sirpurkar, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 8(2) — Registration of marriages — Direction for, compliance of, steps for — By order dated 14.2.2006, all marriages shall be required to be registered compulsorily — Necessary directions issued for compliance of said order dated 14.2.2006 — Constitution of India — Schedule VII List II Entries 5 & 30.

HELD: The position prevailing in several States and Union Territories as follows:

“Accordingly, we direct the States and the Central Government to take the following steps:

(i) The procedure for registration should be notified by respective States within three months from today. This can be done by amending the existing Rules, if any, or by framing new Rules. However, objections from members of the public shall be invited before bringing the said Rules into force. In this connection, due publicity shall be given by the States and the matter shall be kept open for objections for a period of one month from the date of advertisement inviting objections. On the expiry of the said period, the States shall issue appropriate notification bringing the Rules into force.

(ii) The officer appointed under the said Rules the States shall be duly authorized to register the marriages. The age, marital status (unmarried, divorcee) shall be clearly stated. The consequence of non registration of marriages or for filing false declaration shall also be provided for in the said Rules. Needless to add that the object of the said rules shall be to carry out the directions of this court.

(iii) As and when the central Government enacts a comprehensive statute, the same shall be placed before this court for scrutiny.

(iv) Learned counsel for various States and Union Territories shall ensure that the directions given herein are carried out immediately. ”

Some of the States have made registration of marriages by Hindus to be registered compulsorily but it has not been done in respect of other religions. By order dated 23.7.2007 with reference to the earlier order dated 14.12.2006, it was directed that the marriages are to be made compulsorily registrable in respect of persons who are citizens of India even if they belonged to various religions. Direction was given to file details of compliance.

From the details filed it appears that States of Andhra Pradesh, Bihar, Chhattisgarh, Goa, Himachal Pradesh, Karnataka, Meghalaya, Mizoram, Rajasthan, Sikkim, Tamil Nadu, Tripura have complied with the direction. So far as the state of West Bengal is concerned, it has been submitted by the learned counsel for the State that on 22.12.2006, changes have been made to the West Bengal Special Marriages Rules, 1969, registration of Muslim Marriages & Divorces Registration Rules and Hindu Marriage Act for the purpose of making marriages compulsorily registrable and providing for consequences for not doing it. It has been pointed out that Christian and Parsi marriages are solemnized through compulsory registration according to the applicable statutes. Therefore no separate rules have been framed in this regard. So far as other States and Union Territories are concerned, some of them have not filed any affidavit and in respect of others, the directions have been compiled with respect of Hindus. The directions given by the order dated 24.2.2006 have not been fully complied with. We, therefore, direct that the States and Union Territories who have not acted in line with the directions given on 14.2.2006 shall forthwith do it and in no case later than three months from today. It is ordered accordingly.

Place this matter after four months.

Seema v. Ashwani Kumar [Bench Strength 2], TP(C) No. 291/2005 (25/10/2007), 2007(11) SCR 663: 2008(1) SCC 180: 2007(12) JT 424: 2007(12) SCALE 578: 2007(9) SLT 28 [Arijit Pasayat, J.: P. Sathasivam, J.] <<LAWPACK SUPREME COURT>>
Penal Code, 1860 — Sections 406 & 498-A — FIR — Quashing of, on the ground of filing of divorce petition in civil court, impermissibility — Exercise of inherent jurisdiction — Mere filing of divorce petition in civil court cannot be a ground to quash criminal proceedings — Criminal Law — Remedy — Of criminal proceedings, availability of, despite availing remedy under civil law, scope — Criminal Procedure Code, 1973 — Section 482 — Hindu Marriage Act, 1955 — Section 13.

HELD: Criminal and civil proceedings are separate and independent and the pendency of a civil proceeding cannot bring to an end a criminal proceeding even if they arise out of the same set of facts.

Pratibha v. Rameshwari Devi [Bench Strength 2], CrA No. 1242/2007 (17/09/2007), 2007(9) SCR 1038: 2007(12) SCC 369: 2007(11) JT 122: 2007(11) SCALE 174: 2007(6) Supreme 554: 2007(8) SLT 66: 2008 CrLJ 329: 2008(1) SCC(Cr) 399: 2007(4) Crimes 76(SC): 2007(4) JCC 2769 [A.K. Mathur, J.: Tarun Chatterjee, J.] <<LAWPACK SUPREME COURT>>
Special Marriage Act, 1954 — Section 27 — Divorce — Grant of, scope, withholding of divorce, when improper — Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down — Court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld — Consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties — Hindu Marriage Act, 1955 — Section 13.

Samar Ghosh v. Jaya Ghosh [Bench Strength 3], Civil Appeal No. 151/2004 (26/03/2007), 2007(4) SCR 428: 2007(4) SCC 511: 2007(5) JT 569: 2007(5) SCALE 1: 2007(3) Supreme 26: 2007(4) SLT 76: 2007(6) SRJ 163: 2007(2) JCC 1028 [B.N. Agrawal, J.: P.P. Naolekar, J.: Dalveer Bhandari, J.] <<LAWPACK SUPREME COURT>>
Special Marriage Act, 1954 — Section 27(1)(d) — Cruelty — Determination of, requirement for, deliberate or wilful ill-treatment not important — 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 — Absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty — Intention is not a necessary element in cruelty — Relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment — Hindu Marriage Act, 1955 — Section 13(1)(ia).

Samar Ghosh v. Jaya Ghosh [Bench Strength 3], Civil Appeal No. 151/2004 (26/03/2007), 2007(4) SCR 428: 2007(4) SCC 511: 2007(5) JT 569: 2007(5) SCALE 1: 2007(3) Supreme 26: 2007(4) SLT 76: 2007(6) SRJ 163: 2007(2) JCC 1028 [B.N. Agrawal, J.: P.P. Naolekar, J.: Dalveer Bhandari, J.] <<LAWPACK SUPREME COURT>>
Special Marriage Act, 1954 — Section 27(1)(d) — Mental or legal cruelty — Establishment of, requirement for — To establish legal cruelty, it is not necessary that physical violence should be used — Continuous ill-treatment, cessation of marital intercourse, studied neglect, indifference on the part of the husband, and an assertion on the part of the husband that the wife is unchaste are all factors which lead to mental or legal cruelty — Hindu Marriage Act, 1955 — Section 13(1)(ia).

Samar Ghosh v. Jaya Ghosh [Bench Strength 3], Civil Appeal No. 151/2004 (26/03/2007), 2007(4) SCR 428: 2007(4) SCC 511: 2007(5) JT 569: 2007(5) SCALE 1: 2007(3) Supreme 26: 2007(4) SLT 76: 2007(6) SRJ 163: 2007(2) JCC 1028 [B.N. Agrawal, J.: P.P. Naolekar, J.: Dalveer Bhandari, J.] <<LAWPACK SUPREME COURT>>
Special Marriage Act, 1954 — Section 27(1)(d) — Mental cruelty — What is — Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair — Marriage becomes a fiction though supported by a legal tie — By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties — In such like situations, it may lead to mental cruelty — Hindu Marriage Act, 1955 — Section 13(1)(ia).

Samar Ghosh v. Jaya Ghosh [Bench Strength 3], Civil Appeal No. 151/2004 (26/03/2007), 2007(4) SCR 428: 2007(4) SCC 511: 2007(5) JT 569: 2007(5) SCALE 1: 2007(3) Supreme 26: 2007(4) SLT 76: 2007(6) SRJ 163: 2007(2) JCC 1028 [B.N. Agrawal, J.: P.P. Naolekar, J.: Dalveer Bhandari, J.] <<LAWPACK SUPREME COURT>>
Special Marriage Act, 1954 — Section 27(1)(d) — Mental cruelty — What is, unilateral decision not to have child, effect — Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty — Hindu Marriage Act, 1955 — Section 13(1)(ia).

Samar Ghosh v. Jaya Ghosh [Bench Strength 3], Civil Appeal No. 151/2004 (26/03/2007), 2007(4) SCR 428: 2007(4) SCC 511: 2007(5) JT 569: 2007(5) SCALE 1: 2007(3) Supreme 26: 2007(4) SLT 76: 2007(6) SRJ 163: 2007(2) JCC 1028 [B.N. Agrawal, J.: P.P. Naolekar, J.: Dalveer Bhandari, J.] <<LAWPACK SUPREME COURT>>
Special Marriage Act, 1954 — Section 27(1)(d) — Mental cruelty — What is, unilateral decision of refusal to have intercourse, effect — Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty — Hindu Marriage Act, 1955 — Section 13(1)(ia).

Samar Ghosh v. Jaya Ghosh [Bench Strength 3], Civil Appeal No. 151/2004 (26/03/2007), 2007(4) SCR 428: 2007(4) SCC 511: 2007(5) JT 569: 2007(5) SCALE 1: 2007(3) Supreme 26: 2007(4) SLT 76: 2007(6) SRJ 163: 2007(2) JCC 1028 [B.N. Agrawal, J.: P.P. Naolekar, J.: Dalveer Bhandari, J.] <<LAWPACK SUPREME COURT>>
Special Marriage Act, 1954 — Section 27(1)(d) — Mental cruelty — What is — Spouse submits himself/herself for an operation of sterilization without the consent or knowledge of other spouse — If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty — Hindu Marriage Act, 1955 — Section 13(1)(ia).

Samar Ghosh v. Jaya Ghosh [Bench Strength 3], Civil Appeal No. 151/2004 (26/03/2007), 2007(4) SCR 428: 2007(4) SCC 511: 2007(5) JT 569: 2007(5) SCALE 1: 2007(3) Supreme 26: 2007(4) SLT 76: 2007(6) SRJ 163: 2007(2) JCC 1028 [B.N. Agrawal, J.: P.P. Naolekar, J.: Dalveer Bhandari, J.] <<LAWPACK SUPREME COURT>>
Special Marriage Act, 1954 — Section 27(1)(d) — Mental cruelty — What is, ill-conduct must be persistent for a fairly lengthy period — Married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty — Ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty — Hindu Marriage Act, 1955 — Section 13(1)(ia).

Samar Ghosh v. Jaya Ghosh [Bench Strength 3], Civil Appeal No. 151/2004 (26/03/2007), 2007(4) SCR 428: 2007(4) SCC 511: 2007(5) JT 569: 2007(5) SCALE 1: 2007(3) Supreme 26: 2007(4) SLT 76: 2007(6) SRJ 163: 2007(2) JCC 1028 [B.N. Agrawal, J.: P.P. Naolekar, J.: Dalveer Bhandari, J.] <<LAWPACK SUPREME COURT>>
Special Marriage Act, 1954 — Section 27(1)(d) — Mental cruelty — What is not — Normal wear and tear of the married life, not ground for divorce — Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty — Hindu Marriage Act, 1955 — Section 13(1)(ia).

Samar Ghosh v. Jaya Ghosh [Bench Strength 3], Civil Appeal No. 151/2004 (26/03/2007), 2007(4) SCR 428: 2007(4) SCC 511: 2007(5) JT 569: 2007(5) SCALE 1: 2007(3) Supreme 26: 2007(4) SLT 76: 2007(6) SRJ 163: 2007(2) JCC 1028 [B.N. Agrawal, J.: P.P. Naolekar, J.: Dalveer Bhandari, J.] <<LAWPACK SUPREME COURT>>
Special Marriage Act, 1954 — Section 27(1)(d) — Mental cruelty — What is not, emotional upset not a mental cruelty — Conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty — Hindu Marriage Act, 1955 — Section 13(1)(ia).

Samar Ghosh v. Jaya Ghosh [Bench Strength 3], Civil Appeal No. 151/2004 (26/03/2007), 2007(4) SCR 428: 2007(4) SCC 511: 2007(5) JT 569: 2007(5) SCALE 1: 2007(3) Supreme 26: 2007(4) SLT 76: 2007(6) SRJ 163: 2007(2) JCC 1028 [B.N. Agrawal, J.: P.P. Naolekar, J.: Dalveer Bhandari, J.] <<LAWPACK SUPREME COURT>>
Special Marriage Act, 1954 — Section 27(1)(d) — Mental cruelty — What is — Departure from the normal standard of conjugal kindness and deriving sadistic pleasure — Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty — Hindu Marriage Act, 1955 — Section 13(1)(ia).

Samar Ghosh v. Jaya Ghosh [Bench Strength 3], Civil Appeal No. 151/2004 (26/03/2007), 2007(4) SCR 428: 2007(4) SCC 511: 2007(5) JT 569: 2007(5) SCALE 1: 2007(3) Supreme 26: 2007(4) SLT 76: 2007(6) SRJ 163: 2007(2) JCC 1028 [B.N. Agrawal, J.: P.P. Naolekar, J.: Dalveer Bhandari, J.] <<LAWPACK SUPREME COURT>>
Special Marriage Act, 1954 — Section 27(1)(d) — Mental cruelty — What is — Conduct and behaviour affecting physical and mental health of the other spouse — Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse — Treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty — Hindu Marriage Act, 1955 — Section 13(1)(ia).

Samar Ghosh v. Jaya Ghosh [Bench Strength 3], Civil Appeal No. 151/2004 (26/03/2007), 2007(4) SCR 428: 2007(4) SCC 511: 2007(5) JT 569: 2007(5) SCALE 1: 2007(3) Supreme 26: 2007(4) SLT 76: 2007(6) SRJ 163: 2007(2) JCC 1028 [B.N. Agrawal, J.: P.P. Naolekar, J.: Dalveer Bhandari, J.] <<LAWPACK SUPREME COURT>>
Special Marriage Act, 1954 — Section 27(1)(d) — Mental cruelty — What is — Abusive and humiliating treatment — Sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse is instance of mental cruelty — Hindu Marriage Act, 1955 — Section 13(1)(ia).

Samar Ghosh v. Jaya Ghosh [Bench Strength 3], Civil Appeal No. 151/2004 (26/03/2007), 2007(4) SCR 428: 2007(4) SCC 511: 2007(5) JT 569: 2007(5) SCALE 1: 2007(3) Supreme 26: 2007(4) SLT 76: 2007(6) SRJ 163: 2007(2) JCC 1028 [B.N. Agrawal, J.: P.P. Naolekar, J.: Dalveer Bhandari, J.] <<LAWPACK SUPREME COURT>>
Special Marriage Act, 1954 — Section 27(1)(d) — Mental cruelty — What is — Mental cruelty is a state of mind — Feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty — Hindu Marriage Act, 1955 — Section 13(1)(ia).

Samar Ghosh v. Jaya Ghosh [Bench Strength 3], Civil Appeal No. 151/2004 (26/03/2007), 2007(4) SCR 428: 2007(4) SCC 511: 2007(5) JT 569: 2007(5) SCALE 1: 2007(3) Supreme 26: 2007(4) SLT 76: 2007(6) SRJ 163: 2007(2) JCC 1028 [B.N. Agrawal, J.: P.P. Naolekar, J.: Dalveer Bhandari, J.] <<LAWPACK SUPREME COURT>>
Special Marriage Act, 1954 — Section 27(1)(d) — Cruelty — What is — Mere coldness or lack of affection cannot amount to cruelty — Frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable only than it become instances of cruelty — Hindu Marriage Act, 1955 — Section 13(1)(ia).

Samar Ghosh v. Jaya Ghosh [Bench Strength 3], Civil Appeal No. 151/2004 (26/03/2007), 2007(4) SCR 428: 2007(4) SCC 511: 2007(5) JT 569: 2007(5) SCALE 1: 2007(3) Supreme 26: 2007(4) SLT 76: 2007(6) SRJ 163: 2007(2) JCC 1028 [B.N. Agrawal, J.: P.P. Naolekar, J.: Dalveer Bhandari, J.] <<LAWPACK SUPREME COURT>>
Special Marriage Act, 1954 — Section 27(1)(d) — Mental cruelty — What is — On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty — Hindu Marriage Act, 1955 — Section 13(1)(ia).

Samar Ghosh v. Jaya Ghosh [Bench Strength 3], Civil Appeal No. 151/2004 (26/03/2007), 2007(4) SCR 428: 2007(4) SCC 511: 2007(5) JT 569: 2007(5) SCALE 1: 2007(3) Supreme 26: 2007(4) SLT 76: 2007(6) SRJ 163: 2007(2) JCC 1028 [B.N. Agrawal, J.: P.P. Naolekar, J.: Dalveer Bhandari, J.] <<LAWPACK SUPREME COURT>>
Special Marriage Act, 1954 — Section 27(1)(d) — Mental cruelty — Divorce on the ground of irretrievable breakdown of marriage, grant of, when valid — Appellant and the respondent were married on 13.12.1984 — Appellant and the respondent both are senior officials of the Indian Administrative Service — Wife/respondent cooking food only for herself and not for the husband would be a clear instance of causing annoyance which may lead to mental cruelty — Respondent’s refusal to cohabit has been proved beyond doubt — Respondent’s total indifference and neglect of the appellant during his illness would certainly lead to great annoyance leading to mental cruelty — Appellant had a heart problem leading to bye-pass surgery, even at that juncture, the respondent did not bother to enquire about his health even on telephone and when she was confronted in the cross-examination, she falsely stated that she did not know about it — Admittedly the appellant and the respondent have been living separately for more than sixteen and half years (since 27.8.1990) — Entire substratum of the marriage has already disappeared — During this long period, the parties did not spend a single minute together — Appellant was not even prepared to speak with the respondent despite request from the Court — In this view of the matter, the parties cannot be compelled to live together — This is a clear case of irretrievable breakdown of marriage — It is impossible to preserve or save the marriage — Any further effort to keep it alive would prove to be totally counter productive — As such judgment of trial court granting the decree of divorce is restored — Hindu Marriage Act, 1955 — Section 13(1)(ia).

N.G. Dastane v. S. Dastane, (1975) 2 SCC 326, Shobha Rani v. Madhukar Reddi, (1988) 1 SCC 105, Rajani v. Subramonian, AIR 1990 Ker. 1, Chetan Dass v. Kamla Devi, (2001) 4 SCC 250, Savitri Pandey v. Prem Chandra Pandey, (2002) 2 SCC 73, Gananath Pattnaik v. State of Orissa, (2002) 2 SCC 619, Parveen Mehta v. Inderjit Mehta, (2002) 5 SCC 706, Followed.

HELD: When we take into consideration aforementioned factors along with an important circumstance that the parties are admittedly living separately for more than sixteen and half years (since 27.8.1990) the irresistible conclusion would be that matrimonial bond has been ruptured beyond repair because of the mental cruelty caused by the respondent.

The High Court in the impugned judgment seriously erred in reversing the judgment of the learned Additional Sessions Judge. The High Court in the impugned judgment ought to have considered the most important and vital circumstance of the case in proper perspective that the parties have been living separately since 27th August, 1990 and thereafter, the parties did not have any interaction with each other. When the appellant was seriously ill and the surgical intervention of bye-pass surgery had to be restored to, even on that occasion, neither the respondent nor her father or any member of her family bothered to enquire about the health of the appellant even on telephone. This instance is clearly illustrative of the fact that now the parties have no emotions, sentiments or feelings for each other at least since 27.8.1990. This is a clear case of irretrievable breakdown of marriage. In our considered view, it is impossible to preserve or save the marriage. Any further effort to keep it alive would prove to be totally counter-productive.

In the backdrop of the spirit of a number of decided cases, the learned Additional District Judge was fully justified in decreeing the appellant’s suit for divorce. In our view, in a case of this nature, no other logical view is possible.

On proper consideration of cumulative facts and circumstances of this case, in our view, the High Court seriously erred in reversing the judgment of the learned Additional District Judge which is based on carefully watching the demeanour of the parties and their respective witnesses and the ratio and spirit of the judgments of this Court and other Courts. The High Court erred in setting aside a well-reasoned judgment of the trial court based on the correct analysis of the concept of mental cruelty. Consequently, the impugned judgment of the High Court is set aside and the judgment of the learned Additional District Judge granting the decree of divorce is restored.

This appeal is accordingly disposed of but, in the facts and circumstances of the case, we direct the parties to bear their own costs.

Samar Ghosh v. Jaya Ghosh [Bench Strength 3], Civil Appeal No. 151/2004 (26/03/2007), 2007(4) SCR 428: 2007(4) SCC 511: 2007(5) JT 569: 2007(5) SCALE 1: 2007(3) Supreme 26: 2007(4) SLT 76: 2007(6) SRJ 163: 2007(2) JCC 1028 [B.N. Agrawal, J.: P.P. Naolekar, J.: Dalveer Bhandari, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 24 — Interim maintenance — Quantum of, fixation of — Interim maintenance fixed by trial court @ Rs. 12000/- per month from date of application alongwith litigation expenses of Rs. 11,000/- — Affirmed by High Court — Appeal against — In view of averments in pleading and annexure and argument advanced by counsel of both sides, no infirmity in the order under challenge — Appeal therefore to be dismissed — Interim order of this court directing appellant to pay a sum of Rs. 8000/- per month to be vacated in view of dismissal of appeal.

Deepak Jain v. Charu Jain [Bench Strength 2], Civil Appeal No. 1404/2007 (14/03/2007), 2007(3) SCR 1039: 2007(10) SCC 229: 2007(4) SCALE 399: 2007(3) Supreme 406: 2007(4) SLT 35: 2007(4) SRJ 537 [AR. Lakshmanan, J.: Altamas Kabir, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 13(1)(ia) & 28 — “Cruelty by wife” — Scope — Husband filed petition for divorce — Wife used to behave cruelly with children and used to threaten husband to falsely implicate him in criminal cases — Ultimately wife murdered their 3 children and attempted to commit suicide — Conviction of wife under section 302 IPC — Wife after pronouncing judgement of conviction threatened to kill the husband — Lodging of false cases by wife — Trial Court rightly granted decree of divorce to husband — No interference warranted — Appeal dismissed.

HELD: The instances of cruelty highlighted by the trial Court and also by the High Court clearly prove that the husband was subjected to mental and physical cruelty. It is not a fact as submitted by learned counsel for the appellant that the conviction in the criminal case was the foundation for the decree. On the contrary, the trial Court clearly mentioned that the aspect was not taken note of as the appeal was pending.

In view of what has been stated above, the inevitable result is dismissal of the appeal which we direct. There will be no order as to costs.

Mayadevi v. Jagdish Prasad [Bench Strength 2], Civil Appeal No. 877/2007 (21/02/2007), 2007 AIR(SC) 1426: 2007(2) SCR 1040: 2007(3) SCC 136: 2007(4) JT 65: 2007(3) SCALE 392: 2007(2) Supreme 498: 2007(2) SLT 639: 2007(2) SCC(Cr) 48 [Arijit Pasayat, J.: Dalveer Bhandari, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(ia) — “Cruelty” — Scope — To constitute cruelty, conduct complained of should be grave and weighty and must be something more than ordinary wear and tear of married life.

Dastane v. Dastane, AIR 1975 SC 1534, Referred.

HELD: 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 Section 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.

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.

The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and as noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hyper-sensitive approach would be counter-productive to the institution of marriage. The Courts do not have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court.

Mayadevi v. Jagdish Prasad [Bench Strength 2], Civil Appeal No. 877/2007 (21/02/2007), 2007 AIR(SC) 1426: 2007(2) SCR 1040: 2007(3) SCC 136: 2007(4) JT 65: 2007(3) SCALE 392: 2007(2) Supreme 498: 2007(2) SLT 639: 2007(2) SCC(Cr) 48 [Arijit Pasayat, J.: Dalveer Bhandari, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(ia) — “Cruelty” — Scope of — Explained.

HELD: 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 mental 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.

Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121, A. Jayachandra v. Aneel Kaur, 2005(2) SCC 22, Referred.

Mayadevi v. Jagdish Prasad [Bench Strength 2], Civil Appeal No. 877/2007 (21/02/2007), 2007 AIR(SC) 1426: 2007(2) SCR 1040: 2007(3) SCC 136: 2007(4) JT 65: 2007(3) SCALE 392: 2007(2) Supreme 498: 2007(2) SLT 639: 2007(2) SCC(Cr) 48 [Arijit Pasayat, J.: Dalveer Bhandari, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(ia) — Cruelty — Proof of — Concept, a proof beyond shadow of doubt, is to be applied to criminal trials but not to civil matters, especially to matrimonial cases — 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 — In this view that one has to consider the evidence in matrimonial disputes.

Mayadevi v. Jagdish Prasad [Bench Strength 2], Civil Appeal No. 877/2007 (21/02/2007), 2007 AIR(SC) 1426: 2007(2) SCR 1040: 2007(3) SCC 136: 2007(4) JT 65: 2007(3) SCALE 392: 2007(2) Supreme 498: 2007(2) SLT 639: 2007(2) SCC(Cr) 48 [Arijit Pasayat, J.: Dalveer Bhandari, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(ia) — Cruelty — What amounts to — Cruelty need not always be physical — Explained.

HELD: The expression “cruelty” has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as wilful 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. Cruelty, as noted above, includes mental cruelty, 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.

Mayadevi v. Jagdish Prasad [Bench Strength 2], Civil Appeal No. 877/2007 (21/02/2007), 2007 AIR(SC) 1426: 2007(2) SCR 1040: 2007(3) SCC 136: 2007(4) JT 65: 2007(3) SCALE 392: 2007(2) Supreme 498: 2007(2) SLT 639: 2007(2) SCC(Cr) 48 [Arijit Pasayat, J.: Dalveer Bhandari, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Article 136 — Equitable relief under — Denial of, when proper — Divorce petition by wife — Direction by High Court to husband who was abroad to appear in view of brining about a settlement between parties — Failure of husband inspite of several adjournment at his instance — Issuance of non-bailable warrant against husband — Appeal by way of special leave against — Plea of husband that sole intention of wife to get him arrested and it was not possible for him to come to India — Inspite of interim stay granted by this court while issuing notice in appeal and said interim relief continues even today, husband is bent upon to disobey and flout the order passed by court which is in consonance with section 23(2) of Hindu Marriage Act, he cannot claim as of right the equitable relief from this court — Hindu Marriage Act, 1955 — Sections 13 & 23.

Jagraj Singh v. Birpal Kaur [Bench Strength 2], Civil Appeal No. 711/2007 (13/02/2007), 2007 AIR(SC) 2083: 2007(2) SCR 496: 2007(2) SCC 564: 2007(3) JT 389: 2007(3) SCALE 150: 2007(2) Supreme 201: 2007(3) SLT 75: 2007(5) SRJ 448: 2007(1) JCC 820 [C.K. Thakker, J.: Lokeshwar Singh Panta, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 23 & 13 — Direction by court to parties to appear for settlement — Sustainability — Divorce petition by wife rejected by trial court — In appeal, High Court in view of bringing about a settlement between parties directed husband to appear who was employed abroad — Failure of husband to appear inspite of several adjournment at his instance — Issuance of non-bailable warrant against husband — Justification — Held, since court has jurisdiction to pass such order, it cannot be said that direction issued by High Court is without authority of law — Further said order is in consonance with section 23(2) — Order passed by High Court justified and deserves no interference — Civil Procedure Code, 1908 — Order 32-A Rule 3.

Jagraj Singh v. Birpal Kaur [Bench Strength 2], Civil Appeal No. 711/2007 (13/02/2007), 2007 AIR(SC) 2083: 2007(2) SCR 496: 2007(2) SCC 564: 2007(3) JT 389: 2007(3) SCALE 150: 2007(2) Supreme 201: 2007(3) SLT 75: 2007(5) SRJ 448: 2007(1) JCC 820 [C.K. Thakker, J.: Lokeshwar Singh Panta, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 23 & 13 — Matrimonial disputes — Duty of court to bring about reconciliation, scope of — By virtue of section 23 where a petition for divorce is filed u/s 13 on certain ground, before proceeding to grant any relief, the court in first instance should make every endeavour to bring about reconciliation between parties.

Jagraj Singh v. Birpal Kaur [Bench Strength 2], Civil Appeal No. 711/2007 (13/02/2007), 2007 AIR(SC) 2083: 2007(2) SCR 496: 2007(2) SCC 564: 2007(3) JT 389: 2007(3) SCALE 150: 2007(2) Supreme 201: 2007(3) SLT 75: 2007(5) SRJ 448: 2007(1) JCC 820 [C.K. Thakker, J.: Lokeshwar Singh Panta, J.] <<LAWPACK SUPREME COURT>>
Penal Code, 1860 — Sections 498-A & 406 — Complaint under — Maintainability of, when application for maintenance also filed by wife, effect — Criminal case instituted by appellant for offence under — Quashed by High Court — Special leave to appeal — Appellant also filed a maintenance petition against husband — Abovesaid criminal case filed not only against her husband but also against her husband’s father, mother, brother, sister etc. — Appellant will not get any benefit by sending her husband or his family members to jail — She is pursuing her maintenance case and if she is so advised also can file a suit for damages — Appeal to be dismissed — Dowry Prohibition Act, 1961 — Section 4 — Constitution of India — Article 136 — Criminal Procedure Code, 1973 — Section 125 — Hindu Marriage Act, 1955 — Section 24.

N. Suriyakala v. A. Mohandoss [Bench Strength 2], Criminal Appeal No. 188/2007 (12/02/2007), 2007(2) SCR 419: 2007(9) SCC 196: 2007(3) JT 266: 2007(3) SCALE 15: 2007(2) Supreme 45: 2007(2) SLT 396: 2007(4) SRJ 296: 2007 CrLJ 1461: 2007(3) SCC(Cr) 115: 2007(1) Crimes 398(SC): 2007(2) JCC 1074 [S.B. Sinha, J.: Markandey Katju, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 25, 13(1)(i-a) & (i-b) — Lump sum amount instead of maintenance to divorced wife and child — Scope and quantum of — Offer made by husband regarding giving of some immovable properties to appellant and her son, not workable as the offered properties are said to be joint family properties and no consent of co-sharers obtained — Respondent, working as a junior engineer in Municipal Corporation — Payment of a lump sum amount of eight lakh rupees by respondent to appellant meets ends of justice — In terms thereof, appeal disposed of — Criminal Procedure Code, 1973 — Section 125.

Sujata Uday Patil v. Uday Madhukar Patil [Bench Strength 2], CA No. 5779/2006 (13/12/2006), 2006(Supp-10) SCR 955: 2006(13) SCC 272: 2006(13) SCALE 412: 2007(1) SLT 47: 2007(2) SRJ 211 [G.P. Mathur, J.: A.K. Mathur, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 28(4) & 13(1)(i-a) & (i-b) — Appeal against divorce by wife after limitation period and second marriage of husband — Effect — Wife treated the husband with cruelty and deserted the husband for a continuous of more than 2 years — District court granted divorce on these findings which were affirmed by High Court — Said findings are based on material on record, hence not liable to be set aside — Moreover, after expiry of period of limitation for filing appeal, husband married again and has a child from second wife — No useful purpose would be served, even if decree for divorce is set aside — Decree of divorce passed by District Court affirmed.

Reynolds Rajamani vs. Union of India, AIR 1982 SC 1261, Referred.

Sujata Uday Patil v. Uday Madhukar Patil [Bench Strength 2], CA No. 5779/2006 (13/12/2006), 2006(Supp-10) SCR 955: 2006(13) SCC 272: 2006(13) SCALE 412: 2007(1) SLT 47: 2007(2) SRJ 211 [G.P. Mathur, J.: A.K. Mathur, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 9, 10, 11, 12, 13, 13-A & 13-B — Matrimonial disputes — Adjudication of, factors to be considered for — Matrimonial disputes have to be decided by courts in pragmatic manner keeping ground realities in view — Courts for this purpose to consider host of factors and most important being whether marriage can be saved and spouses can maintain proper atmosphere for upbringing of their off-spring — Not possible for this purpose to lay down any fixed standard or even guidelines — Court to decide in the fact and circumstances of each case — Hindu Law — Matrimonial disputes — Adjudication of, factors to be considered for.

Sujata Uday Patil v. Uday Madhukar Patil [Bench Strength 2], CA No. 5779/2006 (13/12/2006), 2006(Supp-10) SCR 955: 2006(13) SCC 272: 2006(13) SCALE 412: 2007(1) SLT 47: 2007(2) SRJ 211 [G.P. Mathur, J.: A.K. Mathur, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(ia) — `Cruelty’ — What is — What is cruel treatment to a large extent, a question of fact or a mixed question of law and fact — No dogmatic answer can be given to variety of problems that arise before courts — Law has no standard to measure nature and degree of cruel treatment meted out by the spouse.

HELD: It may consist of a display of temperament, emotion or pervasion whereby one gives vent to his or her feelings, without intending to injure the other. It need not consist of direct action against the other but may be misconduct indirectly affecting the other spouse even though it is not aimed at that spouse. It is necessary to weigh all the incidents and quarrels between the parties keeping in view the impact of the personality and conduct of one spouse upon the mind of the other.

Sujata Uday Patil v. Uday Madhukar Patil [Bench Strength 2], CA No. 5779/2006 (13/12/2006), 2006(Supp-10) SCR 955: 2006(13) SCC 272: 2006(13) SCALE 412: 2007(1) SLT 47: 2007(2) SRJ 211 [G.P. Mathur, J.: A.K. Mathur, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(ia) — Cruelty — Determination of, necessary elements in — Where there is proof of deliberate course of conduct on the part of one, intended to hurt and humiliate the other spouse and conduct persisted, cruelty can be easily inferred — Neither actual nor presumed intention to hurt other spouse, a necessary element in cruelty — Cruelty may be inferred from facts and matrimonial relations of parties and interaction in their daily life.

Sujata Uday Patil v. Uday Madhukar Patil [Bench Strength 2], CA No. 5779/2006 (13/12/2006), 2006(Supp-10) SCR 955: 2006(13) SCC 272: 2006(13) SCALE 412: 2007(1) SLT 47: 2007(2) SRJ 211 [G.P. Mathur, J.: A.K. Mathur, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 13 & 28 — Marriage irretrievably broken down — Dissolution of marriage on the ground of, when valid — Both parties have crossed 49 years — Living separately and working independently since last about 25 years — There being history of litigation with respondent-wife filing criminal case against appellant which could not be substantiated as found by courts — Only child born in wedlock in 1975, already given in marriage — Allegation of remarriage by husband repeatedly made and found baseless by courts — Best remedy is to dissolve marriage — Appeal filed for dissolution of marriage allowed — Decree passed.

HELD: In the instant case the marriage is irretrievably broken down with no possibility of the parties living together again. Both the parties have crossed 49 years and living separately and working independency since 1981. There being a history of litigation with respondent-wife repeatedly filing criminal cases against the appellant which could not be substantiated as found by the Courts. This apart, only child born in the wedlock in 1975 has already been given in marriage. Under such circumstances the High Court was not justified in refusing to exercise its jurisdiction in favour of the appellant. This apart, the wife also has made certain allegations against her husband, that the husband has already remarried and is living with another lady as stated by her in the written statement. The High Court also has not considered the allegations made by the respondent which have been repeatedly made and repeatedly found baseless by the courts.

In our opinion it will not be possible for the parties to live together and therefore there is no purpose in compelling both the parties to live together. Therefore the best course in our opinion is to dissolve the marriage by passing a decree of divorce so that the parties who are litigating since 1981 and have lost valuable part of life can live peacefully in remaining part of their life.

During the last hearing both the husband and wife were present in Court. Husband was ready and willing to pay lumpsum by way of permanent alimony to the wife. The wife was not filling to accept the lumpsum but however expressed her willingness to live with her husband. We are of the opinion that her desire to live with her husband at this stage and at this distance of time is not genuine. Therefore, we are not accepting this suggestion made by the wife and reject the same.

Rishikesh Sharma v. Saroj Sharma [Bench Strength 2], CA No. 5129/2006 (21/11/2006), 2006(Supp-9) SCR 245: 2007(2) SCC 263: 2006(12) SCALE 282: 2006(9) SLT 643: 2006(8) SCJ 746 [AR. Lakshmanan, J.: Tarun Chatterjee, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Article 142 — Divorce by mutual consent — Jurisdiction u/A 142 to grant, when to be exercised — Parties, despite persuasion of court, have not been able to sort out differences — According to parties, their marriage has been irretrievably broken down and reconciliation is out of question — Total disappearance of emotional substratum in marriage — Cases pending between parties directed to be disposed of to ensure peaceful living of parties — Direction given — Petition disposed of — Hindu Marriage Act, 1955 — Section 13-B.

Harpit Singh Anand vs. State of West Bengal, (2004) 10 SCC 505, Kanchan Devi vs. Promod Kumar Mittan, (1996) 8 SCC 90, Ashok Hurra v. Rupa Bipin Zaveri etc., (1997) 4 SCC 226, Swati Verma v. Rajan Verma, (2004) 1 SCC 123, Madhuri Mehta v. Meet Verma, (1997) 11 SCC 81, Anita Sabharwal v. Anil Sabharwal, (1997) 11 SCC 490, Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558, Referred to.

HELD: This Court adjourned the proceedings from time to time to ensure that the parties may reconcile the differences and live together again, but this has not happened. It is indeed the obligation of the Court and all concerned that the marriage status should, as far as possible, as long as possible and whenever possible, be maintained.

In the instant case, we are fully convinced that the marriage between the parties has irretrievably broken down because of incompatibility of temperament. In fact there has been total disappearance of emotional substratum in the marriage. The matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, therefore, the public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto as observed in Naveen Kohli’s case (supra).

In view of peculiar facts and circumstances of this case, we consider it appropriate to exercise the jurisdiction of this Court under Article 142 of the Constitution.

In order to ensure that the parties may live peacefully in future, it has become imperative that all the cases pending between the parties are directed to be disposed of. According to our considered view, unless all the pending cases are disposed of and we put a quietus to litigation between the parties, it is unlikely that they would live happily and peacefully in future. In our view, this will not only help the parties, but it would be conducive in the interest of the minor son of the parties.

On consideration of the totality of the facts and circumstances of the case, we deem it appropriate to pass the order in the following terms:

a) The parties are directed to strictly adhere to the Terms of Compromise filed before this Court and also the orders and directions passed by this Court;

b) We direct that the cases pending between the parties, as enumerated in the preceding paragraphs, are disposed of in view of the settlement between the parties; and

c) All pending cases arising out of the matrimonial proceedings including the case of restitution of conjugal rights and guardianship case between the parties shall stand disposed of and consigned to the records in the respective courts on being moved by either of the parties by providing a copy of this order, which has settled all those disputes in terms of the settlement.

Sanghamitra Ghosh v. Kajal Kumar Ghosh [Bench Strength 2], TP(C) No. 228/2004 (20/11/2006), 2006(Supp-9) SCR 156: 2007(2) SCC 220: 2006(10) JT 288: 2006(12) SCALE 313: 2006(9) SLT 681: 2007(1) JCC 373 [G.P. Mathur, J.: Dalveer Bhandari, J.] <<LAWPACK SUPREME COURT>>
Civil Procedure Code, 1908 — Section 25 — Transfer of case — Permissibility, matrimonial dispute — Transfer of material case sought from family court, Pune to Family Court at Secunderabad — Petitioner-wife having an infant child unable to travel with said child — Petition u/s 138 N.I. Act also filed by petitioner at Secunderabad — A complaint u/s 200 Cr.P.C. filed by petitioner also pending at Hyderabad — Held, it is fit case for allowing the transfer petition — Order accordingly — Hindu Marriage Act, 1955 — Section 13(1)(ia) — Negotiable Instruments Act, 1881 — Section 138 — Criminal Procedure Code, 1973 — Section 200.

Divya L. Tulsiani v. Naresh Klekhaj Tulsiani [Bench Strength 2], TP(C) No. 388/2005 (13/10/2006), 2006(8) SLT 132 [H.K. Sema, J.: P.K. Balasubramanyan, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 26 & 13-B — Divorce on mutual consent — Marriage irretrievably broken down, relief to wife and daughter living with wife — Petitioner and respondent entered into wedlock on 28.11.1994 and daughter was born on 30.12.1995 — Cracks started appearing in the marital relation and series of litigation has resulted — Respondent stated that he willing to pay a certain sum for the education of the daughter and to meet marriage expenses when she reaches the marriageable age — Petitioner stated that the amount offered is low — Marriage has irretrievably broken down and there would be no point in making an effort to bring about a conciliation between the parties — Court directed that divorce petition shall be treated to be joint petition for divorce on the basis of mutual consent and appropriate decree shall be passed — Petition disposed of with certain directions.

HELD: We have considered the suggestion given by the parties. We direct as follows:-

A sum of rupees five lakhs shall be kept in fixed deposit in a nationalized bank initially for a period of 5 years with monthly interest withdrawal to meet the educational expenses of the child.

A sum of Rs.3,60,000/- will be deposited in the name of the child Anugraha Mahesh represented by the mother guardian Manjula, the petitioner, in a bank account with ABN Amro Bank in a Unit Linked Policy of AVIVA for a period of 12 years. As noted above, it has been indicated in the documents filed by the respondent that after a period of 12 years the assured sum upon maturity would be Rs.8,70,000/- with a three year lock in period.

The respondent shall file an undertaking before the concerned Trial Court that in case there is a shortfall in the assured sum, the respondent shall pay the balance amount to the petitioner. The deposit shall be made within a period of six months. On the deposit being made in the indicated manner the suit for divorce filed by the respondent in the Family Court, Chennai (OP No. 1857 of 2005) shall be treated to be a joint petition for divorce, on the basis of mutual consent and appropriate decree shall be passed. The allegations made in the petition for divorce shall be treated to be inconsequential in view of the fact that divorce shall be granted on mutual consent.

Manjula v. K.R. Mahesh [Bench Strength 2], TP(C) No. 947/2005 (11/07/2006), 2006 AIR(SC) 2750: 2006(Supp-3) SCR 405: 2006(5) SCC 461: 2006(7) JT 220: 2006(7) SCALE 31: 2006(5) Supreme 329: 2006(5) SLT 397: 2006(8) SRJ 270: 2006(7) SCJD 474 [Arijit Pasayat, J.: S.H. Kapadia, J.] <<LAWPACK SUPREME COURT>>
Marriages — Inter cast marriages — Benefit of — Inter-cast marriages are in the national interest resulting destroying the caste system — Hindu Marriage Act, 1955 — Section 5 — Constitution of India — Articles 32, 21, 19(1)(a), 25 & 51-A(e).

HELD: The nation is passing through a crucial transitional period in our history, and this Court cannot remain silent in matters of great public concern, such as the present one.

The caste system is a curse on the nation and the sooner it is destroyed the better. In fact, it is dividing the nation at a time when we have to be united to face the challenges before the nation unitedly. Hence, inter-caste marriages are in fact in the national interest as they will result in destroying the caste system. However, disturbing news are coming from several parts of the country that young men and women who undergo inter-caste marriage, are threatened with violence, or violence is actually committed on them. In our opinion, such acts of violence or threats or harassment are wholly illegal and those who commit them must be severely punished. This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter-religious marriage. We, therefore, direct that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter-religious marriage with a woman or man who is a major, the couple are not harassed by any one nor subjected to threats or acts of violence, and any one who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law.

We sometimes hear of `honour’ killings of such persons who undergo inter-caste or inter-religious marriage of their own free will. There is nothing honourable in such killings, and in fact they are nothing but barbaric and shameful acts of murder committed by brutal, feudal minded persons who deserve harsh punishment. Only in this way can we stamp out such acts of barbarism.

 

Lata Singh v. State of Uttar Pradesh [Bench Strength 2], CrWP No. 208/2004 (07/07/2006), 2006 AIR(SC) 2522: 2006(Supp-3) SCR 350: 2006(5) SCC 475: 2006(6) JT 173: 2006(6) SCALE 583: 2006(5) Supreme 266: 2006(5) SLT 393: 2006(7) SCJ 55: 2006(8) SRJ 77: 2006 CrLJ 3309: 2006(2) SCC(Cr) 478: 2006(3) Crimes 41(SC): 2006(3) RecentCR 870: 2006(7) SCJD 430: 2006(5) CRJ 505 [Ashok Bhan, J.: Markandey Katju, J.] <<LAWPACK SUPREME COURT>>
Penal Code, 1860 — Sections 366 & 368 — False report of offence under — Abuse of process of court — Inter caste marriage by petitioner with a boy — Brother of petitioner lodged a false report alleging kidnapping of petitioner against her husband and his relatives and also threatened them — Petitioner undisputedly is a major and was at all relevant times a major and hence is free to marry anyone — There is no bar to an inter-caste marriage under Hindu Marriage Act or any other law — No offence was committed by any of the accused — Final report to that effect also submitted by SHO — Criminal case in question therefore is an abuse of process of court as well as of administrative machinery at the instance of petitioner’s brother — Proceeding in question to be quashed — Direction for institution of criminal proceedings against petitioner’s brother — Constitution of India — Article 32 — Hindu Marriage Act, 1955 — Section 5.

Lata Singh v. State of Uttar Pradesh [Bench Strength 2], CrWP No. 208/2004 (07/07/2006), 2006 AIR(SC) 2522: 2006(Supp-3) SCR 350: 2006(5) SCC 475: 2006(6) JT 173: 2006(6) SCALE 583: 2006(5) Supreme 266: 2006(5) SLT 393: 2006(7) SCJ 55: 2006(8) SRJ 77: 2006 CrLJ 3309: 2006(2) SCC(Cr) 478: 2006(3) Crimes 41(SC): 2006(3) RecentCR 870: 2006(7) SCJD 430: 2006(5) CRJ 505 [Ashok Bhan, J.: Markandey Katju, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 16, 5 & 11 — Void marriage — Children born out of void marriage, right in Fathers’ property — `S’ contacted second marriage during subsistence of first marriage — Daughters born out of second marriage, held, inherited properties of their father `S’ — Hindu Succession Act, 1956 — Section 8.

HELD: Section 16 of the Act deals with legitimacy of children of void and voidable marriages. Sub-section (1) of Section 16 of the Act clearly says that notwithstanding that the marriage is null and void under section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate. (Emphasis supplied ). Therefore, in view of section 16, it is clear that the daughters, namely, respondents 2 and 3 inherited the properties in question, along with Chilakamma, on Suryanarayana’s death. Accordingly, the High Court was justified in holding that on the death of Suryanarayana, the properties in question were inherited by his daughters, namely, respondents 2 and 3, along with Chilakamma and therefore were entitled to evict the appellants from the properties in question along with Pydamma.

Bhogadi Kannababu v. Vuggina Pydamma [Bench Strength 2], CA No. 149/2004 (12/05/2006), 2006 AIR(SC) 2403: 2006(Supp-2) SCR 352: 2006(5) SCC 532: 2006(11) JT 21: 2006(5) SCALE 642: 2006(4) Supreme 329: 2006(5) SLT 330: 2006(6) SCJ 414: 2006(6) SRJ 236: 2006(5) SCJD 16 [Arijit Pasayat, J.: Tarun Chatterjee, J.] <<LAWPACK SUPREME COURT>>
Rent Law — Eviction petition — Locus standi to file, determination, question of right, title and interest in an eviction petition need not be adjudicated upon — Right of children born out of null and void marriage — `S’ was the owner of properties in question — Death of `S’ leaving behind his two widows `C’ and `P’ — `S’ married `P’, during the subsistence of his marriage with `C’ — `P’ had two daughters i.e. respondents 2 and 3 whereas `C’ died issueless — After the death of `S’, `P’ filed eviction petition against the tenants i.e. appellant herein — Eviction sought on the grounds of default and sub-letting — Tenant claimed that they being nephews of `S’ were in actual physical possession of property in their own right as only legal heirs of `S’ — Plea of tenant that as `C’ died issueless they were the only legal heirs — Special Officer allowed the eviction petition by holding that there existed landlord-tenant relationship between parties — `P’ had inducted the appellant as tenants in the properties and appellant paid rents for sometime, thereafter stopped payment — Not necessary for court to finally adjudicate upon question of right, title and interest in an eviction petition — Eviction order maintainable — Rent Law — Eviction petition — Issues to be considered in, question of right, title and interest in an eviction petition need not be adjudicated upon — A.P. (Andhra Area) Tenancy Act, 1956 — Civil Procedure Code, 1908 — Order 1 Rule 10 — Hindu Succession Act, 1956 — Section 8 — Hindu Marriage Act, 1955 — Sections 5, 11 & 16 — Evidence Act, 1872 — Section 116.

Bilas Kunwar v. Desraj Ranjit Singh, (AIR 1915 Privy Council p. 98), Atyam Veerraju and others Vs. Pechetti Venkanna and others, AIR 1966 SC 629, Tej Bhan Madan Vs. II Additional District Judge and Ors., (1988) 3 SCC 137, Relied on.

HELD: The High Court in its judgment held that although Pydamma was not entitled to inherit the properties of Suryanarayana then also she was entitled to maintain eviction proceeding and obtain a decree/order for eviction under the A.P. Tenancy Act. The High Court in its impugned judgment held that only respondents 2 and 3 were entitled to succeed the properties in question and accordingly modified the findings of the Special Officer and the appellate authority holding that the daughters of late Suryanarayana who were the respondents 2 and 3 were entitled to succeed the properties of late Suryanarayana but not Pydamma. However, the High Court in its impugned judgment directed the eviction of the appellants not only in favour of Pydamma, the original applicant, but also in favour of respondents 2 and 3.

In the impugned order, the High Court held that it was Pydamma, respondent No.1, who had inducted the appellants in the properties in question and it was also the finding of the High Court and also the trial court that the appellants continued to pay rent in respect of the properties in question for some period and thereafter stopped payment. On such findings, the High Court held that it was not open to the appellants to deny the title of properties in question of Pydamma in view of Section 116 of the Evidence Act.

In our view, Section 116 of the Evidence Act is clearly applicable in the present case, as held by the High Court in the impugned order. The finding of fact of the High Court and the trial court that the appellants were let into possession by Pydamma and that possession was not restored to her by surrender, was based on consideration of material evidence on record, which cannot be disturbed by us. Therefore, in our view, even if respondent No.1, Pydamma, was not entitled to inherit the properties in question of late Suryanarayana then also she could maintain the application for eviction and obtain a decree/order of eviction on the ground of default and sub-letting under the A.P. Tenancy Act.

Bhogadi Kannababu v. Vuggina Pydamma [Bench Strength 2], CA No. 149/2004 (12/05/2006), 2006 AIR(SC) 2403: 2006(Supp-2) SCR 352: 2006(5) SCC 532: 2006(11) JT 21: 2006(5) SCALE 642: 2006(4) Supreme 329: 2006(5) SLT 330: 2006(6) SCJ 414: 2006(6) SRJ 236: 2006(5) SCJD 16 [Arijit Pasayat, J.: Tarun Chatterjee, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 16(3) — Right of illegitimate child to share in property — Scope — An illegitimate child can not claim as of right, any share in joint hindu family property — However, such a child would be entitled to a share in the self-acquired property of parents.

Jinia Keotin vs. Kumar Sitaram Manjhi, 2003(1) SCC 730, Followed.

Neelamma v. Sarojamma [Bench Strength 2], CA No. 2340/2006 (28/04/2006), 2006(9) SCC 612 [Ashok Bhan, J.: Lokeshwar Singh Panta, J.] <<LAWPACK SUPREME COURT>>
Limitation Act, 1963 — Article 65 — Suit for possession of immovable property — Limitation for filing, starting point of — Suit for recovery of possession of suit land on death of Hindu widow who was in possession of property on 14.12.1982 — Death of widow on 5.9.1967 — Suit had to be filed within 12 years of death of widow but not filed within time — Suit therefore barred by limitation — There is no scope for argument that limitation does not run from date of death of Hindu widow and that it would start running from some other date — Suit having not been filed within 12 years rightly held by High Court to be barred by limitation — Appeal to be dismissed — Hindu Marriage Act, 1955 — Section 14.

HELD: The limitation prescribed is 12 years beginning from the date when the possession of the defendant becomes adverse to the plaintiff. Learned counsel submitted that in view of Article 65 of the Limitation Act, 1963 the suit had to be filed within 12 years from the date on which the possession of the defendant became adverse and, therefore, it was immaterial as to when the Hindu female died. It is not possible to sustain the contention because the Article itself provides that the possession of the defendant shall be deemed to become adverse only when the female dies. Thus, there is no scope for the argument that limitation does not run from the date on which the Hindu female died and that it would start running from some other date. In our view, the High Court has rightly held that the suit should have been filed by the plaintiff within 12 years of the death of the Hindu female, namely Smt. Kirpi, and the same having not been filed within 12 years was barred by limitation. Much was sought to be made of the pending litigation relating to the adoption and gift deed executed in favour of the defendant. It was contended before us that since the matter was still pending and though the plaintiff’s suit had been decreed on 16.1.1960, the plaintiff could not have filed the instant suit till such time as the Letters Patent Appeal was not dismissed by the High Court i.e. till 18.11.1981. The submission has no substance because in the litigation which was pending before the High Court the plaintiff had not claimed possession of the suit land. The High Court has rightly pointed out that even if the plaintiff had sought amendment of the pleadings in the pending matter and claimed decree for possession, the legal position would have been different. He having not done so, he should have filed the suit for possession of the suit land within 12 years of the death of Smt. Kirpi, which he failed to do.

We find no reason to set aside the judgment of the High Court. This appeal is therefore dismissed.

Jagat Ram v. Varinder Prakash [Bench Strength 2], CA No. 1558/1999 (22/03/2006), 2006 AIR(SC) 1786: 2006(3) SCR 207: 2006(4) SCC 482: 2006(4) JT 342: 2006(3) SCALE 554: 2006(3) Supreme 183: 2006(3) SLT 262: 2006(3) SCJ 812: 2006(5) SRJ 482: 2006(5) SCJD 409 [B.P. Singh, J.: Altamas Kabir, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(iii) — “Mental disorder” — What is — 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.

Digvijay Singh v. Pratap Kumari, AIR 1970 SC 137, Referred.

HELD: 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.

Vinita Saxena v. Pankaj Pandit [Bench Strength 2], CA No. 1687/2006 (21/03/2006), 2006 AIR(SC) 1662: 2006(3) SCR 116: 2006(3) SCC 778: 2006(3) JT 587: 2006(3) SCALE 367: 2006(2) Supreme 662: 2006(3) SLT 78: 2006(3) SCJ 163: 2006(4) SRJ 547: 2006(1) JCC 577: 2006(4) SCJD 347 [Ruma Pal, J.: AR. Lakshmanan, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(i-a) — Cruelty — Mental cruelty, scope, effect and requirement for, determination — Mental cruelty can cause even more serious injury than the physical harm — What constitute the required mental cruelty for divorce not to 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 — It is to be determined on whole facts of the case and the matrimonial relation between the spouse.

Vinita Saxena v. Pankaj Pandit [Bench Strength 2], CA No. 1687/2006 (21/03/2006), 2006 AIR(SC) 1662: 2006(3) SCR 116: 2006(3) SCC 778: 2006(3) JT 587: 2006(3) SCALE 367: 2006(2) Supreme 662: 2006(3) SLT 78: 2006(3) SCJ 163: 2006(4) SRJ 547: 2006(1) JCC 577: 2006(4) SCJD 347 [Ruma Pal, J.: AR. Lakshmanan, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(i-a) — Cruelty — Determination of, factors to be considered for — 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 person involved and their economic conditions and other matters — To determine cruelty the culture, temperament and status in life and many other things are the factors which have to be considered — However, each case depends on its own facts and must be judged on these facts.

HELD: 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.

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.

Vinita Saxena v. Pankaj Pandit [Bench Strength 2], CA No. 1687/2006 (21/03/2006), 2006 AIR(SC) 1662: 2006(3) SCR 116: 2006(3) SCC 778: 2006(3) JT 587: 2006(3) SCALE 367: 2006(2) Supreme 662: 2006(3) SLT 78: 2006(3) SCJ 163: 2006(4) SRJ 547: 2006(1) JCC 577: 2006(4) SCJD 347 [Ruma Pal, J.: AR. Lakshmanan, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(i-a) — “Cruelty” — Meaning of — To amount to cruelty, there must be such willful 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 circumstances of the case — Cruelty is a course of conduct and one which is adversely affecting the other — Words and Phrases — Cruelty.

Vinita Saxena v. Pankaj Pandit [Bench Strength 2], CA No. 1687/2006 (21/03/2006), 2006 AIR(SC) 1662: 2006(3) SCR 116: 2006(3) SCC 778: 2006(3) JT 587: 2006(3) SCALE 367: 2006(2) Supreme 662: 2006(3) SLT 78: 2006(3) SCJ 163: 2006(4) SRJ 547: 2006(1) JCC 577: 2006(4) SCJD 347 [Ruma Pal, J.: AR. Lakshmanan, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(1-a) & (iii) — Cruelty and insanity — Allegation of, by wife, absence of any evidence led by respondent-husband, effect — Divorce petition by wife — Absence of any evidence led by respondent-husband, effect — Evidence of appellant-wife which is sufficient in respect of insanity and cruelty had to be relied upon and on the basis of her evidence, the decree of divorce was bound to be granted in favour of appellant-wife.

Vinita Saxena v. Pankaj Pandit [Bench Strength 2], CA No. 1687/2006 (21/03/2006), 2006 AIR(SC) 1662: 2006(3) SCR 116: 2006(3) SCC 778: 2006(3) JT 587: 2006(3) SCALE 367: 2006(2) Supreme 662: 2006(3) SLT 78: 2006(3) SCJ 163: 2006(4) SRJ 547: 2006(1) JCC 577: 2006(4) SCJD 347 [Ruma Pal, J.: AR. Lakshmanan, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(i-a) & (iii) — Cruelty and insanity — Grant of divorce on the ground of, validity — Medical evidence and record showing respondent-husband as suffering from mental disorder — Specific instances given by appellant-wife of cruelty by respondent and his mother — Marriage lasted for four to five months when she was compelled to leave to matrimonial home — Marriage between parties never consummated as the respondent not in position to fulfill matrimonial obligation — Parties have been living separately since 1993 and both the parties crossed the point of no return — Absence of any evidence on the part of respondent — Order of court below in such circumstances resulted in grave miscarriage of justice to appellant who has been constrained into living with a dead relationship for over 13 years and thus liable to be set aside — Decree of divorce in favour of appellant to be passed.

HELD: 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.

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.

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.

Vinita Saxena v. Pankaj Pandit [Bench Strength 2], CA No. 1687/2006 (21/03/2006), 2006 AIR(SC) 1662: 2006(3) SCR 116: 2006(3) SCC 778: 2006(3) JT 587: 2006(3) SCALE 367: 2006(2) Supreme 662: 2006(3) SLT 78: 2006(3) SCJ 163: 2006(4) SRJ 547: 2006(1) JCC 577: 2006(4) SCJD 347 [Ruma Pal, J.: AR. Lakshmanan, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 13(1)(ia) & 10 — Divorce on the ground of cruelty — Grant of, to husband, fit case for — Divorce petition by husband on the ground of cruelty by respondent wife allowed by family court directing appellant to pay Rs. 5 lacs to wife as her livelihood allowance which was deposited by appellant but not withdrawn by wife — Both parties living separately for more than 10 years — Various criminal cases and complaint case filed by wife, making efforts to get the husband arrested and harassed indicating her deep and intense revenge — No cordiality left between the parties and no possibility of their living together — As per evaluation of entire evidence it is clear that respondent has resolved to live in agony only to make life a miserable hell for the appellant as well — This type of adamant and callous attitude leaves no manner of doubt that respondent is bent upon treating the appellant with mental cruelty — Marriage has been wrecked beyond hope of salvage — Impugned order of High Court unjustified and to be set aside — Marriage directed to be dissolved with payment of Rs. 25 lacs by appellant to respondent-wife.

HELD: The High Court ought to have considered the repercussions, consequences, impact and ramifications of all the criminal and other proceedings initiated by the parties against each other in proper perspective. For illustration, the High Court has mentioned that so far as the publication of the news item is concerned, the status of husband in a registered company was only that of an employee and if any news item is published, in such a situation, it could not, by any stretch of imagination be taken to have lowered the prestige of the husband. In the next para 69 of the judgment that in one of the news item what has been indicated was that in the company, Nikhil Rubber (P) Ltd., the appellant was only a Director along with Mrs. Neelu Kohli whom held 94.5% share of Rs. 100/- each in the company. The news item further indicated that Naveen Kohli was acting against the spirit of the Article of the Association of Nikhil Rubber (P) Ltd., had caused immense loss of business and goodwill. He has stealthily removed produce of the company, besides diverted orders of foreign buyers to his proprietorship firm M/s. Navneet Elastomers. He had opened bank account with forged signatures of Mrs. Neelu Kohli and fabricated resolution of the Board of Directors of the company. Statutory authority-Companies Act had refused to register documents filed by Mr. Naveen Kohli and had issued show cause notice. All business associates were cautioned to avoid dealing with him alone. Neither the company nor Mrs. Neelu Kohli shall be liable for the acts of Mr. Naveen Kohli. Despite the aforementioned finding that the news item was intended to caution business associates to avoid dealing with the appellant then to come to this finding in the next para that it will by no stretch of imagination result in mental cruelty is wholly untenable.

The findings of the High Court that these proceedings could not be taken to be such which may warrant annulment of marriage is wholly unsustainable.

Even at this stage, the respondent does not want divorce by mutual consent. From the analysis and evaluation of the entire evidence, it is clear that the respondent has resolved to live in agony only to make life a miserable hell for the appellant as well. This type of adamant and callous attitude, in the context of the facts of this case, leaves no manner of doubt in our mind that the respondent is bent upon treating the appellant with mental cruelty. It is abundantly clear that the marriage between the parties had broken down irretrievably and there is no chance of their coming together, or living together again.

In view of the fact that the parties have been living separately for more than 10 years and a very large number of aforementioned criminal and civil proceedings have been initiated by the respondent against the appellant and some proceedings have been initiated by the appellant against the respondent, the matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto. To keep the sham is obviously conductive to immorality and potentially more prejudicial to the public interest than a dissolution of the marriage bond.

Consequently, we set aside the impugned judgment of the High Court and direct that the marriage between the parties should be dissolved according to the provisions of the Hindu Marriage Act, 1955. In the extra ordinary facts and circumstances of the case, to resolve the problem in the interest of all concerned, while dissolving the marriage between the parties, we direct the appellant to pay Rs. 25,00,000/- (Rupees Twenty five lacs) to the respondent towards permanent maintenance to be paid within eight weeks. This amount would include Rs. 5,00,000/- (Rupees five lacs with interest) deposited by the appellant on the direction of the Trial Court. The respondent would be at liberty to withdraw this amount with interest. Therefore, now the appellant would pay only Rs. 20,00,000/-. (Rupees Twenty lacs) to the respondent within the stipulated period. In case the appellant fails to pay the amount as indicated above within the stipulated period, the direction given by us would be of no avail and the appeal shall stand dismissed. In awarding permanent maintenance we have taken into consideration the financial standing of the appellant.

Naveen Kohli v. Neelu Kohli [Bench Strength 3], CA No. 812/2004 (21/03/2006), 2006 AIR(SC) 1675: 2006(3) SCR 53: 2006(4) SCC 558: 2006(3) JT 491: 2006(3) SCALE 252: 2006(2) Supreme 627: 2006(3) SLT 43: 2006(3) SCJ 673: 2006(4) SRJ 567: 2006(1) JCC 520 [B.N. Agrawal, J.: A.K. Mathur, J.: Dalveer Bhandari, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13-A — Irretrievable breakdown of marriage — Consequences of preservation in law of such a marriage — Once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of the fact and it would be harmful to society and injurious to interest of parties — By refusing to sever the tie of marriage in such case, the law do not serve the sanctity of marriage — On the contrary, it shows scant regard for the feeling and emotions of the parties.

Naveen Kohli v. Neelu Kohli [Bench Strength 3], CA No. 812/2004 (21/03/2006), 2006 AIR(SC) 1675: 2006(3) SCR 53: 2006(4) SCC 558: 2006(3) JT 491: 2006(3) SCALE 252: 2006(2) Supreme 627: 2006(3) SLT 43: 2006(3) SCJ 673: 2006(4) SRJ 567: 2006(1) JCC 520 [B.N. Agrawal, J.: A.K. Mathur, J.: Dalveer Bhandari, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13-A — Irretrievable breakdown of marriage — Presumption of — Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down.

Naveen Kohli v. Neelu Kohli [Bench Strength 3], CA No. 812/2004 (21/03/2006), 2006 AIR(SC) 1675: 2006(3) SCR 53: 2006(4) SCC 558: 2006(3) JT 491: 2006(3) SCALE 252: 2006(2) Supreme 627: 2006(3) SLT 43: 2006(3) SCJ 673: 2006(4) SRJ 567: 2006(1) JCC 520 [B.N. Agrawal, J.: A.K. Mathur, J.: Dalveer Bhandari, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(ia) — Cruelty — Conduct to constitute, requirement of — To constitute cruelty, the conduct complained of, should be `grave and weighty’ so as to come to conclusion that the petitioner spouse cannot be reasonably expected to live with other spouse — It must be something more serious than `ordinary wear and tear of married life’ — It must be of the type as to satisfy the conscience of court that the relationship between the parties had deteriorated to such extent due to conduct of other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle complaining spouse to secure divorce.

Naveen Kohli v. Neelu Kohli [Bench Strength 3], CA No. 812/2004 (21/03/2006), 2006 AIR(SC) 1675: 2006(3) SCR 53: 2006(4) SCC 558: 2006(3) JT 491: 2006(3) SCALE 252: 2006(2) Supreme 627: 2006(3) SLT 43: 2006(3) SCJ 673: 2006(4) SRJ 567: 2006(1) JCC 520 [B.N. Agrawal, J.: A.K. Mathur, J.: Dalveer Bhandari, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(ia) — Cruelty — Physical cruelty and mental cruelty, proof in — In physical cruelty, there can be tangible and direct evidence — But in 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.

A. Jaychandra vs. Aneel Kumar, 2005(2) SCC 22, referred.

Naveen Kohli v. Neelu Kohli [Bench Strength 3], CA No. 812/2004 (21/03/2006), 2006 AIR(SC) 1675: 2006(3) SCR 53: 2006(4) SCC 558: 2006(3) JT 491: 2006(3) SCALE 252: 2006(2) Supreme 627: 2006(3) SLT 43: 2006(3) SCJ 673: 2006(4) SRJ 567: 2006(1) JCC 520 [B.N. Agrawal, J.: A.K. Mathur, J.: Dalveer Bhandari, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(ia) — Cruelty — Proof of — When cruelty is physical, it is a question of fact and degree — If it is mental, the enquiry must begin as to the nature of cruel treatment on the mind of spouse — Whether intention is a necessary element in cruelty? — Held, no — Absence of intention should not make any difference in case if by ordinary sense in human affairs, the act complained of, could otherwise be regarded as cruelty.

Naveen Kohli v. Neelu Kohli [Bench Strength 3], CA No. 812/2004 (21/03/2006), 2006 AIR(SC) 1675: 2006(3) SCR 53: 2006(4) SCC 558: 2006(3) JT 491: 2006(3) SCALE 252: 2006(2) Supreme 627: 2006(3) SLT 43: 2006(3) SCJ 673: 2006(4) SRJ 567: 2006(1) JCC 520 [B.N. Agrawal, J.: A.K. Mathur, J.: Dalveer Bhandari, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(ia) — Cruelty — Determination of, basis for — Cruelty alleged may largely depend upon the type of life, the parties are accustomed to or their economic and social conditions and their culture and human value to which they attach importance — However, each case has to be decided on its own merits.

Shoba Rani vs. Madhukar Reddi, 1988(1) SCC 105, Referred.

Naveen Kohli v. Neelu Kohli [Bench Strength 3], CA No. 812/2004 (21/03/2006), 2006 AIR(SC) 1675: 2006(3) SCR 53: 2006(4) SCC 558: 2006(3) JT 491: 2006(3) SCALE 252: 2006(2) Supreme 627: 2006(3) SLT 43: 2006(3) SCJ 673: 2006(4) SRJ 567: 2006(1) JCC 520 [B.N. Agrawal, J.: A.K. Mathur, J.: Dalveer Bhandari, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(ia) — Cruelty — Meaning of — Cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable conduct of such a character as to cause danger to life, limb or health, bodily or mentally or as to give rise to a reasonable apprehension of such a danger — Words and Phrases — Cruelty.

D. Tolstoy’s book “The law and Practice of Divorce and Matrimonial Causes, Sixth Edn. Referred.

Naveen Kohli v. Neelu Kohli [Bench Strength 3], CA No. 812/2004 (21/03/2006), 2006 AIR(SC) 1675: 2006(3) SCR 53: 2006(4) SCC 558: 2006(3) JT 491: 2006(3) SCALE 252: 2006(2) Supreme 627: 2006(3) SLT 43: 2006(3) SCJ 673: 2006(4) SRJ 567: 2006(1) JCC 520 [B.N. Agrawal, J.: A.K. Mathur, J.: Dalveer Bhandari, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 13(1)(ia) & 10 — Cruelty — Proof of — Whether it is necessary for a party claiming divorce to prove that the cruelty treatment is of such a nature as to cause an apprehension/reasonable apprehension that it will be harmful or injurious for him or her to live with other party? — Held, no.

Naveen Kohli v. Neelu Kohli [Bench Strength 3], CA No. 812/2004 (21/03/2006), 2006 AIR(SC) 1675: 2006(3) SCR 53: 2006(4) SCC 558: 2006(3) JT 491: 2006(3) SCALE 252: 2006(2) Supreme 627: 2006(3) SLT 43: 2006(3) SCJ 673: 2006(4) SRJ 567: 2006(1) JCC 520 [B.N. Agrawal, J.: A.K. Mathur, J.: Dalveer Bhandari, J.] <<LAWPACK SUPREME COURT>>
Guardians and Wards Act, 1890 — Sections 7, 17(3) & 25 — Custody of minor girl child aged 12 years to father — Permissibility — Divorce between appellant-mother and respondent father — Claim of appellant-mother to be in better position to take care of needs of minor than respondent-father — Minor child though have no animosity towards her mother, preferred to be with father — As per minor child she had established a very good relation with her paternal aunt who was staying in her father’s house and she was able to relate to her aunt in matters concerning a growing girl during her period of adolescence — No reason to consider the respondent ineligible to look after the minor as respondent financially stable and is not disqualified in any way from being a guardian of minor girl — Interest of minor to be best served if she remains with respondent but with sufficient access to appellant-mother to visit the minor at frequent interval — Order accordingly — Hindu Minority and Guardianship Act, 1956 — Sections 6 & 13 — Hindu Marriage Act, 1955 — Section 26.

HELD: 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.

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.

Sheila B. Das v. P.R. Sugasree [Bench Strength 2], CA No. 6626/2004 (17/02/2006), 2006 AIR(SC) 1343: 2006(2) SCR 342: 2006(3) SCC 62: 2006(2) JT 482: 2006(2) SCALE 388: 2006(2) Supreme 169: 2006(3) SLT 351: 2006(3) SCJ 547: 2006(4) SRJ 43: 2006(1) JCC 407: 2006(4) SCJD 570 [B.P. Singh, J.: Altamas Kabir, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Schedule 7 List 3 Entries 30 & 5 — Compulsory registration of marriage — Effect and importance of — If record of marriage is kept, to a large extent, the dispute concerning solemnization of marriage between two persons is avoided — If marriage is registered it also provides evidence of marriage having taken place and would provide a rebuttable presumption of marriage having taken place — Though registration itself cannot be a proof of valid marriage per se, yet it has a great evidentiary value in matter of custody of children, right of children born from wedlock of two persons whose marriage is registered and age of parties to marriage — Thus it would be in interest of society if marriages are made compulsorily registrable — Hindu Marriage Act, 1955 — Section 8 — Special Marriage Act, 1954 — Section 13 — Evidence Act, 1872 — Sections 77 & 114.

Seema v. Ashwani Kumar [Bench Strength 2], TP(C) No. 291/2005 (14/02/2006), 2006 AIR(SC) 1158: 2006(2) SCR 220: 2006(2) SCC 578: 2006(2) JT 378: 2006(2) SCALE 333: 2006(2) Supreme 66: 2006(2) SLT 161: 2006(3) SCJ 101: 2006(3) SRJ 493: 2006(1) JCC 377: 2006(1) RecentCR 963: 2006(5) SCJD 434 [Arijit Pasayat, J.: S.H. Kapadia, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 8(2) — Power of State Government to make rules with regard to registration of marriage — Scope — By virtue of section 8(2) if the State Government is of the opinion that such registration should be compulsory, it can so provide — In that event, the person contravening any rule made in this regard shall be punishable with fine.

Seema v. Ashwani Kumar [Bench Strength 2], TP(C) No. 291/2005 (14/02/2006), 2006 AIR(SC) 1158: 2006(2) SCR 220: 2006(2) SCC 578: 2006(2) JT 378: 2006(2) SCALE 333: 2006(2) Supreme 66: 2006(2) SLT 161: 2006(3) SCJ 101: 2006(3) SRJ 493: 2006(1) JCC 377: 2006(1) RecentCR 963: 2006(5) SCJD 434 [Arijit Pasayat, J.: S.H. Kapadia, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 8 — Registration of marriage provided under — Scope — U/s 8 certain provisions exist for registration of marriage, but it is left to discretion of contracting parties to either solemnize the marriage before Sub- Registrar or register it after performing marriage ceremony in conformity with customary beliefs — However, the Act makes it clear that the validity of marriage in no way to be affected by omission to make entry in the register.

Seema v. Ashwani Kumar [Bench Strength 2], TP(C) No. 291/2005 (14/02/2006), 2006 AIR(SC) 1158: 2006(2) SCR 220: 2006(2) SCC 578: 2006(2) JT 378: 2006(2) SCALE 333: 2006(2) Supreme 66: 2006(2) SLT 161: 2006(3) SCJ 101: 2006(3) SRJ 493: 2006(1) JCC 377: 2006(1) RecentCR 963: 2006(5) SCJD 434 [Arijit Pasayat, J.: S.H. Kapadia, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Schedule 7 List 3 Entry 30 — Scope — Vital statistics including registration of deaths and birth is covered by Entry 30 — Whether the registration of marriage would come within the ambit of expression “vital statistics”? — Held, yes — Words and Phrases — Vital statistics — Hindu Marriage Act, 1955 — Section 8 — Special Marriage Act, 1954 — Section 13.

Seema v. Ashwani Kumar [Bench Strength 2], TP(C) No. 291/2005 (14/02/2006), 2006 AIR(SC) 1158: 2006(2) SCR 220: 2006(2) SCC 578: 2006(2) JT 378: 2006(2) SCALE 333: 2006(2) Supreme 66: 2006(2) SLT 161: 2006(3) SCJ 101: 2006(3) SRJ 493: 2006(1) JCC 377: 2006(1) RecentCR 963: 2006(5) SCJD 434 [Arijit Pasayat, J.: S.H. Kapadia, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Schedule 7 List 3 Entries 5 & 30 — Compulsory registration of marriage — Necessity of — Court while hearing a transfer petition noted that in large number of cases some unscrupulous persons are denying existence of marriage taking advantage of condition that in most of states there is no official record of marriage — Issuance of notice to various States and Union Territories — Stand indicated by all states and Union Territories that registration of marriage is highly desirable — It was found that though most of states have framed rules regarding registration of marriages, registration of marriage is not compulsory in several states — Held, marriage of all person who are citizen of India belonging to various religions should be made compulsorily registrable in their respective states, where the marriage is solemnized — Direction accordingly — Family Law — Marriage — Registration of, necessity — Hindu Marriage Act, 1955 — Section 8 — Special Marriage Act, 1954 — Section 13.

HELD: It is to be noted that vital statistics including registration of deaths and births is covered by Entry 30. The registration of marriages would come within the ambit of the expression ‘vital statistics’.

The Hindu Act enables the State Government to make rules with regard to the registration of marriages. Under Sub-section (2) of Section 8 if the State Government is of the opinion that such registration should be compulsory it can so provide. In that event, the person contravening any rule made in this regard shall be punishable with fine.

In exercise of powers conferred by Section 8 of the Hindu Act the State of U.P. has framed U.P. Hindu Marriage Registration Rules, 1973 which have been notified in 1973. In the affidavit filed by the State Government it is stated that the marriages are being registered after enactment of the Rules.

As is evident from narration of facts though most of the States have framed rules regarding registration of marriages, registration of marriage is not compulsory in several States. If the record of marriage is kept, to a large extent, the dispute concerning solemnization of marriages between two persons is avoided. As rightly contended by the National Commission, in most cases non registration of marriages affects the women to a great measure. If the marriage is registered it also provides evidence of the marriage having taken place and would provide a rebuttable presumption of the marriage having taken place. Though, the registration itself cannot be a proof of valid marriage per se, and would not be the determinative factor regarding validity of a marriage, yet it has a great evidentiary value in the matters of custody of children, right of children born from the wedlock of the two persons whose marriage is registered and the age of parties to the marriage. That being so, it would be in the interest of the society if marriages are made compulsorily registrable. The legislative intent in enacting Section 8 of the Hindu Act is apparent from the use of the expression “for the purpose of facilitating the proof of Hindu Marriages”.

As a natural consequence, the effect of non registration would be that the presumption which is available from registration of marriages would be denied to a person whose marriage is not registered.

Accordingly, we are of the view that marriages of all persons who are citizens of India belonging to various religions should be made compulsorily registrable in their respective States, where the marriage is solemnized.

Accordingly, we direct the States and the Central Government to take the following steps:

(i) The procedure for registration should be notified by respective States within three months from today. This can be done by amending the existing Rules, if any, or by framing new Rules. However, objections from members of the public shall be invited before bringing the said Rules into force. In this connection, due publicity shall be given by the States and the matter shall be kept open for objections for a period of one month from the date of advertisement inviting objections. On the expiry of the said period, the States shall issue appropriate notification bringing the Rules into force.

(ii) The officer appointed under the said Rules of the States shall be duly authorized to register the marriages. The age, marital status (unmarried, divorcee) shall be clearly stated. The consequence of non-registration of marriages or for filing false declaration shall also be provided for in the said Rules. Needless to add that the object of the said Rules shall be to carry out the directions of this Court.

(iii) As and when the Central Government enacts a comprehensive statute, the same shall be placed before this Court for scrutiny.

(iv) Learned counsel for various States and Union Territories shall ensure that the directions given herein are carried out immediately.

The Registry is directed to hand over a copy of this order to learned Solicitor General for necessary follow-up action.

Seema v. Ashwani Kumar [Bench Strength 2], TP(C) No. 291/2005 (14/02/2006), 2006 AIR(SC) 1158: 2006(2) SCR 220: 2006(2) SCC 578: 2006(2) JT 378: 2006(2) SCALE 333: 2006(2) Supreme 66: 2006(2) SLT 161: 2006(3) SCJ 101: 2006(3) SRJ 493: 2006(1) JCC 377: 2006(1) RecentCR 963: 2006(5) SCJD 434 [Arijit Pasayat, J.: S.H. Kapadia, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Sections 18 & 23(2) — Payment of maintenance — Grant of stay — Appeal against the order of trial court directing the respondent to pay maintenance @ Rs. 1000/- p.m. from date of filing of suit — High Court stayed the order by directing to pay maintenance @ 750/- per month — High Court ought to have directed for payment of arrears — Conditional stay accordingly granted on payment of entire arrears @ 750/- p.m. in three equal bimonthly installments and continue to pay current amount as directed by court — Criminal Procedure Code, 1973 — Section 125 — Hindu Marriage Act, 1955 — Section 25.

(Para 3)

Susheelamma v. K. Gaviyanna [Bench Strength 2], Civil Appeal No. 7083/2005 (28/11/2005), 2007(15) SCC 666 [B.N. Agrawal, J.: A.K. Mathur, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 5 — Age — Proof of, reliance on medical report instead of certificate produced by father of girl, when proper — Petitioner alleged to have married another person — Objection to such marriage by petitioner’s father i.e. Respondent no. 5 — Father filed a complaint before CJM, alleging petitioner was minor — Question of age referred to Medical Board — Medical report shows that petitioner must have been aged more than 16 years at relevant time — Petitioner claims that she was a major and voluntarily left with her husband — Considering the facts, court held, petitioner must have attained majority and her stay at remand home not in the interest of justice — Release from remand home, ordered.

Juhi Devi v. State of Bihar [Bench Strength 2], SLP(Cr) No. 2970/2005 (18/11/2005), 2005(13) SCC 376 [K.G. Balakrishnan, J.: P.P. Naolekar, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 16 — Scope of — Protection of section 16 not available to mother of children — Legitimacy of children of void and voidable marriage — By providing section 16 legislature has considered it advisable to uphold the legitimacy of the paternity of a child born out of a void marriage — Whether it has extended a similar protection in respect of the mother of child? — Held, no.

Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhav, AIR 1988 SC 644, Referred.

 

M.M. Malhotra v. Union of India [Bench Strength 2], CA No. 5185/2001 (04/10/2005), 2006 AIR(SC) 80: 2005(Supp-3) SCR 1026: 2005(8) SCC 351: 2005(9) JT 506: 2005(8) SCALE 202: 2005(7) Supreme 111: 2005(8) SLT 993: 2005(10) SRJ 130: 2005(6) SLR 526: 2006(1) SLJ 303 [Arijit Pasayat, J.: H.K. Sema, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 11 & 12 — Void marriage and voidable marriage — Distinction between — Void marriage covered by section 11 can be held to be so without a prior formal declaration by a Court in a proceeding — While voidable marriage covered by section 12 becomes a nullity when a decree is granted in that respect.

 

M.M. Malhotra v. Union of India [Bench Strength 2], CA No. 5185/2001 (04/10/2005), 2006 AIR(SC) 80: 2005(Supp-3) SCR 1026: 2005(8) SCC 351: 2005(9) JT 506: 2005(8) SCALE 202: 2005(7) Supreme 111: 2005(8) SLT 993: 2005(10) SRJ 130: 2005(6) SLR 526: 2006(1) SLJ 303 [Arijit Pasayat, J.: H.K. Sema, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 11 — Marriage covered under — Nature, scope and requirement — Marriage covered by section 11 are void ipso jure — It is void from very inception and have to be ignored as not existing in law at all if and when such a question arise — Although section permits a formal declaration to be made on presentation of a petition, it is not essential to obtain in advance such a formal declaration from a Court in a proceedings specifically commenced for the purpose.

 

M.M. Malhotra v. Union of India [Bench Strength 2], CA No. 5185/2001 (04/10/2005), 2006 AIR(SC) 80: 2005(Supp-3) SCR 1026: 2005(8) SCC 351: 2005(9) JT 506: 2005(8) SCALE 202: 2005(7) Supreme 111: 2005(8) SLT 993: 2005(10) SRJ 130: 2005(6) SLR 526: 2006(1) SLJ 303 [Arijit Pasayat, J.: H.K. Sema, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 5, 11 & 12 — Lawful marriage — Condition necessary for — For a lawful marriage, the necessary condition is that neither party should have a spouse living at the time of marriage — A marriage in contravention of this condition, therefore is null and void.

 

M.M. Malhotra v. Union of India [Bench Strength 2], CA No. 5185/2001 (04/10/2005), 2006 AIR(SC) 80: 2005(Supp-3) SCR 1026: 2005(8) SCC 351: 2005(9) JT 506: 2005(8) SCALE 202: 2005(7) Supreme 111: 2005(8) SLT 993: 2005(10) SRJ 130: 2005(6) SLR 526: 2006(1) SLJ 303 [Arijit Pasayat, J.: H.K. Sema, J.] <<LAWPACK SUPREME COURT>>
Air Force Act, 1950 — Section 19 — Moral turpitude by contracting plural marriage — Plural marriage, what is not — Appellant a pilot officer married complainant as per Hindu rites — Complaint alleging that appellant conducted another marriage with other girl — Material showing that complainant already married to one another and that marriage subsisting at the time when she married appellant — Suit filed by appellant in said respect decreed — Effect of decree is that marriage of appellant with complainant was null and void — That being so, appellant’s subsequent marriage with another girl cannot be said to be a case of plural marriage — Air Force Rules, 1969 — Rule 16 — Service and Labour Law — Compulsory retirement, moral turpitude by contracting plural marriage, plural marriage, what is not — Hindu Marriage Act, 1955 — Sections 5, 11, 12 — Words and Phrases — Plural marriage — Regulation for the Air Force (Revised Ediction), 1964 — Para 578.

 

M.M. Malhotra v. Union of India [Bench Strength 2], CA No. 5185/2001 (04/10/2005), 2006 AIR(SC) 80: 2005(Supp-3) SCR 1026: 2005(8) SCC 351: 2005(9) JT 506: 2005(8) SCALE 202: 2005(7) Supreme 111: 2005(8) SLT 993: 2005(10) SRJ 130: 2005(6) SLR 526: 2006(1) SLJ 303 [Arijit Pasayat, J.: H.K. Sema, J.] <<LAWPACK SUPREME COURT>>
West Bengal Premises Tenancy Act, 1956 — Sections 2(h), (d) & 13(1)(a) — Eviction proceeding — Necessary or proper party, who is not — Application for impleadment by divorced wife of sole tenant dismissed by trial court which was confirmed by High Court — Tenancy in favour of husband of appellant — No privity of contract between appellant and landlady — Family court has granted a decree of divorce on payment of a certain sum for maintenance on mutual consent and that appellant-wife waived her right to further maintenance — Plea of appellant that landlady has recognised appellant as sub-tenant not established — Appellant neither a necessary party nor proper party — Dismissal of application for impleadment by appellant justified and need no interference — Hindu Adoption and Maintenance Act, 1956 — Sections 3(b), 18 & 23 — Hindu Marriage Act, 1955 — Section 25 — Civil Procedure Code, 1908 — Order 1 Rule 10(2).

HELD: As per the appellant’s own averment, the proforma respondent has divested himself of physical possession. While dissolving marriage under Section 13-B of the Hindu Marriage Act, 1955, the matrimonial court with the consent of the parties ordered the proforma respondent to pay a sum of Rs.200/- p.m. for maintenance of the minors only. The appellant, in our opinion, by such consent order has expressly waived her right to maintenance.

It is thus seen from the above averment in the written statement that the husband has never allowed his wife to occupy the suit premises and that she is in possession of the suit premises only as a custodian of the minor children of the defendant and that the monthly rents payable are being paid on account and on behalf of the defendant. The husband also entered appearance in the suit and is contesting the suit by filing a written statement and, therefore, the appellant has no locus standi to be impleaded in the suit either as a necessary or a proper party in whose presence the suit ought to be or should be heard.

The case on hand is a case of divorced wife. It is true that divorced wife is also a wife. We have already dealt with the case of the appellant and her right to contest or defend herself in the pending eviction proceedings. We have already held that she has no right to contest or defend herself nor a right to file and prosecute the eviction proceedings. There is no privity of contract between the appellant and the landlady. The tenancy is in favour of the appellant’s husband. The Family Court has granted a decree for divorce on payment of certain sum by way of maintenance. As a matter of fact, the appellant’s husband, the tenant is contesting the Rent Control proceedings and has filed a written statement denying the claim of the landlady. It was argued by Ms. Kamini Jaiswal on behalf of the appellant that the appellant was recognised by the landlady as a sub-tenant. In support of the said submission, she placed reliance on the letter written by the landlady to the appellant on 18.12.1989. This letter, in our opinion, will be of any aid or assistance to the appellant. It has been stated in that letter that the appellant has been paying the rent on behalf of one Duttas and occupying the said accommodation. The appellant was requested to get a confirmation in writing that he has no interest in the ground floor accommodation of the house in question and surrender the possession of the same to the landlady so that the agreement could be entered into with the appellant on fresh terms if the appellant proposed to continue to stay there. The letter was concluded by saying that until these formalities are completed the occupation of the ground floor accommodation by the appellant is unauthorised and illegal.

We, therefore, cannot agree with the submission of learned counsel for the appellant that the landlady has so recognized the appellant as sub-tenant. In para 35 above, this Court deals with the case of a divorced wife. We have already extracted para 35.

For the foregoing discussion, we are of the opinion that the Court has no jurisdictional power to add a person as a party who is neither a necessary party nor a proper party. The appellant in the status of divorcee cannot claim interest in the suit premises either independently or through her erstwhile husband and as such she cannot be held to say that she is a party without whose presence the court cannot adjudicate and pass the decree. She is, therefore, not a necessary party. The appellant is also not a person whose presence is necessary to enable the Court effectually and completely to adjudicate all the questions involved with the suit.

In view of the discussion made above, we find merit and substance in the submission made by counsel for the respondents. We are of the opinion that the trial Court and the High Court did not commit any jurisdictional error nor acted with material irregularity in dismissing the application under Order 1 Rule 10 C.P.C. filed by the appellant.

Ruma Chakraborty v. Sudha Rani Banerjee [Bench Strength 2], CA No. 2565/2001 (04/10/2005), 2005 AIR(SC) 3557: 2005(Supp-3) SCR 1051: 2005(8) SCC 140: 2005(12) JT 134: 2005(8) SCALE 124: 2005(6) Supreme 734: 2005(7) SLT 497(2): 2005(8) SCJ 458: 2005(10) SRJ 384: 2006(2) SCJD 431 [AR. Lakshmanan, J.: Altamas Kabir, J.] <<LAWPACK SUPREME COURT>>
West Bengal Premises Tenancy Act, 1956 — Sections 13(1)(a), 2(d) & (h) — Eviction proceedings — Necessary or proper party, who is not — Impleadment claimed by divorced wife of sole tenant — Locus standi — Husband never allowed appellant to occupy the suit premises and she is in possession of suit premises only as a custodian of minor children — Monthly rent payable are being paid on account and on behalf of defendant-husband — Husband also entered appearance in suit and contesting the suit by filing written statement — Appellant-wife therefore has no locus standi to be impleaded in suit either as necessary party or proper party — Rent Law — Eviction proceedings — Necessary or proper party, who is not — Civil Procedure Code, 1908 — Order 1 Rule 10(2) — Hindu Marriage Act, 1955 — Section 13-B.

 

Ruma Chakraborty v. Sudha Rani Banerjee [Bench Strength 2], CA No. 2565/2001 (04/10/2005), 2005 AIR(SC) 3557: 2005(Supp-3) SCR 1051: 2005(8) SCC 140: 2005(12) JT 134: 2005(8) SCALE 124: 2005(6) Supreme 734: 2005(7) SLT 497(2): 2005(8) SCJ 458: 2005(10) SRJ 384: 2006(2) SCJD 431 [AR. Lakshmanan, J.: Altamas Kabir, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 24, 25 & 13-B — Maintenance — Waiver of right to claim, by consent order, determination — Eviction proceeding, right of a divorced wife to implead as a party defendant — As per appellant’s own averment the sole tenant, the husband of appellant-wife has divested himself of physical possession of premises in question — While dissolving marriage u/s 13-B of Marriage Act, matrimonial court with consent of parties ordered a sum of Rs. 200/- for maintenance of minors only — Thus by such consent orders appellant has expressly waived her right to maintenance and therefore has no right to be impleaded to eviction proceedings — West Bengal Premises Tenancy Act, 1956 — Sections 13(1)(a), 14, 16, 2(d) & (h) — Civil Procedure Code, 1908 — Order 1 Rule 10(2) — Criminal Procedure Code, 1973 — Section 125 — Hindu Adoption and Maintenance Act, 1956 — Sections 3(b), 18 & 23.

 

Ruma Chakraborty v. Sudha Rani Banerjee [Bench Strength 2], CA No. 2565/2001 (04/10/2005), 2005 AIR(SC) 3557: 2005(Supp-3) SCR 1051: 2005(8) SCC 140: 2005(12) JT 134: 2005(8) SCALE 124: 2005(6) Supreme 734: 2005(7) SLT 497(2): 2005(8) SCJ 458: 2005(10) SRJ 384: 2006(2) SCJD 431 [AR. Lakshmanan, J.: Altamas Kabir, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Sections 18 & 22 — Maintenance — Entitlement to, despite grant of properties by husband under Will, determination — Testator due to unhappy marital life with first wife started living with one divorced lady as man and wife accepting her as second wife in same village and begot two sons through second wife — He executed a Will providing his some properties to first wife for her decent living and rest of the properties to sons born through second wife — Whether first wife entitled to maintenance? — Held, no — In view of fact that she has been given some properties under Will u/s 22 of Act, she is not entitled to any maintenance — Criminal Procedure Code, 1973 — Section 125 — Hindu Marriage Act, 1955 — Sections 24 & 25.

 

Pentakota Satyanarayana v. Pentakota Seetharatnam [Bench Strength 2], CA Nos. 5941-5942/2005 (29/09/2005), 2005 AIR(SC) 4362: 2005(Supp-3) SCR 719: 2005(8) SCC 67: 2005(12) JT 258: 2005(7) SCALE 682: 2005(8) Supreme 666: 2005(7) SLT 423: 2005(7) SCJ 173: 2005(10) SRJ 341 [Ruma Pal, J.: AR. Lakshmanan, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(ib) — Desertion — Animus deserendi on the part of wife, existence of — Inevitable conclusion that there was never any attempt on the part of wife to go to husband’s house i.e., the matrimonial home of the parties after she left before about 10 years — From this fact alone animus deserendi on the part of wife is clearly established.

Geeta Jagdish Mangtani v. Jagdish Mangtani [Bench Strength 2], CA No. 576/2003 (20/09/2005), 2005 AIR(SC) 3508: 2005(8) SCC 177: 2005(8) JT 406: 2005(7) SCALE 382: 2005(6) Supreme 456: 2005(7) SLT 137: 2005(7) SCJ 1: 2005(9) SRJ 154 [Arun Kumar, J.: A.K. Mathur, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(ib) — Desertion on the part of wife — Grant of divorce on the ground of, fit case for — Marriage between parties taken place on 2.11.1992 — Stay by wife in matrimonial home upto 2.06.1992 — Appellate-wife left husband’s house for her first delivery and a son was born on 11.11.1993 — Thereafter wife never returned to join husband — Both the parties appear to be adamant regarding their respective stand that is, the wife not prepared to leave her job as school teacher in Gujarat and husband is not willing to leave his job in Mumbai — No attempt on the part of wife to stay with husband — Even during summer vacation no attempt by her to visit the husband during entire period — She has chosen to adopt a course of conduct which proves desertion on her part — No reasonable cause for such desertion on the part of the wife — Divorce granted by High Court on the ground of desertion justified and need no interference — Appeal to be dismissed.

HELD: The trial court after recording evidence accepted both the grounds and granted a decree of divorce. However, on an appeal filed by the wife, the lower Appellate Court reversed the judgment of the trial Court and dismissed the divorce petition filed by the husband. The husband appealed to the High Court against the said order. The High court by the judgment which is under challenge in this appeal confirmed the decree of divorce granted by the trial Court but only on the ground of desertion as the ground of cruelty was not pressed on behalf of the husband before the High Court. It is apparent from the judgment of the High Court that the learned Judge made various attempts to bring about a settlement between the parties but he failed. This is noted by the learned Judge that both the parties appear to be adamant regarding their respective stands, that is, the wife is not prepared to leave her Job at Anjar in Gujarat unless the husband is able to earn a handsome salary at Ulhasnagar where he stays with his parents and other family members. Likewise, the husband is not willing to leave his present job and stay with the wife at Adipur, a place near Anjar in Gujarat where she is teaching. It may be mentioned here that at Adipur, the wife stays with her parents, the son of the parties is also with the wife.

The most important fact which emerges is that from 2nd June, 1993, the parties have been staying separately and there is total lack of any effort on their part to stay together. Since the wife left the matrimonial home on 2nd June, 1993 and has, admittedly, not returned to the said home, the absence of any desire on her part to honour the matrimonial obligation is clear.

The marriage survived only for a brief period of about seven months. After 2nd June, 1993 till the exchange of notices and replies during September to December, 1996 and filing of the divorce petition ultimately by the husband on 31st December, 1996, there has been no attempt on the part of the wife to stay with the husband. She is a school teacher and it is common knowledge that in schools there are long vacations during summer months, more so, in Government schools where the wife teaches. At least during those holidays she could have visited the husband at Ulhasnagar alongwith her son and stayed with him. There is nothing on record to show that any such attempt was ever made by her to visit the husband during this entire period. She has stated in her evidence that the husband used to come and stay with her during her vacations. This has been denied by the husband. Therefore, the conclusion in inevitable, that there was never any attempt on the part of the wife to go to husband’s house i.e., matrimonial home of the parties after she left on 2nd June, 1993. From this fact alone animus deserendi on the part of the wife is clearly established. She has chosen to adopt a course of conduct which proves desertion on her part. In the facts and circumstances of the case, it cannot be said that this desertion on the part of the wife was with a reasonable cause. Such a course of conduct over a long period indicates total abandonment of marriage and cannot be justified on ground of monetary consideration alone as a reasonable cause to desert. It also amounts to willful neglect of the husband by the wife. Therefore, the conclusion reached by the High Court appears to be absolutely correct in the facts and circumstances of the case. This appeal is accordingly dismissed with no order as to costs.

Geeta Jagdish Mangtani v. Jagdish Mangtani [Bench Strength 2], CA No. 576/2003 (20/09/2005), 2005 AIR(SC) 3508: 2005(8) SCC 177: 2005(8) JT 406: 2005(7) SCALE 382: 2005(6) Supreme 456: 2005(7) SLT 137: 2005(7) SCJ 1: 2005(9) SRJ 154 [Arun Kumar, J.: A.K. Mathur, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(i-b) — Desertion — Proof for existence of — Divorce on the ground of desertion — Question of desertion is a matter of inference to be drawn from facts and circumstances, of each case — Those facts have to be viewed as to the purpose which is revealed by those facts or by conduct and expression of intention both anterior and subsequent to actual act of separation.

G.V.N. Kameswara Rao vs. G. Jabilli, 2002(2) SCC 296, Referred.

Durga Prasanna Tripathy v. Arundhati Tripathy [Bench Strength 2], CA No. 5184/2005 (23/08/2005), 2005 AIR(SC) 3297: 2005(Supp-2) SCR 833: 2005(7) SCC 353: 2005(7) JT 596: 2005(6) SCALE 657: 2005(5) Supreme 766: 2005(6) SLT 373: 2005(6) SCJ 452: 2005(8) SRJ 324: 2005(3) JCC 1385 [Ruma Pal, J.: AR. Lakshmanan, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 13(1)(i-a) & (i-b) — Divorce — Decree of, circumstances for grant of — Situation demanding dissolution of marriage by a decree of divorce — Where it is found that the marriage between the parties has irretrievably broken down and has been rendered a dead wood, exigency of such a situation demand dissolution of such a marriage by decree of divorce to put an end to the agony and bitterness.

Anjana Kishore vs. Puneet Kishore, 2002(10) SCC 194, Swati Verma vs. Rajan Verma, 2004(1) SCC 123, Referred.

Durga Prasanna Tripathy v. Arundhati Tripathy [Bench Strength 2], CA No. 5184/2005 (23/08/2005), 2005 AIR(SC) 3297: 2005(Supp-2) SCR 833: 2005(7) SCC 353: 2005(7) JT 596: 2005(6) SCALE 657: 2005(5) Supreme 766: 2005(6) SLT 373: 2005(6) SCJ 452: 2005(8) SRJ 324: 2005(3) JCC 1385 [Ruma Pal, J.: AR. Lakshmanan, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(i-a), (i-b) & 25 — Divorce — Decree of, grant of, fit case for — Appellant and respondent had been separated since 14 years — Both parties crossed the point of no return — Irretrievable breakdown of marriage between appellant and respondent — Absence of respondent during death of her father-in-law and during marriage ceremony of her brother-in-law — Dislike for each other was burning hot — No other option except to allow the appeal setting aside the judgement of High Court and affirming the order of family court granting decree of divorce — Considering the status of parties and the economic condition of appellant-husband who is facing criminal prosecution and out of job and also considering the status of the wife who is employed, held, a further sum of Rs. 1 lakh by way of permanent alimony would meet the ends of justice.

V. Bhagat vs. D. Bhagat (Mrs), (1994) 1 SCC 337: AIR 1994 SC 710, Romesh Chander vs. Savitri, AIR 1995 SC 851: 1995 AIR SCW 647 Relied on.

HELD: The Family Court has given cogent and convincing reasons for passing the decree of divorce in favour of the appellant. Having been convinced that there was no chance of reunion or reconciliation between the parties, more so because of the complaint filed by the respondent before the Mahila Commission, the Family Court with a view to put a quietus to the litigation inter se and the bitterness between the parties rightly passed the decree of divorce.

In our view that 14 years have elapsed since the appellant and the respondent have been separated and there is no possibility of the appellant and the respondent resuming the normal marital life even though the respondent is willing to join her husband. There has been an irretrievable breakdown of marriage between the appellant the respondent. The respondent has also preferred to keep silent about her absence during the death of her father-in-law and during the marriage ceremony of her brother-in-law. The complaint before the Mahila Commission does not implicate the appellant for dowry harassment though the respondent in her evidence before the Family Court has alleged dowry harassment by the appellant. It is pertinent to mention here that a complaint before the Mahila Commission was lodged after 7 years of the marriage alleging torture for dowry by the mother-in-law and brother-in-law during the initial years of marriage. The said complaint was filed in 1998 that is only after notice was issued by the Family Court on 27.03.1997 on the application filed by the appellant under Section 13 of the Hindu Marriage Act. The Family Court, on examination of the evidence on record, and having observed the demeanor of the witnesses concluded that the appellant had proved that the respondent is not only cruel but also deserted him since more than 7 years. The desertion as on date is more than 14 years and, therefore, in our view there has been an irretrievable breakdown of marriage between the appellant and the respondent. Even the Conciliation Officer before the Family Court gave its report that the respondent was willing to live with the appellant on the condition that they lived separately from his family. The respondent in her evidence had not disputed the fact that attempts have been made by the appellant and his family to bring her back to the matrimonial home for leading a conjugal life with the appellant. Apart from that, relationship between the appellant and the respondent have become strained over the years due to the desertion of the appellant by the respondent for several years. Under the circumstances, the appellant had proved before the Family Court both the factum of separation as well as animus deserendi which are the essential elements of desertion. The evidence adduced by the respondent before the Family Court belies her stand taken by her before the Family Court. Enough instances of cruelty meted out by the respondent to the appellant were cited before the Family Court and the Family Court being convinced granted the decree of divorce. The harassment by the in-laws of the respondent was an after-thought since the same was alleged after a gap of 7 years of marriage and desertion by the respondent. The appellant having failed in his efforts to get back the respondent to her matrimonial home and having faced the trauma of performing the last rites of his deceased father without the respondent and having faced the ill-treatment meted out by the respondent to him and his family had, in our opinion, no other efficacious remedy but to approach the Family Court for decree of divorce.

It is not in dispute that the appellant and the respondent are living away for the last 14 years. It is also true that a good part of the lives of both the parties has been consumed in this litigation. As observed by this Court, the end is not in sight. The assertion of the wife through her learned counsel at the time of hearing appears to be impractical. It is also a matter of record that dislike for each other was burning hot.

Both parties have crossed the point of no return. A workable solution is certainly not possible. Parties cannot at this stage reconcile themselves and live together forgetting their past as a bad dream. We, therefore, have no other option except to allow the appeal and set aside the judgment of the High Court and affirming the order of the Family Court granting decree for divorce. The Family Court has directed the appellant to pay a sum of Rs. 50,000/- towards permanent alimony to the respondent and pursuant to such direction the appellant had deposited the amount by way of bank draft. Considering the status of parties and the economic condition of the appellant who is facing criminal prosecution and out of job and also considering the status of the wife who is employed, we feel that a further sum of Rs. 1 lakh by way of permanent alimony would meet the ends of justice. This shall be paid by the appellant within 3 months from today by an account payee demand draft drawn in favour of the respondent-Arundhati Tripathy and the dissolution shall come into effect when the demand draft is drawn and furnished to the respondent.

Durga Prasanna Tripathy v. Arundhati Tripathy [Bench Strength 2], CA No. 5184/2005 (23/08/2005), 2005 AIR(SC) 3297: 2005(Supp-2) SCR 833: 2005(7) SCC 353: 2005(7) JT 596: 2005(6) SCALE 657: 2005(5) Supreme 766: 2005(6) SLT 373: 2005(6) SCJ 452: 2005(8) SRJ 324: 2005(3) JCC 1385 [Ruma Pal, J.: AR. Lakshmanan, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 24 — Maintenance allowance pendente lite — Quantum of, determination — Divorce proceeding initiated by respondent-husband after 20 years of marriage alleging cruelty and leaving matrimonial home — Maintenance claimed by appellant wife for himself and her two sons — Income of Rs. 5000/- disclosed by respondent seems to be inadequate as he had standing of more than 25 years as a professional architect — Business of selling saries by appellant from her house not so big to maintain herself and her two growing sons — Maintenance awarded by trial court of Rs. 3000/- p.m. for appellant-wife, Rs. 5000/- p.m. for elder son and Rs. 2500/- p.m. for younger son — High Court in appeal maintained the amount granted to younger son, reduced the amount of Rs. 5000/- to Rs. 1500/- and set aside award granted to wife holding that she having her own income by selling saries from her residence not entitled to any maintenance allowance — Held, appellant-wife entitled to Rs. 1500/- p.m., elder son entitled to Rs. 3000/- p.m. and Rs. 2500/- p.m. to younger son to be maintained — Appellant also entitled to Rs.10,000/- as litigation expenses and Rs.5,000/- as costs — Order of High Court modified accordingly — Civil Procedure Code, 1908 — Section 34.

HELD: We agree with the findings recorded by the High Court as well as the trial Court that the respondent had not disclosed his true income. He has failed to produce the balance sheet as well as profit and loss account which could show his real income. The income of Rs. 5,000/- disclosed by the respondent seems to be grossly inadequate keeping in view that he had standing of more than 25 years as a professional architect. The business of printing or selling saris by appellant no.1 from her house does not seem to be a big or lucrative business and from the income of this business she cannot maintain herself and her two growing sons pursuing their studies in prestigious institutions. No doubt she has roof over her head but she requires money to meet other day-to-day requirements and medical expenses. The sum of Rs.4,000/- awarded to the two sons of appellant No. 1 as maintenance pendente lite is inadequate keeping in view today’s price index. Accordingly, we modify the order passed by the High Court and increase the maintenance allowance of Saurav Dutta who is studying in West Bengal National University of Juridical Sciences, Kolkata to Rs.3,000/- per month instead of Rs.1,500/- per month granted by the High Court. Respondent is also directed to pay maintenance allowance of Rs.1,500/- per month to appellant no.1 as well. The maintenance allowance granted to the second son Gaurav Dutta of Rs. 2,500/- per month is maintained.

In terms of this order appellant no.1 would be entitled to Rs.1,500/- per month, Saurav Dutta (elder son) would be entitled to Rs.3,000/- per month and the Gaurav Dutta (younger son) would be entitled to Rs.2,500/- per month, total of which comes to Rs.7,000/- per month. Modified order will take effect from the date of filing of application under Section 24 of the Act.

Rita Dutta v. Subhendu Dutta [Bench Strength 2], CA No. 4909/2005 (11/08/2005), 2006 AIR(SC) 189: 2005(6) SCC 619: 2005(7) JT 279: 2005(6) SCALE 454: 2005(5) Supreme 596: 2005(6) SLT 235: 2005(6) SCJ 56: 2005(7) SRJ 343 [Ashok Bhan, J.: S.B. Sinha, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 21-B(2) — Fixation of period for hearing appeal contrary to s.21-B — Improper — Held, Court cannot fix a period of one year for hearing of appeal disregarding provisions of Section 21-B which allows six month’s period for trial of the petitions.

Neelam Mann v. Charanjit Singh Mann [Bench Strength 2], CA No. 3638/2005 (13/07/2005), 2006(13) SCC 281 [D.M. Dharmadhikari, J.: Arun Kumar, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 28 & 13-B — Power of appellate court — Scope — Decree of divorce by mutual consent set aside by single judge of High Court on the ground that decree was erroneously passed without expiry of waiting period to be granted to the spouses — Stay of entire judgment by Division Bench — When invalid — Held, on an application for stay, the Division Bench ought not to have stayed the whole judgment with adverse consequences against the wife — Impugned order to be set aside — Matter to be remitted back to Division Bench to decide on merits within period of six months — Constitution of India — Article 136.

Neelam Mann v. Charanjit Singh Mann [Bench Strength 2], CA No. 3638/2005 (13/07/2005), 2006(13) SCC 281 [D.M. Dharmadhikari, J.: Arun Kumar, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 10, 13, 24 & 25 — Judicial separation and payment of maintenance — Grant of, while disallowing claim for divorce — Held, improper.

Trupti Das v. Rabindranath Mohapatra [Bench Strength 2], CA No. 5467/2003 (07/04/2005), 2005(11) SCC 553 [B.N. Agrawal, J.: H.K. Sema, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 10, 13, 24 & 25 — Judicial separation and payment of maintenance — Grant of, requirement for, pleading and evidence, necessity — There was neither any case filed for judicial separation nor any evidence was led by parties for judicial separation — High Court suo motu granted a decree for judicial separation with direction for payment of maintenance which was clearly unjustified — Therefore, while upholding order of High Court dismissing claim for divorce, the decree for judicial separation and direction for grant of maintenance to be set aside — Civil Procedure Code, 1908 — Order 6 Rule 1 & Order 18 Rule 2.

Trupti Das v. Rabindranath Mohapatra [Bench Strength 2], CA No. 5467/2003 (07/04/2005), 2005(11) SCC 553 [B.N. Agrawal, J.: H.K. Sema, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 28 — Appeal — Allowing of, by granting divorce without going into the ground of divorce, improper — Petition for divorce — Ground of cruelty and wilful desertion — Husband’s petition for divorce dismissed by family court holding grounds were not proved — Appeal preferred by husband allowed by High Court without going into merits of grounds — Held, procedure adopted by High Court wholly unknown to law — It was incumbent upon appellate court to discuss evidence adduced on behalf of parties and thereafter only decide the appeal — Said procedure having not been adopted, held, impugned order suffers from serious legal infirmity and is liable to be set aside — Matter remitted for disposal in accordance with law.

Sushma Subhas Koshe v. Subhash Dattatraya Koshe [Bench Strength 2], CA No. 1373/2002 (06/04/2005), 2005(12) SCC 204 [B.N. Agrawal, J.: H.K. Sema, J.] <<LAWPACK SUPREME COURT>>
Civil Procedure Code, 1908 — Order 22 Rules 10 & 1 — Abatement of suit — Impermissibility, scope — Petition for dissolution of marriage filed by husband of respondent on the ground of being voidable — Petitioner died — Appellants who were parents of petitioner filed petition under Order 22 Rule 10 — Whether petition filed by husband of respondent had abated — Held, no, as petition was for dissolution of marriage on ground that same was voidable, it did not abate — Matter remanded to trial court with directions to allow petition and then decide the same in accordance with law — Hindu Marriage Act, 1955 — Section 13.

Chottey Lal Aggarwal v. Shelly Agarwal [Bench Strength 2], CA No. 4714/2002 (06/04/2005), 2005(12) SCC 195 [B.N. Agrawal, J.: H.K. Sema, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 24 — Maintenance pendente lite — Quantum of — Grant of interim maintenance by trial court at the rate of Rs. 1000/- per month — Enhanced by High Court in revision to Rs. 3500/- per month — Interim order by this court for stay of operation of impugned order of High Court — Respondent not entered appearance before Supreme Court to contest the prayer of appellant and matter has remained pending for a period of more than two years, effect — Held, it would be appropriate to direct the trial court to dispose of matrimonial suit with utmost expedition — Order accordingly — Interim order passed by this court to continue during pendency of suit.

Arun Kumar Patra v. Shila Patra [Bench Strength 2], CA No. 5429/2002 (06/04/2005), 2005(11) SCC 530 [B.N. Agrawal, J.: H.K. Sema, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(i-a) — Divorce — Grant of, on the ground of cruelty by High Court without considering evidence, improper — Divorce petition by husband on ground of cruelty refused by trial court holding cruelty not proved — High Court granted divorce decree after an attempt made for re-union being failed and without reversing the finding of trial court on question of cruelty — High Court should have considered the evidence adduced by parties on ground of cruelty before proceeding to dispose of the appeal — Same having not been done, impugned order suffers from serious legal infirmity and liable to be set aside.

Lavanya v. Chiranjeevi [Bench Strength 2], CA No. 3367/2001 (05/04/2005), 2005(11) SCC 194 [B.N. Agrawal, J.: P.K. Balasubramanyan, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(iii) — Divorce on the ground of mental illness — Prayer for, opposition of ground of mental illness, proper procedure of — Direction by High Court that wife first give evidence on affidavit and thereafter appear for cross-examination and then to be referred for medical examination by expert — Justification — In law the wife has an option to decide in what manner she would oppose the ground of mental illness alleged against her — Proper procedure to be adopted by High Court was to allow her to undergo medical examination if so desired and thereafter give her oral evidence, if she so liked to do so — Direction of High Court unjustified and to be set aside — Special Marriage Act, 1954 — Section 27(1)(e) — Parsi Marriage and Divorce Act, 1936 — Section 32(bb) — Evidence Act, 1872 — Sections 135, 138 & 145.

Radhika Gupta v. Darshan Gupta [Bench Strength 2], CA No. 2418-19/2005 (04/04/2005), 2005(11) SCC 479 [D.M. Dharmadhikari, J.: B.N. Srikrishna, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 23, 27, 28, 10 & 25 — Ornaments and other articles — Return of, failure, effect, claim of amount with interest, when unsustainable — Direction for return of ornaments and other articles and in alternative if the ornament were not returned, to pay a sum of Rs. 3,25,655 together with interest — Ornaments were delivered to respondent by appellant — Despite the same, direction by family court for payment of interest on aforementioned sum — Direction upon appellant to return the ornaments is not concomitant with the order to pay the price thereof — By reason of first direction no decree to pay interest on a specified sum was passed — Thus if no occasion had arisen for paying said sum of Rs. 3,25,655/-, the question of paying interest not to arise — Neither of court below had directed payment of interest on the ground of deliberate and wrongful withholding of ornaments by appellant — Impugned judgment of family court and conformed by High Court not sustainable and to be set aside — In the peculiar facts and circumstances of the case, direction given to the Appellant to bear the costs of Rs.10,000/- to Respondent in appeal — Supreme Court Rules, 1966 — Order 41.

HELD: Whereas the Family Court directed the Appellant herein to return the ornaments within one month from the date of the decree, and only on his failure to do so he was made liable to pay the value thereof. The High Court while upholding that part of the decree, did not fix any time therefor. In absence of any direction having been issued by the High Court upon the Appellant to return the ornaments within the time specified therefor, the ornaments could be returned by him to the Respondent within a reasonable time. The order of the High Court, therefore, was a conditional one. The Appellant herein offered delivery of the ornaments to the Respondent by his letter dated 15.3.2000. The receipt of the said letter has been disputed before us but from a scrutiny of the records it does not appear that the said contention was raised before the courts below. No such contention had been raised before the High Court. In fact the High Court wrongly proceeded to hold that the Appellant could not have avoided his liability merely by giving the said notice of 15 days on 15.3.2000. Issuance of the said notice by the Appellant as also the contents thereof, therefore, had not been denied or disputed by the respondent.

The High Court moreover misconstrued and misinterpreted its earlier judgment dated 20.1.2000. It failed to notice that the direction upon the Appellant to pay interest was subject to the condition that if he did not return the ornaments, the direction to pay interest on the aforementioned amount of Rs.3,25,655/- would operate, and it was thus not an unconditional decree. If the Appellant had fulfilled the conditions specified in the judgment, the question of his incurring the liability to pay the price of the ornaments specified by the High Court did not arise.

The direction upon the Appellant to return the ornaments is not concomitant with the order to pay the price thereof. The second direction was, thus, a conditional one which comes into operation only upon non-fulfilment of the first direction. Thus, by reason of the first direction no decree to pay interest on a specified sum was passed. In that view of the matter, if no occasion had arisen for paying the aforementioned sum of Rs.3,25,655/-, the question of paying any interest thereupon would not arise. Neither the Family Court nor the High Court had directed payment of any interest on the ground of deliberate and wrongful withholding of the ornaments by the Appellant. Even on the said count, no interest could have been directed to be paid but what could be directed was payment of compensation.

We are, therefore, of the opinion that the judgment of the High Court is not sustainable which is set aside accordingly. The appeal is allowed. However, in the peculiar facts and circumstances of the case, we direct the Appellant to bear the costs of the Respondent in this appeal which is quantified at Rs.10,000/-. The said sum shall be paid to the Respondent by the Appellant within four weeks from date.

Ramesh Chand Daga v. Rameshwari Bai [Bench Strength 2], CA No. 1780/2005 (16/03/2005), 2005(2) SCR 927: 2005(4) SCC 772: 2005(3) JT 476: 2005(3) SCALE 229: 2005(2) Supreme 609: 2005(3) SLT 232: 2005(3) SCJ 1: 2005(4) SRJ 283 [B.P. Singh, J.: S.B. Sinha, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Sections 125 & 127 — Maintenance — Denial to wife on the ground of illegal marriage, justification — Full and final settlement in respect of maintenance to child — Appellant-claimed maintenance for her and her child pleading marriage with respondent according to customary rites being neglected by respondent — Appellant not a legally married wife as the earlier marriage with another women was established by evidence on record — Application so far as claim of maintenance of wife therefore to be dismissed — Maintenance granted to child by JMFC rightly enhanced by High Court from Rs. 350/- to 500/- in view of amendment Act, 2001 omitting the words “not exceeding five hundred rupees in the whole” — Court further enhanced to Rs. 850/- — However on submission of respondent to pay a lump-sum amount of 2 lacs, appeal disposed of in full and final settlement of claim — Hindu Marriage Act, 1955 — Sections 11, 24, 25 & 5.

HELD: The word `wife’ is not defined in the Code except indicating in the Explanation to Section 125 its inclusive character so as to cover a divorcee. A woman cannot be a divorcee unless there was a marriage in the eye of law preceding that status. The expression must therefore be given the meaning in which it is understood in law applicable to the parties. The marriage of a woman in accordance with the Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is therefore not entitled to the benefit of Section 125 of the Code or the Hindu Marriage Act, 1955 (in short the `Marriage Act’). Marriage with person having living spouse is null and void and not voidable. However, the attempt to exclude altogether the personal law applicable to the parties from consideration is improper. Section 125 of the Code has been enacted in the interest of a wife and one who intends to take benefit under sub-section (1)(a) has to establish the necessary condition, namely, that she is the wife of the person concerned. The issue can be decided only by a reference to the law applicable to the parties. It is only where an applicant establishes such status or relationship with reference to the personal law that an application for maintenance can be maintained.

In the instant case the evidence on record has been found sufficient by the Courts below by recording findings of fact that earlier marriage of respondent was established.

In that view of the matter, the application so far as claim of maintenance of the wife is concerned stands dismissed.

It is not in dispute that when the Claim Petition was filed, Rs.500/- was claimed as maintenance as that was the maximum amount which could have been granted because of the unamended Section 125. But presently, there is no such limitation in view of the amendment as referred to above.

As a matter of fact, Section 127 of the Code permits increase in the quantum. The application for maintenance was filed on 1.9.1995. The order granting maintenance was passed by the learned JMFC on 31.7.1999. The High Court enhanced the quantum awarded to the child from Rs.350/- to Rs.500/- with effect from the order passed by learned JMFC. No dispute has been raised regarding enhancement and in fact there was a concession to the prayer for enhancement before the High Court as recorded in the impugned judgment. Considering the peculiar facts of the case, we feel that the amount of maintenance to the child can be enhanced to Rs.850/- with effect from today.

Learned counsel for the respondent No. 2 has submitted that as a humanitarian gesture, the respondent No. 2 agrees to pay a lump-sum amount to settle the dispute. In case the respondent No. 2 pays a sum of rupees two lakhs only within a period of four months to the appellant, the same shall be in full and final settlement of the claim of respondent No. 3 for maintenance.

Savitaben Somabhai Bhatiyan v. State of Gujarat [Bench Strength 2], CrA No. 399/2005 (10/03/2005), 2005 AIR(SC) 1809: 2005(2) SCR 638: 2005(3) SCC 636: 2005(3) JT 164: 2005(3) SCALE 80: 2005(2) Supreme 503: 2005(3) SLT 59: 2005(5) SCJ 22: 2005(4) SRJ 193: 2005 CrLJ 2141: 2005 SCC(Cr) 787: 2005(2) Crimes 1(SC): 2005(1) JCC 505: 2005(2) RecentCR 190: 2005(3) CRJ 176 [Arijit Pasayat, J.: S.H. Kapadia, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Section 125 — Maintenance to second wife — Illegal marriage, effect — Denial of maintenance, Principle of estoppel, applicability — Appellant-wife having been marriaged with a man having a living spouse — Plea advanced by her that she was not informed about respondent’s earlier marriage when she married him is of no avail as her marriage being a complete nullity in eye of law — Principle of estoppel can not be pressed into service to defeat the provision of section 125 of CrPC — Doctrines — Principle of estoppel — Evidence Act, 1872 — Section 115 — Hindu Marriage Act, 1955 — Sections 11, 24, 25 & 5(i).

Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and Anr., AIR 1988 SC 644, Referred.

Savitaben Somabhai Bhatiyan v. State of Gujarat [Bench Strength 2], CrA No. 399/2005 (10/03/2005), 2005 AIR(SC) 1809: 2005(2) SCR 638: 2005(3) SCC 636: 2005(3) JT 164: 2005(3) SCALE 80: 2005(2) Supreme 503: 2005(3) SLT 59: 2005(5) SCJ 22: 2005(4) SRJ 193: 2005 CrLJ 2141: 2005 SCC(Cr) 787: 2005(2) Crimes 1(SC): 2005(1) JCC 505: 2005(2) RecentCR 190: 2005(3) CRJ 176 [Arijit Pasayat, J.: S.H. Kapadia, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Section 125 — Maintenance — Entitlement to, requirement for — “Wife”, meaning of — Right of second wife married illegally — One who intends to take benefit u/s 125 has to establish the necessary condition that she is wife of person concerned — The expression `wife’ to be interpreted to mean only a legally wedded wife — Whether a women having been marriaged in accordance with Hindu rites with a man having a living spouse is entitled to benefit of section 125? — Held, no — Marriage of a women in accordance with Hindu rites with a man having a living spouse is a complete nullity in eye of law and she is not entitled to benefit of S. 125 of CrPC — Words and Phrases — Wife — Hindu Marriage Act, 1955 — Sections 11, 24 & 25 — Hindu Adoption and Maintenance Act, 1956 — Section 18.

HELD: The word `wife’ is not defined in the Code except indicating in the Explanation to Section 125 its inclusive character so as to cover a divorcee. A woman cannot be a divorcee unless there was a marriage in the eye of law preceding that status. The expression must therefore be given the meaning in which it is understood in law applicable to the parties. The marriage of a woman in accordance with the Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is therefore not entitled to the benefit of Section 125 of the Code or the Hindu Marriage Act, 1955 (in short the `Marriage Act’). Marriage with person having living spouse is null and void and not voidable. However, the attempt to exclude altogether the personal law applicable to the parties from consideration is improper. Section 125 of the Code has been enacted in the interest of a wife and one who intends to take benefit under sub-section (1)(a) has to establish the necessary condition, namely, that she is the wife of the person concerned. The issue can be decided only by a reference to the law applicable to the parties. It is only where an applicant establishes such status or relationship with reference to the personal law that an application for maintenance can be maintained.

Savitaben Somabhai Bhatiyan v. State of Gujarat [Bench Strength 2], CrA No. 399/2005 (10/03/2005), 2005 AIR(SC) 1809: 2005(2) SCR 638: 2005(3) SCC 636: 2005(3) JT 164: 2005(3) SCALE 80: 2005(2) Supreme 503: 2005(3) SLT 59: 2005(5) SCJ 22: 2005(4) SRJ 193: 2005 CrLJ 2141: 2005 SCC(Cr) 787: 2005(2) Crimes 1(SC): 2005(1) JCC 505: 2005(2) RecentCR 190: 2005(3) CRJ 176 [Arijit Pasayat, J.: S.H. Kapadia, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Sections 3(b) & 18 — “Maintenance” — Meaning of — Whether it has been so defined as to include therein provision for residence amongst other things — Held, yes — Further for the purpose of maintenance the term “wife” includes a divorced wife — Words and Phrases — Maintenance — Words and Phrases — Wife — Rent Law — Suit for eviction — Entitlement of divorced wife to contest, requirement for — Hindu Marriage Act, 1955 — Sections 24, 25 & 27 — Civil Procedure Code, 1908 — Order 1 Rules 3, 9 & 10 — Criminal Procedure Code, 1973 — Section 125 — Divorce Act, 1869 — Sections 37 & 38 — Special Marriage Act, 1954 — Sections 36 & 37 — Parsi Marriage and Divorce Act, 1936 — Sections 39 to 42 — Muslim Law — Maintenance — Family Courts Act, 1984 — Section 7.
B.P. Achala Anand v. S. Appi Reddy [Bench Strength 3], CA No. 4250/2000 (11/02/2005), 2005 AIR(SC) 986: 2005(2) SCR 3: 2005(3) SCC 313: 2005(2) JT 233: 2005(2) SCALE 105: 2005(2) Supreme 1: 2005(2) SLT 312: 2005(2) SCJ 314: 2005(4) SRJ 52: 2005(1) RCJ 46(SC): 2005(1) KAJ 572 [R.C. Lahoti, C.J.: G.P. Mathur, J.: P.K. Balasubramanyan, J.] <<LAWPACK SUPREME COURT>>
Karnataka Rent Control Act, 1961 — Sections 21(1)(a), (h), (2) & 30 — Suit for eviction — Denial to deserted wife to contest, justification — Entitlement of appellant, a deserted wife continuing in tenanted premises taken on lease by husband — Admitted by appellant that during pendency of eviction proceedings a decree for dissolution of marriage by divorce based on mutual consent has been passed — It is not the case of mutual consent has been passed — It is not the case of appellant that she is entitled to continue her residence in tenanted premises by virtue of an obligation incurred by her husband to provide residence for her as a part of maintenance — Therefore she cannot be allowed to defend her right against claim for eviction made by landlord — Rent Law — Suit for eviction — Entitlement of deserted wife to contest, requirement for — Hindu Marriage Act, 1955 — Sections 13(1)(ib) — Civil Procedure Code, 1908 — Order 1 Rules 3, 9 & 10 — Hindu Adoption and Maintenance Act, 1956 — Section 18 & 3(b) — Family Courts Act, 1984 — Section 7(1)(f) — Criminal Procedure Code, 1973 — Section 125 — Transfer of Property Act, 1882 — Sections 105, 108 & 111.
B.P. Achala Anand v. S. Appi Reddy [Bench Strength 3], CA No. 4250/2000 (11/02/2005), 2005 AIR(SC) 986: 2005(2) SCR 3: 2005(3) SCC 313: 2005(2) JT 233: 2005(2) SCALE 105: 2005(2) Supreme 1: 2005(2) SLT 312: 2005(2) SCJ 314: 2005(4) SRJ 52: 2005(1) RCJ 46(SC): 2005(1) KAJ 572 [R.C. Lahoti, C.J.: G.P. Mathur, J.: P.K. Balasubramanyan, J.] <<LAWPACK SUPREME COURT>>
Karnataka Rent Control Act, 1961 — Sections 21(1)(a), (h), (2) & 30 — Suit for eviction — Entitlement of divorced wife to contest, requirement for — Right of a divorced wife of residence in matrimonial home — Her entitlement to defend eviction petition against husband-tenant — Divorce is termination of matrimonial relationship and brings to an end the status of wife as such — Right of a divorced wife for residence is depend on the terms and condition in which the decree of divorce has been granted and provision for maintenance including residence has been made — If provision for residence of a divorced wife has been made by husband in matrimonial home situated in tenanted premises, such divorced wife would be entitled to defend in eviction proceeding, the tenancy right and rights of occupation thereunder but not higher or larger than that of husband — Rent Law — Suit for eviction — Entitlement of divorced wife to contest, requirement for — Hindu Marriage Act, 1955 — Sections 24 & 25 — Civil Procedure Code, 1908 — Order 1 Rules 3, 9 & 10 — Hindu Adoption and Maintenance Act, 1956 — Section 18 & 3(b) — Criminal Procedure Code, 1973 — Section 125 — Divorce Act, 1869 — Sections 37 & 38 — Special Marriage Act, 1954 — Sections 36 & 37 — Parsi Marriage and Divorce Act, 1936 — Sections 39 to 42 — Muslim Law — Divorce — Maintenance — Transfer of Property Act, 1882 — Sections 105, 108 & 111.

B.P. Achala Anand v. S. Appi Reddy [Bench Strength 3], CA No. 4250/2000 (11/02/2005), 2005 AIR(SC) 986: 2005(2) SCR 3: 2005(3) SCC 313: 2005(2) JT 233: 2005(2) SCALE 105: 2005(2) Supreme 1: 2005(2) SLT 312: 2005(2) SCJ 314: 2005(4) SRJ 52: 2005(1) RCJ 46(SC): 2005(1) KAJ 572 [R.C. Lahoti, C.J.: G.P. Mathur, J.: P.K. Balasubramanyan, J.] <<LAWPACK SUPREME COURT>>
Karnataka Rent Control Act, 1961 — Sections 21(1)(a), (h), (2) & 30 — Suit for eviction — Entitlement of deserted wife to contest, requirement for — A deserted wife if entitled to be in occupation of matrimonial home is entitled to contest the suit for eviction filed against her husband subject to satisfying two conditions — (1) That the tenant has given up the contest and such giving up by tenant-husband shall prejudice the deserted wife residing in premises in question — (ii) that the scope and ambit of contest by wife would not be on a footing higher than that of tenant himself — This right comes to an end with the wife losing her status as wife consequent upon decree of divorce and right to occupy the house as a part of right to maintenance coming to an end — Rent Law — Suit for eviction — Entitlement of deserted wife to contest, requirement for — Hindu Marriage Act, 1955 — Sections 13(1)(ib) — Civil Procedure Code, 1908 — Order 1 Rules 3, 9 & 10 — Hindu Adoption and Maintenance Act, 1956 — Section 18 & 3(b) — Family Courts Act, 1984 — Section 7(1)(f) — Criminal Procedure Code, 1973 — Section 125.

HELD: In our opinion, a deserted wife who has been or is entitled to be in occupation of the matrimonial home is entitled to contest the suit for eviction filed against her husband in his capacity as tenant subject to satisfying two conditions : first, that the tenant has given up the contest or is not interested in contesting the suit and such giving up by the tenant-husband shall prejudice the deserted wife who is residing in the premises; and secondly, the scope and ambit of the contest or defence by the wife would not be on a footing higher or larger than that of the tenant himself. In other words, such a wife would be entitled to raise all such pleas and claim trial thereon, as would have been available to the tenant himself and no more. So long as, by availing the benefit of the provisions of the Transfer of Property Act and Rent Control Legislation, the tenant would have been entitled to stay in the tenancy premises, the wife too can continue to stay exercising her right to residence as a part of right to maintenance subject to compliance with all such obligations including the payment of rent to which the tenant is subject. This right comes to an end with the wife losing her status as wife consequent upon decree of divorce and the right to occupy the house as part of right to maintenance coming to an end.

A deserted wife in occupation of the tenanted premises cannot be placed in a position worse than that of a sub-tenant contesting a claim for eviction on the ground of subletting. Having been deserted by the tenant-husband, she cannot be deprived of the roof over her head where the tenant has conveniently left her to face the peril of eviction attributable to default or neglect of himself. We are inclined to hold – and we do so – that a deserted wife continuing in occupation of the premises obtained on lease by her husband, and which was their matrimonial home, occupies a position akin to that of an heir of the tenant-husband if the right to residence of such wife has not come to an end. The tenant having lost interest in protecting his tenancy rights as available to him under the law, the same right would devolve upon and inhere in the wife so long as she continues in occupation of the premises. Her rights and obligations shall not be higher or larger than those of the tenant himself.

B.P. Achala Anand v. S. Appi Reddy [Bench Strength 3], CA No. 4250/2000 (11/02/2005), 2005 AIR(SC) 986: 2005(2) SCR 3: 2005(3) SCC 313: 2005(2) JT 233: 2005(2) SCALE 105: 2005(2) Supreme 1: 2005(2) SLT 312: 2005(2) SCJ 314: 2005(4) SRJ 52: 2005(1) RCJ 46(SC): 2005(1) KAJ 572 [R.C. Lahoti, C.J.: G.P. Mathur, J.: P.K. Balasubramanyan, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 25 & 27 — Maintenance — Right of, continuance of, scope — Right of a wife for maintenance is an incident of the status or estate of matrimony and a Hindu is under a legal obligation to maintain his wife — However on the status of wife being terminated by a decree or divorce, the rights of divorced wife seem to be cribbed, confined and cabined by provisions of Hindu Marriage Act and to the rights available u/s 25 and 27 of H.M. Act — Hindu Adoption and Maintenance Act, 1956 — Section 18.

B.P. Achala Anand v. S. Appi Reddy [Bench Strength 3], CA No. 4250/2000 (11/02/2005), 2005 AIR(SC) 986: 2005(2) SCR 3: 2005(3) SCC 313: 2005(2) JT 233: 2005(2) SCALE 105: 2005(2) Supreme 1: 2005(2) SLT 312: 2005(2) SCJ 314: 2005(4) SRJ 52: 2005(1) RCJ 46(SC): 2005(1) KAJ 572 [R.C. Lahoti, C.J.: G.P. Mathur, J.: P.K. Balasubramanyan, J.] <<LAWPACK SUPREME COURT>>
Hindu Law — Custody of children — Decision about — Points to be considered — Discussed — Hindu Marriage Act, 1955 — Section 26.

HELD: Before deciding the issue as to whether the custody should be given to the mother or the father or partially to one and partially to the other, the High Court must (a) take into account the wishes of the child concerned, and (b) assess the psychological impact, if any, on the change in custody after obtaining the opinion of a child psychiatrist or a child welfare worker. All this must be done in addition to ascertaining the comparative material welfare that the child/children may enjoy with either parent.

Mamta v. Ashok Jagannath Bharuka [Bench Strength 2], CA No. 637/205 (20/01/2005), 2005(12) SCC 452 [Ruma Pal, J.: C.K. Thakker, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 26 — Custody of children — Grant of, scope and relevant consideration for — Divorce by a decree of mutual divorce between parties — Custody of two minor daughters of couple handed over to respondent husband before passing of decree of divorce solely on the ground that appellant mother was residing with a stranger without any relation known to law — Respondent-husband also got married — Effect — Held, in deciding issue of custody of child High Court must (a) take into account wishes of child concerned and (b) assess psychological impact, if any, on the change in custody after obtaining opinion of a child psychiatrist or child welfare worker — This should be in addition to ascertaining comparative material welfare that child/children may enjoy with either parent — Matter remanded to High Court for disposal afresh in terms of this order.

Mamta v. Ashok Jagannath Bharuka [Bench Strength 2], CA No. 637/205 (20/01/2005), 2005(12) SCC 452 [Ruma Pal, J.: C.K. Thakker, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 25, 5(i), 9, 10, 11, 12 & 13 — Permanent alimony and maintenance — Entitlement to — Second marriage by wife with appellant in the absence of any decree of divorce of first marriage from court, no effect of, scope — A bigamous marriage may be declared illegal being in contravention of provisions of Act but it cannot be said to be immoral so as to deny even the right of alimony or maintenance to a spouse financially weak and economically dependent — Marriage by appellant-husband after death of his previous-wife with respondent-wife, a married wife of another — Petition by wife for decree of judicial separation and maintenance on ground of ill-treating by husband — Counter-petition by husband for declaration of marriage with respondent as nullity on ground that on the date of second marriage, marriage of respondent-wife with her previous husband has not been dissolved by any court — Declaration of second marriage as null and void by High Court in favour of husband but maintained the decree granting maintenance to wife and daughter — Justification — From circumstances preceding and attending the marriage it can safely be inferred that appellant-husband must have made reasonable enquiries about previous marriage of present wife — After second marriage, the parties lived as husband and wife and they had a considerably long married life of about nine years from 1981 to 1990 — Wife’s version is natural and inspires belief that the fact of her previous marriage was not concealed from present husband — In such situation family court and High Court were fully justified in holding that wife entitled to be granted maintenance u/s 25.

HELD: In the present case, on the husband’s petition, a decree declaring the second marriage as null and void has been granted. The learned counsel has argued that where the marriage is found to be null and void-meaning non-existent in eye of law or non est, the present respondent cannot lay a claim as wife for grant of permanent alimony or maintenance. We have critically examined the provisions of Section 25 in the light of conflicting decisions of the High Court cited before us. In our considered opinion, as has been held by this Court in Chand Dhawan’s case (supra), the expression used in the opening part of Section 25 enabling the `Court exercising jurisdiction under the Act’ `at the time of passing any decree or at any time subsequent thereto’ to grant alimony or maintenance cannot be restricted only to, as contended, decree of judicial separation under Section 10 or divorce under Section 13. When the legislature has used such wide expression as `at the time of passing of any decree,’ it encompasses within the expression all kinds of decrees such as restitution of conjugal rights under Section 9, judicial separation under Section 10, declaring marriage as null and void under Section 11, annulment of marriage as voidable under Section 12 and Divorce under Section 13.

It is well known and recognized legal position that customary Hindu Law like Mohammedan Law permitted bigamous marriages which were prevalent in all Hindu families and more so in royal Hindu families. It is only after the Hindu Law was codified by enactments including the present Act that bar against bigamous marriages was created by Section 5(i) of the Act. Keeping into consideration the present state of the statutory Hindu Law, a bigamous marriage may be declared illegal being in contravention of the provisions of the Act but it cannot be said to be immoral so as to deny even the right of alimony or maintenance to a spouse financially weak and economically dependent. It is with the purpose of not rendering a financially dependant spouse destitute that Section 25 enables the court to award maintenance at the time of passing any type of decree resulting in breach in marriage relationship.

The facts of the present case fully justify grant of maintenance both to the wife and the daughter. The evidence of the wife has been believed by the courts below and according to us rightly so. From circumstances preceding and attending the marriage, it can safely be inferred that the present husband must have made reasonable enquiries about the previous marriage of the present wife. The wife’s version is natural and inspires belief that the document of Chor Chhithi was shown and given to the husband. It is proved from the photocopy of the foil of Registration placed on record. According to the wife, the husband did receive the document of Chor Chhithi but has not produced it before the Family Court. It is argued that it is open to the wife, if the document was registered, to get a copy from the Registration office. Even if that was possible, we find no ground to disbelieve her version that the fact of her previous marriage was not concealed from the present husband. The husband is an advocate. His falsehood went to the extent of denying his second marriage and calling his wife only to be a governess of his children from the first wife. He unsuccessfully denied even the parentage of daughter Puja, born through him. He failed to lead any evidence on the illegitimacy of the child. After the second marriage the parties lived as husband and wife and they had a considerably long married life of about nine years from 1981 to 1990. In such a situation, the Family Court and High Court were fully justified in holding that the wife deserves to be granted maintenance under Section 25 of the Act.

Rameshchandra Rampratapji Daga v. Rameshwari Rameshchandra Daga [Bench Strength 2], CA Nos. 1774 & 1775/2001 (13/12/2004), 2005 AIR(SC) 422: 2004(Supp-6) SCR 888: 2005(2) SCC 33: 2004(10) JT 366: 2004(10) SCALE 391: 2005(1) Supreme 155: 2004(7) SLT 632: 2005(1) SCJ 376: 2005(2) SRJ 208: 2005(1) JCC 151: 2005(2) JCC 682 [D.M. Dharmadhikari, J.: H.K. Sema, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 25 & 11 — Grant of permanent alimony or maintenance — Power of court — Whether court has power to grant permanent alimony or maintenance in case where marriage between parties found by court to be null and void u/s 11 of Act? — Held, yes — Expression “at the passing of any decree” used under section 25 includes a decree of nullity of marriage — Further the court also retains such power subsequently to be invoked on application by a party entitled to relief and such order in all events, remains within jurisdiction of that court to be altered or modified as future situations may warrant — Words and Phrases — At the passing of any decree.

Chand Dhawan vs. Jawahar Lal Dhawan, 1993(3) SCC 406, Referred.

Rameshchandra Rampratapji Daga v. Rameshwari Rameshchandra Daga [Bench Strength 2], CA Nos. 1774 & 1775/2001 (13/12/2004), 2005 AIR(SC) 422: 2004(Supp-6) SCR 888: 2005(2) SCC 33: 2004(10) JT 366: 2004(10) SCALE 391: 2005(1) Supreme 155: 2004(7) SLT 632: 2005(1) SCJ 376: 2005(2) SRJ 208: 2005(1) JCC 151: 2005(2) JCC 682 [D.M. Dharmadhikari, J.: H.K. Sema, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 11, 5(i) & 25 — Null and void second marriage — What is — Second marriage by wife with appellant in the absence of any decree of divorce of first marriage from court, effect — Marriage by appellant husband after death of his previous wife with respondent, a married wife of another — Petition by respondent-wife for grant of decree of judicial separation and maintenance on ground of ill-treating by husband — Counter petition by husband seeking declaration of his second marriage with respondent a nullity on ground that on date of second marriage, her marriage with previous husband has not been dissolved by any court — Family court allowed petition of wife and dismissed petition of husband — High Court in appeal held second marriage of respondent wife as nullity and void being in contravention of section 5(i) of Act — Appeal against — Fact of her marriage with previous husband not denied by respondent-wife — It is also not denied that no decree of divorce was obtained from court — She only obtained a registered document of chhor chithhi from her previous husband but existence of such customary divorce in vaish community of Maheshwaries has not been established — In absence of any decree of divorce from court, first marriage of wife subsisted on date of second marriage with appellant-husband — Decree of declaration of respondent-wife’s marriage as void by High Court justified — Appeal of wife against to be dismissed.

HELD: So far as the appeal preferred by the wife is concerned, on reconsideration of the evidence on record, we find no ground to take a view different from the one taken by the High Court and upset the conclusion that the second marriage was null and void. The wife did not deny the fact that her marriage was arranged with Girdhari Lal Lakhotia in the year 1973 and after marriage she lived with the members of the family of her previous husband. It is also an admitted fact that she instituted proceedings for obtaining decree of divorce being Divorce Petition No. 76/78 in the Family Court at Amravati. It is also not denied that no decree of divorce was obtained from the Court and she only obtained a registered document of Chhor Chithhi from her previous husband on 15.5.1979. Existence of such customary divorce in Vaish community of Maheshwaris has not been established. A Hindu marriage can be dissolved only in accordance with the provisions of the Act by obtaining a decree of divorce from the Court. In the absence of any decree of dissolution of marriage from the court, it has to be held that in law the first marriage of the wife subsisted when she went through the second marriage on 11.7.1981 with the present husband. The appeal preferred by the wife, therefore, against grant of decree of declaration of her second marriage as void, has to be rejected whatever may be the circumstances which existed and the hardships that the wife had to undergo, as alleged, at the hands of her second husband.

Rameshchandra Rampratapji Daga v. Rameshwari Rameshchandra Daga [Bench Strength 2], CA Nos. 1774 & 1775/2001 (13/12/2004), 2005 AIR(SC) 422: 2004(Supp-6) SCR 888: 2005(2) SCC 33: 2004(10) JT 366: 2004(10) SCALE 391: 2005(1) Supreme 155: 2004(7) SLT 632: 2005(1) SCJ 376: 2005(2) SRJ 208: 2005(1) JCC 151: 2005(2) JCC 682 [D.M. Dharmadhikari, J.: H.K. Sema, J.] <<LAWPACK SUPREME COURT>>
Civil Procedure Code, 1908 — Order 6 Rule 17 — Amendment of plaint — Permissibility — Suit by husband for dissolution of marriage by a decree of divorce u/s 13(1) Hindu Marriage Act, 1955 alleging cruelty — Amendment sought to incorporate of a few fact of cruelty and conduct of respondent in support of relief sought for in the plaint — Contents of application for amendment and plaint as initially filed, amendment is necessary for the purpose of determining the real question in controversy between the parties — Refusal of prayer for amendment of plaint unjustified and to be set aside — Hindu Marriage Act, 1955 — Section 13(1).

K. Kannan v. K. Jayalakshmi [Bench Strength 3], CA No. 7875/2004 (06/12/2004), 2004(13) SCC 41 [R.C. Lahoti, C.J.: D.M. Dharmadhikari, J.: G.P. Mathur, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 13-B, 13(1)(ia) & (ib) — Decree for divorce on mutual consent — Grant of — Settlement of matter between parties by mediator requested by Supreme Court in terms of its earlier order — Joint application for recording settlement and for direction — As per settlement, last installment of total amount payable to petitioner by 31st Dec. 2004, has been made today by respondent — Earlier payment is admitted — Thus in exercise of power under Article 142 of Constitution, application allowed and a decree for divorce on mutual consent of parties on terms stated in application passed by this court — Criminal Procedure Code, 1973 — Section 125 — Constitution of India — Article 142.

Jimmy Sudarshan Purohit v. Sudarshan Sharad Purohit [Bench Strength 2], TP(C) No. 703/2003 (06/12/2004), 2005(13) SCC 410: 2004(10) SCALE 362: 2005(1) SLT 92 [Y.K. Sabharwal, J.: P.P. Naolekar, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 13(1)(i-a) & 10 — Cruelty — Meaning of — `Cruelty’ as a ground of 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 — Cruelty can be physical or mental — Words and Phrases — Cruelty.

A. Jayachandra v. Aneel Kaur [Bench Strength 3], CA Nos. 7763-7764/2004 (02/12/2004), 2005 AIR(SC) 534: 2004(Supp-6) SCR 599: 2005(2) SCC 22: 2004(10) JT 235: 2004(10) SCALE 153: 2005(1) Supreme 626: 2004(7) SLT 581: 2005(2) SCJ 189: 2005(1) SRJ 538 [Ruma Pal, J.: Arijit Pasayat, J.: C.K. Thakker, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 13(1)(i-a) & 10 — Behaviour and conduct — Pattern in, acts subsequent to filing of petition, consideration of, permissibility — If acts subsequent to the filing of the divorce petition can be looked into to infer condonation of the aberrations, acts subsequent to the filing of the petition can be taken note of to show a pattern in the behaviour and conduct.

A. Jayachandra v. Aneel Kaur [Bench Strength 3], CA Nos. 7763-7764/2004 (02/12/2004), 2005 AIR(SC) 534: 2004(Supp-6) SCR 599: 2005(2) SCC 22: 2004(10) JT 235: 2004(10) SCALE 153: 2005(1) Supreme 626: 2004(7) SLT 581: 2005(2) SCJ 189: 2005(1) SRJ 538 [Ruma Pal, J.: Arijit Pasayat, J.: C.K. Thakker, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 13(1)(i-a) & 10 — Cruelty — Conduct to constitute offence of — To constitute cruelty conduct complained of, should be “grave and weighty” so as to come to conclusion that petition spouse cannot be reasonably expected to live with other spouse — It must be something more serious than ordinary wear and tear of married life — Physical violence is not absolutely essential to constitute cruelty — A consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of section 10 of the Act — Words and Phrases — Cruelty.

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’. 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 Section 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.

A. Jayachandra v. Aneel Kaur [Bench Strength 3], CA Nos. 7763-7764/2004 (02/12/2004), 2005 AIR(SC) 534: 2004(Supp-6) SCR 599: 2005(2) SCC 22: 2004(10) JT 235: 2004(10) SCALE 153: 2005(1) Supreme 626: 2004(7) SLT 581: 2005(2) SCJ 189: 2005(1) SRJ 538 [Ruma Pal, J.: Arijit Pasayat, J.: C.K. Thakker, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(ia) — Cruelty — Evidence to establish — Cruelty may be physical or mental — In physical cruelty, there can be tangible and direct evidence but in mental cruelty there may not be direct evidence — In cases where there is no direct evidence, courts are required to probe into mental process and mental effect of incident that are brought out in evidence — Ultimately the mental cruelty is a matter of inference to be drawn by taking into account the nature of conduct and its effect on complaining spouse.

Sobh Rani vs. Madhukar Reddi, AIR 1988 SC 121, Referred.

A. Jayachandra v. Aneel Kaur [Bench Strength 3], CA Nos. 7763-7764/2004 (02/12/2004), 2005 AIR(SC) 534: 2004(Supp-6) SCR 599: 2005(2) SCC 22: 2004(10) JT 235: 2004(10) SCALE 153: 2005(1) Supreme 626: 2004(7) SLT 581: 2005(2) SCJ 189: 2005(1) SRJ 538 [Ruma Pal, J.: Arijit Pasayat, J.: C.K. Thakker, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(i-a) — Cruelty by wife — Decree of divorce for, grant of, fit case for — Husband and wife both are doctors by profession — No physical contact between husband and wife for over two years — Ill-treating, abusing in vulgar language by wife to husband in home and at hospital causing mental agony, damage and loss personally and professionally — Evidence showing clear manifestations of respondent-wife suspecting husband’s fidelity, character and reputation — Allegation by wife on husband of adultary with nursing staff and extra marital relationship of husband with another lady who was wife of his friend — After filing of divorce petition, a suit for injunction in respect of right to practice in hospital, she went to the extent of seeking detention of husband — Priority to her profession by wife over her husband’s freedom unerringly point out a disharmony, diffusion and disintegration of marital unity to deduce irretrievable breaking of marriage — In such circumstances appellant-husband entitled to decree of divorce.

HELD: The evidence as led and which is practically undisputed is that the respondent had asked the husband to do certain things which cannot be termed to be a simple advice for proper behaviour. For example in her evidence respondent clearly accepted that she had said five things to be followed by him. Surprisingly, most of them related to ladies working in the hospital. Though respondent tried to show that they were simple and harmless advice, yet on a bare reading thereof it is clear that there were clear manifestations of her suspecting the husband’s fidelity, character and reputation. By way of illustration, it may be indicated that the first so called advice was not to ask certain female staff members to come and work on off-duty hours when nobody else was available in the hospital. Second was not to work behind the closed doors with certain members of the staff. Contrary to what she had stated about having full faith in her husband, the so called advices were nothing but casting doubt on the reputation, character and fidelity of her husband. Constant nagging on those aspects, certainly amounted to causing indelible mental agony and amounts to cruelty. The respondent was not an ordinary woman. She was a doctor in the hospital and knew the importance of the nature of duty and the necessity of members of the staff working even during off hours and the working conditions. There was another instance which was specifically dealt with by the trial Court. Same related to the alleged extra marital relationships of the appellant with another married lady who was wife of his friend. Though the respondent tried to explain that she was not responsible for making any such aspersions, the inevitable conclusion is to the contrary.

In the instant case, after filing of the divorce petition a suit for injunction was filed, and the respondent went to the extent of seeking detention of the respondent. She filed a petition for maintenance which was also dismissed. Several caveat petitions were lodged and as noted above, with wrong address. The respondent in her evidence clearly accepted that she intended to proceed with the execution proceedings, and prayer for arrest till the divorce case was finalized. When the respondent gives priority to her profession over her husband’s freedom it points unerringly at disharmony, diffusion and disintegration of marital unity, from which the Court can deduce about irretrievable breaking of marriage.

It is true that irretrievable breaking of marriage is not one of the statutory grounds on which Court can direct dissolution of marriage, this Court has with a view to do complete justice and shorten the agony of the parties engaged in long drawn legal battle, directed in those cases dissolution of marriage. But as noted in the said cases themselves those were exceptional cases.

In the aforesaid legal and factual background the inevitable conclusion is that the appellant is entitled to a decree of divorce and we direct accordingly.

A. Jayachandra v. Aneel Kaur [Bench Strength 3], CA Nos. 7763-7764/2004 (02/12/2004), 2005 AIR(SC) 534: 2004(Supp-6) SCR 599: 2005(2) SCC 22: 2004(10) JT 235: 2004(10) SCALE 153: 2005(1) Supreme 626: 2004(7) SLT 581: 2005(2) SCJ 189: 2005(1) SRJ 538 [Ruma Pal, J.: Arijit Pasayat, J.: C.K. Thakker, J.] <<LAWPACK SUPREME COURT>>
Civil Procedure Code, 1908 — Section 25 — Transfer petition — Infructuous petition, parties mutually agreed to dissolve their marriage — Transfer of matrimonial dispute sought by wife from Tis Hazari Court Delhi to Port Blair, Andaman District where she was residing — Statement of both the parties that they have mutually agreed to dissolve their marriage — Keeping in view the fact that petitioner has come from Port Blair, Andaman and Nicobar Islands to attend the hearing of case, direction to concerned court to take up the petition for hearing immediately and dispose of it as expeditiously as possible — Transfer petition to be dismissed as infructuous in view of settlement arrived at between parties — Hindu Marriage Act, 1955 — Section 13-B.

Sumita Mathur v. Prakash Mathur [Bench Strength 2], TP(C) No. 21/2004 (29/11/2004), 2004(13) SCC 693 [Ashok Bhan, J.: AR. Lakshmanan, J.] <<LAWPACK SUPREME COURT>>
Hindu Law — Divorce — Customary divorce, requirement for a party to suit propounding the same — Prevalence of customary divorce in the community to which parties belong, contrary to general law of divorce must be specifically pleaded and established by leading cogent evidence by the person propounding such custom — Hindu Marriage Act, 1955 — Sections 11, 13 & 29(2).

Yamanaji H. Jadhav vs. Nirmala, 2002(2) SCC 63, Relied on.

Subramani v. M. Chandralekha [Bench Strength 2], CA No. 3966/2003 (23/11/2004), 2005 AIR(SC) 485: 2004(Supp-6) SCR 285: 2005(9) SCC 407: 2005(11) JT 562: 2004(9) SCALE 599: 2004(8) Supreme 318: 2004(7) SLT 458 [Ashok Bhan, J.: A.K. Mathur, J.] <<LAWPACK SUPREME COURT>>
Hindu Law — Divorce — Right of — As per Hindu Law divorce was not recognised as a means to put an end to marriage which was always considered to be a sacrament with only exception where it is recognised by custom — After coming into force of Act, a Hindu can seek to put an end to marriage by either obtaining a declaration of nullity on the ground specified in section 11 or to dissolve marriage between them on any ground mentioned in section 13 — However, section 29 saves the rights recognised by custom or conferred by special enactment to obtain dissolution of marriage whether solemnized before or after commencement of Act — Hindu Marriage Act, 1955 — Sections 11, 13 & 29(2).

Subramani v. M. Chandralekha [Bench Strength 2], CA No. 3966/2003 (23/11/2004), 2005 AIR(SC) 485: 2004(Supp-6) SCR 285: 2005(9) SCC 407: 2005(11) JT 562: 2004(9) SCALE 599: 2004(8) Supreme 318: 2004(7) SLT 458 [Ashok Bhan, J.: A.K. Mathur, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 29(2), 11, 5 & 13 — Customary divorce — Existence of customs to dissolve marriage by mutual consent in concerned community, insufficient proof of — Suit by respondent for partition and possession of properties of father of her husband after death of husband pleading entitlement to share of husband — Objected by appellants on ground of recital in a maintenance release deed that marriage between respondent and her husband stood dissolved under customary law prevalent in community — Failure of appellant to plead that in their community marriage could be dissolved under custom — They even failed to respond to averments made in plaint that no custom prevalent in their community to dissolve marriage under custom — No issue framed by trial court in this regard — On perusal of testimonies of witnesses it cannot be held that custom was prevalent in their community — It is not their case that marriage could be dissolved between husband and wife in their community by executing document in form of an agreement — Agreement of maintenance release deed signed only by respondent and not signed by her husband — Said document not in conformity with custom applicable to divorce in community to which parties belong — Thus it can not be said that marriage between respondent and her husband stood dissolved under customary law by executing marriage dissolution deed — Suit of respondent rightly decreed by High Court.

Yamanaji H. Jadhav vs. Nirmala, 2002(2) SCC 637, Relied on.

HELD: It is clear that defendants-appellants did not plead that in their community marriage could be dissolved under custom. They even failed to respond to the averments made in the plaint that no custom was prevalent in their community to dissolve the marriage under custom. In the absence of such pleadings the Trial Court rightly did not frame an issue as to whether the marriage in the community to which the parties belong could be dissolved under the custom prevalent in their community.

Though no issue was framed on this point the appellants did examine DWs. 2 to 5 to show that in their community marriage could be dissolved under the customary law. We have gone through the statements of these witnesses which have been reproduced verbatim after translation in the order of the Trial Court. On perusal of their testimonies, it cannot be held that custom was prevalent in their community to dissolve the marriage by mutual consent. Neither of these witnesses has stated as to what is the procedure to be followed for dissolving a marriage under the custom prevalent in their community. It is not their case that marriage could be dissolved between the husband and wife in their community by executing a document in the form of an agreement. The agreement B-1 has been signed only by the respondent and her late husband Kandasamy has not signed the same. In the absence of any pleadings that marriage between the husband and wife could be dissolved in their community under custom and in the absence of any satisfactory evidence let in to prove the custom prevalent in the community or the procedure to be followed for dissolving the marriage it cannot be held that marriage between the respondent and her husband stood dissolved by executing the marriage dissolution deed Ex.B-1. It is not proved that the document Ex.B-1 is in conformity with the custom applicable to divorce in the community to which the parties belong.

Accordingly, we find no merit in this appeal and dismiss the same with no order as to costs.

Subramani v. M. Chandralekha [Bench Strength 2], CA No. 3966/2003 (23/11/2004), 2005 AIR(SC) 485: 2004(Supp-6) SCR 285: 2005(9) SCC 407: 2005(11) JT 562: 2004(9) SCALE 599: 2004(8) Supreme 318: 2004(7) SLT 458 [Ashok Bhan, J.: A.K. Mathur, J.] <<LAWPACK SUPREME COURT>>
Civil Procedure Code, 1908 — Section 25 — Transfer of case — Permissibility, matrimonial dispute — Transfer of matrimonial dispute sought form Malda, West Bengal to Dehradun, Uttaranchal — A petition u/s 9 of Hindu Marriage Act filed by husband already transferred by this court at the instance of wife — Therefore no reason for not granting the similar relief to her — Transfer petition allowed as prayed for — Hindu Marriage Act, 1955 — Sections 9 & 13.

Usha Choudhary v. Dilip Choudhary [Bench Strength 2], TP No. 739/2002 (19/11/2004), 2004(13) SCC 683 [Ashok Bhan, J.: AR. Lakshmanan, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 13-B, 13(1)(ia) & (ib) — Settlement of matter between parties — Order on — Matrimonial case pending in family court — Settlement of matter between parties by mediator requested by supreme court in terms of its earlier order — Joint application for recording settlement and for direction — As per settlement rupees ten lacs is payable by husband to wife in three installment — First two installment have been paid — Balance sum requested to be made in court on next date of hearing — Direction in this view that petition to be listed on a particular date for orders on aforesaid application — Penal Code, 1860 — Sections 498-A & 406 — Constitution of India — Article 142.

Jimmy Sudarshan Purohit v. Sudarshan Sharad Purohit [Bench Strength 2], TP(C) No. 703/2003 (05/11/2004), 2004(10) SCALE 361 [Y.K. Sabharwal, J.: P.P. Naolekar, J.] <<LAWPACK SUPREME COURT>>
Penal Code, 1860 — Sections 323, 498-A & 506 — Complaint under — Filing of, only to harass the respondents, quashing of complaint on the ground of — Abuse of process of court — During pendency of proceedings appellant obtained a divorce by mutual consent on the basis of compromise between parties — In the compromise petition filed before the Family Court, appellant admitted that she has received Stridhan and maintenance in lump sum and that she will not be entitled to maintenance of any kind in future — Appellant also undertook in compromise petition to withdraw all proceedings against respondents — Appellant partially performed her part of obligations by withdrawing her criminal compliant u/s 125 Cr.P.C. but no step taken to withdraw complaint u/s 323, 498- A, 506 and u/s 3 and 4 of Dowry Act — Conduct of appellant indicating only to harass the respondent by filing such a criminal complaint — In view of said subsequent events and the conduct of appellant, held, it would be an abuse of the process of the court if the criminal proceedings from which this appeal arises is allowed to continue — Quashing of complaint by High Court justified — Appeal to be dismissed — Dowry Prohibition Act, 1961 — Sections 3 & 4 — Hindu Marriage Act, 1955 — Sections 9 & 13-B — Criminal Procedure Code, 1973 — Sections 125 & 482 — Constitution of India — Article 136.

HELD: It is clear that in the compromise petition filed before the Family Court, the appellant admitted that she has received Stridhan and maintenance in lump sum and that she will not be entitled to maintenance of any kind in future. She also undertook to withdraw all proceedings civil and criminal filed and initiated by her against the respondents within one month of the compromise deed which included the complaint under Sections 498A, 323 and 506 IPC and under Sections 3 and 4 of Dowry Prohibition Act from which complaint this appeal arises. In the said compromise, the respondent-husband agreed to withdraw his petition filed under Section 9 of the Hindu Marriage Act pending before the Senior Judge, Civil Division, Rampur and also agreed to give a consent divorce as sought for by the appellant.

It is based on the said compromise the appellant obtained a divorce as desired by her under Section 13(B) of the Hindu Marriage Act and in partial compliance of the terms of the compromise she withdrew the criminal case filed under Section 125 of the Criminal Procedure Code but for reasons better known to her she did not withdraw that complaint from which this appeal arises. That apart after the order of the High Court quashing the said complaint on the ground of territorial jurisdiction, she has chosen to file this appeal. It is in this background, we will have to appreciate the merits of this appeal.

Even the appellant partially performed her part of the obligations by withdrawing her criminal complaint filed under Section 125. It is true that she had made a complaint in writing to the Family Court where Section 125 Cr.P.C. proceedings were pending that the compromise deed was filed under coercion but she withdrew the same and gave a statement before the said court affirming the terms of the compromise which statement was recorded by the Family Court and the proceedings were dropped and a divorce was obtained. Therefore, we are of the opinion that the appellant having received the relief she wanted without contest on the basis of the terms of the compromise, we cannot now accept the argument of the learned counsel for the appellant. In our opinion, the conduct of the appellant indicates that the criminal complaint from which this appeal arises was filed by the wife only to harass the respondents.

In view of the above said subsequent events and the conduct of the appellant, it would be an abuse of the process of the court if the criminal proceedings from which this appeal arises is allowed to continue. Therefore, we are of the considered opinion to do complete justice, we should while dismissing this appeal also quash proceedings arising from the Criminal Case No. Cr. No. 224/2003 registered in Police Station, Bilaspur, (Distt. Rampur) filed under Sections 498-A, 323 and 506 IPC and under Sections 3 and 4 of the Dowry Prohibition Act against the respondents herein.

Ruchi Agarwal v. Amit Kumar Agrawal [Bench Strength 2], CrA No. 1274/2004 (05/11/2004), 2005(3) SCC 299: 2004(10) JT 475: 2004(9) SCALE 375: 2004(8) Supreme 525: 2004(7) SLT 307: 2005(1) SCJ 156: 2005 SCC(Cr) 719: 2004(4) Crimes 399(SC): 2004(3) JCC 1842: 2004(4) RecentCR 949 [N. Santosh Hegde, J.: S.B. Sinha, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Section 125 — Maintenance — Quantum of, marginal increase in income, effect — Grant of maintenance to wife of Rs. 800/- p.m. by Trial Court — Marginal increase in earning of husband — However, two children born from wedlock remained with appellant-husband all along also required to be looked after — In view of said facts and circumstances maintenance increased to Rs. 1500/- p.m. to respondent-wife — Hindu Marriage Act, 1955 — Sections 24 & 25.

Naresh Chandra Singhania v. Deepika [Bench Strength 2], CA No. 5549-50/2000 (27/10/2004), 2005(10) SCC 299 [Ruma Pal, J.: Arun Kumar, J.] <<LAWPACK SUPREME COURT>>
Civil Procedure Code, 1908 — Order 8 Rule 1, Order 7 Rule 1 & Order 18 Rule 2 — Establishment of case by plaintiff from written statement — Not necessary — Divorce petition by husband — Petition for restitution of conjugal right by wife — A decree for divorce passed by trial court holding that appellant-husband able to establish physical and mental cruelty as pleaded by him — Prayer of respondent-wife for restitution of conjugal rights dismissed — Said decision reversed by High Court holding that allegations regarding abusive behaviour not established as no such allegation made by respondent either in her written statement or in her oral evidence — Held, it is not necessary for husband to establish his case from written statement that wife was abusive — Categorical evidence by husband before trial court regarding allegation of infidelity and physical assault by wife — Further wife in her application u/s 24 of the Act, has clearly made allegations against husband saying that he was engaged in an adulterous relationship — Thus the conclusion of trial court on the evidence on record justified while High Court’s reasoning and conclusion to the contrary is insupportable — Decision of High Court unsustainable and to be set aside — Divorce petition of appellant must be decreed — Hindu Marriage Act, 1955 — Sections 13 & 9.

HELD: We find the reasoning of the High Court difficult to accept. It was not necessary for the husband to establish from the written statement that the wife was abusive. He had given categorical evidence to this effect when he was examined before the trial court both as regards the allegations of infidelity and also with regard to the physical assault committed by the respondent on the husband. Although a contrary case was suggested to the appellant there was no effective cross-examination of the appellant husband on this point. In addition to the oral evidence given, in support of the pleas by the husband, corroboration could be found in the pleadings filed by the respondent in connection with proceedings during the pendency of the matrimonial suit. In her application under Section 24 of the Hindu Marriage Act for maintenance as well as in her rejoinder, the respondent has clearly made allegations against the husband saying that he was engaged in an adulterous relationship. The trial court has noted this and also noted that in her examination-in-chief the respondent had denied that she had ever abused her husband of having immoral character or having an extramarital relationship. The trial court coming to the conclusion on the evidence on record that the appellant had established his case was justified. The High Court’s reasoning and conclusion to the contrary is insupportable.

In the circumstances, we are of the view that the decision of the High Court cannot be sustained and the suit for divorce filed by the appellant must be decreed. Consequently, the suit filed by the respondent for restitution of conjugal rights must stand dismissed.

Naresh Chandra Singhania v. Deepika [Bench Strength 2], CA No. 5549-50/2000 (27/10/2004), 2005(10) SCC 299 [Ruma Pal, J.: Arun Kumar, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(i-b) — Desertion — Plea of, unsustainable, respondent was forced to leave the matrimonial home — Appellant/husband filed divorce petition on 2 grounds i.e. cruelty and desertion claiming that respondent left the matrimonial home — Dismissal of petition by trial court as neither cruelty nor desertion proved — Ground of cruelty not pressed in view of concurrent findings of facts — Evidence on record indicating that respondent was forced to leave the matrimonial home — Appellant being a person at fault can not ask for dissolution of marriage even on ground of irretrievable break down — Appeal, hence dismissed.

Shyam Sunder Kohli v. Sushma Kohli [Bench Strength 2], CA Nos. 6409-6410/2004 (01/10/2004), 2004 AIR(SC) 5111: 2004(7) SCC 747: 2004(8) JT 166: 2004(8) SCALE 388: 2004(7) Supreme 132: 2004(10) SRJ 172: 2005(1) JCC 136: 2004(2) DMC 586 [S.N. Variava, J.: H.K. Sema, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(i-a) & (i-b) — Cruelty and desertion — Allegation of, reliance on documents, placing of, scope — Divorce — Attempt made by appellant to show respondent as wife of some `S’ — Said documents neither referred nor relied upon in divorce petition — Denial by wife as to existence of such documents — No further attempt made by appellant to prove the documents — As the documents have not been proved or marked in evidence, no reliance can be placed on them.

Shyam Sunder Kohli v. Sushma Kohli [Bench Strength 2], CA Nos. 6409-6410/2004 (01/10/2004), 2004 AIR(SC) 5111: 2004(7) SCC 747: 2004(8) JT 166: 2004(8) SCALE 388: 2004(7) Supreme 132: 2004(10) SRJ 172: 2005(1) JCC 136: 2004(2) DMC 586 [S.N. Variava, J.: H.K. Sema, J.] <<LAWPACK SUPREME COURT>>
Ranbir Penal Code, 1989 — Sections 494 & 109 — Second marriage during subsistence of valid marriage — Determination — Bigamy — Husband remarrying after decree of divorce but during pendency of appeal — Dispute as to exact date when re-marriage took place — By judgment dated 9.3.1999, decree for dissolution was passed by District court — Appeal filed on 8.12.1999 — On 24.11.2000, High Court passed an order that husband shall not re-marry till further orders — Stay of operation of decree passed by District Court — Husband’s plea in appeal that he remarried after decree of divorce was passed but before the order of stay — Decree of divorce set aside by High Court — Wife filed complaint u/s 494 rw/s 109 alleging that husband contacted second marriage during subsistence of valid marriage — Matter remitted back to High Court to adjudicate on question regarding the date of second marriage — J. & K. Criminal Procedure Code, 1989 — Section 561-A — Hindu Marriage Act, 1955 — Sections 9 & 28 — Criminal Procedure Code, 1973 — Section 482.

HELD: The impugned order of the learned Single Judge does not refer to the order of stay passed by a Division Bench of the High Court of Punjab and Haryana and the effect of such order. It is not in dispute that the order dated 24.11.2004 clearly restrained the husband from re-marriage and the operation of the decree of divorce was stayed. It proceeded on the basis that the marriage between the husband and Usha took place on 8.3.2001 and applying the ratio in Krishna Gopal’s case it was held that no offence was made out. As noted above, the High Court proceeded on the basis as if the marriage took place on 8.3.2001. There is a great deal of factual distinction between Krishna Gopal’s case (supra) and the case at hand. In Krishna Gopal’s case (supra) the factual position noticed by this Court goes to show that there was no order of stay restraining re-marriage. Again it has to be noted that there is a dispute, as presently raised by the respondent-husband, that the date of marriage was much before the date on which the order of stay was passed and subsequent to the date on which the decree for dissolution of marriage was passed.

In view of the aforesaid factual controversy, we consider this to be a fit case where the matter needs to be re-heard by the High Court. While considering the matter afresh, the effect of the order of stay dated 24.11.2000 passed by a Division Bench of the Punjab and Haryana High Court shall be taken note of. Much would depend on the date when the marriage took place. It is to be noted that there is no dispute that the respondent-husband has married Usha. The crucial question is when the marriage took place. All these aspects are to be adjudicated by the High Court while dealing with the matter afresh. Learned Judicial Magistrate issued process only in respect of accused Nos. 1, 2 and 4. That order was not questioned by the appellant before the higher court.

Kunti Devi v. Som Raj [Bench Strength 2], CrA No. 1066/2004 (23/09/2004), 2004(Supp-4) SCR 632: 2004(11) SCC 278: 2004(8) JT 319: 2004(8) SCALE 122: 2004(7) Supreme 99: 2004(6) SLT 110: 2004(10) SRJ 316: 2004 CrLJ 4621: 2004(4) Crimes 105(SC): 2004(3) JCC 1691: 2004(2) DMC 701: 2005(1) CRJ 691 [Arijit Pasayat, J.: C.K. Thakker, J.] <<LAWPACK SUPREME COURT>>
Civil Procedure Code, 1908 — Section 25 — Transfer of cases — Matrimonial dispute — Marriage between the parties was solemnised at village Katkur, Bhima Devarapalli Mandal, Karimnagar District, Andhra Pradesh according to Hindu Rites and Customs — After the marriage the parties resided in their matrimonial home — Thereafter the wife left the husband and started living with her parents in village Katkur, Karimnagar District, Andhra Pradesh — Husband filed a petition for divorce u/s 13(1)(ia) of the Hindu Marriage Act in the Court of Senior Civil Judge, Hazurabad, Andhra Pradesh — Wife lodged a FIR in New Delhi against the husband, his father aged 75 years and his mother aged 65 years — All three were arrested and brought to Delhi and were kept in custody — After their release on bail they returned to their native place — Wife also filed a petition under Section 125 Cr. P.C. claiming a maintenance of Rs. 5,000/- per month in the Court of Metropolitan Magistrate, Patiala House, New Delhi, which is still pending — Aggrieved against the action of the wife, husband and his parents filed petitions alleging unduly harassment — Cause of action did not arise at New Delhi — Wife-respondent is living with her parents at village Katkur, Karimnagar District, Andhra Pradesh and the two cases have been filed against them at New Delhi on the false pretext that she is presently living with her brother at New Delhi — Admission by the wife-respondent that her parents are living in Andhra Pradesh and she owns a house in Andhra Pradesh — She has asserted that the Courts at New Delhi have the jurisdiction and that since she having shifted to New Delhi, it would be convenient for her to pursue the cases at the place where she resides — She also prayed for the transfer of divorce petition as well, filed by her husband, to a Court of competent jurisdiction at New Delhi — Held, it will be for better convenience of the parties and in the interest of justice if both the cases pending, in the Court of Metropolitan, Magistrate, New Delhi are transferred to a Court of competent jurisdiction at Hazurabad, Karimnagar District, Andhra Pradesh — Hindu Marriage Act, 1955 — Section 13(1)(ia) — Criminal Procedure Code, 1973 — Section 125.

Eluri Raji Reddy v. State of Delhi [Bench Strength 2], TP(Crl.) No. 32/2003 with TP(Crl.) No. 122/2003 (13/04/2004), 2004 AIR(SC) 2475: 2004(4) SCC 479: 2004(5) JT 391: 2004(4) SCALE 678: 2004(4) Supreme 54: 2004(3) SLT 225: 2004(5) SRJ 61: 2004 CrLJ 2555: 2004(3) Crimes 36(SC): 2004(2) CCR 232(SC): 2004(2) JCC 1040: 2004(1) DMC 722: 2004(4) CRJ 60 [R.C. Lahoti, J.: Ashok Bhan, J.] <<LAWPACK SUPREME COURT>>
Penal Code, 1860 — Sections 498-A & 304-B — Applicability — Victim woman married with accused husband during lifetime of his first wife — Offence of cruelty and dowry death — First marriage of accused not established by prosecution as stood dissolved legally — Whether in such circumstances charge u/s 498-A and 304-B to be established in view of marriage with victim being invalid? Yes — Absence of definition of husband to specifically include such person who contract marriage ostensibly and cohabitate with such woman is no ground to exclude them from purview of section 304-B or 498-A — A legislature which was conscious of social stigma attached to children of void and voidable marriage cannot close eyes to plight of a woman who unknowingly of legal consequences entered into marital relationship — Evidence Act, 1872 — Section 113-B — Hindu Marriage Act, 1955 — Sections 5(i), 7, 11 & 16 — Words and Phrases — Husband.

HELD: The concept of `dowry’ is intermittently linked with a marriage and the provisions of the Dowry Act apply in relation to marriages. If the legality of the marriage itself is an issue further legalistic problems do arise. If the validity of the marriage itself is under legal scrutiny, the demand of dowry in respect of an invalid marriage would be legally not recognizable. Even then the purpose for which Section 498A and 304B-IPC and Section 113B of the Indian Evidence Act, 1872 (for short the `Evidence Act’) were introduced cannot be lost sight of.

The legislative intent is clear from the fact that it is not only the husband but also his relations who are covered by Section 498A. Legislature has taken care of children born from invalid marriages. Section 16 of the Marriage Act deals with legitimacy of children of void and voidable marriages. Can it be said that legislature which was conscious of the social stigma attached to children of void and voidable marriages closed eyes to plight of a woman who unknowingly or unconscious of the legal consequences entered into the marital relationship. If such restricted meaning is given, it would not further the legislative intent. On the contrary, it would be against the concern shown by the legislative for avoiding harassment to a woman over demand of money in relation to marriages. The first exception to Section 494 has also some relevance. According to it, the offence of bigamy will not apply to “any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction”. It would be appropriate to construe the expression `husband’ to cover a person who enters into marital relationship and under the colour of such proclaimed or feigned status of husband subjects the woman concerned to cruelty or coerce her in any manner or for any of the purposes enumerated in the relevant provisions – Sections 304B/498A, whatever be the legitimacy of the marriage itself for the limited purpose of Sections 498A and 304B IPC. Such an interpretation, known and recognized as purposive construction has to come into play in a case of this nature. The absence of a definition of `husband’ to specifically include such persons who contract marriages ostensibly and cohabitate with such woman, in the purported exercise of his role and status as `husband’ is no ground to exclude them from the purview of Section 304B or 498A IPC, viewed in the context of the very object and aim of the legislations introducing those provisions.

Reema Aggarwal v. Anupam [Bench Strength 2], Crl.A. No. 25/2004 (08/01/2004), 2004 AIR(SC) 1418: 2004(1) SCR 378: 2004(3) SCC 199: 2004(1) JT 177: 2004(1) SCALE 264: 2004(1) Supreme 355: 2004(2) SRJ 49: 2004 CrLJ 892: 2004 SCC(Cr) 699: 2004(1) Crimes 276(SC): 2004(1) CCR 163(SC): 2004(1) JCC 209: 2004(1) RecentCR 776: 2004(1) DMC 201: 2004(2) CRJ 432 [Doraiswamy Raju, J.: Arijit Pasayat, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13-B — Divorce by mutual consent — Grant of a decree for — As per record marriage between parties has broken down irretrievably — A compromise deed entered into between parties to matrimonial dispute — Statement of both the parties in application that their marriage has broken down and no chance of their living together, therefore they have mutually agreed that marriage should be dissolved — Further declaration by parties that mutual consent has not been obtained by force, fraud or inducement — Application for divorce by mutual consent to be allowed in exercise of power under Article 142 of the Constitution — Direction that all the case relating to said matrimonial disputes to stand disposed of — Constitution of India — Article 142 — Dowry Prohibition Act, 1961 — Sections 3 & 4 — Penal Code, 1860 — Sections 498-A & 406.

HELD: Having perused the records placed before us we are satisfied that the marriage between the parties has broken down irretrievably and with a view to restore good relationship and to put a quietus to all litigations between the parties and not to leave any room for future litigation, so that they may live peacefully hereafter, and on the request of the parties, in exercise of the power vested in this Court under Article 142 of the Constitution of India, we allow the application for divorce by mutual consent filed before us under Section 13(B) of Hindu Marriage Act and declare that the marriage solemnized between the consenting parties on 13th June, 2001 at Delhi is hereby dissolved, and they are granted a decree of divorce by mutual consent.

In the facts and circumstances of the case and in view of the fact that the parties have prayed before this Court for the final disposal and all cases pending between the parties, we direct that all the cases shall stand disposed of.

Swati Verma v. Rajan Verma [Bench Strength 2], TP(Crl.) No. 240/2003 with Crl.M.P. No. 9841/2003 (11/11/2003), 2004 AIR(SC) 161: 2004(1) SCC 123: 2003(9) SCALE 489: 2003(8) Supreme 85: 2003(6) SLT 790: 2004(1) SRJ 487: 2004 SCC(Cr) 25: 2003(4) Crimes 476(SC): 2003(4) CCR 326(SC): 2003(3) JCC 1863: 2003(2) DMC 795: 2003(4) KAJ 705 [N. Santosh Hegde, J.: B.P. Singh, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13-B — Divorce by mutual consent — Grant of, settlement between parties — Parties came to amicable settlement and filed compromise deed — As per deed husband has to pay 5 lacs to the wife towards full and final settlement of all her claims for maintenance, past, present and future — Said amount has been paid in the court and acknowledged by wife — Parties themselves agreed and prayed for final disposal of all cases — Direction given by court in exercise of power under Article 142 of Constitution for quashing of all the cases between the parties, either by investigating agencies or by the court concerned — In view of marriage broken down irretrievably, a decree for divorce by mutual consent to be granted to put a quietus to all litigation between the parties — Divorce petition allowed — Constitution of India — Articles 142 & 136.

Harpit Singh Anand v. State of West Bengal [Bench Strength 2], CrA No. 1231/2003 (26/09/2003), 2004(10) SCC 505: 2003(Supp-2) JT 554: 2003(8) SCALE 189: 2003(7) Supreme 347: 2003(6) SLT 90: 2003(10) SRJ 118: 2004 SCC(Cr) 1911: 2003(4) Crimes 319(SC): 2003(4) CCR 157(SC): 2003(3) JCC 1547: 2003(2) DMC 741: 2004(1) CRJ 154 [N. Santosh Hegde, J.: B.P. Singh, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 9 & 13 — Restitution of conjugal rights and for alternative relief — Petition for, grant of, requirement for, specific pleading or involving powers of court u/s 13, necessary — Grant of ex-parte decree of divorce by family court in favour of husband — Though an alternative relief is set down as being sought, but that could not be granted or comprehended within the meaning of section 9, in absence of any specific pleading or involving powers of court under section 13 — Ex-parte decree set-aside.

Usha v. Palisetty Mohan Rao, 2002(10) SCC 544, Referred.

Uma Parekh v. Ajeet Pareek [Bench Strength 2], TP(C) No. 955/2002 (25/08/2003), 2005(9) SCC 600 [Doraiswamy Raju, J.: Arijit Pasayat, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Section 125 — Maintenance to wife and child — Marriage of pregnant woman, validity — Objection regarding invalid marriage, power to raise — Concealment of five months pregnancy from husband, plea of — Husband not raising any objection even after marriage — He was present at time of delivery of child giving his name as father in official records — He goes along with marriage for nearly four years — Whether such a husband can raise plea of invalidity of marriage in maintenance proceedings — Held, No — He being fully aware of pregnancy of appellant at time of marriage — Such a marriage cannot be held to be invalid — Muslim Law — Marriage — Invalid marriage, objections regarding, power to raise — Hindu Marriage Act, 1955 — Sections 12(1)(d) & 7 — Special Marriage Act, 1954 — Section 25(ii).

Abdullah vs. Beepathu, ILR 1967 Ker. 361, Vol. 1, Approved.

Kulsumbi Kom Abdul Kadir vs. Abdul Kadir Walad Saikh Ahmad, ILR 1921 Vol. XLV Bom. 151, Distinguished.

HELD: It is very difficult to believe that a woman who is five months pregnant will be able to conceal the pregnancy from the husband. Such an advanced stage of pregnancy cannot be concealed as the pregnancy starts showing by that time. In any case the pregnancy cannot be concealed from the husband. A husband will at least know for sure that the wife is pregnant specially when the pregnancy is five months old. Therefore, we cannot accept that the respondent did not know at the time of marriage that the appellant was already pregnant. If this fact was known to the respondent, the marriage cannot be said to be illegal or void.

Next we have to notice the conduct of the respondent at the relevant time. He goes through the marriage. He does not raise any objection even after the marriage. He is present at the time of delivery of the child. Presumably he gives his own name as the name of the father of the child for the official record. Even thereafter for nearly four years he goes along with the marriage and brings up the child while treating appellant as his wife. The divorce is said to have been given on 2nd May, 1977. Any person who learns that his newly married wife is already pregnant for five months and who does not accept that marriage or pregnancy, will not behave in the manner in which respondent did. If we believe the respondent that he did not know about the pregnancy of the appellant at the time of marriage, how can we accept his conduct after the marriage? If what respondent is saying is true, a normal reasonable person would have immediately turned out the wife from his house on coming to know of the fact of pregnancy. Nobody will continue with such a marriage for four and half years, specially when a child is born just after four months of the marriage. Respondent says that the child is not his yet he gives his name to the child and continues to bring up the child for nearly four years after she was born. When it comes to the question of paying maintenance he says the marriage was invalid and the child is not his.

The impugned judgment of the Addl. Sessions Judge, Kozhikode as well as of the High Court of Kerala are based on a finding that pregnancy was concealed by the appellant from the husband which rendered the marriage invalid and void. In our view, such a finding is wholly unwarranted, incorrect and unacceptable. In the facts of the present case as discussed above, it has to be held that the respondent was fully aware of the pregnancy of the appellant at the time of the marriage and, therefore, he cannot be heard to say that the marriage was invalid or void for that reason.

Amina v. Hassn Koya [Bench Strength 2], CA No. 635/2003 (28/04/2003), 2004 AIR(SC) 1227: 2003(3) SCR 999: 2003(6) SCC 93: 2003(4) JT 363: 2003(4) SCALE 365: 2003(3) Supreme 571: 2003(3) SLT 353: 2003(7) SRJ 216: 2003 CrLJ 2540: 2003 SCC(Cr) 1276: 2003(3) Crimes 37(SC): 2003(2) CCR 114(SC): 2003(2) JCC 898: 2003(2) RecentCR 886: 2003(1) DMC 728: 2003(2) KAJ 425: 2003(5) CRJ 535 [M.B. Shah, J.: Arun Kumar, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(ia) — Cruelty — Chracter assassination whether cruelty — Burden to prove cruelty — Averments, accusations and character assassination of wife by husband in his written statement, though subsequently withdrawn — Whether can constitute mental cruelty for sustaining claim for divorce in petition filed by wife — Held, yes — Wife narrating several instances of harassment and nagging attitude on part of husband in her divorce petition — Family court holding these to be mere normal wear and tear of marital life — However, allegations made by husband, extensively with enumeration of instances and incidents against wife branding her as unchaste woman — Husband persisting in them or sufficiently a long time humiliating and wounding feelings of wife — Subsequent withdrawal of these allegations by filing application for amendment — Whether wiped out completely all those allegations for all purposes — Held, No — It does not absolve husband in this case — Decree for divorce in favour of wife confirmed — Relief sought by husband for reconciliation fails.

N.G. Dastane vs. S. Dastane, AIR 1975 SC 1534, V. Bhagat vs. D. Bhagat, 1994(1) SCC 337, Relied on.

HELD: To satisfy the requirement of clause (i-a) of Sub-section (1) of section (1) of Section 13 of the Act, it is not as though the cruel treatment for any particular duration or period has been statutorily stipulated to be necessary. As to what constitute the required mental cruelty for purposes of the said provision, in our view, 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 Courts perhaps need consider the further question as to whether their continuance or persistence over a period time render, what normally would, otherwise, not be a so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonable conclude that the maintenance of matrimonial home is not possible any longer. A conscious and deliberate statement leveled with pungency and that too placed on record, through the written statement, cannot so lightly be ignored or brushed aside, to be of no consequence merely because it came to be removed from the record only. The allegations levelled and the incidents enumerated in the case on hand, apart from they being per se cruel in nature, on their own also constitute an admission of the fact that for quite some time past the husband had been persistently indulging in them, unrelented and unmindful of its impact. That the husband in this case has treated the wife with intense cruelty is a fact, which became a fait accompli the day they were made in the written statement. They continued on record at any rate till 5.10.1988 and the indelible impact and scar it initially should have created, cannot be said to have got ipso facto dissolved, with the amendments ordered. Therefore, no exception could be taken to the courts below placing reliance on the said conduct of the appellant, in this regard, to record a finding against him.

On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible.

The allegations made in this case do not appear to have been the result of any sudden outburst. On the other hand, such injurious reproaches, accusations and taunts as were found to have been made in this case lend credence to the fact that the husband was persisting in them for sufficiently a long time humiliating and wounding the feelings of the wife to such an extent as to make it insufferable for the wife and to live in matrimonial home any longer with the husband.

Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate [Bench Strength 2], CA No. 7200-7201/2001 (16/04/2003), 2003 AIR(SC) 2462: 2003(3) SCR 607: 2003(6) SCC 334: 2003(4) JT 85: 2003(4) SCALE 134: 2003(3) Supreme 416: 2003(3) SLT 227: 2003(7) SRJ 250: 2003(1) DMC 685: 2003(2) KAJ 560 [Doraiswamy Raju, J.: D.M. Dharmadhikari, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(ia) — Cruelty — Insufficient proof of — Divorce petition — Husband, a doctor in Germany — Many of the incident alleged by appellant husband happened in Germany — No direct evidence to support these facts — Refusal of respondent wife to sign document with regard to purchase of property by appellant is not an act from which any cruelty could be inferred — Various allegations made in petitions were not satisfactorily proved — Conduct of appellant husband was not above board — Evidence disclosed that once respondent wife had to go to an orphanage along with her child when she was driven out of house — Appellant having failed to prove his case — No reason to interfere with concurrent finding of this fact — Appeal dismissed.

Perminder Charan Singh v. Harjit Kaur [Bench Strength 2], CA No. 3414/2003 (14/04/2003), 2003 AIR(SC) 2310: 2003(10) SCC 161: 2003(4) JT 52: 2003(4) SCALE 13: 2003(3) Supreme 362: 2003(3) SLT 182: 2003(7) SRJ 186: 2003(1) DMC 742 [K.G. Balakrishnan, J.: P. Venkatarama Reddi, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 12 — Annulment of marriage — Fraud and misrepresentation, suppression of fact about marital status — Appellant husband’s case that respondent at time of her marriage was a divorcee — Documents to show that appellant was aware of marital status of respondent at time of marriage — No evidence to prove that respondent and her parents made any suppression of facts or committed any fraud or misrepresentation in bringing about marriage between appellant and respondent — Plea of appellant that marriage between himself and respondent was liable to be annulled on this ground rightly rejected by courts.

HELD: There are documents to show that the appellant was aware of the marital status of the respondent at the time of marriage. Exh. PW 3/R-3 was the letter written by the mother of the appellant. In that letter, she had made reference to the letter dated 14.5.1989 alleged to have been sent by Surinder Singh, the father of the respondent, and mentioned that the appellant was `also’ legally divorced person. The Trial Judge and the learned Single Judge held that the word `also’ used in the letter indicates that the appellant’s mother was aware of the fact that the respondent was a divorcee. In our view, the inference drawn by the Trial Judge as well as the learned Single Judge was correct. It is also pertinent to note that the appellant’s mother, though made a reference about the letter written by the respondent’s father on 14.5.1989, the said letter was not produced by the appellant and it was submitted that the letter was not traceable. Another important fact also to be noted is that in July 1989, i.e., much prior to the marriage between the appellant and the respondent, the father of the respondent had given a matrimonial advertisement inviting a match for the respondent. In that advertisement, the status of the respondent had been shown as `legally divorced”. This fact would clearly indicate that the respondent’s parents were not suppressing the fact that she had been previously married to another person. There is no satisfactory evidence to prove that the respondent and her parents made any suppression of facts or committed any fraud or misrepresentation in bringing about the marriage between the appellant and the respondent.

Perminder Charan Singh v. Harjit Kaur [Bench Strength 2], CA No. 3414/2003 (14/04/2003), 2003 AIR(SC) 2310: 2003(10) SCC 161: 2003(4) JT 52: 2003(4) SCALE 13: 2003(3) Supreme 362: 2003(3) SLT 182: 2003(7) SRJ 186: 2003(1) DMC 742 [K.G. Balakrishnan, J.: P. Venkatarama Reddi, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 12(1)(b), 5(ii)(b) & 13(1)(iii) — Divorce petition on ground of insanity — Order of medical examination of opposite party — If despite an order passed by court, a person refuses to submit himself to such medical examination, adverse inference would be made — Evidence Act, 1872 — Section 114(g).

HELD: If despite an order passed by the Court, a person refuses to submit himself to such medical examination, a strong case for drawing an adverse inference would be made out. S. 114 of the Indian Evidence Act also enables a Court to draw an adverse inference if the party does not produce the relevant evidence in his power and possession.

Sharda v. Dharmpal [Bench Strength 3], CA No. 5933/2000 (28/03/2003), 2003 AIR(SC) 3450: 2003(3) SCR 106: 2003(4) SCC 493: 2003(3) JT 399: 2003(3) SCALE 475(2): 2003(2) Supreme 962: 2003(3) SLT 1: 2003(5) SRJ 460: 2003(2) JCC 692: 2003(1) DMC 627 [V.N. Khare, C.J.: S.B. Sinha, J.: AR. Lakshmanan, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Article 21 — Right to privacy — Concept of — Divorce proceedings on ground of insanity — Would subjecting a person to a medical test be in violation of Article 21 of the Constitution — Held, No — Implicit power of a court to direct medical examination of a party to a matrimonial litigation in a case of this nature cannot be held to be violative of one’s right of privacy or personal liberty — Hindu Marriage Act, 1955 — Sections 5(ii)(b), 12(1)(b) & 13(1)(iii) — Civil Procedure Code, 1908 — Order 32 Rule 15, Order 26 Rule 10-A & Sections 151, 115 & 75(e) — Mental Health Act, 1987 — Section 2(l) — English Family Law Reform (Amendment) Act, 1987 — Sections 22 & 23 — Lunancy Act, 1912 — Section 41 — Dissolution of Muslim Marriages Act, 1939 — Section 2 — Parsi Marriage and Divorce Act, 1936 — Section 32 — Divorce Act, 1869 — Section 10 — Special Marriage Act, 1954 — Section 27 — Penal Code, 1860 — Sections 269 & 270.
HELD: “Privacy” is defined as “the state of being free from intrusion or disturbance in one’s private life or affairs.” Mental health treatment involves disclosure of one’s most private feelings. In sessions, therapists often encourage patients to identify “thoughts, fantasies, dreams, terrors embarrassments, and wishes.” To allow these private communications to be publicly disclosed abrogates the very fiber of an individual’s right to privacy, the therapist-patient relationship and its rehabilitative goals. However, like any other privilege the psychotherapist-patient privilege is not absolute and may only be recognized if the benefit to society outweigh the costs of keeping the information private. Thus if a child’s best interest is jeopardized by maintaining confidentiality the privilege may be limited.

The matter may be considered from another angle. In all such matrimonial cases where divorce is sought, say on the ground of impotency, schizophrenia…etc.. normally without there being medical examination, it would be difficult to arrive at a conclusion as to whether the allegation made by his spouse against the other spouse seeking divorce on such a ground, is correct or not. In order to substantiate such allegation the petitioner would always insist on medical examination. If respondent avoids such medical examination on the ground that it violates his/her right to privacy or for a matter right to personal liberty as enshrined under Article 21 of the Constitution of India, then it may in most of such cases become impossible to arrive at a conclusion. It may reader the very grounds on which divorce is permissible nugatory. Therefore, when there is no right to privacy specially conferred by Article 21 of the Constitution of India and with the extensive interpretation of the phrase “personal liberty” this right has been read into Article 21, it cannot be treated as absolute right. What is emphasized is that some limitations on this right have to be imposed ad particularly where two competing interests clash. In matters of aforesaid nature where the legislature has conferred a right upon his spouse to seek divorce on such grounds, it would be the right of that spouse which comes in conflict with the so-called right to privacy of the respondent. Thus the Court has to reconcile these competing interests by balancing the interests involved.

If for arriving at the satisfaction of the Court and to protect the right of a party to the lis who may otherwise be found to be incapable of protecting his own interest the Court passes an appropriate order, the question of such action being violative of Article 21 of the Constitution of India would not arise. The Court having regard to Article 21 of the Constitution of India must also see to it that the right of a person to defend himself must be adequately protected.

Sharda v. Dharmpal [Bench Strength 3], CA No. 5933/2000 (28/03/2003), 2003 AIR(SC) 3450: 2003(3) SCR 106: 2003(4) SCC 493: 2003(3) JT 399: 2003(3) SCALE 475(2): 2003(2) Supreme 962: 2003(3) SLT 1: 2003(5) SRJ 460: 2003(2) JCC 692: 2003(1) DMC 627 [V.N. Khare, C.J.: S.B. Sinha, J.: AR. Lakshmanan, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 5(ii)(b), 12(1)(b) & 13(1)(iii) — Insanity — Divorce petition on the ground of, insanity — Medical examination — Whether a matrimonial court has power to order a person to undergo medical test — Held, yes — However, the court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the court — Civil Procedure Code, 1908 — Order 32 Rule 15, Order 26 Rule 10-A & Sections 151, 115 & 75(e) — Constitution of India — Articles 20 & 227 — Mental Health Act, 1987 — Section 2(l) — English Family Law Reform (Amendment) Act, 1987 — Sections 22 & 23 — Lunancy Act, 1912 — Section 41 — Dissolution of Muslim Marriages Act, 1939 — Section 2 — Parsi Marriage and Divorce Act, 1936 — Section 32 — Divorce Act, 1869 — Section 10 — Special Marriage Act, 1954 — Section 27 — Penal Code, 1860 — Sections 269 & 270.

Revamma vs. Shanthappa, AIR 1972 Mysore 157, Shanti Devi vs. Ram Nath, AIR 1972 P & H 270, Overruled.

HELD: It is trite law that for the purpose of grant of a decree of divorce what is necessary is that the petitioner must establish that unsoundness of mind of the respondent is incurable or his/her mental disorder is of such a kind and to such an extent that he cannot reasonably by expected to live with his/her spouse. Medical testimony for arriving at such finding although may not be imperative but undoubtedly would be of considerable assistance to the court. We may, however, hasten to add that such medical testimony being the evidence of experts would not leave the court from the obligation of satisfying itself on the point in issue beyond reasonable doubt. Relevance of a medical evidence, therefore, cannot be disputed.

A sound mind indisputably is a key to happy married life. A party to the marriage must, thus, have normal and sound mind so as to live a happy marital life. A disorder of thought, behaviour and mind leading to unsoundness of mind may give rise to a cause of action for filing an application under Section 13(1)(iii) of the Hindu Marriage Act. The burden of proof of the existence of requisite degree of mental disorder is on the spouse making the claim on that state of fact.

Having regard to the complexity of the situation, the doctor’s opinion may be of utmost importance for granting or rejecting a prayer for a decree of divorce. The question is as to whether a mental disorder is curable can be subject matter of determination of by a Court of Law having regard to the expert medical opinion and particularly the ongoing development in the scientific and medical research in this direction.

The Hindu Marriage Act or any other law governing the field do not contain any express provision empowering the Court to issue a direction upon a party to a matrimonial proceedings to compel him to submit himself to a medical examination. However, in our opinion, this does not preclude a court from passing such an order.

The question as to whether a person is mentally ill or not although may be a subject of litigation, the Court having regard to the provisions contained in Order 32 Rule 15 of Code of Civil Procedure, Section 41 of the Indian Lunacy Act as also for the purpose of judging his competence to examine as a witness may issue requisite directions. It is, therefore, not correct to contend that for the aforementioned purposes the Court has no power at all. The prime concern of the Court is to find out as to whether a person who is said to be mentally ill could defend himself properly or not. Determination of such an issue although may have some relevance with the determination of the issue in the lis, nonetheless, the Court cannot be said to be wholly powerless in this behalf.

Furthermore, the Court must be held to have the requisite power even under Section 151 of Code of Civil Procedure to issue such direction either suo motu or otherwise which, according to him, would lead to the truth.

It is, however, axiomatic that a Court shall not order a roving inquiry. It must have sufficient materials before it to enable it to exercise its discretion. Exercise of such discretion would be subjected to the supervisory jurisdiction of the High Court in terms of Section 115 of the Code of Civil Procedure and/or Article 227 of the Constitution of India. Abuse of the discretionary power at the hands of a Court is not expected. The Court must arrive at a finding that the applicant has established a strong prima facie case before passing such an order.

Sharda v. Dharmpal [Bench Strength 3], CA No. 5933/2000 (28/03/2003), 2003 AIR(SC) 3450: 2003(3) SCR 106: 2003(4) SCC 493: 2003(3) JT 399: 2003(3) SCALE 475(2): 2003(2) Supreme 962: 2003(3) SLT 1: 2003(5) SRJ 460: 2003(2) JCC 692: 2003(1) DMC 627 [V.N. Khare, C.J.: S.B. Sinha, J.: AR. Lakshmanan, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 (as amended by 1976 Act) — Sections 16(3) (As amended in 1976) & 12 — Children born out of void and illegal marriage — Claims for inheritance even in ancestral coparcenary property, impermissible — Applicability of Section 16 confined to succession or inheritance by such children to properties of their parents only — Express mandate of legislature as engrafted in s.16(3).

HELD: Under the ordinary law, a child for being treated as legitimate must be born in lawful wedlock. If the marriage itself is void on account of contravention of the statutory prescriptions, any child born of such marriage would have the effect, per se, or on being so declared or annulled, as the case may be, of bastardizing the children born of the parties to such marriage. Polygamy, which was permissible and widely prevalent among the Hindus in the past and considered to have evil effects on society, came to be put an end to by the mandate of the Parliament in enacting the Hindu Marriage Act, 1955. The legitimate status of the children which depended very much upon the marriage between their parents being valid or void, thus turned on the act of parents over which the innocent child had no hold or control. But, for no fault of it, the innocent baby had to suffer a permanent set back in life and in the eyes of society by being treated as illegitimate. A laudable and noble act of the legislature indeed in enacting Section 16 to put an end to a great social evil. At the same time, Section 16 of the Act, while engrafting a rule of fiction in ordaining the children, though illegitimate, to be treated as legitimate, notwithstanding that the marriage was void or voidable chose also to confine its application, so far as succession or inheritance by such children are concerned to the properties of the parents only.

So far as Section 16 of the Act is concerned, though it was enacted to legitimise children, who would otherwise suffer by becoming illegitimate, at the same time it expressly provide in Sub-section (3) by engrafting a provision with a non obstante clause stipulating specifically that nothing contained in Sub-section (1) or Sub-section (2) shall be construed as conferring upon any child of a marriage, is null and void or which is annulled by a decree of nullity under Section 12, “any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.” In the light of such an express mandate of the legislature itself, there is no room for according upon such children who but for Section 16 would have been branded as illegitimate any further rights than envisaged therein by resorting to any presumptive or inferential process of reasoning, having recourse to the mere object or purpose of enacting Section 16 of the Act. Any attempt to do so would amount to doing not only violence to the provision specifically engrafted in Sub-section (3) of Section 16 of the Act but also would attempt to court relegislating on the subject under the guise of interpretation, against even the will expressed in the enactment itself.

Jinia Keotin v. Kumar Sitaram Manjhi [Bench Strength 2], CA No. 7247/1995 (20/12/2002), 2002(Supp-5) SCR 689: 2003(1) SCC 730: 2002(10) JT 571: 2002(9) SCALE 690: 2003(1) Supreme 441: 2003(1) SLT 40: 2003(1) JCC 182: 2003(1) DMC 1 [Doraiswamy Raju, J.: Shivaraj V. Patil, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 24 & 13 — Maintenance — Condition for grant of, unreasonable condition — Petition by husband seeking dissolution of marriage on the ground of adultery and cruelty — Claim made by wife for herself and children — Question of parentage of child — High Court directing husband to pay Rs. 2000/- by way of litigation expenses and Rs. 2000/- p.m. as maintenance — Directions also given for conducting DNA test for male child — Whether sustainable? — Held, No — High Court on its own could not have imposed such a condition for grant of interim maintenance.

Dwarika Prasad Satpathy v. Bidyut Prava Dixit, 1999(7) SCC 675, Distinguished.

HELD: Once the High Court, in this case, has come to the conclusion that the wife-appellant herein has to be provided with the litigation expenses and monthly maintenance, it is beyond comprehension as to how, de-hors the criteria laid down in the statutory provision itself, the Court could have thought of imposing an extraneous condition, with a default clause which is likely to defeat the very claim which has been sustained by the court itself. Considerations as to the ultimate outcome of the main proceeding after regular trial would be wholly alien to assess the need or necessity for awarding interim maintenance, as long as the marriage, the dissolution of which has been sought, cannot be disputed, and the marital relationship of husband and wife subsisted. As noticed earlier, the relevant statutory consideration being only that either of the party, who was the petitioner in the application under Section 24 of the Act, has no independent income sufficient for her or his support, for the grant of interim maintenance, the same has to be granted and the discretion thereafter left with the court, in our view, is only with reference to reasonableness of the amount that could be awarded and not to impose any condition, which has self-defeating consequence. Therefore, we are unable to approve of the course adopted by the learned Single Judge, in this case.

The law in the matter governing the consideration and passing any order in respect of a claim for DNA test has sufficiently been laid down by this Court and if a party to a proceeding cannot be compelled against his/her wish to undergo any such test, we fail to see how the Court on its own could have imposed a condition without any consideration whatsoever of any of the criteria laid down by this Court, by adopting a novel device of imposing it as a condition for the grant of the interim maintenance, with a default clause, which as rightly contended for the appellant, will have the inevitable consequences of pre-determining the claim about the parentage with serious consequences even at the preliminary stage. The procedure, thus, adopted by the High Court does not appear to be neither just nor reasonable or in conformity with the principles of law laid down by this Court and consequently the order is liable to be set aside.

Amarjit Kaur v. Harbhajan Singh [Bench Strength 2], CA Nos. 4245-4246/2001 (23/10/2002), 2003(10) SCC 228: 2002(9) JT 440: 2002(8) SCALE 260: 2005(8) SLT 825 [Doraiswamy Raju, J.: H.K. Sema, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13 — Transfer of case — Divorce case — Husband filed a petition for dissolution of marriage in the Additional District Judge’s court in Chandigarh — Wife is residing at Delhi — Application for transfer of case — For better convenience of parties and in the interest of justice, proceedings are directed to be transferred to District Court Delhi — Civil Procedure Code, 1908 — Section 25.

(Para 2)

Anju Ohri v. Varinder Ohri [Bench Strength 2], Transfer Petition (C) No. 606/2001 (09/08/2002), 2007(15) SCC 556 [R.C. Lahoti, J.: Brijesh Kumar, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13 — Transfer of case — Divorce case — Divorce case is filed by the husband in the court of District Judge, Una (H.P.) — Wife is staying at Karnal in Haryana — Considering the facts, divorce petition is transferred to court of District Judge, Karnal — Civil Procedure Code, 1908 — Section 25.

Rajesh Rani v. Tej Pal [Bench Strength 2], Transfer Petition (C) No. 131/2002 (09/08/2002), 2007(15) SCC 597 [M.B. Shah, J.: D.M. Dharmadhikari, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(ia) — Cruelty — Meaning and scope — Dissolution of marriage on ground of `mental cruelty by wife’ — Husband’s allegations that right from beginning wife was not prepared to cooperate in having sexual intercourse, therefore, the marriage could not be consummated — Wife refused to subject herself to proper medical treatment — She stayed away from matrimonial home after about six months of marriage — Her behaviour became irritating and unreasonable towards her husband, a judicial officer — Conduct of wife-appellant in approaching police complaining against her husband and his parents and in not accepting advice of husband’s friend, a judicial officer — False plea taken that she had conceived but there was miscarriage — Mental cruelty caused due to stub born attitude and inexplicably unreasonable conduct of wife — Prayer of husband for dissolution of marriage rightly allowed — Constitution of India — Article 136.

HELD: Cruelty for the purpose of Section 13(1)(ia) is to be taken as a behaviour by one spouse towards the other which causes reasonable apprehension in the mind of the latter that it not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty the mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The interference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instances of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the fact and circumstances emerging from the evidence on record and then drawn a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other.

The parties were married on 6th December, 1985. They stayed together for a short period till 28th April 1986 when they parted company. Despite several attempts by relatives and well-wishers no conciliation between them was possible. The petition for the dissolution of the marriage was filed in the year 1996. In the meantime so many years have elapsed since the spouses parted company. In these circumstances it can be reasonably inferred that the marriage between the parties has broken down irretrievably without any fault on the part of the respondent. Further the respondent has re-married in the year 2000. On this ground also the decision of the High Court in favour of the respondent’s prayer for dissolution of the marriage should not be disturbed.

Parveen Mehta v. Inderjit Mehta [Bench Strength 2], CA No. 3930/2002 (11/07/2002), 2002 AIR(SC) 2582: 2002(5) SCC 706: 2002(5) JT 159: 2002(5) SCALE 165: 2002(4) Supreme 596: 2002(4) SLT 381: 2002(7) SRJ 221: 2002(2) JCC 1251 [D.P. Mohapatra, J.: Brijesh Kumar, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Article 136 — Finding of fact — Interference in, impermissibility — High Court on factual matrix holding that Family Court was right in holding that there was no wrong established on the part of Respondent subsequent to decree of restitution of conjugal rights which would disentitle him from seeking divorce under Section 13(1A)(ii) — Having regard to the fact situation, held, in special facts of matter under consideration not to interfere with the findings of the High Court more specially under Article 136 — Matter does not warrant any interference — All interim orders stand vacated — Hindu Marriage Act, 1955 — Section 13(1-A)(ii).

Anjula Verma v. Sudhir Verma [Bench Strength 2], CA No. 6224/2000 (07/03/2002), 2002 AIR(SC) 1447(1): 2002(3) SCC 560: 2002(3) JT 51: 2002(2) SCALE 475: 2002(2) Supreme 279(1): 2002(2) SLT 421: 2002(5) SRJ 207 [U.C. Banerjee, J.: K.G. Balakrishnan, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 13, 29(2) & 23 — Customary divorce — Proof of, proper pleading, obligations on court — Wife’s suit for declaration that divorce deed was obtained by fraud and coercion — Divorce deed claimed to be in conformity with customs applicable for divorce in the community to which parties belonged to — Such a custom being an exception to general law of divorce ought to have specially pleaded and established by party propounding such custom — Obligation on trial court to have framed an issue whether there was proper pleadings — Matter remanded back to trial court to frame appropriate issue — Hindu Law — Customary divorce — Proof of, proper pleading, obligations on court.

HELD: As per the Hindu Law administered by courts in India divorce was not recognised as a means to put an end to marriage, which was always considered to be a sacrament, with only exception where it is recognised by custom. Public policy good morals and the interests of society were considered to require and ensure that, if at all, severance should be allowed only in the manner and for the reason or cause specified in law. Thus such a custom being an exception to the general law of divorce ought to have been specially pleaded and established by the party propounding such custom since said custom of divorce is contrary to the law of the land and which, if not proved, will be a practice opposed to public policy. Therefore, there was an obligation on the trial court to have framed an issue whether there was proper pleadings by the party contending the existence of a customary divorce in the community to which the parties belonged and whether such customary divorce and compliance with the manner or formalities attendant thereto was in fact established in the case on hand to the satisfaction of the court. In the instant case, we have perused the pleadings of the parties before the trial court and we do not find any material to show that prevalence of any such customary divorce in the community, based on which the document of divorce was brought into existence was ever pleaded by the defendant as required by law or any evidence was led in this case to substantiate the same. It is true in the courts below that the parties did not specifically join issue in regard to this question and the lawyers appearing for the parties did orally agree that the document in question was in fact in accordance with the customary divorce prevailing in the community to which the parties belonged but this consensus on the part of the counsel or lack of sufficient pleading in the plaint or in the written statement would not, in our opinion, permit the court to countenance the plea of customary divorce unless and until such customary divorce is properly established in a court of law. In our opinion, even though the plaintiff might not have questioned the validity of the customary divorce, the court ought to have appreciated the consequences of their not being a customary divorce based on which the document of divorce has come into existence bearing in mind that a divorce by consent is also not recognisable by a court unless specifically permitted by law. Therefore, we are of the opinion to do complete justice in this case. It is necessary that the trial court be directed to frame a specific issue in regard to customary divorce based on which the divorce deed dated 26th of June, 1982 has come into existence and which is the subject matter of the suit in question.

Yamanaji H. Jadhav v. Nirmala [Bench Strength 2], CA No. 4969/1998 (01/02/2002), 2002 AIR(SC) 971: 2002(2) SCC 637: 2002(1) JT 478: 2002(1) SCALE 534: 2002(1) Supreme 473: 2002(1) SLT 657: 2002(3) SRJ 419 [N. Santosh Hegde, J.: Doraiswamy Raju, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(i)(a) & 23(1)(a) — Cruelty by wife — Dissolution of marriage in favour of husband — Husband, double doctorate, working in United States — Wife, a post graduate working as a lecturer — Their married life started in 1979 — Non-cooperation and hostile attitude of wife — Husband subjected to serious traumatic experience — He and his mother once had to be in Police Station for more than 10 hours — Exorable conduct of wife — Relationship between parties was irretrievably broken — Husband held entitled to decree for dissolution of marriage u/s 13(1)(ia) — High Court held not justified in denying relief to husband by invoking section 23(1)(a) of the Act.

HELD: We do not think that this is a case, where the appellant could be denied relief by invoking Section 23(1)(a) of the Hindu Marriage Act. On the other hand, various incidents brought out in the evidence would show that the relationship between the parties was irretrievably broken, and because of the non-cooperation and the hostile attitude of the respondent, the appellant was subjected to serious traumatic experience which can safely be termed as `cruelty’ coming within the purview of Section 13(1)(ia) of the Hindu Marriage Act. Therefore, we hold that the appellant is entitled to the decree for dissolution of marriage under Section 13(1)(ia) of the Hindu Marriage Act. However, we make it clear that any order of maintenance passed in favour of the respondent will stand unaffected by this decree for dissolution of the marriage. We also make it clear that if any rights have been accrued to the respondent in the joint assets of both, she would be at liberty to take appropriate action to enforce such rights.

G.V.N. Kameswara Rao v. G. Jabilli [Bench Strength 2], CA No. 140/2002 (Arising out of SLP(C) No. 1417/2000) (10/01/2002), 2002 AIR(SC) 576: 2002(1) SCR 153: 2002(2) SCC 296: 2002(1) JT 89: 2002(1) SCALE 111: 2002(1) Supreme 123: 2002(1) SLT 153: 2002(1) SCJ 245: 2002(2) SRJ 467 [D.P. Mohapatra, J.: K.G. Balakrishnan, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(ia) — Cruelty — Assessment having regard to status of parties — Austerity of temper, rudeness of language, occasional outburst of anger, may not amount to cruelty, though it may amount to misconduct — Dissolution of marriage on ground of cruelty by wife.

HELD: The omission of the words, which described `cruelty’ in the unamended Section 10 of the Hindu Marriage Act, has some significance in the sense that it is not necessary to prove that the nature of the cruelty is such as to cause reasonable apprehension in the mind of the petitioner that it would be harmful for the petitioner to live with the other party. English Courts in some of the earlier decisions had attempted to define “cruelty” as an act which involves conduct of such a nature as to have caused damage of life, limb or health or to give rise to reasonable apprehension of such danger. But we do not think that such a degree of cruelty is required to be proved by the petitioner for obtaining a decree for divorce. Cruelty can be said to be an act committed with the intention to cause sufferings to the opposite party. Austerity of temper, rudeness of language, occasional outburst of anger, may not amount to cruelty, though it may amount to misconduct.

The Court has to come to a conclusion whether the acts committed by the counter-petitioner amount to cruelty, and it is to be assessed having regard to the status of the parties in social life, their customs, traditions and other similar circumstances. Having regard to the sanctity and importance of marriages in a community life, the Court should consider whether the conduct of the counter-petitioner is such that it has become intolerable for the petitioner to suffer any longer and to live together is impossible, and then only the Court can find that there is cruelty on the part of the counter-petitioner. This is to be judged not from a solitary incident, but on an overall consideration of all relevant circumstances.

G.V.N. Kameswara Rao v. G. Jabilli [Bench Strength 2], CA No. 140/2002 (Arising out of SLP(C) No. 1417/2000) (10/01/2002), 2002 AIR(SC) 576: 2002(1) SCR 153: 2002(2) SCC 296: 2002(1) JT 89: 2002(1) SCALE 111: 2002(1) Supreme 123: 2002(1) SLT 153: 2002(1) SCJ 245: 2002(2) SRJ 467 [D.P. Mohapatra, J.: K.G. Balakrishnan, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 28(4) — Appeal — Limitation period of 30 days, inadequate — Minimum period of 90 days may be prescribed for filing appeal.

HELD: The period of limitation prescribed for filing the appeal under Section 28(4) is apparently inadequate which facilitates the frustration of the marriages by the unscrupulous litigant spouses. In a vast country like ours, the powers under the Act are generally exercisable by the District Court and the first appeal has to be filed in the High Court. The distance, the geographical conditions, the financial position of the parties and the time required for filing a regular appeal, if kept in mind, would certainly show that the period of 30 days prescribed for filing the appeal is insufficient and inadequate. In the absence of appeal, the other party can solemnise the marriage and attempt to frustrate the appeal right of the other side as appears to have been done in the instant case. We are of the opinion that a minimum period of 90 days may be prescribed for filing the appeal against any judgment and decree under the Act and any marriage solemnised during the aforesaid period be deemed to be void. Appropriate legislation is required to be made in this regard. We direct the Registry that the copy of this judgment may be forwarded to the Ministry of Law & Justice for such action as it may deem fit to take in this behalf.

Savitri Pandey v. Prem Chandra Pandey [Bench Strength 2], CA Nos. 20-21/1999 (08/01/2002), 2002 AIR(SC) 591: 2002(1) SCR 50: 2002(2) SCC 73: 2002(1) JT 25: 2002(1) SCALE 33: 2002(1) Supreme 90: 2002(1) SLT 103: 2002(1) SCJ 6: 2002(2) SRJ 553 [R.P. Sethi, J.: Y.K. Sabharwal, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 13(1), 15 & 28(4) — Second marriage during pendency of appeal before High Court — Effect — Marriage between parties was dissolved by decree of divorce by Family Court — Respondent-husband filed appeal — Appellant-wife solemnised second marriage during pendency of appeal — Out of second marriage a child having been born — Prayer made that marriage between parties to be dissolved — Whether acceptable — Held, No — No person can be permitted to flout course of justice by his or her overt and covert acts — Adventure of solemnising second marriage during pendency of appeal undertaken at her own risk and ultimate consequences arising out of judgment in appeal — Marriage cannot be held to have become dead for involving jurisdiction of this court under Article 142 of the Constitution — Constitution of India — Article 142 — Inherent powers.

HELD: It appears that the marriage between the parties was dissolved by a decree of divorce vide the judgment and decree of the Family Court dated 8.7.1996. The respondent-husband filed appeal against the judgment and decree on 19.1.1997. As no stay was granted, the appellant solemnised the second marriage on 29.5.1997, admittedly, during the pendency of the appeal before the High Court. There is no denial of the fact that right of at least one appeal is a recognised right under all systems of civilised legal jurisprudence. If despite the pendency of the appeal, the appellant chose to solemnise the second marriage, the adventure is deemed to have been undertaken at her own risk and the ultimate consequences arising of the judgment in the appeal pending in the High Court. No person can be permitted to flout the course of justice by his or her overt and covert acts.

Marriage between the parties cannot be dissolved only on the averments made by one of the parties that as the marriage between them has broken down, no useful purpose would be served to keep it alive. The legislature, in its wisdom, despite observation of this Court has not thought it proper to provide for dissolution of the marriage on such averments. There may be cases where, on facts, it is found that as the marriage has become dead on account of contributory acts of commission and omission of the parties, no useful purpose would be served by keeping such marriage alive. The sanctity or marriage cannot be left at the whims of one of the annoying spouses. This Court in V. Bhagat v. Mrs. D. Bhagat [AIR 1994 SC 710] held that irretrievable breakdown of the marriage is not a ground by itself to dissolve it.

As already held, the appellant herself is trying to take advantage of her own wrong and in the circumstances of the case, the marriage between the parties cannot be held to have become dead for invoking the jurisdiction of this court under Article 142 of the Constitution for dissolving the marriage.

Savitri Pandey v. Prem Chandra Pandey [Bench Strength 2], CA Nos. 20-21/1999 (08/01/2002), 2002 AIR(SC) 591: 2002(1) SCR 50: 2002(2) SCC 73: 2002(1) JT 25: 2002(1) SCALE 33: 2002(1) Supreme 90: 2002(1) SLT 103: 2002(1) SCJ 6: 2002(2) SRJ 553 [R.P. Sethi, J.: Y.K. Sabharwal, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(ib) — Desertion — Divorce petition — Specific issue not framed — No decree of divorce could be granted on ground of desertion in absence of pleading and proof — Absence of specific issue — Parties led evidence — Court opted to examine the matter.

Savitri Pandey v. Prem Chandra Pandey [Bench Strength 2], CA Nos. 20-21/1999 (08/01/2002), 2002 AIR(SC) 591: 2002(1) SCR 50: 2002(2) SCC 73: 2002(1) JT 25: 2002(1) SCALE 33: 2002(1) Supreme 90: 2002(1) SLT 103: 2002(1) SCJ 6: 2002(2) SRJ 553 [R.P. Sethi, J.: Y.K. Sabharwal, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1) — Divorce petition — Approach of court to preserve matrimonial home and be reluctant to dissolve marriage on asking of one of the parties.

Savitri Pandey v. Prem Chandra Pandey [Bench Strength 2], CA Nos. 20-21/1999 (08/01/2002), 2002 AIR(SC) 591: 2002(1) SCR 50: 2002(2) SCC 73: 2002(1) JT 25: 2002(1) SCALE 33: 2002(1) Supreme 90: 2002(1) SLT 103: 2002(1) SCJ 6: 2002(2) SRJ 553 [R.P. Sethi, J.: Y.K. Sabharwal, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 13(ib) & 23(1) — Divorce petition — Taking advantage of his or her own wrong — Desertion — Not permitting consummation of marriage — Wife petitioner pleading that there had not been cohabitation between parties after marriage — She neither assigned any reason nor attributed non-resumption of cohabitation to husband-respondent — Evidence on record revealing that wife petitioner did not permit husband to have cohabitation for consummating marriage — Wife held disentitled to claim divorce on ground of desertion.

HELD: In any proceedings under the Act whether defended or not the court would decline to grant relief to the petitioner if it is found that the petitioner was taking advantage of his or her own wrong or disability for the purposes of the reliefs contemplated under Section 23(1) of the Act. No party can be permitted to carve out the ground for destroying the family which is the basic unit of the society. The foundation of the family rests on the institution of a legal and valid marriage. Approach of the court should be to preserve the matrimonial home and be reluctant to dissolve the marriage on the asking of one of the parties.

No evidence was led by the appellant to show that she was forced to leave the company of the respondent or that she was thrown away from the matrimonial home or that she was forced to live separately and that the respondent had intended animus deserendi. There is nothing on record to hold that the respondent has ever declared to bring the marriage to an end or refuses to have cohabitation with the appellant. As a mater of fact the appellant is proved to have abandoned the matrimonial home and declined to cohabit with the respondent thus forbearing to perform the matrimonial obligation.

Savitri Pandey v. Prem Chandra Pandey [Bench Strength 2], CA Nos. 20-21/1999 (08/01/2002), 2002 AIR(SC) 591: 2002(1) SCR 50: 2002(2) SCC 73: 2002(1) JT 25: 2002(1) SCALE 33: 2002(1) Supreme 90: 2002(1) SLT 103: 2002(1) SCJ 6: 2002(2) SRJ 553 [R.P. Sethi, J.: Y.K. Sabharwal, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(ib) — Desertion — Total repudiation of obligations of marriage — Withdrawing from matrimonial obligations — Not permitting or allowing and facilitating cohabitation between parties — Desertion cannot be equated with separate living by parties to the marriage — Desertion can be constructive which can be inferred from attending circumstances.

Bipinchandra Jaisinghbhai Shah v. Prabhavati, AIR 1957 SC 176 & Lachman Utamchand Kirpalani v. Meena @ Mota, AIR 1964 SC 40 Relied on.

HELD: “Desertion”, for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but form a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations, i.e., not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case.

For the offence of desertion so far as deserting spouse is concerned, two essential conditions must be there (1) the factum of separation and (2) the intention to bring cohabitation permanently to an and (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. For holding desertion proved the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation.

To prove desertion in matrimonial matter it is not always necessary that one of the spouse should have left the company of the other as desertion could be proved while living under the same roof. Desertion cannot be equated with separate living by the parties to the marriage. Desertion may also be constructive which can be inferred from the attending circumstances. It has always to be kept in mind that the question of desertion is a matter of inference to be drawn from the facts and circumstances of each case.

As desertion in matrimonial cases means the withdrawal of one party from a state of things, i.e., a marital status of the party, no party to the marriage can be permitted to allege desertion unless he or she admits that after the formal ceremonies of the marriage, the parties had recognised and discharged the common obligation of the married life which essentially requires the cohabitation between the parties for the purpose of consummating the marriage. Cohabitation by the parties is an essential of a valid marriage as the object of the marriage is to further the perpetuation of the race by permitting lawful indulgence in passions for procreation of children. In other words, there can be no desertion without previous cohabitation by the parties. The basis for this theory is built upon the recognised position of law in matrimonial matters that no-one can desert who does not actively or wilfully bring to an end the existing state of cohabitation. However, such a rule is subject to just exceptions which may be found in a case on the ground of mental or physical incapacity or other peculiar circumstances of the case.

Savitri Pandey v. Prem Chandra Pandey [Bench Strength 2], CA Nos. 20-21/1999 (08/01/2002), 2002 AIR(SC) 591: 2002(1) SCR 50: 2002(2) SCC 73: 2002(1) JT 25: 2002(1) SCALE 33: 2002(1) Supreme 90: 2002(1) SLT 103: 2002(1) SCJ 6: 2002(2) SRJ 553 [R.P. Sethi, J.: Y.K. Sabharwal, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(a) — Cruelty as a ground of divorce — Conduct of such type which endangers living of petitioner with respondent — Cruelty, however, has to be distinguished from ordinary wear and tear of family life — It cannot be decided on basis of sensitivity of petitioner — It has to be adjudged on basis of course of conduct which would in general, be dangerous for a spouse to live with the other.

HELD: Treating the petitioner with cruelty is a ground for divorce under Section 13(1)(ia) of the Act. Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where on spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension or bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. “Cruelty”, therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other. In the instant case both the trial court as well as the High Court have found on facts that the wife has failed to prove the allegations of cruelty attributed to the respondent. Concurrent findings of fact arrived at by the courts cannot be disturbed by this court in exercise of powers under Article 136 of the Constitution of India. Otherwise also the averments made in the petition and the evidence led in support thereof clearly shows that the allegations, even if held to have been proved, would only show the sensitivity of the appellant with respect to the conduct of the respondent which cannot be termed more than ordinary wear and tear of the family life.

Savitri Pandey v. Prem Chandra Pandey [Bench Strength 2], CA Nos. 20-21/1999 (08/01/2002), 2002 AIR(SC) 591: 2002(1) SCR 50: 2002(2) SCC 73: 2002(1) JT 25: 2002(1) SCALE 33: 2002(1) Supreme 90: 2002(1) SLT 103: 2002(1) SCJ 6: 2002(2) SRJ 553 [R.P. Sethi, J.: Y.K. Sabharwal, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 13(1)(ib) & 13-A — Divorce petition — Desertion — Essential ingredients of separation in fact and animus deserendi — Wife left matrimonial home for birth of child in her parent’s home — Her condition to come back that husband should live in a separate house from his parents — Allegations that her father-in-law attempted to molest her, not proved — Her father-in law expired — However, no evidence that she expressed her desire to join her husband at matrimonial home — Husband being the only son of his parents — He was not willing to establish a separate residence leaving his parents to live alone — Conduct of wife indicative of firm determination not to return to matrimonial home — Finding recorded by High Court that wife was not guilty of deserting her husband held not sustainable — Decree of judicial separation as passed by trial court restored.

Bipin Chander Jaisinghbhai Shah v. Prabhawati, 1956 SCR 378; Lachman Utamchand Kirpalani v. Meena @ Mota, 1964(4) SCR 331; Smt. Roshini Kumari v. Narendra Singh, 1972(1) SCC 1; Sanat Kumar Agarwal v. Nandini Agarwal, 1990(1) SCC 475; Chetan Das v. Kamla Devi, 2001(4) SCC 250 Relied on.

HELD: `Desertion’ in the context of matrimonial law represents a legal conception. It is difficult to give a comprehensive definition of the term. The essential ingredients of this offence in order that it may furnish a ground for relief are:

1. The factum of separation:

2. The intention to bring cohabitation permanently to an end – animus deserendi;

3. The element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period;

The clause lays down the rule that desertion to amount to a matrimonial offence must be for a continuous period of not less than two years immediately proceeding the presentation of the petition. This clause has to be read with the Explanation. The Explanation has widened the definition of desertion to include `willful neglect’ of the petitioning spouse by the respondent. It states that to amount to a matrimonial offence desertion must be without reasonable cause and without the consent or against the wish of the petitioner. From the Explanation it is abundantly clear that the legislature intended to give to the expression a wide import which includes willful neglect of the petitioner by the other party to the marriage. Therefore, for the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly, two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively and their continuance throughout the statutory period.

Coming to the case at hand, it is revealed from the evidence on record, as discussed in the judgments of the Trial Court and the High Court that the respondent had gone to her parents’ house for birth of the child, which apparently cannot be construed as an expression of her desire to forsake her husband permanently; but after the birth of her child when attempts were made by the appellant, his parents and relations, she laid down a condition that the appellant should live in a separate house from his parents taking the plea that her father-in-law had attempted to molest her, which explanation she signally failed to establish. In the meantime, father of the appellant expired some time in 1988, putting an end to the so-called reason of misbehavior of her father-in-law. There is nothing on record that thereafter she expressed her desire to join her husband at the matrimonial home. It is relevant to state here that the appellant is the only son of his parents and as expected, he was not willing to establish a separate residence leaving his parents to live alone in their old age. The cumulative effect of the circumstances and the conduct of the respondent is that she had given expression of animus deserendi. Thus, the two ingredients of the matrimonial offence of desertion i.e. separation in fact and animus deserendi have been established by the appellant. The learned trial Judge, having regard to the facts and circumstances of the case, was right in recording the finding that the husband had successfully established the case of desertion by the wife and exercising the discretion vested under Section 13A of the Act, the learned trial Judge had granted the decree of judicial separation instead of divorce. The High Court recorded the finding that in the absence of any evidence, direct or circumstantial, in support of her plea of alleged indecent behaviour by her father-in-law, the Court was not prepared to accept the allegations made by her against her father-in-law; the Court without discussing any evidence, had observed that “as the cause itself has disappeared or ceased to exist the wife had agreed to join the husband, and even before the death of the husband’s father she was ready and lived with the husband indeed” and arrived at the conclusion that the wife cannot be held to have the necessary intention to put an end to the matrimonial obligation and, therefore, could not be found guilty of deserting the husband. The High Court has not discussed whether the alleged offer by the wife to live with her husband after the death of her father-in-law was indeed a sincere move or merely a hollow expression bereft of any sincerity. The High Court has also not discussed if she indeed had the desire to come and live with her husband what prevented her to request her parents to take necessary steps in the matter. In the absence of any such evidence the finding recorded by the High Court that the wife was not guilty of deserting her husband cannot be sustained. The failure on the part of the wife to substantiate a serious allegation of infamous conduct of indecent advances said to have been made to her by the father-in-law, taken together with the absence and omission from her side to demonstrate her readiness and willingness to discharge her continuing objection to return to the matrimonial home, establish sufficiently the animus deserendi, necessary to prove legal desertion as required under section 13(1) (ib). The conduct of the wife seems to be more indicative of a firm determination not to return to the marital home and discharge the obligations attendant thereto. Therefore, the judgment of the High Court is unsustainable and has to be set aside.

Adhyatma Bhattar Alwar v. Adhyatma Bhattar Sri Devi [Bench Strength 2], CA Nos. 6534-6536/1995 (06/11/2001), 2002 AIR(SC) 88: 2001(Supp-5) SCR 130: 2002(1) SCC 308: 2001(9) JT 429: 2001(8) SCALE 119: 2001(8) Supreme 434: 2001(7) SLT 707: 2002(1) SCJ 95: 2002(1) SRJ 311 [D.P. Mohapatra, J.: Doraiswamy Raju, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Section 482 — Criminal proceedings — Quashing of, validity, determination — Appellant filing a petition before Family Court for a decree of restitution of conjugal rights u/s 9 of Hindu Marriage Act alongwith an interlocutory application for injuncting husband from interfering with her right to stay in matrimonial house on the basis of a document styling it as “family arrangement” — Appellant filing a complaint before the Court of a Judicial Magistrate alleging offences u/ss. 465, 466 and 467 on the ground that said document is the result of forgery — Magistrate taking cognizance of the said offences and issuing process against the respondent — Revision petition before Sessions Court against summons dismissed — Petition u/s 482 of CrPC for quashing summons — Single Judge of the High Court quashing the criminal proceedings — Without going into rival contentions regarding forgery aspect of document, held, Family Court, if called upon to decide genuineness of said document, may have to enter on findings — Question of initiating criminal proceedings in respect of said document would arise, if Family Court reaches a finding that the said document is forged — Penal Code, 1860 — Sections 465, 466 & 467 — Hindu Marriage Act, 1955 — Section 9.

Mohini Hemant Jadia v. Hemant Ghanshyamlal Jadia [Bench Strength 2], CrA No. 616/2000 (10/10/2001), 2002(9) SCC 767 [K.T. Thomas, J.: S.N. Variava, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 9 & 7-A (As introduced by T.N. Act No. 21/1967) — Evidence — Contemporaneous relevant evidence, non-production, effect — Drawing certain inference from non-production of evidence, validity, determination — Restitution of Conjugal Rights — Dispute relating to relationship of parties as husband and wife and also the paternity of male child — Failure on the part of parties to produce contemporaneous relevant evidence — Courts below, drawing inference from non-production of relevant oral and documentary evidence — Matter requiring in-depth consideration of evidence after placing all available material on record — Matter remitted back for fresh disposal after providing an opportunity to both parties to lead further evidence — Trial Court to dispose of the matter expeditiously within 6 months — Appeal allowed.

Murugaiah v. Annathai [Bench Strength 2], CA No. 6461/2001 (18/09/2001), 2002(9) SCC 604: 2001(10) JT 558: 2002(2) SLT 209 [D.P. Mohapatra, J.: Shivaraj V. Patil, J.] <<LAWPACK SUPREME COURT>>
Penal Code, 1860 — Section 494 — Bigamy — Offence of — Second marriage should be proved to be a valid marriage according to personal law of parties — Whether `Saptapadi’ is an essential ritual to be performed to constitute a valid marriage — Held, `Saptapadi’ was an essential ceremony only in cases where it was admitted by parties that as per form of marriage applicable to them that was an essential ceremony — Parties to second marriage were residents of State of Tamil Nadu — Their marriage was performed at Thiruthani Temple with in the state — Applicability of provisions of section 7-A inserted by State Amendment in Hindu Marriage Act — Marriage performed in accordance with customs applicable to parties — Valid marriage — Appellant committed offence of bigamy — Hindu Marriage Act, 1955 — Section 7-A as inserted by State Amendment for State of Tamil Nadu.

Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh, 1971(1) SCC 864; Lingari Obulamma v. L. Venkata Reddy, 1979(3) SCC 80; Santi Deb Berma v. Kanchan Prava Devi, 1991 Supp(2) SCC 616; Laxmi Devi v. Satya Narayan, 1994(5) SCC 545 Relied on.

HELD: The essential ingredients of the offence under Section 494 IPC are (1) the accused must have contracted the first marriage; (ii) whilst the first marriage was subsisting, the accused must have contracted a second marriage; and (iii) both the marriages must be valid in the sense that necessary ceremonies governing the parties must have been performed.

In the instant case, the parties to the second marriage, namely the appellant, Nagalingam, and his alleged second wife, Kasturi, are residents of the State of Tamil Nadu and their marriage was performed at Thiruthani Temple with the State of Tamil Nadu. In the Hindu Marriage Act, 1955, there is a State Amendment by the State of Tamil Nadu, which has been inserted as Section 7-A.

Section 7-A applies to any marriage between two Hindus solemnized in the presence of relatives, friends or other persons. The main thrust of this provision is that the presence of a priest is not necessary for the performance of a valid marriage. Parties can enter into a marriage in the presence of relatives or friends or other persons and each party to the marriage should declare in the language understood by the parties that each takes other to be his wife or, as the case may be, her husband, and the marriage would be completed by a simple ceremony requiring the parties to the marriage to garland each other or put a ring upon any finger of the other or tie a thali. Any of these ceremonies, namely garlanding each other or putting a ring upon any finger of the other or tying a thali would be sufficient to complete a valid marriage.

The evidence in this case as given by PW-3 clearly shows that there was a valid marriage in accordance with the provisions of section 7-A of the Hindu Marriage Act. PW-3 deposed that the bridegroom brought the “Thirumangalam” and tied it around the neck of the bride and thereafter the bride and the bridegroom exchanged garlands three times and the father of the bride stated that he was giving his daughter to “Kanniyathan” on behalf of and in the witness of “Agnidevi” and the father of the bridegroom received and accepted the “Kanniyathan”. PW-3 also deposed that he performed the marriage in accordance with the customs applicable to the parties.

Under such circumstances, the provisions of Section 7-A, namely, the State Amendment inserted in the Statute are applicable and there was a valid marriage between the appellant and Kasturi. Moreover, neither complainant nor the appellant had any case that for a valid marriage among the members of the community to which they belong, this ceremony of “Saptapadi” was an essential one to make it a valid marriage. Section 7 of the Hindu Marriage Act says that a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto and where such rites and ceremonies include the Saptapadi, i.e. the taking of seven steps by the bridegroom and the bride jointly before the sacred fire, the marriage becomes complete and binding when the seventh step is taken.

“Saptapadi” was held to be an essential ceremony for a valid marriage only in cases where it was admitted by the parties that as per the form of marriage applicable to them that was an essential ceremony. The appellant in the instant case, however, had no such case that “Saptapadi” was an essential ceremony for a valid marriage as per the personal law applicable whereas the provisions contained in Section 7-A are applicable to the parties. In any view of the matter, there was a valid marriage on 18.6.1984 between the appellant and the second accused, Kasturi. Therefore, it was proved that the appellant had committed the offence of bigamy as it was done during the subsistence of his earlier marriage held on 6.9.1970.

S. Nagalingam v. Sivagami [Bench Strength 2], Crl.A. No. 882/2001 (Arising from SLP(Crl.) No. 904/2001) (31/08/2001), 2001 AIR(SC) 3576: 2001(Supp-2) SCR 454: 2001(7) SCC 487: 2001(7) JT 219: 2001(6) SCALE 42: 2001(6) Supreme 772: 2001(6) SLT 491: 2001(4) SCJ 539: 2001(9) SRJ 235: 2001 SCC(Cr) 1273: 2001(4) Crimes 278(SC): 2002(1) CRJ 191 [D.P. Mohapatra, J.: K.G. Balakrishnan, J.] <<LAWPACK SUPREME COURT>>
Civil Procedure Code, 1908 — Section 25 — Transfer of divorce petition — Compromise for divorce by mutual consent, effect — Petition filed by husband at Mumbai — Transfer of petition sought by wife at Saharanpur — Settlement between the parties — Compromise terms filed in the court — Parties agreed for mutual divorce — Held, in view of developments during the pendency of petition, transfer of petition declined — Joint petition for divorce to be filed at Mumbai — Prayer for curtailment of six months time for grant of divorce — In the facts and circumstances of the case, in exercise of power under Article 142, Supreme Court accepted said prayer — Direction issued — Constitution of India — Article 142 — Divorce by mutual consent — Curtailment of six months time for grant of divorce u/s 13-B(2) of HM Act, permissibility — Hindu Marriage Act, 1955 — Section 13-B(2) — Divorce by mutual consent — Curtailment of six months time for grant of divorce.

HELD: In view of the developments which have taken place during the pendency of proceedings in this Court, we decline to transfer the case from family court at Bandra, Mumbai to the family court at Saharanpur. We, however, direct that as agreed to by learned counsel for the parties, a joint petition shall be filed by the parties before the family court at Bandra, Mumbai for grant of divorce by mutual consent. Terms of compromise as filed before us shall also accompany the joint petition. An application for curtailment of time for grant of divorce shall also be filed along with the joint petition. On such application being moved, the family court may, dispensing with the need of waiting for six months, which is required otherwise by sub- section (2) of section 13-B of Hindu Marriage Act, 1955, pass final order on the petition within such time as it may deem fit. This direction we are making under Article 142 of Constitution, as looking at the facts and circumstances of the case emerging from pleadings of the parties and disclosed during the course of hearing, we are satisfied of the need of making such a direction to do complete justice in the case. The parties shall present themselves before the learned presiding officer, family court at Bandra, Mumbai on 17.9.2001 when the learned presiding judge shall take further appropriate steps.

Anjana Kishore v. Puneet Kishore [Bench Strength 3], TP(C) No. 260/2000 (03/08/2001), 2002(10) SCC 194: 2001(10) JT 7: 2001(8) SLT 459 [A.S. Anand, C.J.: R.C. Lahoti, J.: K.G. Balakrishnan, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 5(ii) & 12(i)(b) — Voidable Marriages — Unsoundness of mind — No proof of impossibility to lead normal married life, effect — Appellant and respondent married in 1987 — After staying together for 25 days, they separated — Wife had been under treatment for some mental problem before marriage — No cohabitation between parties during the period they stayed together — On these findings can it be held that a case for declaring marriage to be invalid u/s 12(1)(b) r/ww S. 5(ii)(b) has been established — Held, No — No specific finding that ailment suffered by wife was of such a kind that it was impossible for her to lead a normal married life — This being requirement of law — High Court rightly dismissed husband’s petition u/s 12(1)(b) r/ww S. 5(ii)(b) of the Act — Constitution of India — Article 136.

HELD: It is not the case of the appellant that the respondent was incapable of giving valid consent to the marriage in consequence of unsoundness of mind at the time of marriage. From the facts found by the appellate court it cannot be held that the respondent has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and procreation of children. To draw such an inference merely from the fact that the spouses had no cohabitation for a short period of about a month, is neither reasonable not permissible. To brand the wife as unfit for marriage and procreation of children on account of the mental disorder it needs to be established that the ailment suffered by her is of such a kind or such an extent that it impossible for her to lead an normal married life. This is the requirement of the law as appears on fair reading of the statutory provisions. The appellate court has also not specifically given such a finding. Merely giving a finding that the respondent was suffering from some mental disorder and she did not have cohabitation with her husband during the period they stayed together is not sufficient to comply with the condition prescribed under section 5(ii)(b) of the Act. We deem it relevant to note here that the observations in the judgment of the trial court about the physical and mental condition of the respondent which have been noted earlier indicates the position that the requirement of section 5(ii)(b) are far from satisfied from the materials placed by the appellant. In the circumstances the High Court cannot be faulted for having dismissed the petition filed by the appellant under section 12(1)(b) read with section 5(ii)(b) of the Act. The judgment of the High Court is no doubt far from satisfactory. The High Court has not formulated any question of law in the judgment which is a mandatory requirement under section 100 C.P.C. The High Court has also not considered the relevant aspects of the matter other than fraud and misrepresentation about mental condition of the respondent on the part of her parents at the time of the marriage. We have considered the submission made by learned counsel for the appellant to remit the mater of the High Court for fresh disposal. We however, in the facts as above, do not feel it expedient to do so. Our attention has not been drawn to any material on record which, if considered, would have titled the balance in favour of the appellant. It is our considered view that on the facts and circumstances of the case and the materials placed on record this is not a fit case for interfering with the judgment of the High Court in exercise of jurisdiction under Article 136 of the Constitution.

R. Lakshmi Narayan v. Santhi [Bench Strength 2], CA No. 5028/1999 (01/05/2001), 2001 AIR(SC) 2110: 2001(3) SCR 329: 2001(4) SCC 688: 2001(Supp-1) JT 213: 2001(3) SCALE 579(2): 2001(5) Supreme 520: 2001(3) SLT 749: 2001(4) SCJ 533: 2001(6) SRJ 118: 2001(1) JCC 337 [D.P. Mohapatra, J.: U.C. Banerjee, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13 — Divorce petition — erring party, relief to, scope — Institution of marriage — Concept of — Erring party not to be permitted to walk out of matrimonial alliance easily on ground that marriage has broken down.

HELD: Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has now come to be governed by Statue framed, keeping in view such norms and changed social order. It is sought to be controlled in the interest of the individuals as well as in broader perspective, for regulating matrimonial norms for making of a well knit, healthy and not a disturbed and porous society. Institution of marriage occupies an important place and role to play in the society, in general. Therefore, it would not be appropriate to apply any submission of “irretrievably broken marriage” as a straight jacket formula for grant of relief of divorce. This aspect has to be considered in the background of the other facts and circumstances of the case.

Chetan Dass v. Kamla Devi [Bench Strength 2], CA No. 14740/1996 (17/04/2001), 2001 AIR(SC) 1709: 2001(3) SCR 20: 2001(4) SCC 250: 2001(5) JT 21: 2001(3) SCALE 399: 2001(3) Supreme 403: 2001(3) SLT 420: 2001(4) SCJ 552: 2001(5) SRJ 334 [D.P. Mohapatra, J.: Brijesh Kumar, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 13(ib) & 23 — Divorce — Husband’s petition on ground of desertion — Wife’s allegations of adulterous conduct of husband found to be correct — Applicability of provisions of section 23 of the Act — Husband would not be allowed to take advantage of his own wrong — Desertion on part of wife without any reasonable cause not found to be correct — Wife having a justified reason to live away from husband — Behaviour of husband falls in category of misconduct on his part — Wife still prepared to live with him provided he snaps his relationship with another woman — Decree of divorce on ground of marriage having been irretrievably broken cannot be granted in facts and circumstances of the case.

HELD: In the present case, the allegations of adulterous conduct of the appellant have been found to be correct and the courts below have recorded a finding to the same effect. In such circumstances in our view, the provisions contained under Section 23 of the Hindu Marriage Act would be attracted and the appellant would not be allowed to take advantage of his own wrong. Let the things be not misunderstood nor any permissiveness under the law be inferred, allowing an erring party who has been found to be so by recording of a finding of fact in judicial proceedings, that it would be quite easy to push and drive the souse to corner and then brazenly take a plea of desertion on the part of the party suffering so long at the hands of the wrong-doer and walk away out of the matrimonial alliance on the ground that marriage has broken down. Lest the institution of marriage and the matrimonial bonds get fragile easily to be broken which may serve the purpose most welcome to the wrong- doer who, by heart, wished such an outcome by passing on the burden of his wrong-doing to the other party alleging her to be the deserter leading to the breaking point.

The respondent is still prepared to live even at this stage of her life with the appellant but rightly on the condition that the appellant disassociates himself from Sosamma Thomas. There has been no cause of grievance or any allegation of objectionable behaviour by any one except the meek plea put forward by the husband that she was dissatisfied with the living conditions at Kirawad and she wanted him to live in Vijaynagar. Such allegations have been found to be incorrect. She also lived in Ganganagar. Had only living in Kirawad been the problem, there was no occasion for her to be dissatisfied in living in Sriganganagar, at least none has been indicated by the appellant.

In this case, the averments made in the petition for obtaining a decree for divorce, namely, desertion on the part of the wife without any reasonable cause have not been found to be correct. The petition was liable to be dismissed on that ground alone. The defence of the respondent for having a justified reason to live away from the husband has been found to be correct. Behaviour of the appellant certainly falls in the category of misconduct on his part. In such circumstances, it is too much on his part to claim that he be given the advantage of his own wrong and be granted a decree of divorce on the ground of desertion on the part of his wife who is still prepared to live with him provided he snaps his relationship with the other woman. Similar offer had also been made on behalf of the appellant, which, we have already dealt in the earlier part of the judgment. He perhaps prefers to snap relationship with the respondent rather than with Sosamma Thomas. A decree of divorce on the ground of marriage having been irretrievably broken cannot be granted in the facts and circumstances of the case as indicated above.

Chandrakala Trivedi v. Dr. S.P. Trivedi, 1993(4) SCC 232; 1995(2) SCC 7; 1984(4) SCC 90 Distinguished.

Chetan Dass v. Kamla Devi [Bench Strength 2], CA No. 14740/1996 (17/04/2001), 2001 AIR(SC) 1709: 2001(3) SCR 20: 2001(4) SCC 250: 2001(5) JT 21: 2001(3) SCALE 399: 2001(3) Supreme 403: 2001(3) SLT 420: 2001(4) SCJ 552: 2001(5) SRJ 334 [D.P. Mohapatra, J.: Brijesh Kumar, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 13(ib) & 23 — Divorce — Irretrievable breakdown of marriage — Plea of — Whether divorce can be granted on submission of `irretrievably broken marriage’? — Held, it cannot be applied as a straight jacket formula — This aspect has to be considered in the background of other facts and circumstances of the case.

Chetan Dass v. Kamla Devi [Bench Strength 2], CA No. 14740/1996 (17/04/2001), 2001 AIR(SC) 1709: 2001(3) SCR 20: 2001(4) SCC 250: 2001(5) JT 21: 2001(3) SCALE 399: 2001(3) Supreme 403: 2001(3) SLT 420: 2001(4) SCJ 552: 2001(5) SRJ 334 [D.P. Mohapatra, J.: Brijesh Kumar, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 11 & 5 — Legally wedded wife — Determination — Sufficient proof of legal marriage — Plaintiff claiming to be widow to late C, filed suits for ejectment and possession of suit properties from tenants or licensees or trespassers — K as sister and G as collateral of late C claimed suit properties — Suits dismissed — Trial court as well as the first appellate court held that plaintiff was not legally wedded wife of C — Second appeal — Ample evidence on record in support of marriage of plaintiff with C — C and plaintiff were residing as husband and wife — C having told to all that he had married plaintiff by Arya Samaj rites — High Court concluded that courts below committed serious error on facts as well as law — No ground or reason to take a view other than the one taken by the High Court in holding that plaintiff was legally wedded wife of late C — Tenants or persons in occupation were not tenants of G or K.

Vishnu Prakash v. Sheela Devi [Bench Strength 2], CA Nos. 2702-06/1992 with CA No. 2707-08/1992 (03/04/2001), 2001 AIR(SC) 1862: 2001(4) SCC 729: 2001(4) JT 396: 2001(3) SCALE 193: 2001(3) Supreme 191: 2001(3) SLT 594: 2001(5) SRJ 206 [V.N. Khare, J.: Shivaraj V. Patil, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13 — Compromise — Acceptance of one part of compromise while rejecting other part, unsustainable — Parties entering into a compromise by which wife foregoes her right of maintenance instead to take the son with her — High Court denying divorce based on compromise on the ground that no divorce can be granted until it fall within four corners of law as required under the statute — However, High Court upheld another part of the compromise by which wife foregoes maintenance instead to take the son with her — Held, not valid — When a part of compromise held to be void, second part of compromise cannot be held to be void.

Asha Devi v. Chaturdas [Bench Strength 2], CA No. 401/2001 (Arising out of SLP(Crl.) No. 1243/2000) (30/03/2001), 2003 AIR(SC) 2175: 2008(17) SCC 678: 2001(4) SCALE 458: 2001(5) Supreme 722: 2001(5) SLT 56: 2001(3) Crimes 489(SC) [A.P. Misra, J.: B.N. Agrawal, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 13(1-A), 10 and 23(i)(a) — Interaction of Section 13(1-A) with Ss. 10 & 23(1)(a) — Determination of — Wife’s petition u/s 10 seeking judicial separation — Decreed — Order to pay maintenance to wife and children — Non-compliance — Husband’s petition for dissolution of marriage by a decree of divorce on ground that there had been no resumption of cohabitation as between parties for a period of more than one year after passing of decree for judicial separation — Maintainability — Whether the husband who has filed a petition for divorce u/s 13(1-A)(i) can be declined relief on the ground that he had failed to pay maintenance to wife and child despite order of the court — Held, yes — Whether husband’s refusal to pay maintenance to wife amounted to committing a `wrong’ within the meaning of section 23 — Held, yes — Whether in seeking relief of divorce he is taking advantage of his own `wrong’ — Held, Yes — Whether in a petition for divorce u/s 13(1-A) it is open to the court to refuse to pass a decree on any of the grounds specified in section 23 of the Act — Held, yes — Right conferred by section 13(1-A) is not absolute and unqualified — Limited object and effect of amendment introduced by Act No. 44/1964 introducing Section 13(1-A).

Sumitra Manna v. Gobinda Chandra Manna, AIR 1988 Cal 192; Bal Mani v. Jayantilal Dahyabhai, AIR 1979 Guj 209 Overruled; Soundarammal v. Sundara Mahalinga Nadar, AIR 1980 Mad 294 Approved; Dharmendra Kumar v. Usha Kumar, 1977(4) SCC 12 Explained.

HELD: The answer to the question, as noted earlier, depends on the facts and circumstances of the case and no general principle or strait-jacket formula can be laid down for the purpose. We have already held that even after the decree for judicial separation was passed by the Court on the petition presented by the wife it was expected that both the spouses will make sincere efforts for a conciliation and cohabitation with each other, which means that the husband should behave as a dutiful husband and the wife should behave as a devoted wife. In the present case the respondent has not only failed to make any such attempt but has also refused to pay the small amount of Rs. 100 as maintenance for the wife and has been marking time for expiry of the statutory period of one year after the decree of judicial separation so that he may easily get a decree of divorce. In the circumstances it can reasonably be said that he not only commits the matrimonial wrong in refusing to maintain his wife and further estrange the relation creating acrimony rendering any reapproachement impossible but also tries to take advantage of the said `wrong’ for getting the relief of divorce. Such conduct in committing a default cannot in the facts and circumstances of the case be brushed aside as not a matter of sufficient importance to disentitle him to get a decree of divorce under Section 13(1-A).

Prior to the amendment under clauses (viii) and (ix) of Section 13(1) the right to apply for divorce was restricted to the party which had obtained a decree for judicial separation or for restitution of conjugal rights. Such a right was not available to the party against whom the decree was passed. Sub-Section (1-A) of Section 13 which was introduced by the amendment confers such a right on either party to the marriage so that a petition for divorce can after the amendment be filed not only by the party which had obtained a decree for judicial separation or for restitution of conjugal rights but also for the party against whom such a decree was passed. This is the limited object and effect of the amendment introduced by Act No. 44 of 1964. The amendment was not introduced in order that the provisions contained in Section 23 should be abrogated and that is also not the effect of the amendment. The object of sub-section (1-A) was merely to enlarge the right to apply for divorce and not to make it compulsive that a petition for divorce presented under sub-section (1-A) must be allowed on a mere proof that there was no cohabitation or restitution for the requisite period. The very language of Section 23 shows that it governs every proceeding under the Act and a duty is cast on the Court to decree the relief sought only if the conditions mentioned in the sub-section are satisfied, and not otherwise. Therefore, the contention raised by the learned Counsel for the appellant that the provisions of Section 23(1) are not relevant in deciding a petition filed under sub-section (1-A) of Section 13 of the Act, cannot be accepted.

Hirachand Srinivas Managaonkar v. Sunanda [Bench Strength 2], CA No. 1473/1999 (20/03/2001), 2001 AIR(SC) 1285: 2001(2) SCR 491: 2001(4) SCC 125: 2001(3) JT 620: 2001(2) SCALE 514: 2001(2) Supreme 435: 2001(2) SLT 783: 2001(2) SCJ 412: 2001(4) SRJ 323 [D.P. Mohapatra, J.: Doraiswamy Raju, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 23(1)(a) & 10 — Committing a `wrong’ — Determination — Wife’s petition u/s 10 seeking judicial separation on ground of adultery on part of her husband — Decree for judicial separation — Husband’s petition for dissolution of marriage by a decree of divorce on ground that there has been no resumption of marriage between parties for a period of more than one year after passing decree of judicial separation — Maintainability — Husband continuing to live with the mistress even after passing of the decree for judicial separation — Whether husband can be said to have committed and to be committing a `wrong’ within the meaning of section 23(1)(a) of the Act — Held, yes — Words and Phrases — Wrong.

Bal Mani v. Jayantilal Dahyabhai, AIR 1979 Gujarat 209 Overruled; Soundarammal v. Sundara Mahalinga Nadar, AIR 1980 Madras 294 Affirmed.

HELD: The respondent presented the petition seeking a decree of judicial separation on the ground that the appellant has been living in adultery since he is living with another lady during the subsistence of the marriage with her. The court accepted the allegation and passed the decree for judicial separation. Even after the decree the appellant made no attempt to make any change in the situation and continued to live with the mistress. To pursue still into such an adulterous life with no remorse, even thereafter, is yet another `wrong’ which he deliberately continued to commit, to thwart any attempt to re-unite and, in such circumstances can it be said that the passing of a decree for judicial separation has put an end to the allegation of adultery; or that the chapter has been closed by the decree for judicial separation and therefore he cannot be said to have committed a `wrong’ by continuing to live with mistress. The learned Counsel appearing for the appellant placed reliance on a Division Bench decision of the Gujarat High Court in the case of Bal Mani v. Jayantilal Dahyabhai, AIR 1979 Guj. 209, in which the view was taken that matrimonial offence of adultery has exhausted itself when the decree for judicial separation was granted, and, therefore, it cannot be said that it is a new fact or circumstances amounting to wrong which will stand as an obstacle in the way of the husband to successfully obtain the relief which he claims in the divorce proceedings, and contended that the question should be answered in favour of the husband as has been done by the Gujarat High Court. We are unable to accept the contention. Living in adultery on the part of the husband in this case is a continuing matrimonial offence. The offence does not get frozen or wiped out merely on passing of a decree for judicial separation which as noted earlier merely suspends certain duties and obligations of the spouses in connection with their marriage and does not snap the matrimonial tie. In that view of the matter accepting the contention raised on behalf of the appellant would, in our view, defeat the very purpose of passing the decree for judicial separation. The decision of the Gujarat High Court does not lay down the correct position of law. On the other hand the decision of the Madras High Court in the case of Soundarammal v. Sundara Mahalinga Nadar, AIR 1980 Madras 294, in which a single Judge took the view that the husband who continued to live in adultery even after decree at the instance of wife could not succeed in petition seeking decree for divorce and that Section 23(1)(a) barred the relief, has our approval. Therein the learned Judge held and in our view rightly that illegality and immorality cannot be countenanced as aids for a person to secure relief in matrimonial matters.

Hirachand Srinivas Managaonkar v. Sunanda [Bench Strength 2], CA No. 1473/1999 (20/03/2001), 2001 AIR(SC) 1285: 2001(2) SCR 491: 2001(4) SCC 125: 2001(3) JT 620: 2001(2) SCALE 514: 2001(2) Supreme 435: 2001(2) SLT 783: 2001(2) SCJ 412: 2001(4) SRJ 323 [D.P. Mohapatra, J.: Doraiswamy Raju, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 23 & 10 — Word `wrong’ — Ambit and scope — Wife’s petition u/s 10 seeking judicial separation — Decree passed with order that husband shall pay as maintenance Rs. 100/- p.m. to wife and Rs. 75/- p.m. for the daughter — Non-compliance — Whether husband by refusing to pay maintenance to wife committed a `wrong’ within the meaning of section 23 of the Act so as to disentitle him to relief of divorce — Held, yes — Words and Phrases — Wrong.

HELD: In Mulla’s Hindu Law (17th Edition at page 121) it is stated : “Cohabitation means living together as husband and wife. It consists of the husband acting as a husband towards the wife and the wife acting as a wife towards the husband, the wife rendering housewifely duties to the husband and the husband supporting his wife as a husband should. Cohabitation does not necessarily depend on whether there is sexual intercourse between husband and wife. If there is sexual intercourse, it is very strong evidence – it may be conclusive evidence – that they are cohabiting, but it does not follow that because they do not have sexual intercourse they are not cohabiting. Cohabitation implies something different from mere residence. It must mean that the husband and wife have begun acting as such and have resumed their status and position as husband and wife.”

(Emphasis supplied)

After the decree for judicial separation was passed on the petition filed by the wife it was the duty of both the spouses to do their part for cohabitation. The husband was expected to act as a dutiful husband towards the wife and the wife was to act as a devoted wife towards the husband. If this concept of both the spouses making sincere contribution for the purpose of successful cohabitation after a judicial separation is ordered then it can reasonably be said that in the facts and circumstances of the case the husband in refusing to pay maintenance to the wife failed to act as a husband. Thereby the committed a `wrong’ within the meaning of Section 23 of the Act. Therefore, the High Court was justified in declining to allow the prayer of the husband for dissolution of the marriage by divorce under Section 13(1-A) of the Act.

Hirachand Srinivas Managaonkar v. Sunanda [Bench Strength 2], CA No. 1473/1999 (20/03/2001), 2001 AIR(SC) 1285: 2001(2) SCR 491: 2001(4) SCC 125: 2001(3) JT 620: 2001(2) SCALE 514: 2001(2) Supreme 435: 2001(2) SLT 783: 2001(2) SCJ 412: 2001(4) SRJ 323 [D.P. Mohapatra, J.: Doraiswamy Raju, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 13(1-A) & 23 — Interaction between the two provisions — Determination — Whether in a petition for divorce filed under sub-section (1-A) of section 13 it is open to the court to refuse to pass a decree only on the grounds specified in section 23 of the Act — Held, yes — Section 23 governs every proceedings under the Act.

HELD: Prior to the amendment under clauses (viii) and (ix) of Section 13(1) the right to apply for divorce was restricted to the party which had obtained a decree for judicial separation or for restitution of conjugal rights. Such a right was not available to the party against whom the decree was passed. Sub-Section (1-A) of Section 13 which was introduced by the amendment confers such a right on either party to the marriage so that a petition for divorce can after the amendment be filed not only by the party which had obtained a decree for judicial separation or for restitution of conjugal rights but also for the party against whom such a decree was passed. This is the limited object and effect of the amendment introduced by Act No. 44 of 1964. The amendment was not introduced in order that the provisions contained in Section 23 should be abrogated and that is also not the effect of the amendment. The object of sub-section (1-A) was merely to enlarge the right to apply for divorce and not to make it compulsive that a petition for divorce presented under sub-section (1-A) must be allowed on a mere proof that there was no cohabitation or restitution for the requisite period. The very language of Section 23 shows that it governs every proceeding under the Act and a duty is cast on the Court to decree the relief sought only if the conditions mentioned in the sub-section are satisfied, and not otherwise. Therefore, the contention raised by the learned Counsel for the appellant that the provisions of Section 23(1) are not relevant in deciding a petition filed under sub-section (1-A) of Section 13 of the Act, cannot be accepted.

Hirachand Srinivas Managaonkar v. Sunanda [Bench Strength 2], CA No. 1473/1999 (20/03/2001), 2001 AIR(SC) 1285: 2001(2) SCR 491: 2001(4) SCC 125: 2001(3) JT 620: 2001(2) SCALE 514: 2001(2) Supreme 435: 2001(2) SLT 783: 2001(2) SCJ 412: 2001(4) SRJ 323 [D.P. Mohapatra, J.: Doraiswamy Raju, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 13(1-A) & 23(1)(a) — Divorce — Grant of, scope — Petitioner does not have a vested right for getting relief of a decree of divorce merely on showing that ground in support of the relief sought as stated in the petition exists — Before granting prayer of petitioner to permanently snap the relationship between parties to the marriage every attempt should be made to maintain sanctity of relationship — Whether relief of dissolution of marriage by a decree of divorce is to be granted or not depends on facts and circumstances of the case.

Dharmendra Kumar v. Usha Kumar, 1977(4) SCC 12 Explained.

HELD: All that is provided in the said Section is that either party to a marriage may present a petition for dissolution of the marriage by a decree of divorce on the ground that there has been no resumption of cohabitation between the parties to the marriage for a period of one year or more after the passing of a decree for judicial separation in a proceeding to which they were parties or that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or more after the passing of a decree for restitution of conjugal rights in a proceeding to which both the spouses were parties. The Section fairly read, only enables either party to a marriage to file an application for dissolution of the marriage by a decree of divorce on any of the grounds stated therein. The Section does not provide that once the applicant makes an application alleging fulfilment of one of the conditions specified therein the Court has no alternative but to grant a decree of divorce. Such an interpretation of the Section will run counter to the provisions in Section 23(1)(a) or (b) of the Act. In Section 23(1) it is laid down that if the Court is satisfied that any of the grounds for granting relief exists and further that the petitioner is not in any way taking advantage of his or her own `wrong’ or disability for the purpose of such relief and in clause (b) a mandate is given to the Court to satisfy itself that in the case of a petition based on the ground specified in clause (i) of sub-section (1) of Section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty and in (bb) when a divorce is sought on the ground of mutual content such consent has not been obtained by force, fraud or undue influence. If the provisions in Section 13(1-A) and Section 23(1)(a) are read together the position that emerges is that the petitioner does not have a vested right for getting the relief of a decree of divorce against the other party merely on showing that the ground in support of the relief sought as stated in the petition exists. It has to be kept in mind that relationship between the spouses is a matter concerning human life. Human life does not run on dotted lines or charted course laid down by statute. It has also to be kept in mind that before granting the prayer of the petitioner to permanently snap the relationship between the parties to the marriage every attempt should be made to maintain the sanctity of the relationship which is of importance not only for the individuals or their children but also for the society. Whether the relief of dissolution of the marriage by a decree of divorce is to be granted or not depends on the facts and circumstances of the case. In such a matter it will be too hazardous to lay down a general principle of universal application.

Hirachand Srinivas Managaonkar v. Sunanda [Bench Strength 2], CA No. 1473/1999 (20/03/2001), 2001 AIR(SC) 1285: 2001(2) SCR 491: 2001(4) SCC 125: 2001(3) JT 620: 2001(2) SCALE 514: 2001(2) Supreme 435: 2001(2) SLT 783: 2001(2) SCJ 412: 2001(4) SRJ 323 [D.P. Mohapatra, J.: Doraiswamy Raju, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 10(2) — Judicial Separation — Attempt for cohabitation after decree for judicial separation permissible — Power to court to rescind the decree — Held, section 10(2) does not vest any absolute right in petitioner or respondent not to make any attempt for cohabitation after the decree for judicial separation has been passed — Decree for judicial separation is not final — Power vested in court to rescind the decree if it considers it just and reasonable — Object and purpose of the Act being to maintain marital relationship between spouses and not to encourage snapping of such relationship.

HELD: On a fair reading of the sub-section (2) it is clear that the provision applies to the petitioner on whose application the decree for judicial separation has been passed. Even assuming that the provision extends to both petitioner as well as the respondent it does not vest any absolute right in the petitioner or the respondent not to make any attempt for cohabitation with the other party after the decree for judicial separation has been passed. As the provision clearly provides the decree for judicial separation is not final in the sense that it is irreversible; power is vested in the Court to rescind the decree if it considers it just and reasonable to do so on an application by either party. The effect of the decree is that certain mutual rights and obligations arising from the marriage are as it were suspended and the rights and duties prescribed in the decree are substituted therefor. The decree for judicial separation does not sever or dissolve the marriage tie which continues to subsist. If affords an opportunity to the spouse for reconciliation and re-adjustment. The decree may fall by a conciliation of the parties in which case the rights of respective parties which float from the marriage and were suspended are restored. Therefore the impression that Section 10(2) vests a right in the petitioner to get the decree of divorce notwithstanding the fact that he has not made any attempt for cohabitation with the respondent and has even acted in a manner to thwart any move for cohabitation does not flow from a reasonable interpretation of the statutory provisions. At the cost of repetition it may be stated here that the object and purpose of the Act is to maintain the marital relationship between the spouses and not to encourage snapping of such relationship.

Hirachand Srinivas Managaonkar v. Sunanda [Bench Strength 2], CA No. 1473/1999 (20/03/2001), 2001 AIR(SC) 1285: 2001(2) SCR 491: 2001(4) SCC 125: 2001(3) JT 620: 2001(2) SCALE 514: 2001(2) Supreme 435: 2001(2) SLT 783: 2001(2) SCJ 412: 2001(4) SRJ 323 [D.P. Mohapatra, J.: Doraiswamy Raju, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(ia) — Petition for divorce — Dismissal of by High Court without considering evidence objectively — Improper — Cruelty — High Court reversed the judgement and decree of trial court — Challenged — Neither evidence led by parties considered objectively nor reason stated in judgement discussed — Appeal disposed of on some general discussion without considering the case of merits — Appeal allowed — Case remanded to High Court for fresh disposal of appeal — Civil Procedure Code, 1908 — Section 96 — Dismissal of appeal by High Court without considering evidence objectively.

Jagbir Sharma v. Babli [Bench Strength 2], CA No. 995/1997 (22/02/2001), 2001(5) JT 412: 2001(5) Supreme 401(2): 2001(2) SLT 826 [D.P. Mohapatra, J.: Doraiswamy Raju, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 24 — Interim maintenance — Grant of by Family Court — High Court declining interference but directing expedious disposal of matter, validity — High Court declining interference with the order of family court, however, directions passed to dispose suit expeditiously preferably within 6 months and granted leave to appellant to move for modification of order if delay due to Respondent — Since then four years elapsed — In all probability, suit might have been decided by Family Court — Counsel for appellant has no information regarding disposal of suit — Held, High Court order requires no interference.

Sanjay Agarwal v. Archana Agarwal [Bench Strength 2], CA No. 403/1997 (20/02/2001), 2001(3) SLT 31(1) [D.P. Mohapatra, J.: Doraiswamy Raju, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(ia) and (ib) — Divorce on the ground of cruelty and desertion — By High Court in appeal in cryptic order, improper — Both the spouses traded charges of adultery against each other — Trial court on assessment of the evidence on record dismissed the petition for divorce — Appeal under Section 19 of Family Court’s Act — Appeal by High Court not disposed of on proper consideration and in accordance with law — Cryptic judgment/order — No discussion of the case of the parties and the evidence led by them — No reason for setting aside the judgment of the trial court — Held, it was the bounden duty of the High Court as the Appellate Court to consider the correctness or otherwise of the finding recorded and the decision rendered by the trial court — Matter remitted to High Court for reconsideration in accordance with law — Family Courts Act, 1984 — Section 19.

HELD: In the order there is no discussion of the case of the parties and the evidence led by them. No reason has been stated by the Court for setting aside the judgment of the trial court. All that appears to have weighed with the High Court was that the parties had been living separately since November, 1978; that the husband is 58 years old and that the wife is 52 years old and that the wife had initiated criminal proceedings against the husband. Without going into the relevance of these circumstances for adjudication of the controversy raised in the case, we would observe that these are no grounds for setting aside the judgment of the trial court. It was the bounden duty of the High Court as the Appellate Court to consider the correctness or otherwise of the finding recorded and the decision rendered by the trial court. It is to be kept in mind that the High Court was considering a first appeal filed under Section 19 of the Family Court’s Act. The High Court should have considered the evidence on record on which the trial court based its findings and should have recorded its findings before setting aside the judgment of the trial court.

For the reasons stated above, the appellant is allowed, the judgment/order of the High Court dated 19.12.1997 in Appeal No. 49/97 is set aside and the case is remanded to the High Court for disposal in accordance with law after giving opportunity of hearing to the parties. The High Court is requested to dispose of the appeal as expeditiously as possible.

Anuradha A. Kelkar v. Avdhoot G. Kelkar [Bench Strength 2], CA No. 4296/1998 (15/02/2001), 2001(5) JT 272: 2001(4) Supreme 561: 2001(2) SLT 749 [D.P. Mohapatra, J.: Brijesh Kumar, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 2, 10 to 13 & 29 — Custom — Importance of custom in relation to applicability of the Act — Held, nothing in the Act can affect any right, recognised by custom or conferred by any said enactment to obtain dissolution of a Hindu Marriage whether solemnised before or after commencement of the Act even without proof of conditions precedent for declaring marriage invalid as incorporated in Sections 10 to 13 of the Act.

Surajmani Stella Kujur v. Durga Charan Hansdah [Bench Strength 2], 2012(5) SCC 126 (14/02/2001), 2001 AIR(SC) 938: 2001(1) SCR 1028: 2001(3) SCC 13: 2001(2) JT 631: 2001(2) SCALE 21: 2001(1) Supreme 681: 2001(2) SLT 86: 2001(2) SCJ 281: 2001(3) SRJ 313: 2001 SCC(Cr) 1305: 2001(1) Crimes 263(SC): 2001(1) CCR 208(SC): 2001(1) JCC 164: 2001(1) RecentCR 851 [K.T. Thomas, J.: R.P. Sethi, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 2 — Applicability of the Act — Tribals — Wife being a Oraon and husband, a Santhal — In absence of notification or order under Article 342 of the constitution, parties are deemed to be Hindus — Even when notification issued under the constitution — Act can be applied to Scheduled Tribes as well by a further notification u/s 2(2) of the Act — Tribes to which parties to the petition belong specified in Part XII of Constitution (Schedule Tribes) Order, 1950 — However, parties profess Hinduism — Their marriage being out of purview of the Hindu Marriage Act — They are governed only by their Santhal Customs and usage — Constitution (Scheduled Tribes) Order, 1950 as amended by Scheduled Castes and Scheduled Tribes Order (Amendment) Acts 63 of 1956, 108 of 1976, 18 of 1987 and 15 of 1990 — Constitution of India — Article 342.

Surajmani Stella Kujur v. Durga Charan Hansdah [Bench Strength 2], 2012(5) SCC 126 (14/02/2001), 2001 AIR(SC) 938: 2001(1) SCR 1028: 2001(3) SCC 13: 2001(2) JT 631: 2001(2) SCALE 21: 2001(1) Supreme 681: 2001(2) SLT 86: 2001(2) SCJ 281: 2001(3) SRJ 313: 2001 SCC(Cr) 1305: 2001(1) Crimes 263(SC): 2001(1) CCR 208(SC): 2001(1) JCC 164: 2001(1) RecentCR 851 [K.T. Thomas, J.: R.P. Sethi, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 2 — Applicability of the Act — Comprehensive — Act is applicable to all persons domiciled in territory of India who are not Muslims, Christians, Parsis or Jews by religion — Clauses (a), (b) and (c) of Sub- section (1) of Section 2 make the Act applicable to a person who is a Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat, a Brahmo, Prarthana Samajist and an Arya Samajist.

Surajmani Stella Kujur v. Durga Charan Hansdah [Bench Strength 2], 2012(5) SCC 126 (14/02/2001), 2001 AIR(SC) 938: 2001(1) SCR 1028: 2001(3) SCC 13: 2001(2) JT 631: 2001(2) SCALE 21: 2001(1) Supreme 681: 2001(2) SLT 86: 2001(2) SCJ 281: 2001(3) SRJ 313: 2001 SCC(Cr) 1305: 2001(1) Crimes 263(SC): 2001(1) CCR 208(SC): 2001(1) JCC 164: 2001(1) RecentCR 851 [K.T. Thomas, J.: R.P. Sethi, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 2(1)(a), (b) & (c) — Hindu — Scope — Who is a `Hindu’ for purpose of applicability of the Act — Held, the Act is applicable to a person who is a Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat or a follower of Brahmo, Prarthana or Arya Samaj — However, the term `Hindu’ not defined either under the Act or Indian Succession Act or any other enactment of the Legislature.

Bhagwan Koer v. J.C. Bose, ILR (XXXI) Cal Series 11(Privy Council) Relied on.

Surajmani Stella Kujur v. Durga Charan Hansdah [Bench Strength 2], 2012(5) SCC 126 (14/02/2001), 2001 AIR(SC) 938: 2001(1) SCR 1028: 2001(3) SCC 13: 2001(2) JT 631: 2001(2) SCALE 21: 2001(1) Supreme 681: 2001(2) SLT 86: 2001(2) SCJ 281: 2001(3) SRJ 313: 2001 SCC(Cr) 1305: 2001(1) Crimes 263(SC): 2001(1) CCR 208(SC): 2001(1) JCC 164: 2001(1) RecentCR 851 [K.T. Thomas, J.: R.P. Sethi, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 24 — Maintenance — Payment of, during pendency of divorce petition — Arrears of maintenance handed over before Supreme Court — Appellant undertook to pay monthly maintenance during the pendency of divorce petition — Held, order under challenge set aside — Trial court directed to take into consideration defence of appellant.

Ajay Duggal v. Preeti Duggal [Bench Strength 2], CA No. 5101/2000 (Arising out of SLP(C) No. 6313/2000) (07/02/2001), 2001(5) Supreme 401(1): 2001(3) SLT 21(2) [V.N. Khare, J.: S.N. Variava, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 24 — Maintenance pendente lite — Enhancement of amount of — Minor son of the parties living with wife — Studying in convent school at Bhatinda, effect — Amount of maintenance enhanced by High Court — Further enhancement from Rs. 3,000 to 4,000 — Appeal allowed accordingly.

Sapna Garg v. Sanjeev Garg [Bench Strength 2], CA …./1997(arising out of SLP (C) 18486/19 (01/02/2001), 2001(5) Supreme 399: 2001(2) SLT 775(1) [Y.K. Sabharwal, J.: Brijesh Kumar, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(i-a) & (i-b) — Cruelty — Determination — Whether given facts constitute mental cruelty or not, depends upon facts and circumstances of each case — This is cruelty in one case may not amount to cruelty in another case — It is a matter to be determined in each case having regard to the facts and circumstances of the case — In a case of accusations and allegations, regard must also be had to the context in which they were made.

V. Bhagat v. D. Bhagat (Mrs.) [JT 1993(6) SC 428] Relied.

Pushpavathi v. Manickasamy [Bench Strength 2], CA No. 5649/1998 (01/02/2001), 2001(Supp-1) JT 120: 2001(4) Supreme 581: 2001(2) SLT 759 [Y.K. Sabharwal, J.: Brijesh Kumar, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(i-a) & (i-b) — Cruelty — Determination — Trial Court granted divorced on the grounds of desertion and cruelty — Reversed in Appeal — Second Appeal agitating the ground of cruelty only — High Court granted divorce on the grounds that the allegation by wife in her written statement constitute mental cruelty — No averments by husband in memo of appeal that unfounded allegations made by wife amounted to cruelty — Held, High Court order set aside.

V. Bhagat v. D. Bhagat (Mrs.) [JT 1993(6) SC 428] Distinguished.

HELD: Each and every allegation made against husband by the wife in the written statement defending a petition for divorce filed against her cannot constitute mental cruelty. The decision in V. Bhagat’s case referred to by the High Court in reversing the judgment and decree of the First Appellate Court has no relevance in the present case for coming to the conclusion that the allegations made by wife in the written statement constitute mental cruelty.

It is clear that in this case the marriage has been dissolved and decree of divorce passed by the High Court on the facts on which it was not even sought by the respondent-husband.

For the aforesaid reasons, we set aside the impugned judgment of the High Court and allow the appeal with costs.

Pushpavathi v. Manickasamy [Bench Strength 2], CA No. 5649/1998 (01/02/2001), 2001(Supp-1) JT 120: 2001(4) Supreme 581: 2001(2) SLT 759 [Y.K. Sabharwal, J.: Brijesh Kumar, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Section 125 — Maintenance — Adjustment of amounts granted u/s 125 CrPC against amounts granted u/s 24 of H.M. Act, permissibility — Grant of maintenance of Rs. 300/- and 400/- respectively to wife and child under section 125 Cr.P.C. — High Court subsequently granting 1000/- and 800/- u/s 24 of H.M. Act — Husband claiming for adjustment — Not disputed by wife — Husband directed to pay only Rs. 1,000 and 800/- — Appeal allowed — Hindu Marriage Act, 1955 — Section 24.

 

Sanjay Chopra v. Shyama Chopra [Bench Strength 2], CA …/1995(Arising out of SLP(C) 22602-60 (05/01/2001), 2001(4) Supreme 331: 2001(2) SLT 485 [S.P. Bharucha, J.: Y.K. Sabharwal, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 25 & 23 — Obligation of father to make arrangement for marriage of his daughter — Daughter herself earning, effect — Confirmation of decree of divorce by Supreme Court — Daughter born out of wedlock of petitioner and respondent-husband has come of marriageable age — Allegation that no steps has been taken by respondent to get her married — Respondent-husband getting an emoluments of Rs.10,000/- p.m. serving for more than 30 years in Railway Department — Held, even if daughter herself is earning, it is appropriate that respondent-father should make some provision, if not whole, for the performance of marriage — Direction to pay Rs.50,000/- for daughter’s marriage given.

HELD: Respondent and to our query stated that he is an Auditor in the Office of the Principal Director General of Audit, South Central Railway, Secunderabad and he gets an emolument of Rs 10,000 per month and that he has already served for more than 30 years. According to him, the daughter herself is earning and therefore it is no obligation of the father to make any arrangement to get her married though he is willing to offer her his blessings. We think it appropriate that the respondent father should make some provision, if not whole, for the performance of the marriage of his daughter. We quantify the amount at Rs 50,000 which the respondent should pay for his daughter’s marriage. The officer of the respondent be communicated the order of this Court directing him to deduct Rs 5000 per month from the salary of the respondent for a period of ten months and send the same at the address of the daughter, which the daughter will furnish to the controlling authority of the respondent. Copy of this order be also communicated to the Principal Director General of Audit, South Central Railway, Secunderabad immediately.

M. Aruna Kumari v. A.V. Janardhana Rao [Bench Strength 3], SLP(C) No. 18426/1999 (19/10/2000), 2002(10) SCC 478: 2003(5) SCALE 290 [G.B. Pattanaik, J.: U.C. Banerjee, J.: N. Santosh Hegde, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1-A)(i) — Decree for divorce — Grant of, validity, no resumption of co- habitation between the parties within limitation — High Court granting decree of divorce on coming to the conclusion, after considering entire evidence on record, that there has been no resumption of co- habitation between the parties for a period of one year from the date of decree for judicial separation — Having examined the judgment of High Court and also the evidence, held, finding of High Court cannot be said to be a finding on no evidence.

M. Aruna Kumari v. A.V. Janardhana Rao [Bench Strength 3], SLP(C) No. 18426/1999 (19/10/2000), 2002(10) SCC 478: 2003(5) SCALE 290 [G.B. Pattanaik, J.: U.C. Banerjee, J.: N. Santosh Hegde, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 24 — Maintenance — Enhancement of, scope — Appellant wife has four grown up children receiving education — Sum of Rs. 1700/- per month granted by Magistrate Under Section 125 Cr.P.C. is not sufficient — Enhancement to Rs. 3000/- per month for maintenance inclusive of Rs.1700/- which was granted by Magistrate — Criminal Procedure Code, 1973 — Section 125.

HELD: We have looked into the record and find that the appellant has four grown up children who are receiving education and a sum of Rs. 1700/- which is being paid to the appellant and her four children is not sufficient. We, therefore, direct that the respondent shall pay a total sum of Rs. 3,000/- per month as maintenance to the appellant and her four children. This is inclusive of Rs. 1700/- which was granted by the Magistrate.

Sheela v. Rajveer Singh [Bench Strength 2], CA No. 5556/2000 (28/09/2000), 2000(8) SLT 18 [V.N. Khare, J.: D.P. Mohapatra, J.] <<LAWPACK SUPREME COURT>>
Civil Procedure Code, 1908 — Section 25 — Transfer of case — Matrimonial dispute — Petitioner and respondent husband-wife — Strained relation — No children — Wife alleged desertion by husband — Petitioner-wife filed petition for restitution of conjugal right and maintenance — Petition pending before Additional District Judge, Panchkula — Subsequently respondent-husband filed divorce petition before family court at Mumbai — Petitioner-wife filed petition u/s 9 of H.M. Act earlier in point of time — Held, it is expedient that both the cases are tried by the same court — Divorce petition transfer to the court of Additional District Judge, Panchkula — Transfer petition allowed — Hindu Marriage Act, 1955 — Sections 9, 24 & 13(1)(ia).

Sadhna v. Pradeep M. Ahluwalia [Bench Strength 3], TP(C) 92/2000 (28/07/2000), 2000(10) JT 207 [A.S. Anand, C.J.: R.C. Lahoti, J.: K.G. Balakrishnan, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 17, 5, 11, 18 & 13 — Second marriage by husband — Amount to offence even after conversion to some other religion — Unless a decree for divorce is obtained from the court — Conversion to Islam to marry second time — Bigamy — Prosecution under Section 494 valid — No violation of fundamental rights — Penal Code, 1860 — Sections 494 & 495 — Constitution of India — Articles 25 & 20(1) — Criminal Procedure Code, 1973 — Section 198.

HELD (Per Saghir Ahmad, J.) : If a person marries a second time during the lifetime of his wife, such marriage apart from being void under Sections 11 & 17 of the Hindu Marriage Act would also constitute an offence and that person could be liable to be prosecuted under Section 494 IPC.

Now, conversion or apostasy does not automatically dissolve a marriage already solemnized under the Hindu Marriage Act. It only provides a ground for divorce under Section 13.

Under Section 10 which provides for judicial separation, conversion to another religion is now a ground for a decree for judicial separation after the Act was amended by Marriage Laws (Amendment) Act, 1976. The first marriage, therefore, is not affected and it continues to subsist. If the `marital’ status is not affected on account of the marriage still subsisting, his second marriage qua the existing marriage would be void and in spite of conversion he would be liable to be prosecuted for the offence of bigamy under Section 494.

Change of religion does not dissolve the marriage performed under the Hindu Marriage Act between two Hindus. Apostasy does not bring to an end the civil obligations or the matrimonial bond, but apostasy is a ground for divorce under Section 13 as also a ground for judicial separation under Section 10 of the Hindu Marriage Act. Hindu law does not recognised bigamy. As we have seen above, the Hindu Marriage Act, 1955 provides for “Monegamy”. A second marriage, during the life-time of the spouse, would be void under Sections 11 and 17, besides being an offence.

Mere conversion does not bring to an end the marital ties unless a decree for divorce on that ground is obtained from the court. Till a decree is passed, the marriage subsists. Any other marriage, during the subsistence of first marriage would constitute an offence under Section 494 read with Section 17 of the Hindu Marriage Act, 1955 and the person, in spite of his conversion to some other religion, would be liable to be prosecuted for the offence of bigamy. It also follows that if the first marriage was solemnized under the Hindu Marriage Act, the `husband’ or the `wife’, by mere conversion to another religion, cannot bring to an end the marital ties already established on account of a valid marriage having been performed between them. So long as that marriage subsists, another marriage cannot be performed, not even under any other personal law, and on such marriage being performed, the person would be liable to be prosecuted for the offence under Section 494 IPC.

The position under the Mahommedan Law would be different as in spite of the first marriage, a second marriage can be contracted by the husband, subject o such religious restrictions as have been spelled out by Brother Sethi, J. in his separate judgment, with which I concur on this point also. This is the vital difference between Mahommedan Law and other personal laws. Prosecution under Section 494 in respect of second marriage under Mahommedan Law can be avoided only if the first marriage was also under the Mahommedan Law and not if the first marriage was under any other personal law where there was a prohibition on contracting a second marriage in the life-time of the spouse.

A person who mockingly adopts another religion where plurality of marriage is permitted so as to renounce the previous marriage and desert the wife, he cannot be permitted to take advantage of his exploitation as religion is not a commodity to be exploited. The institution of marriage under every personal law is a sacred institution. Under Hindu Law, Marriage is a sacrament. Both have to be preserved.

(Per R.P. Sethi, J.) (Concurring) : The rule of monogamous marriage amongst Hindus was introduced with the proclamation of Hindu Marriage Act. Section 17 of the said Act provided that any marriage between two Hindus solemnised after the commencement of the Act shall be void if at the date of such marriage either party had a husband or wife living and the provisions of Sections 494 and 495 of the Indian Penal Code (45 of 1860), shall apply accordingly, The second marriage solemnised by a Hindu during the subsistence of first marriage is an offence punishable under the Penal law. Freedom guaranteed under Article 25 of the Constitution is such freedom which does not encroach upon a similar freedom of the other persons. Under the constitutional scheme every person has a fundamental right not merely to entertain the religious belief of his choice but also to exhibit his belief and ideas in a manner which does not infringe the religious right and personal freedom of others. It was contended in Sarla Mudgal’s case that making a convert Hindu liable for prosecution under the Penal Code would be against Islam, the religion adopted by such person upon conversion. Such a plea raised demonstrates the ignorance of the petitioners about the tenets of Islam and its teachings. The word “Islam” means “peace and submission”. In its religious connotation it is understood as “submission to the Will of god”. According to Fyzee (Outlines of Mohammadan Law, II Edition) in it secular sense the establishment of peace. The word `Muslim’ in Arabic is the active principle of Islam, which means acceptance of faith, the noun of which is Islam. Muslim Law is admittedly to be based upon a well recognised system of jurisprudence providing many rational and revolutionary concepts, which could not be conceived by the other systems of Law in force at the time of its inception. Sir Ammer Ali in his book Mohammedan Law, Tagore Law Lecturers IV Edition, Volume I has observed that the Islamic system, from a historical point of view was the most interesting phenomenon of growth. The small beginnings from which it grew up and the comparatively short space of time within which it attained its wonderful development marked its position as one of the most important judicial system of the civilised world. The concept of Muslim Law is based upon the edifice of Shariat. Muslim law as traditionally interpreted and applied in India permits more than one marriages during the subsistence of one and another though capacity to do justice between co-wives in law is condition precedent. Even under the Muslim Law plurality of marriage is not unconditionally conferred upon the husband. It would, therefore, be doing injustice to Islamic Law to urge that the convert is entitled to practice bigamy notwithstanding the continuance of his marriage under the law to which he belonged before conversion. The violators of law who have contracted the second marriage cannot be permitted to urge that such marriage should not be made subject matter of prosecution under the general Penal Law prevalent in the country. The progressive outlook and wider approach of Islamic Law can not be permitted to be squeezed and narrowed by unscrupulous litigants, apparently indulging in sensual lust sought to be quenched by illegal means, who apparently are found to be guilty of the commission of the offence under the law to which they belonged before their alleged conversion. It is nobody’s case that any such convertee has been deprived of practising any other religious right for the attainment of spiritual goals. The Islam which is pious, progressive and respected religion with rational outlook cannot be given a narrow concept as has been tried to be done by the alleged violators of law.

We do not agree with the arguments that the second marriage by a convert male Muslim has been made offence only by judicial pronouncement. The judgment has only interpreted the existing law after taking into consideration various aspects argued at length before the Bench which pronounced the judgment. The review petition alleging violation of Article 20(1) of the Constitution is without any substance and is liable to be dismissed on this ground alone.

Even otherwise we do not find any substance in the submissions made on behalf of the petitioners regarding the judgment being violative of any of the fundamental rights guaranteed to the citizens of this country. The mere possibility of taking a different view has not persuaded us to accept any of the petitions as we do not find the violation of any of the fundamental rights to be real or prima facie substantiated.

Lily Thomas v. Union of India [Bench Strength 2], WP(C) 798/1995 (05/05/2000), 2000 AIR(SC) 1650: 2000(3) SCR 1081: 2000(6) SCC 224: 2000(5) JT 617: 2000(4) SCALE 176: 2000(3) Supreme 601: 2000(4) SLT 620: 2000(6) SRJ 387: 2000 CrLJ 2433: 2000 SCC(Cr) 1056: 2000(2) CCR 193(SC): 2000(2) CLT 226(SC) [S. Saghir Ahmad, J.: R.P. Sethi, J.] <<LAWPACK SUPREME COURT>>
Civil Procedure Code, 1908 — Section 25 — Transfer of proceedings — Matrimonial dispute — Wife seeking the transfer of the proceedings for restitution of conjugal rights filed by the husband in Ghaziabad (U.P.) to Jagadhri (Haryana) where she now resides — Plea that she cannot defend the case in Ghaziabad effectively as she is dependent on her father — Maintenance petition filed by wife pending in the Court at Jagadhri — Defence plea that since she has filed her appearance in the matrimonial proceedings at Ghaziabad, her claim of lack of finance and other inability to defend those proceedings is incorrect — Held, not tenable — Wife could not have permitted the petition for restitution of conjugal rights to go undefended before she filed the transfer petition — Having regard to the fact that, admittedly, she is not getting any maintenance from the husband, her financial difficulties are established — Matter pending in the Court of the Civil Judge, Senior Division, Ghaziabad, shall stand transferred to the Court of the Senior Judge, Jagadhri — Hindu Marriage Act, 1955 — Section 9 — Criminal Procedure Code, 1973 — Section 125.

Seema v. Rakesh Kumar [Bench Strength 2], TP(C) No. 6/2000 (24/04/2000), 2000(9) SCC 271: 2000 SCC(Cr) 1503 [S.P. Bharucha, J.: Shivaraj V. Patil, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 26 & 13 — Maintenance — Family Court granting decree of divorce in favour of wife and granting a decree of Rs.1,00,000/- as cost of articles in the alternative if the husband do not return the articles — Held, costs and special costs are within the discretion of court — Unless some weighty reason is shown, Supreme Court should not interfere in the award of costs by the Family Court and nor payment of costs by the High Court.

Padmja Sharma v. Ratan Lal Sharma [Bench Strength 2], CA 2462/1999 (28/03/2000), 2000 AIR(SC) 1398: 2000(2) SCR 621: 2000(4) SCC 266: 2000(2) SCALE 589: 2000(2) Supreme 653: 2000(3) SLT 174: 2000(5) SRJ 252: 2000(2) CLT 100(SC): 2000(1) DMC 629 [D.P. Wadhwa, J.: M.B. Shah, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 26 & 13 — Maintenance — Enhancement in — Appropriate court — Wife filing petition for dissolution of marriage in which she praying for return of her `streedhan’, custody and guardianship of the children and also for their maintenance — At the same time she also filing an application under Section 125 CrPC — Held, if the circumstances has changed for enhancement, appellant can approach the family court again as an order under Section 26 is never final and decree passed thereunder is always subject to modification,

Padmja Sharma v. Ratan Lal Sharma [Bench Strength 2], CA 2462/1999 (28/03/2000), 2000 AIR(SC) 1398: 2000(2) SCR 621: 2000(4) SCC 266: 2000(2) SCALE 589: 2000(2) Supreme 653: 2000(3) SLT 174: 2000(5) SRJ 252: 2000(2) CLT 100(SC): 2000(1) DMC 629 [D.P. Wadhwa, J.: M.B. Shah, J.] <<LAWPACK SUPREME COURT>>
Interpretation of Statutes — Hindu Marriage Act — Held, Hindu Marriage Act, 1955, Hindu Minority and Guardianship Act, 1956, Hindu Adoptions and Maintenance Act, 1956 and Hindu Succession Act, 1956 Constitute a law in a coded form for the Hindus — Unless there is anything repugnant to the context definition of a particular word could be lifted from any of the four Acts constituting the law to interpret a certain provision — Hindu Minority and Guardianship Act, 1956 — Hindu Adoptions and Maintenance Act, 1956 — Hindu Succession Act, 1956 — Hindu Marriage Act, 1955 — Applicability — Interpretation of Statutes — Hindu Minority and Guardianship Act, 1956 — Hindu Adoptions and Maintenance Act, 1956 — Hindu Succession Act, 1956 — Word — Definition of.

Padmja Sharma v. Ratan Lal Sharma [Bench Strength 2], CA 2462/1999 (28/03/2000), 2000 AIR(SC) 1398: 2000(2) SCR 621: 2000(4) SCC 266: 2000(2) SCALE 589: 2000(2) Supreme 653: 2000(3) SLT 174: 2000(5) SRJ 252: 2000(2) CLT 100(SC): 2000(1) DMC 629 [D.P. Wadhwa, J.: M.B. Shah, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Article 226 — Matrimonial dispute — Concluded opinion by High Court — When matter yet to be decided by Family Court — Improper — Wife filing a petition for judicial separation and other reliefs along with claim of interim maintenance — Family Court partly allowing the application to the extent of the claim of interim maintenance in respect of the two minor daughters — Husband filing a petition in the Family Court for declaration that the marriage with the appellant was a nullity — Against the said order refusing maintenance, the wife filing a writ petition before the High Court — High Court recording concluded opinion about the legal position of the marriage — Held, decision of High Court not valid when both the petitions one filed by the wife and the other by the husband are yet to be decided on merits by the Family Court — Under such circumstances, it was not appropriate for the High Court to record any concluded opinion about the legal position of the marriage between the appellant and the respondent — Only on this short ground the judgment of the High Court deserves to be set aside — Hindu Marriage Act, 1955 — Sections 10 & 11.

Madhavi Ramesh Dudani v. Ramesh K. Dudani [Bench Strength 2], CA 2081/2000 (13/03/2000), 2000(9) SCC 454: 2000(4) Supreme 783: 2000(4) SLT 219: 2000(1) DMC 692 [V.N. Khare, J.: N. Santosh Hegde, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Article 32 — Custody of child aged two years — Question of, power to decide — Claim of custody by mother alleging that she has been deprived of the same by deceitful means by her husband by driving her out of the house — Plea of father that mother has abandoned the child and went to her parent’s house before about seven months — Allegations and counter allegations — Disputed facts — Held, such question ultimately will have to decided in proceedings under Section 25 r/w Section 6 of Guardians and Wards Act giving weightage to welfare of child — Unless the pleadings raised by the parties are examined with reference to evidence by an appropriate forum, a proper decision in the matter cannot be taken and such a course is impossible in a summary proceeding such as writ petition under Article 32 — Parties directed to approach appropriate forum — Guardians and Wards Act, 1890 — Sections 25 & 6 — Hindu Minority and Guardianship Act, 1956 — Section 6(a) proviso — Hindu Marriage Act, 1955 — Section 26.

HELD: Without expressing any view on the pleadings raised in this case and making it clear that it is neither appropriate nor feasible in the present case to investigate the correctness of the same and decide one way or the other, we propose to relegate the parties to work out their respective rights in an appropriate forum like the Family Court or the District Court in a proceeding arising under Section 25 of the Guardians & Wards Act read with Section 6 of the Act or for matrimonial relief.

In deciding such a question, what we have to bear in mind is the welfare of the minor child and not decide such a question merely based upon the rights of the parties under the law. In the pleadings and the material placed before us, we cannot say that there is any, much less clinching, material to show that the welfare of the minor child is at peril and calls for an interference. The trauma that the child is likely to experience in the event of change of such custody, pending proceedings before a court of competent jurisdiction, will have to be borne in mind. We are conscious of the emphasis laid by the learned Counsel for the Petitioner that the lap of a mother is the natural cradle where the safety and welfare of the child can be assured and there is no substitute for the same, but still we feel that at this stage of the proceedings it would not be appropriate for us to interfere in the matter and leave all matters arising in the case to be decided by an appropriate forum irrespective of whatever, we have stated in the course of this order. Even though we have dealt with the contentions raised by Shri D.D. Thakur as to grant of interim custody to the Petitioner, we should not be understood as having held a petition would lie under Article 32 for grant of custody of minor child, we refrain from examining or deciding the same.

Sumedha Nagpal v. State of Delhi [Bench Strength 2], WP(Cr) 34/2000 (03/03/2000), 2000(9) SCC 745: 2000(7) JT 450: 2000(6) Supreme 376: 2000(6) SLT 809(2): 2001 SCC(Cr) 698: 2000(4) CCR 48(SC) [S. Rajendra Babu, J.: S.N. Phukan, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Section 125(1) — Maintenance — Entitlement for — Scope — Decree of divorce on the ground of desertion — Effect — A divorced wife, who remains unmarried, continues to enjoy the status of a wife for limited purpose of claiming maintenance allowance from her ex-husband — A wife entitled to maintenance unless she suffers from any of the disabilities indicated in Section 125(4) — Application by divorced wife for maintenance maintainable and she is entitled for maintenance — Since decree of divorce passed on ground of desertion by respondent wife, she would not be entitled to maintenance for any period prior to passing of decree of divorce — Hindu Marriage Act, 1955 — Section 13.

HELD: Claim for maintenance under the first part of Section 125 Cr.P.C. is based on the subsistence of marriage while claim for maintenance of a divorced wife is based on the foundation provided by Explanation (b) to Sub-section (1) of Section 125 Cr.P.C. If the divorced wife is unable to maintain herself and if she has not remarried, she will be entitled to Maintenance Allowance.

As a wife, she is entitled to maintenance unless she suffers from any of the disabilities indicated in Section 125(4). In another capacity, namely, as a divorced woman, she is again entitled to claim maintenance from the person of whom she was once the wife. A woman after divorce becomes a destitute. If she cannot maintain herself or remains unmarried, the man who was, once, her husband continues to be under a statutory duty and obligation to provide maintenance to her.

The application under Section 125 Cr.P.C. was filed by the respondent during the pendency of the civil suit for divorce under Section 13 of the Hindu Marriage Act. It is contended that since the decree of divorce was passed on the ground of desertion by respondent, she would not be entitled to Maintenance for any period prior to the passing of the decree under Section 13 of the Hindu Marriage Act. To that extent, learned counsel appears to be correct. But for the short period, we would not be inclined to interfere.

Rohtash Singh v. Ramendri [Bench Strength 2], SLP(Cri) 2763/1999 (02/03/2000), 2000 AIR(SC) 952: 2000(2) SCR 58: 2000(3) SCC 180: 2000(2) JT 553: 2000(2) SCALE 194: 2000(2) Supreme 108: 2000(2) SLT 385: 2000(2) SCJ 40: 2000(3) SRJ 432: 2000 CrLJ 1498: 2000 SCC(Cr) 597: 2000(1) Crimes 293(SC): 2000(1) CCR 268(SC): 2000(1) JCC 309: 2000(2) RecentCR 286: 2000(1) DMC 338 [S. Saghir Ahmad, J.: D.P. Wadhwa, J.] <<LAWPACK SUPREME COURT>>
Civil Procedure Code, 1908 — Section 25 — Transfer of proceeding — Genuine difficulties of husband — Consideration of — Request of day-to-day hearing at transferred place — Acceptance of — Petitioner-wife residing at Udaipur and praying that the divorce petition pending in the Bangalore Family Court be transferred to the Family Court at Udaipur — Respondent-husband not disputing the prayer of the petitioner that the case must be transferred to Udaipur — Request on his part that a direction may be given to the Family Court of Udaipur to post the case on a day-to-day basis when he reaches Udaipur so that the petition can be disposed of — Held, very reasonable request considering the very far distance he has to cover for prosecuting the divorce petition — Direction given to the Judge of the Family Court, Udaipur that the day when the respondent husband appears for prosecuting his petition, the same shall be posted thereafter on a day-to-day basis until the evidence is closed and the petition shall be disposed of in the same rhythm — Hindu Marriage Act, 1955 — Section 13 — Divorce petition.

Sonu v. Prakash [Bench Strength 2], TP(C) No. 53/1999 (25/02/2000), 2000(9) SCC 127 [K.T. Thomas, J.: M.B. Shah, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 26 — Custody of child — Female child — Ordinarily, a female child should be allowed to remain with the mother so that she can be properly looked after — Hindu Minority and Guardianship Act, 1956 — Section 6.

Sarita Sharma v. Sushil Sharma [Bench Strength 2], CrA 337/1998 (16/02/2000), 2000 AIR(SC) 1019: 2000(1) SCR 915: 2000(3) SCC 14: 2000(2) JT 258: 2000(1) SCALE 601: 2000(2) Supreme 60: 2000(2) SLT 357: 2000(2) SCJ 152: 2000(3) SRJ 209: 2000 CrLJ 1459: 2000 SCC(Cr) 568: 2000(1) Crimes 272(SC): 2000(1) CCR 279(SC): 2000(1) JCC 213: 2000(2) RecentCR 194: 2000(1) DMC 413 [G.T. Nanavati, J.: S.N. Phukan, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Article 226 — Custody of children — Welfare of minor children — Weightage to — High Court allowing writ of habeas corpus filed by father directing mother to hand over the custody of children to respondent-father — Invalidity — Children having American citizenship — Divorce proceeding initiated by husband in America — Visitation rights given by the court to mother — Even then she removed the children from USA despite the order of the court of that country — Father in the habit of taking excessive alcohol — Both the children have a desire to stay with the mother — Whether, in such circumstances, it was proper to be guided entirely by the fact that the appellant had removed the children from U.S.A. despite the order of the Court of that country — Held, on facts, no — In spite of the order passed by the Court in USA it was not proper for the High Court to have allowed the Habeas Corpus writ petition and directed the appellant to hand over custody of the children to the respondent and permit him to take them away to USA — Hindu Marriage Act, 1955 — Section 26 — Hindu Minority and Guardianship Act, 1956 — Section 6.

HELD: It will not be proper to be guided entirely by the fact that the appellant Sarita had removed the children from U.S.A. despite the order of the Court of that country. So also, in view of the facts and circumstances of the case, the decree passed by the American Court though a relevant factor, cannot override the consideration of welfare of the minor children. We have already stated earlier that in U.S.A. respondent Sushil is staying along with his mother aged about 80 years. There is no one else in the family. The respondent appears to be in the habit of taking excessive alcohol. Though it is true that both the children have the American citizenship and there is a possibility that in U.S.A. they may be able to get better education, it is doubtful if the respondent will be in a position to take proper care of the children when they are so young. Out of them one is a female child. She is aged about 5 years. Ordinarily, a female child should be allowed to remain with the mother so that she can be properly looked after. It is also not desirable that two children are separated from each other. If a female child has to stay with the mother, it will be in the interest of both the children that they both stay with the mother. Here in India also proper care of the children is taken and they are at present studying in good schools. We have not found the appellant wanting in taking proper care of the children. Both the children have a desire to stay with the mother. At the same time if must be said that the son, who is elder than daughter, has good feelings for his father also. Considering all the aspects relating to the welfare of the children, we are of the opinion that in spite of the order passed by the Court in U.S.A. it was not proper for the High Court to have allowed the Habeas Corpus writ petition and directed the appellant to hand over custody of the children to the respondent and permit him to take them away to U.S.A. What would be in the interest of the children requires a full and thorough inquiry and, therefore, the High Court should have directed the respondent to initiate appropriate proceedings in which such an inquiry can be held. Still there is some possibility of mother returning to U.S.A. in the interest of the children. Therefore, we do not desire to say anything more regarding entitlement of the custody of the children. The chances of the appellant returning to U.S.A. with the children would depend upon the joint efforts of the appellant and the respondent to get the arrest warrant cancelled by explaining to the court in U.S.A the circumstances under which she had left U.S.A. with the children without taking permission of the Court. There is a possibility that both of them may thereafter be able to approach the Court which passed the decree to suitably modify the order with respect to the custody of the children and visitation rights.

Sarita Sharma v. Sushil Sharma [Bench Strength 2], CrA 337/1998 (16/02/2000), 2000 AIR(SC) 1019: 2000(1) SCR 915: 2000(3) SCC 14: 2000(2) JT 258: 2000(1) SCALE 601: 2000(2) Supreme 60: 2000(2) SLT 357: 2000(2) SCJ 152: 2000(3) SRJ 209: 2000 CrLJ 1459: 2000 SCC(Cr) 568: 2000(1) Crimes 272(SC): 2000(1) CCR 279(SC): 2000(1) JCC 213: 2000(2) RecentCR 194: 2000(1) DMC 413 [G.T. Nanavati, J.: S.N. Phukan, J.] <<LAWPACK SUPREME COURT>>
Service and Labour Law — Pension — Family pension — Two claimants — Procedure where there is no nomination — When there are two claimants to the pensionary benefits of a deceased employee and there is no nomination wherever required State Government has to hold an inquiry as to the rightful claimant — Disbursement of pension cannot wait till a civil court pronounces upon the respective rights of the parties — Decision should be taken in a bona fide, reasonable and rational manner — In the instant case, inquiry in a valid manner was held proving that second wife and deceased employee lived as husband and wife since 1963 — Effect — Held, presumption arise that marriage was in accordance with Hindu rites and all ceremonies connected with a valid Hindu marriage were performed — Failure on the part of first wife-appellant to rebut such presumption — Held, children from second wife entitled to claim share in the family pension and death-cum-retirement gratuity of deceased employee but only till they attained majority even though marriage between second wife and deceased employee was not legal — Hindu Marriage Act, 1955 — Sections 16 & 5(i) — Hindu Succession Act, 1956 — Sections 8, 10 & Schedule — Service and Labour Law — Gratuity — Death-cum-retirement gratuity — Central Civil Service (Conduct) Rules — Rule 21 — Bihar Government Servant’s Conduct Rules, 1976 — Rule 23 — Evidence Act, 1872 — Sections 114 & 50.

HELD: Disbursement of pension cannot wait till a civil court pronounces upon the respective rights of the parties. That would certainly be a long drawn affair. Doors of civil courts are always open to any party after and even before a decision is reached by the State Government as to who is entitled to pensionary benefits. Of course, inquiry conducted by the State Government cannot be a sham affair and it could also not be arbitrary. Decision has to be taken in a bona fide, reasonable and rational manner. In the present case an inquiry was held which cannot be termed as sham. Result of the inquiry was that Yogmaya Devi and Narain Lal lived as husband and wife since 1963. A presumption does arise, therefore, that marriage of Yogmaya Devi with Narain Lal was in accordance with Hindu rites and all ceremonies connected with a valid Hindu marriage were performed. This presumption Rameshwari Devi has been unable to rebut. Nevertheless, that however does not make the marriage between Yogmaya Devi and Narain Lal as legal.

Rameshwari Devi v. State of Bihar [Bench Strength 2], CA 605/2000 (27/01/2000), 2000 AIR(SC) 735: 2000(1) SCR 390: 2000(2) SCC 431: 2000(1) JT 328: 2000(1) SCALE 262: 2000(1) Supreme 385: 2000(1) SLT 463: 2000(2) SCJ 561: 2000(2) SRJ 314: 2000(1) LLJ 1087: 2000 LIC 976: 2000(85) FLR 174: 2000(2) LLN 15: 2000(1) DMC 164 [D.P. Wadhwa, J.: S.N. Phukan, J.] <<LAWPACK SUPREME COURT>>
Service and Labour Law — Pension — Family pension — Two wives of deceased employee — Entitlement — Family pension and death-cum-retirement gratuity — Second marriage performed by the employee at the time when appellant-first wife was still alive — From the first marriage he had one son and from the second marriage four sons born — No nomination — Held, even though the marriage of employee with second wife was void their children would be legitimate and thus would be entitled to claim share in the family pension and death-cum-retirement gratuity of deceased employee but only till they attained majority — However second wife is not entitled to anything — Service and Labour Law — Gratuity — Death-cum-retirement gratuity — Hindu Marriage Act, 1955 — Sections 16 & 5(i) — Hindu Succession Act, 1956 — Sections 8, 10 & Schedule — Central Civil Service (Conduct) Rules — Rule 21 — Bihar Government Servant’s Conduct Rules, 1976 — Rule 23.

Rameshwari Devi v. State of Bihar [Bench Strength 2], CA 605/2000 (27/01/2000), 2000 AIR(SC) 735: 2000(1) SCR 390: 2000(2) SCC 431: 2000(1) JT 328: 2000(1) SCALE 262: 2000(1) Supreme 385: 2000(1) SLT 463: 2000(2) SCJ 561: 2000(2) SRJ 314: 2000(1) LLJ 1087: 2000 LIC 976: 2000(85) FLR 174: 2000(2) LLN 15: 2000(1) DMC 164 [D.P. Wadhwa, J.: S.N. Phukan, J.] <<LAWPACK SUPREME COURT>>
Civil Procedure Code, 1908 — Section 25 — Transfer of case — Matrimonial dispute — Divorce petition filed by Husband in Bombay Court — Wife living with her parents in Delhi — No independent income of wife — Her parents not in position to bear the expenses of her travel from Delhi to Bombay to contest the Divorce proceedings — Wife 22 years old and can’t travel to and stay in Bombay alone as there is no one in Bombay with whom she can stay — Held, divorce petition be transferred to Delhi Court — Hindu Marriage Act, 1955 — Section 13.

Mona Aresh Goel v. Aresh Satya Goel [Bench Strength 3], TP(C) 793/1999 (21/01/2000), 2000 AIR(SC) 3512(1): 2000(9) SCC 255: 2000(3) JT 603: 2000(6) Supreme 326: 2000(7) Supreme 723 [S.P. Bharucha, J.: S.S.M. Quadri, J.: M.B. Shah, J.] <<LAWPACK SUPREME COURT>>
Civil Procedure Code, 1908 — Section 25 — Transfer of proceedings — Matrimonial dispute — Transfer petition by wife seeking the transfer of the petition for restitution of conjugal rights filed by the husband in the Court of the Judicial Commissioner, Ranchi to a competent court in Trichur — Wife staying in Trichur — Plea that she is not employed and has no source of income and that her parents are not financially in a position to pay for her journeys to Ranchi to defend the suit — Apart from this, she cannot safely undertake a train journey of forty-eight hours or so alone or stay in Ranchi alone — These averments not denied by husband — Effect — Held, it is appropriate to allow the transfer petition and transfer Matrimonial Suit pending in the Court of the Judicial Commissioner, Ranchi to the Matrimonial Court, Trichur — Hindu Marriage Act, 1955 — Section 9.

Deepa v. Anil Panicker [Bench Strength 2], TP(C) No. 871/1999 (17/01/2000), 2000(9) SCC 441 [S.P. Bharucha, J.: S.S.M. Quadri, J.] <<LAWPACK SUPREME COURT>>
Civil Procedure Code, 1908 — Section 25 — Transfer of cases — Matrimonial Dispute — Wife living with her parents in Delhi where she filed criminal cases as well as maintenance claim against Husband — Husband filed matrimonial case under section 9 of H.M. Act before Family Court at Gorakhpur — Wife/Petitioner seeks transfer of matrimonial case from Gorakhpur to Delhi — Directions given to transfer the matrimonial case from Gorakhpur and maintenance application from ACMM Delhi to Family Court at New Delhi — Criminal Procedure Code, 1973 — Section 125 — Hindu Marriage Act, 1955 — Section 9.

Vinay Pandey v. Roshan Kumar Tiwari [Bench Strength 3], TP(C) 793/1998 (10/12/1999), 1999(10) JT 407: 2000(6) SLT 694 [A.S. Anand, C.J.: S. Rajendra Babu, J.: N. Santosh Hegde, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 11 & 13-B — Petition for divorce — Conversion of under Section 13-B from Section 11 — Permissibility — Divorce petition by wife on the ground of desertion and cruelty — During pendency of the proceedings of SLP, agreement between parties to get divorce by mutual consent — Living separately since years — Not in a position to see eye to eye and live together — No child — In exercise of power under Article 142 of the Constitution, Supreme Court accepted the request of both parties — Decree of divorce by mutual consent under section 13-B be passed — Constitution of India — Article 142.

HELD: Prayer in I.A. No. 3 of 1999 for permitting the parties to amend the Hindu Marriage Petition is allowed in terms of para 3 of the I.A. We grant amendment to the divorce petition by treating it to be one under section 13-B of the Hindu Marriage Act, 1955. The proceedings between the husband and wife for dissolution of marriage are pending since 11 years. On the fact of the case, there is no necessity to further delay the passing of the decree for divorce by mutual consent. We therefore, in exercise of our power under Article 142 of the Constitution of India accept the consent terms filed by the parties and direct that a decree for divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955 be passed in this case. The agreement regarding payment of permanent alimony and monthly maintenance as laid down in paragraph 2(a) to (d) shall form part of the decree for dissolution of marriage by mutual consent.

Kiran v. Sharad Dutt [Bench Strength 2], CA 7149/1999 (10/12/1999), 2000(10) SCC 243: 2000(1) JT 532: 2000(6) SLT 552 [S.B. Majmudar, J.: V.N. Khare, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 23(1)(a) — Approbation and reprobation — General doctrine of — Held, the provision of the Act give statutory recognition to the said equitable principle — Said doctrine is not peculiar to English Law — Doctrines — Doctrine of approbation and reprobation.

Velamuri Venkata Sivaprasad v. Kothuri Venkateswarlu [Bench Strength 3], CA 425/1982 (24/11/1999), 2000 AIR(SC) 434: 1999(Supp-4) SCR 522: 2000(2) SCC 139: 1999(7) SCALE 224: 1999(10) Supreme 38: 1999(10) SLT 40: 2000(1) SRJ 160: 2000(1) DMC 1 [S.B. Majmudar, J.: M. Srinivasan, J.: U.C. Banerjee, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 5(i), (iv), (v) & 11 & 12 — Non-performance of essential ceremonies at the time of marriage — Allegations of — Effect — It is not necessary to discuss the issue that unless declaratory decree of nullity of marriage on the ground of contravention of any one of the conditions specified in clauses (i), (iv) and (v) of Section 5 is obtained, it cannot be held in collateral proceedings that marriage was null and void nor it is required to be discussed that Legislature has not provided that if, some marriage ceremonies are not performed, marriage is a `nullity’ under Section 11 or is `voidable’ under Section 12 of the Act.

Dwarika Prasad Satpathy v. Bidyut Praya Dixit [Bench Strength 2], CrA 1082-83/1999 (14/10/1999), 1999 AIR(SC) 3348: 1999(Supp-3) SCR 684: 1999(7) SCC 675: 1999(8) JT 329: 1999(6) SCALE 579: 1999(8) Supreme 602: 1999(8) SLT 508: 1999(10) SRJ 295: 2000 CrLJ 1: 1999 SCC(Cr) 1345: 1999(4) Crimes 206(SC): 1999(4) CCR 161(SC): 2000(2) JCC 649: 1999(4) RecentCR 577 [K.T. Thomas, J.: M.B. Shah, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Article 136 — Matrimonial dispute — Conversion of appeal into petition for divorce by mutual consent, permissibility — Husband claiming a decree for divorce against wife — Compromise during pendency of appeal before Supreme Court — Both the parties mutually settled their dispute and agreed to get a decree of divorce by mutual consent in the light of the terms mentioned in the agreement of compromise — Question of alimony amicably settled — Direction given to Family Court, Bangalore to convert Hindu marriage petition into a petition for divorce by mutual consent under Section 13-B of the Hindu Marriage Act and pass appropriate orders for dissolving the marriage of the parties by mutual consent — Hindu Marriage Act, 1955 — Section 13-B.

Rajiv R. Hiremath v. Uma [Bench Strength 2], CA No. 5562/1999 with No. 5563/1999 (24/09/1999), 2000(10) SCC 303 [S.B. Majmudar, J.: D.P. Mohapatra, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(i-a) & (i-b) — Cruelty and desertion — A marriage was solemnised between the parties in accordance with Hindu rites on July 6, 1969 and a son was born to them on February 12, 1971 and a daughter on May 19, 1975 — Husband alleging that during all this period behaviour of the wife was cruel towards him — Allegations of having illicit relations by both the parties — In 1979 couple celebrated their tenth wedding anniversary — Held, it would show that both were living together and that the husband has condoned the cruelty — Plea of husband that he was shocked when his wife told him that she was pregnant — He said this could not be so as he had ceased martial relation with her since June, 1977 — Child born in the house of parents of wife — Husband neither went to see his third child since her berth nor made any attempt to bring his wife and daughter — Held, case of cruelty and desertion set up by the husband cannot be said to be proved in such circumstances.

HELD: It was submitted that on July 6, 1979 parties celebrated their tenth wedding anniversary. That would show that both were living together and it is apparent that the husband has condoned the cruelty, if any, alleged by him against the wife. Husband has not gone to see his third child Kamakshi since her birth. High Court has rejected his plea that he ever made attempt to bring his wife and the daughter, who was born to her at her parents house. High Court has considered pleadings and the evidence on record threadbare and came to the conclusion that the case of cruelty and desertion set up by the husband has not been proved. We agree with the High Court and rather we find that it is husband, who is in wrong.

R. Balasubramanian v. Vijaylakshmi Balasubramanian [Bench Strength 2], CA 2966/1997 (11/08/1999), 1999 AIR(SC) 3070: 1999(7) SCC 311: 1999(5) JT 624: 1999(4) SCALE 686: 1999(7) Supreme 233: 1999(7) SLT 19: 1999(8) SRJ 239: 1999(2) DMC 396 [D.P. Wadhwa, J.: M.B. Shah, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(i-a) & (i-b) — Cruelty — Scope of — Allegation by husband that the wife had sexual intercourse with a person other than the husband, held, is a serious allegation against the wife and shows the cruel conduct of the husband entitling the wife to seek relief against him under the Act or otherwise.

R. Balasubramanian v. Vijaylakshmi Balasubramanian [Bench Strength 2], CA 2966/1997 (11/08/1999), 1999 AIR(SC) 3070: 1999(7) SCC 311: 1999(5) JT 624: 1999(4) SCALE 686: 1999(7) Supreme 233: 1999(7) SLT 19: 1999(8) SRJ 239: 1999(2) DMC 396 [D.P. Wadhwa, J.: M.B. Shah, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 26 — Custody of child — During pendency of divorce proceedings — Preference of child — Weightage to — Direction of Family Court that during the pendency of suit, the child will remain with her father but during the vacation, she would stay with her mother — In course of hearing of appeal before Supreme Court, child produced in chambers of Supreme Court Judges stating that she would like to stay with her father — Direction given that girl child should be allowed to continue living with her father in view of the fact that child staying with her father for the last eight years — Direction given by Family Court that child should stay with her mother during the holidays set aside.

Bijay K. Prasad v. Ranjana [Bench Strength 2], CA 3903/1999 (20/07/1999), 1999(9) SCC 544 [G.B. Pattanaik, J.: M.B. Shah, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(i-a) — Cruelty — What is not — Wife lodging complaint through her uncle against husband and other family members under section 498-A IPC with the Woman Protection Cell — Sought anticipatory bail out of panic — Function of the Woman Protection Cell is to bring about reconciliation between the parties — No harassment by the cell — Cell only made efforts to bring about reconciliation — Held, representation made by the parents of wife to the cell for reconciliation does not amount to mental cruelty.

HELD: The last act of the respondent, which according to the learned counsel for the appellant, amounts to mental cruelty is that she lodged a complaint with the Women Protection Cell, through her uncle and as a result of which the appellant and the members of his family had to seek anticipatory bail. The respondent in her evidence stated that she had never lodged any complaint against the appellant or any members of his family with the Women Protection Cell. However, she stated that her parents sought help from Women Protection Cell for reconciliation through one of her relative who at one time happened to be the Superintendent of Police. It is on the record that one of the functions of the Women Protection Cell is to bring about reconciliation between the estranged spouses. There is no evidence on record to show that either the appellant or any member of his family were harassed by the Cell. The Cell only made efforts to bring about reconciliation between the parties but failed. Out of panic if the appellant and members of his family sought anticipatory bail, the respondent cannot be blamed for that. Thus, we are of the opinion, that representation made by the parents of the respondent to the Cell for reconciliation of the estranged spouses does not amount to mental cruelty caused to the appellant.

S. Hanumantha Rao v. S. Ramani [Bench Strength 2], CA 3763/1995 (31/03/1999), 1999 AIR(SC) 1318: 1999(2) SCR 296: 1999(3) SCC 620: 1999(2) JT 451: 1999(2) SCALE 338: 1999(3) Supreme 358: 1999(3) SLT 318: 1999(4) SRJ 422: 1999(3) CLT 54(SC): 1999(2) CLT 130(SC): 1999(1) DMC 628: 1999(2) KLT 17(SN) [V.N. Khare, J.: R.P. Sethi, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(ia) — Cuelty — What is not — Letters sent by wife to her husband — No reply of any letter was given by husband — Wife preserving copies of the letter sent by her to her husband — Copies of the letters filed in the court by husband — Whether such act of wife preserving the copies of letters amount to mental cruelty — held, No — This act of the respondent is a most natural behaviour of human being placed in such circumstances.

HELD: If the wife had any intention to use copies of those letters she would have filed the same before the trial court. Excepting filing a counter affidavit the respondent-wife did not file any copy of the letters sent to her husband, whereas the husband has filed all the letters sent to him by his wife in the court which were exhibited. The respondent wife in her testimony stated that she wrote several letters to her husband, but her husband did not reply any of them and as such the started preserving the copies of the letters sent by her to her husband. This act of the respondent, according to us, is a most natural behaviour of human being placed in such circumstances. Thus, we find mere preserving the copies of the letters by the wife does not constitute an act which amounts to mental cruelty, and a result of which it becomes impossible for the husband to live with his wife.

S. Hanumantha Rao v. S. Ramani [Bench Strength 2], CA 3763/1995 (31/03/1999), 1999 AIR(SC) 1318: 1999(2) SCR 296: 1999(3) SCC 620: 1999(2) JT 451: 1999(2) SCALE 338: 1999(3) Supreme 358: 1999(3) SLT 318: 1999(4) SRJ 422: 1999(3) CLT 54(SC): 1999(2) CLT 130(SC): 1999(1) DMC 628: 1999(2) KLT 17(SN) [V.N. Khare, J.: R.P. Sethi, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(ia) — Cruelty — What is not — Allegation by husband that his wife taking out her Mangalsutra and throwing it on him — Absence of any witness — Wife admitting to have removed the Mangalsutra but only to please the appellant in privacy — Whether wife rightly believed by High Court — Held, Yes — Removal of Mangalsutra by wife at the instance of husband, held, would not constitute mental cruelty as provided in Section 13(1)(ia).

HELD: Mangalsutra around the neck of a wife is a sacred thing for a Hindu wife as it symbolies continuance of married life. A Hindu wife removes her Mangalsutra only after the death of her husband. But here we are not concerned with a case where a wife after fearing her Mangalsutra threw at her husband and walked out of her husband’s house. Here is a case where a wife while in privacy, occasionally has been removing her Mangalsutra and bangles on asking of her husband with a view to please him. If the removal of Mangalsutra was something wrong amounting to mental cruelty, as submitted by learned counsel for the appellant, it was the husband who instigated his wife to commit that wrong and thus was an abettor. Under such circumstances the appellant cannot be allowed to take advantage to a wrong done by his wife of which he himself was responsible. In such a case the appellant cannot be allowed to complain that his wife is guilty of committing an act of mental cruelty upon him, and further by such an act, has suffered mental pain and agony as a result of which married life has broken down, and he is not expected to live with his wife. It also appears to us that, whenever the appellant asked her wife for removal of her Mangalsutra, the respondent never comprehended that her husband at any point of time would react to such occurrences in the way he did. Under such circumstances, the appellant was not expected to have made an issue out of it. We are, therefore, of the view that removal of Mangalsutra by the respondent would not constitute mental cruelty within the meaning of Section 13(1)(a) of the Act.

S. Hanumantha Rao v. S. Ramani [Bench Strength 2], CA 3763/1995 (31/03/1999), 1999 AIR(SC) 1318: 1999(2) SCR 296: 1999(3) SCC 620: 1999(2) JT 451: 1999(2) SCALE 338: 1999(3) Supreme 358: 1999(3) SLT 318: 1999(4) SRJ 422: 1999(3) CLT 54(SC): 1999(2) CLT 130(SC): 1999(1) DMC 628: 1999(2) KLT 17(SN) [V.N. Khare, J.: R.P. Sethi, J.] <<LAWPACK SUPREME COURT>>
Hindu Succession Act, 1956 — Section 14(1) & (2) — Possession of property — Possession may be physical, constructive or formal — Possession not sine qua non for acquisition of full ownership in property — Hindu female put in possession in lieu of her right to maintenance — Her limited right blossoms into full ownership regardless of fact whether acquisition was prior to or after coming into force of 1956 Act — Hindu Marriage Act, 1955 — Section 24 — Criminal Procedure Code, 1973 — Section 125.

Naresh Kumari v. Shakshi Lal [Bench Strength 2], CA 1798/1980 (05/02/1999), 1999 AIR(SC) 928: 1999(1) SCR 438: 1999(2) SCC 656: 1999(1) JT 285: 1999(1) SCALE 285: 1999(1) Supreme 322: 1999(1) SLT 472: 1999(1) SCJ 359: 1999(2) CLT 1(SC) [K. Venkataswami, J.: A.P. Misra, J.] <<LAWPACK SUPREME COURT>>
Civil Procedure Code, 1908 — Section 100 — Second appeal — Substantial question of law — High Court framing substantial question of law but no answer given while dismissing appeal on the ground that appellant had no locus standi to file the appeal — Second appeal restored to the file of the High Court with a request to redecide the same on the substantial question of law which has been framed and answer the same on merits after hearing the parties — Hindu Marriage Act, 1955, (As amended by Act 68 of 1976) — Section 16(3).

Govindan v. Subramaniam [Bench Strength 2], CA No. 459/1999 (01/02/1999), 2000(9) SCC 510: 2004(3) SCALE 690 [S.B. Majmudar, J.: U.C. Banerjee, J.] <<LAWPACK SUPREME COURT>>
Civil Procedure Code, 1908 — Order 41 Rule 4 — Reversal of decree — Locus standi to file second appeal for — Defendant 2 purchasing property from Respondents 4 to 6 — Held, on facts, High Court not justified in holding that he had no locus standi to maintain the second appeal and for demonstrating that vendors had legal title to convey the property particularly when High Court had framed substantial question of law on applicability of the principles under Section 16(3) of the Hindu Marriage Act, 1955, (as amended by Act 68 of 1976) — Even question not answered at all on the ground that the appellant-defendant 2 had no locus standi to file the appeal — Impugned judgment and order set aside — Matter remitted for reconsideration on merits — Hindu Marriage Act, 1955, (As amended by Act 68 of 1976) — Section 16(3).

 

Govindan v. Subramaniam [Bench Strength 2], CA No. 459/1999 (01/02/1999), 2000(9) SCC 510: 2004(3) SCALE 690 [S.B. Majmudar, J.: U.C. Banerjee, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Section 125 — Proof of marriage — Small discrepancy in evidence — Whether a good ground for discarding evidence — Held, where one witness stating that marriage was performed at 6.00 p.m. and other witness stating that it was performed at 4.30 p.m. — If in view of long lapse of time there was a small discrepancy as regards the time of marriage that can hardly be regarded as a good ground for discarding their evidence — Hindu Marriage Act, 1955 (as applicable to state of Tamil Nadu) — Section 7-A.

HELD: There was a discrepancy as regards the time when the marriage had taken place whereas P.W. 2 had stated that the marriage was performed at 6.00 p.m. P.W. 3 had stated that it was performed at 4.30. p.m. The marriage had taken place in the year 198(sic) and the witnesses had given evidence in 1992. It in view of long lapse of time there was a small discrepancy as regards the time of marriage that can hardly be regarded as a good ground for discarding their evidence. We, therefore, accept their evidence and hold that the appellant and the respondent had exchanged garlands with a view to get married and that it was done in presence of near relatives. We also hold that in view of the added provision Section in 7A in the Hindu Marriage Act as applicable to State of Tamil Nadu that there was a valid marriage between the parties.

Muthumanickam v. Sekaran [Bench Strength 2], JDHC (29/01/1999), 1999(1) SCALE 304: 2001(6) SLT 418 [G.T. Nanavati, J.: A.P. Misra, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(i-a) — Cruelty — Evidence for proof of, examination of, necessity — Power of Single Judge and Division Bench in appeal — Held, High Court, before determining whether appellant has proved cruelty against respondent, should first examine the evidence on record — Matter remanded to High Court.

HELD: Neither the Single Judge nor has the Division Bench considered the evidence on the record which would have enabled it to decide whether the respondent was guilty of committing any act of cruelty. The letters on the basis of which cruelty was sought to be established have not even been referred to by the Division Bench nor do they seem to have been analysed by the Single Judge. Both the courts did not appear to have gone into this aspect in great detail because they decided the appeal in favour of the respondent on the ground that the parties had lived together at Sagar Hotel at Indore and that amounted to an act of condonation. We have some doubt, on the basis of the evidence on record or the lack of it, whether this conclusion is correct and, therefore, it was important for the Single Judge as well as the Division Bench to have examined the evidence on record in order to determine whether the appellant herein had been able to prove that the respondent had committed such acts of cruelty which would entitle the appellant to get a decree of divorce.

Devram Bilve v. Indumati [Bench Strength 2], CA No. 11873/1996 (27/08/1998), 2000(10) SCC 540: 2001(6) SRJ 526 [B.N. Kirpal, J.: V.N. Khare, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(i-a) — Cruelty — Determination — Letter containing false and baseless allegation written to superiors of spouse, held, amount to cruelty — Words and Phrases — Cruelty.

Devram Bilve v. Indumati [Bench Strength 2], CA No. 11873/1996 (27/08/1998), 2000(10) SCC 540: 2001(6) SRJ 526 [B.N. Kirpal, J.: V.N. Khare, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(i)(b) — Desertion — Guilty of, question of fact — Question whether the wife is guilty of desertion or not is essentially a question of fact.

Ramani v. Saraswathi [Bench Strength 2], CA No. 4173/1994 (25/08/1998), 2000(10) SCC 458: 2001(6) SRJ 500 [B.N. Kirpal, J.: V.N. Khare, J.] <<LAWPACK SUPREME COURT>>
Civil Procedure Code, 1908 — Section 100 — Second appeal — Concurrent finding of fact, interference in, impermissibility — Both the trial court and the lower appellate court, on the basis of the evidence on record, concurrently coming to the conclusion that the wife had deserted the husband about three and a half years prior to the filing of the divorce petition — Evidence not discussed by High Court — Under these circumstances, held, High Court ought not to have reversed the concurrent finding of fact of the trial court and the lower appellate court — Appellant was entitled to a decree of divorce on the ground of desertion — Hindu Marriage Act, 1955 — Section 13(1)(i)(b) — Desertion — Constitution of India — Article 136.

Ramani v. Saraswathi [Bench Strength 2], CA No. 4173/1994 (25/08/1998), 2000(10) SCC 458: 2001(6) SRJ 500 [B.N. Kirpal, J.: V.N. Khare, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Articles 32 & 137 — Petition under — Maintainability — Petition challenging the validity of a judgment of Supreme Court after the dismissal of review petition of same judgment — Appeal filed under Article 142 by the respondent allowed and a decree of divorce for dissolution of marriage was passed under Section 13-B of Hindu Marriage Act and declared all pending proceedings including the proceedings under Section 494 IPC read with Section 17 of Hindu Marriage Act terminated on payment or deposit of the amount ordered by the court — Whether writ petition can be maintained to question the validity of a judgment of Supreme Court after the petition for review of the said judgment is dismissed — Questions required to be considered by a Constitution Bench of Supreme Court — Matter placed for consideration before a Constitution Bench — Penal Code, 1860 — Section 494 — Hindu Marriage Act, 1955 — Sections 13-B & 17.

Rupa Ashok Hurra v. Ashok Hurra [Bench Strength 3], WP(C) 509/1997 (05/08/1998), 1999 AIR(SC) 2870: 1999(2) SCC 103 [S.C. Agrawal, J.: S. Saghir Ahmad, J.: M. Srinivasan, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 13 & 23(2) — Divorce Decree — Collusion — Effect of — Husband getting a ex parte divorce decree in a suit instituted in the name of Wife — On knowing the fact of grant of decree Wife moved to set aside the decree through application under section 151 CPC on the ground that she had never filed the said suit — Trial judge rejected the same — High Court allowed the application with the finding that husband got the suit filed by an impostor — Register of Oath Commissioner not bearing signature of respondent-wife, non-compliance of order of CPC regarding issuance of process service etc., non-compliance of the procedure for inviting objections, to bring reconciliation between parties etc., held, deserve allowance of the application — However, finding about the alleged impersonation of the respondent by some body else was not necessary — Case remanded back to trial Court for decision afresh — Civil Procedure Code, 1908 — Section 151 & Order 5, Order 32-A & Order 35 — Practice and Procedure — Abuse of the process of court — Fraud on courts — Judiciary — Fraud on courts — Effect.

Sanjay Singh v. Garima Singh [Bench Strength 2], CA 1311/1998 (03/03/1998), 1998(8) SCC 375 [S.B. Majmudar, J.: M. Jagannadha Rao, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13-B — Divorce by mutual consent — By Supreme Court during pendency of transfer petition — When permissible — Parties settling their disputes mutually and a joint petition incorporating the terms of the settlement and affidavits filed before Supreme Court — Terms of settlement beneficial to the interests of both the parties and also the interests of the minor son — Directions given for a decree of divorce by treating the pending application as an application made under Section 13-B — Civil Procedure Code, 1908 — Section 25 — Practice and Procedure — Transfer petition.

Sandhya M. Khandelwal v. Manoj M. Khandelwal [Bench Strength 2], TP(C) 21/1997 (06/02/1998), 1998(8) SCC 369 [G.N. Ray, J.: G.B. Pattanaik, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 13(1-A) & 23(1)(a) — Misconduct — Restitution of conjugal rights — The husband depriving the wife to perform her conjugal duties and frustrating the attempt of relatives to rehabilitate the wife — Order denying relief to the husband on account of misconduct, affirmed.

HELD: The finding recorded by the courts below is that the husband obtained a decree for restitution of conjugal rights not to act in obedience thereof but, on the other hand, to keep the wife deprived of her high to perform her conjugal duties. The wife made a demand of the husband to let her join him but he refused to allow her enter the house, rather he drove her away as also her relatives, whoever attempted to rehabilitate the wife. These acts of the husband were positive wrongs amounting to “misconduct”, uncondonable for the purposes of Section 23(1)(a) of the Hindu Marriage Act, 1955. Hence, he was rightly denied relief under Section 13(1-A) of the said Act.

T. Srinivasan v. T. Varalakshmi [Bench Strength 3], CA 4904-05/1990 (22/01/1998), 1999 AIR(SC) 595: 1998(3) SCC 112: 1998(4) JT 312 [M.M. Punchhi, C.J.: K.T. Thomas, J.: M. Srinivasan, J.] <<LAWPACK SUPREME COURT>>
Civil Procedure Code, 1908 — Section 25 — Transfer petition — Matrimonial dispute — Maintenance sought u/s 125 of Criminal Procedure Code, 1973 at Delhi — Petition filed by husband seeking divorce u/s 13 of Hindu Marriage Act, 1955 at Agra — No contest by husband to transfer petition — Transfer of record of the case from Agra to Delhi, allowed — Criminal Procedure Code, 1973 — Section 125 — Hindu Marriage Act, 1955 — Section 13.

HELD: Since no objections have been filed to this petition and no one appears to oppose the petition either, without expressing any opinion on the correctness or otherwise of the allegations made in this application, we consider it appropriate to allow this application and transfer Hindu Marriage Petition No. 457 of 1996 from the Family Court at Agra to the Court of the District Judge, Delhi, who may either deal with the petition himself or assign it to any other court of competent jurisdiction under him. The Family Court at Agra is directed to forthwith send the record of the case title Hari Chand v. Savitri (Hindu Marriage Petition No. 457 or 1996) pending before it to the transferee court without any delay. The transferee court shall issue notice to the parties and dispose of the petition expeditiously.

Savitri v. Hari Chand [Bench Strength 2], TP(C) 72/1997 (12/01/1998), 1999 AIR(SC) 55: 1998(3) SCC 71: 1998(4) JT 311: 1998(9) Supreme 29: 1998(4) Crimes 126(SC) [A.S. Anand, J.: K. Venkataswami, J.] <<LAWPACK SUPREME COURT>>
Penal Code, 1860 — Sections 304-B & 498-A — Dowry death — Reliable evidence — Determination of — Younger sister of deceased married with the brother of husband of deceased — Names of husband and mother-in-law mentioned in the FIR — Later on, younger sister of deceased filing divorce petition in which she implicating the name of her husband also — Doubt on the prosecution case on this ground — Scope of — Held, FIR cannot be falsified by the allegations made in the divorce petition — Divorce petition is not relevant for considering the truth of the prosecution — Hindu Marriage Act, 1955 — Section 13 — Hindu Law — Divorce.

Ram Kumar v. State of Haryana [Bench Strength 2], CrA 245/1992 (08/01/1998), 1999 AIR(SC) 1491: 1998(9) SCC 1: 1998(9) JT 370: 1999 CrLJ 462: 1998 SCC(Cr) 833 [M.M. Punchhi, J.: M. Srinivasan, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 23 — Proceedings for divorce — Considerations for — Necessity of judicial approach and independent application of mind even where the opposite party is not represented before the Court — Practice and Procedure — Representation — Absence of.

HELD: Section 23 of the Hindu Marriage Act mandates the court before granting decree for divorce, whether defended or not to satisfy itself (1) if the grounds for claiming relief exist and the petitioner is not taking advantage of his or her own wrong or disability for the purpose of such relief and (2) the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty. A duty is also cast on the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties. Under sub-section (3) of Section 23 of the Act, the court can even refer the matter to any person named by the parties for the purpose of reconciliation and to adjourn the matter for that purpose. These objectives and principles govern all courts trying matrimonial matters. The judgment of the District Judge is silent if the learned Judge took into consideration all what is mentioned in Section 23 of the Act. A question also arises can a party defeat the provisions of sub- section (2) and sub-section (3) of Section 23 of the Act by remaining ex-parte and the court is helpless in requiring the presence of that party even if in the circumstances of the case so required. We are of the opinion that court can in such a situation require the personal presence of the parties. Though the proceedings were ex-parte in the case like this the court cannot be a silent spectator and it should itself endeavour to find out the truth by putting questions to the witnesses and eliciting answers from them.

Balwinder Kaur v. Hardeep Singh [Bench Strength 2], CA 7771/1997 (18/11/1997), 1997(Supp-5) SCR 202: 1997(11) SCC 701: 1997(9) JT 157: 1997(7) SCALE 37: 1997(9) Supreme 374: 1998(1) SLT 26 [Sujata V. Manohar, J.: D.P. Wadhwa, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 28 & 21 — Appeal against decree — Summary dismissal — Decree claimed to have been obtained fraudulently in the name of appellant even though she did not apply for the same — Duty cast on the Court to satisfy itself about the grounds for claiming relief even if the respondent is undefended — Summary dismissal of appeal by the High Court is unjustified — Constitution of India — Article 227.

HELD: Rules of procedures are meant to subserve the cause of justice and not to frustrate it. In the present case when fraud has been alleged by the wife in getting the petition for divorce filed through her when she never wanted a divorce and circumstances showed that what she said was prima facie probable and further from circumstance of the case hereinafter pointed out, the High Court in our opinion was not justified in rejecting the appeal without satisfying itself that the requirements of law had been satisfied.

The High Court should not have summarily dismissed the appeal. By doing so it has also failed to exercise its power of superintendence under Article 227 of the Constitution. The High Court should have seen if the proceedings before the District Judge were in accordance with the procedure prescribed and as per the law applicable. To direct the appellant to file a separate suit for setting aside the decree of divorce on the ground of fraud otherwise is hardly a solution to the case.

Balwinder Kaur v. Hardeep Singh [Bench Strength 2], CA 7771/1997 (18/11/1997), 1997(Supp-5) SCR 202: 1997(11) SCC 701: 1997(9) JT 157: 1997(7) SCALE 37: 1997(9) Supreme 374: 1998(1) SLT 26 [Sujata V. Manohar, J.: D.P. Wadhwa, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Article 136 — Matrimonial dispute — Interference in, by Supreme Court — Scope of — Divorce — Family court refusing to grant decree for divorce to the appellant on the ground alleged by him — High Court also confirmed the said order — During the pendency of appeal before Supreme Court, the parties arriving at a settlement to get divorce by mutual consent — Resultantly, husband withdrawn the writ petition filed by him in the High Court and wife withdrawing the application filed for enhancement of maintenance after receiving the full amount of compensation — Held, nothing further survives in the appeal in view of these developments — However, Court instead of treating the memorandum of settlement as an application for divorce by mutual consent under S. 13-B of the Hindu Marriage Act remanded the proceedings for said purpose before Family Court for being proceeded with in accordance with law — Hindu Marriage Act, 1955 — Sections 13-B, 13 & 19 — Family Courts Act, 1984 — Section 7 — Practice and Procedure — Remand of matter — Scope of.

Atulkumar Natwarlal Kadakia v. Jyoti Atulkumar Kadakia [Bench Strength 2], CA 2092/1996 (04/11/1997), 1998(9) SCC 279: 1998(9) JT 136 [S.B. Majmudar, J.: M. Jagannadha Rao, J.] <<LAWPACK SUPREME COURT>>
Civil Procedure Code, 1908 — Section 25 — Transfer of divorce petition — Permission for — Wife filing application for transfer of divorce petition of the respondent-husband pending in the court of District Judge, Bokaro, Bihar State to the District Court at Delhi — Court, in view of the fact that parties subsequently agreed to dissolve the marriage by mutual consent under Section 13-B(1) and (2) of the Hindu Marriage Act, directed transfer of the respondent’s divorce petition from Bokaro to Delhi — Hindu Marriage Act, 1955 — Section 13-B.

Seema Shrinidhi v. Praveen Kumar Tiwari [Bench Strength 2], TP(C) 827/1996 (29/09/1997), 1999 AIR(SC) 1560: 1997(8) SCC 712 [S.B. Majmudar, J.: S.P. Kurdukar, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13-B — Divorce by mutual consent — Break down of marriage — The Court found that the parties had reached a point of no return — Decree of divorce granted on the prayer of both the parties.

HELD: After going through the pleadings filed both before the District Judge, Delhi and here, we are satisfied that the parties have reached to a point of no return. Therefore, there is no purpose of persuading them to live together under matrimonial roof.

We are also satisfied that the interest of the minor daughter has been safeguarded. Though clause 6(2) of the agreement enables the withdrawal of Rs.1,00,000/- at the time of the minor daughter attaining majority or at the time of her marriage, whichever is earlier, we make it clear that the marriage cannot be legally performed before the minor daughter reaches the statutorily fixed marriageable age.

Accordingly, there will be a decree for divorce by mutual consent in terms of the agreement entered into between the parties on 11th Day of September, 1997.

Shashi Garg v. Arun Garg [Bench Strength 2], TP(C) 687/1996 (18/09/1997), 1997(7) SCC 565: 1997(8) JT 160: 1997(6) SCALE 167: 1997(8) Supreme 362: 1997(4) CLT 33(SC) [A.S. Anand, J.: K. Venkataswami, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 27 — Power of Court — Scope of — Claim of property presented jointly to the husband and the wife — The court has the jurisdiction to adjudicate the property rights of the party so that the wife may not have to resort to separate civil suit — The matrimonial court has the jurisdiction in respect of the property which can be traced to have connection with the marriage — Words and phrases — At or about the time of marriage — Meaning of.

HELD: The Matrimonial Court trying any proceedings under the Hindu Marriage Act, 1955, has the jurisdiction to make such provision in the decree as it deems just and proper with respect to any property presented “at or about the time of marriage” which may belong jointly to both the husband and the wife. This Section provides an alternate remedy to the wife so that she can recover the property which is covered by the Section, by including it in the decree in the matrimonial proceedings, without having to take recourse to the filing of a separate Civil Suit and avoid further litigation.

The property, as contemplated by Section 27 is not the property which is given to the wife at the time of marriage only. It includes the property given to the parties before or after marriage also, so long as it is relatable to the marriage. The expression “at or about the time of marriage” has to be properly construed to include such property which is given at the time of marriage as also the property given before or after marriage to the parties to became their “joint property”, implying thereby that the property can be traced to have connection with the marriage. All such property is covered by Section 27 of the Act.

We are conscious that the decree of divorce has already been passed and any decree now to be made in respect of the property under Section 27 of the Hindu Marriage Act would be a separate decree, but, in the facts and circumstances of the case, when such a decree is made, it shall be treated to be a part of the decree of divorce already granted by the Family Court which has become final.

Balkrishna Ramchandra Kadam v. Sangeeta Balkrishna Kadam [Bench Strength 2], CA 126/1993 (04/09/1997), 1997 AIR(SC) 3562: 1997(Supp-4) SCR 1: 1997(7) SCC 500: 1997(7) JT 742: 1997(6) SCALE 25: 1997(8) Supreme 31: 1997(3) SCJ 133: 1997(4) CLT 9(SC) [A.S. Anand, J.: K. Venkataswami, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 16 — Children from void or voidable marriage — Determination of — High Court concluding with the aid of judgment of trial court that the factum of marriage was not proved but there was overwhelming evidence to establish that the first appellant was a mistress to the late pillai — Respondent also admitting in the plaint that appellants 1 and 2 were the legitimate children of the late pillai — Whether such claim is entertainable on the admission of the respondents that those offsprings were legitimate children and whether the children can be legitimize on the finding that their mother by a long course of conduct was taken to be as the wife of the person concerned — Matter remanded back to High Court for re-consideration in the light of four judgment of Supreme Court and since the evidence was in Tamil and the exercise of having it translated can well be avoided by having a revised opinion on the subject from High Court — Practice and Procedure — Remand of matter — Scope of.

Meenakshi Ammal v. Manimekalai [Bench Strength 3], CA 5796/1997 (27/08/1997), 1997(6) SCALE(SP) 2 [M.M. Punchhi, J.: S.P. Kurdukar, J.: M. Jagannadha Rao, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 24 — Maintenance — Effective date for grant of — Determination of — The time taken in litigation — Conduct of the parties in the proceedings — Attempt on the part of wife to inflate income and on the part of husband to conceal the same — Lack of honesty of purpose in both the parties — Maintenance pendente lite granted from the date of judgment of the High Court.

HELD: Right to claim maintenance fructifies on the date of the filing of the petition for divorce under the Act. Having thus fixed the date as the filing of the petition for divorce it is not always that the court has to grant the maintenance from that date. The court has discretion in the matter as to from which date maintenance under Section 24 of the Act should be granted. The discretion of the court would depend upon multiple circumstances which are to be kept in view. These could be the time taken to serve the respondent in the petition; the date of filing of the application under Section 24 of the Act; conduct of the parties in the proceedings; averments made in the application and the reply thereto; the tendency of the wife to inflate the income out of all proportion and that of the husband to suppress the same; and the like. There has to be honesty of purpose for both the parties which unfortunately we find lacking in this case. We are therefore of the opinion that ends of justice would be met if we direct that maintenance pendente lite as fixed by this judgment to be payable from the date of impugned order of the High Court.

Jasbir Kaur Sehgal v. District Judge, Dehradun [Bench Strength 2], CA 5803/1997 (27/08/1997), 1997 AIR(SC) 3397: 1997(Supp-3) SCR 529: 1997(7) SCC 7: 1997(7) JT 531: 1997(5) SCALE 579: 1997(7) Supreme 642: 1998(5) SLT 551: 1997(2) UJ 637: 1997(3) CLT 398(SC) [Sujata V. Manohar, J.: D.P. Wadhwa, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 24 — Income of husband — Determination of — Adverse inference on account of attempt to conceal the real income, assets and source of expenses incurred by him — Annual income of husband assessed at Rs.20,000/- per month and maintenance pendente lite granted at the rate of Rs.5,000/- per month — Evidence Act, 1872 — Section 114(g) — Adverse inference.

HELD: We were told that the husband had left that morning itself for Canada for further treatment after his bypass surgery in India and that his expenses visiting the Canada and as well as the expenses for treatment there were being met by his friend. In his affidavit husband has stated that his friend Santokh Singh who is resident of Canada paid his fare. He is, however, silent about the expenses if any met by Santokh Singh for his treatment in Canada. A copy of the statutory declaration of Santokh Singh which is dated March 21, 1997 has also been filed. In this Santokh Singh does say that he has undertaken to bear the cost of passage and maintenance of respondent during his stay in Canada and North America. It is a matter of common knowledge that medical treatment in Canada is high and an ordinary person cannot afford the expenses which are met by taking medical insurance. As to what expenses husband incurred for his bypass surgery in India has not been disclosed.

It does appear to us from the affidavit of the husband that it conceals more than what is tells of his income and other assets. Attempt has been made to conceal his true income and that leads us to draw an adverse inference against the husband about his income that it is much more than what is being disclosed to us. The claim of the husband that from an income of Rs.4,750/- per month which is getting from Mukul International Pvt. Ltd. he has to maintain himself, his two sons and daughter is absurd particularly when the eldest son is earning more than the husband and it is the husband who is living with him. Husband has also not disclosed retiral benefits if any from the ONGC and the amount of provident fund he obtained from there. Husband has interest income from Unit Trust of India and also from the fixed deposit receipts but again he has not disclosed the number of units he is holding and the amount of the fixed deposits in his name. From all these we have to hold that the annual income of the respondent-husband is even on modest estimate to be Rs.2,40,000/- annually which would come to Rs.20,000/- per month.

In the circumstances of the present case we fix maintenance pendente lite at the rate of Rs.5,000/- per month payable by respondent-husband to the appellant-wife.

Jasbir Kaur Sehgal v. District Judge, Dehradun [Bench Strength 2], CA 5803/1997 (27/08/1997), 1997 AIR(SC) 3397: 1997(Supp-3) SCR 529: 1997(7) SCC 7: 1997(7) JT 531: 1997(5) SCALE 579: 1997(7) Supreme 642: 1998(5) SLT 551: 1997(2) UJ 637: 1997(3) CLT 398(SC) [Sujata V. Manohar, J.: D.P. Wadhwa, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 24 — Maintenance — Factors to be considered for — The court should consider the respective status of the parties, their respective needs as also the capacity of husband with due regard to expenses incurred by him for his own maintenance.

HELD: No set formula can be laid for fixing the amount of maintenance. It has, in very nature of things, to depended on the facts and circumstances of each case. Some scope for liverage can, however, be always there. Court has to consider the status of the parties, their respective needs, capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and those he is obliged under the law and statutory but involuntary payments or deductions. Amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive of extortionate.

Jasbir Kaur Sehgal v. District Judge, Dehradun [Bench Strength 2], CA 5803/1997 (27/08/1997), 1997 AIR(SC) 3397: 1997(Supp-3) SCR 529: 1997(7) SCC 7: 1997(7) JT 531: 1997(5) SCALE 579: 1997(7) Supreme 642: 1998(5) SLT 551: 1997(2) UJ 637: 1997(3) CLT 398(SC) [Sujata V. Manohar, J.: D.P. Wadhwa, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 24 — Maintenance — To the wife only — Validity — Scope of provision — The provision cannot be interpreted strictly so as to confine the grant of maintenance to the wife only — The dependent children are also entitled to maintenance from their father — Interpretation of statutes — Hindu Marriage Act, 1955 — Section 24.

HELD: Under the Hindu Adoptions & Maintenance Act, 1956 it is the obligation of a person to maintain his unmarried daughter if she is unable to maintain herself. In this case since the wife has no income of her own, it is the obligation of the husband to maintain her and her two unmarried daughters one of whom is living with wife and one with him. Section 24 of the Act no doubt talks of maintenance of wife during the pendency of the proceedings but this section, in our view, cannot be read in isolation and cannot be given restricted meaning to hold that it is the maintenance of the wife alone and no one else. Since wife is maintaining the eldest unmarried daughter, her right to claim maintenance would include her own maintenance and that of her daughter. This fact has to be kept in view while fixing the maintenance pendente lite for the wife. We are aware of the provisions of Section 26 of the Act providing for custody of minor children, their maintenance and education but that section operates in its own field.

Jasbir Kaur Sehgal v. District Judge, Dehradun [Bench Strength 2], CA 5803/1997 (27/08/1997), 1997 AIR(SC) 3397: 1997(Supp-3) SCR 529: 1997(7) SCC 7: 1997(7) JT 531: 1997(5) SCALE 579: 1997(7) Supreme 642: 1998(5) SLT 551: 1997(2) UJ 637: 1997(3) CLT 398(SC) [Sujata V. Manohar, J.: D.P. Wadhwa, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13-B — Divorce by mutual consent — Joint application to Supreme Court during hearing of transfer petition — Permissibility — Both husband and wife are highly educated doctors — Parties had their earlier marriages broken or disrupted earlier to the present status — Husband lost his wife in a vehicular accident and the wife divorced her earlier husband — Parties estranged and kept apart since January 1996 — Appreciating their differences in this background, Court entertained application and grant them divorce by mutual consent in exercise of powers under Article 142 of the Constitution — Provision for the only child made in the application conferring the right to visit his father as and when he likes — Husband also given right of visitation to see his child but after giving due intimation to the mother — Constitution of India — Article 142 — Civil Procedure Code, 1908 — Section 25.

Madhuri Mehta v. Meet Verma [Bench Strength 2], TP(C) 830/1996 (07/05/1997), 1997(11) SCC 81: 1998(9) JT 270 [M.M. Punchhi, J.: S.B. Majmudar, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Section 125 — Maintenance under — Divorce proceeding under Section 13 of HM Act — Husband, pending appeal, directed by High Court under an interim order under Section 24 of the Hindu Marriage Act, 1955 to pay maintenance pendente lite to the wife and minor daughters — Appeal of husband of decree of divorce on the ground of desertion dismissed and order of maintenance of was ordered to continue even thereafter — Continuation of the order of maintenance beyond the date of dismissal of appeal — Validity — Claim of the maintenance, held, valid otherwise against the husband under Section 125 CrPC — Said amount shall be taken to have awarded as maintenance under Section 125 — Hindu Marriage Act, 1955 — Sections 24 & 13.

Chigurupati Bambasiva Rao v. Chigurupati Vijayalaxmi [Bench Strength 2], CA 2887/1997 (21/04/1997), 1997(11) SCC 84: 1998(9) JT 482: 1999(4) JT 648: 1997 SCC(Cr) 1063 [M.M. Punchhi, J.: S.B. Majmudar, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13-B — Divorce by mutual consent — Withdrawal of consent by one party — Appellant (husband) and respondent (wife) married on December 3, 1970 — Joint petition for divorce filed August 21, 1984 — Husband alone filed petition on April 4, 1985 for passing divorce decree — Petition adjourned from time to time for hearing — On August 18, 1985 appellant (husband) remarried — On March 27, 1986 respondent (wife) filed application withdrawing consent for divorce — Trial Court dismissed petition for divorce by mutual consent — On appeal Single Judge of High Court passed decree for dissolution on ground of marriage had irretrievably broken down — Division Bench on appeal set aside Single Judges’ order — Supreme Court granted decree of divorce and awarded compensation to wife in exercise of power under Act. 142 of Constilution — Declared all pending proceedings between parties shall stand abated Coust — Constitution of India — Article 142.

Chandrakala Menon v. Vipin Menon, 1993(2) SCC 6; Chandrakala Trivedi v. Dr. S.P. Trivedi, 1993(4) SCC 232; V. Bhagat v. D. Bhagat, 1994(1) SCC 337; Romesh Chander v. Smt. Savitri, 1995(1) Scale 177 referred to.

Sureshtra Devi v. Om Prakash, 1991(1) SCR 274 distinguished.

HELD: In the light of the fact situation present in this case, the conduct of the parties, the admissions made by the parties in the joint petition filed in Court, and the offer made by appellant’s counsel for settlement, which appears to be bona fide, and the conclusion reached by us on an overall view of the matter, it may not be necessary to deal with the rival pleas urged by the parties regarding the scope of Section 13B of the Act.

With great respect to the learned Judges who rendered the decision in Sureshta Devi’s case certain observations therein seem to be very wide and may require reconsideration in an appropriate case.

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 relationship is only for name-sake and that no love is lost between the parties, 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 13B 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. Appropriate safeguard or provision for the respondent/wife to enable her to have a decent living should be made.

The respondent (wife) should be paid, a lump sum of rupees ten lakhs (Rs.10 lakhs) (and her costs in this litigation as estimated by us) on or before 10.12.1997 as mentioned hereinbelow, as a condition precedent for the decree passed by this Court to take effect.

There is no useful purpose served in prolonging the agony any further and the curtain should be rung at some stage. In coming to the above conclusion, we have not lost sight of the fact that the conduct of the husband is blame-worthy in that he married a second time and got a child during the pendency of the proceedings. But that factor cannot be blown out of proportion or viewed in isolation, nor can dater this Court to take a total and broad view of the ground realities of the situation when we deal with adjustment of human relationship.

Declare and held that all pending proceedings. Including the proceeding under Section 494 IPC read with Section 17 of Hindu Marriage Act, 1955 between the parties shall stand terminated, but only on payment or deposit of the amounts ordered by us in this judgment.

Ashok Hurra v. Rupa Bipin Zaveri [Bench Strength 2], CA 1843/1997 (10/03/1997), 1997 AIR(SC) 1266: 1997(2) SCR 875: 1997(4) SCC 226: 1997(3) JT 483: 1997(2) SCALE 582: 1997(3) Supreme 35: 1997(1) SCJ 529: 1997(1) DMC 491: 1997(1) HLR 621 [M.M. Punchhi, J.: K.S. Paripoornan, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 13(1)(a) and 13(1)(b) — Divorce — Grant of, due to non-appearance deliberately — Husband seeking divorce on ground of cruelty and desertion wife not represented by Advocate before Family Court — Wife did not appear on subsequent dates fixed for cross-examination — Family Court proceeded ex-parte — Granted divorce — High Court dismissed appeal and confirmed decree for divorce — Whether Family Court right in granting divorce — Held, Yes.

HELD: The appellant did not appear on any of the dates on which the case was taken up by the Family Court from June 5, 1993 to June 18, 1993.

There is no reason to disagree with the view of the High Court that the appellant allowed the proceedings to go ex-parte against her before the Family Court by deliberately remaining absent with a view to protract the said proceedings.

Having regard to the facts and circumstances of the case, the alimony payable to the appellant by the respondent should be fixed at Rs. 5000/- per month. As regards the claim of the appellant in the joint properties, the same is under consideration in matters pending before the Family Court. The said Court will deal with the same in accordance with law.

Adhyaatmam Bhaamini v. Jagdish Ambalal Shah [Bench Strength 2], CA 13141/1996 (05/02/1997), 1997 AIR(SC) 1180: 1997(9) SCC 471: 1997(2) JT 640: 1997(2) SCALE 46: 1997(2) Supreme 346: 1997(1) SCJ 404: 1997(1) UJ 628: 1997(2) CLT 47(SC): 1997(1) DMC 472: 1997(1) HLR 605 [S.C. Agrawal, J.: G.B. Pattanaik, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 24 — Interim alimony — Amount of maintenance awarded under Section 125 of the CrPC, held, adjustable against the amount awarded in the matrimonial proceedings — In the circumstances, fresh directions of payment for balancing the claims of wife and husband given — Criminal Procedure Code, 1973 — Section 125.

Sudeep Chaudhary v. Radha Chaudhary [Bench Strength 2], CrA 111/1997 (31/01/1997), 1999 AIR(SC) 536: 1997(11) SCC 286: 1998(9) JT 473: 1999 CrLJ 466: 1998 SCC(Cr) 160 [S.P. Bharucha, J.: Faizan Uddin, J.] <<LAWPACK SUPREME COURT>>
Civil Procedure Code, 1908 — Section 25 — Transfer of matrimonial case — Grounds for — Matrimonial case pending against the wife under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 in Delhi filed by husband — Wife seeking transfer of the case from Delhi to a court of competent jurisdiction at Varanasi where she was staying with a child of marriage aged about two and a half years — Permissibility — Petition allowed in view of the fact that the child of the marriage is with the petitioner and cannot be left at Varanasi when petitioner travel to attend to the matrimonial case in Delhi — Case transferred to the Court of the Presiding Officer, Family Court, Varanasi — Hindu Marriage Act, 1955 — Section 13(1)(i-a) — Transfer of petition under — Constitution of India — Article 139-A(2) — Transfer of petition under S.13(1)(i-a) of Hindu Marriage Act, 1955.

Jaishree Banerjee v. Abhirup Banerjee [Bench Strength 2], TP(C) 651/1996 (06/01/1997), 1997(11) SCC 107: 1998(9) JT 285 [A.S. Anand, J.: Faizan Uddin, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 13-B & 13 — Divorce by mutual consent — Decree of divorce by Supreme Court without resort to Section 13-B while entertaining petition for transfer of divorce proceedings — Divorce petition file by husband pending in Delhi — Transfer petition by wife seeking transfer of the case to Mumbai — Compromise deed put on record by the parties during pendency of the transfer petition agreeing to get divorce by mutual consent — Recurring provision made in the deed for their children’s education and visitation rights of the father — However, no petition under Section 13-B of the Act before the first matrimonial court filed in this regard and the statutory period of 6 months has not even commenced — Supreme Court, in view of the fact that the parties married about 14 years ago, spent the prime time of their life in acrimony and litigation, decided to take the original divorce petition on its own file and import thereto the compromise deed put on record by the parties jointly — Court granted them the decree of divorce by mutual consent after questioning the parties and satisfying that all hopes to unite them together have gone — Civil Procedure Code, 1908 — Section 25 — Divorce petition — Deciding the same itself by Supreme Court instead of tranferring — Constitution of India — Articles 142 & 139-A.

Anita Sabharwal v. Anil Sabharwal [Bench Strength 2], TP(C) 150/1996 (09/12/1996), 1997(11) SCC 490 [M.M. Punchhi, J.: K.T. Thomas, J.] <<LAWPACK SUPREME COURT>>
Evidence Act, 1872 — Section 112 — Presumption legitimacy of children — Proof of customary marriage — The right of inheritance of the son from the marriage under litigation for 40 years — Difficulty to prove with certainty the evidence of marriage — Held that presumption of valid marriage and legitimacy of the claimant shall apply — Hindu Marriage Act, 1955 — Section 16.

Chowdegowda v. C. Nagaraju [Bench Strength 2], CA 10696/1996 (05/08/1996), 1996 AIR(SC) 3485: 1996(Supp-4) SCR 287: 1996(5) SCC 623: 1996(7) JT 638: 1996(6) SCALE 162: 1996(6) Supreme 626: 1996(3) CLT 353(SC): 1996(2) DMC 387: 1996(6) AD(SC) 501 [K. Ramaswamy, J.: G.B. Pattanaik, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 16 — Validity of — Effect of Amending Act of 1976 — The earlier vice of discrimination stand removed — Necessity to interpret the beneficial provision to advance its object — The provision standing on its own strength and the mischief or the vice of arbitrariness stand removed — The provision is not ultra vires the Constitution — Constitution of India — Article 14.

HELD: There is always a presumption that an Act made by the Parliament or the State Legislature is valid; so also there is a strong presumption in favour of the validity of legislative classification. It is for those who challenge the Act as unconstitutional to show and prove beyond all doubts that the legislature arbitrarily discriminated between different persons similarly circumstanced. This presumption, however, can be displaced by showing that the discrimination was so apparent and manifest that any proof was hardly required. Section 16, as originally enacted, fell under this category and we have already held that to the extent it discriminated between two groups of illegitimate children in the matter of conferment of status of legitimacy, it was violative of Article 14. The vice of the mischief from which unamended Section 16 suffered has been removed or not is our next concern.

Hindu Marriage Act, 1955 is a beneficient legislation and, therefore, it has to be interpreted in such a manner as advanced the object of the legislation. The Act intends to bring about social reforms. Conferment of social status of legitimacy on a group of innocent children, who are otherwise treated as bastards, is the prime object of Section 16.

The words “notwithstanding that a marriage is null and void under Section 11” employed in Section 16(1) indicate undoubtedly the following:

(a) Section 16(1) stands delinked from Section 11.

(b) Provisions of Section 16(1) which intend to confer legitimacy on children born of void marriages will operate with full vigour in spite of Section 11 which nullifies only those marriages which are held after the enforcement of the Act and in the performance of which Section 5 is contravened.

(c) Benefit of legitimacy has been conferred upon the children born either before or after the date on which Section 16(1) was amended.

(d) Mischief or the vice which was the basis of unconstitutionality of unamended Section 16 has been effectively removed by amendment.

(e) Section 16(1) now stands on its own strength and operates independently of other sections with the result that it is constitutionally valid as it does not discriminate between illegitimate children similarly circumstanced and classifies them as one group for conferment of legitimacy.

Parayankandiyal Eravath Kanapravan v. K. Devi [Bench Strength 2], CA 5473-75/1995 (26/04/1996), 1996 AIR(SC) 1963: 1996(Supp-2) SCR 1: 1996(4) SCC 76: 1996(4) JT 656: 1996(4) SCALE 131: 1996(2) SCJ 645: 1996(3) CLT 27(SC): 1996(2) DMC 82: 1996(4) AD(SC) 333 [Kuldip Singh, J.: S. Saghir Ahmad, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 16 r/w Section 4 — Legitimacy of children from void marriage — Effect of — The legal fiction of legitimacy of children is limited in operation for the purpose of succession to the properties of their parents only and not other relatives.

HELD: Section 16 contains a legal fiction. It is by a rule of fictio juris that the legislature has provided that children, though illegitimate, shall, nevertheless, be treated as legitimate notwithstanding that the marriage was void or voidable.

In view of the legal fiction contained in Section 16, the illegitimate children, for all practical purposes, including succession to the properties of their parents, have to be treated as legitimate. They cannot, however, succeed to the properties of any other relation on the basis of this rule, which in its operation, is limited to the properties of the parents.

Parayankandiyal Eravath Kanapravan v. K. Devi [Bench Strength 2], CA 5473-75/1995 (26/04/1996), 1996 AIR(SC) 1963: 1996(Supp-2) SCR 1: 1996(4) SCC 76: 1996(4) JT 656: 1996(4) SCALE 131: 1996(2) SCJ 645: 1996(3) CLT 27(SC): 1996(2) DMC 82: 1996(4) AD(SC) 333 [Kuldip Singh, J.: S. Saghir Ahmad, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 16 (as existed prior to 1976) — Legitimacy of children from void marriage — Discrimination — The children born of marriages held prior to Act not legitimised while children born of marriages after the enactment protected under the Act — The provision as existed prior to amendment of 1976 was violative of Article 14 of Constitution.

HELD: In spite of the foresightedness of the legislators, the intention of the Parliament could not be fully reflected in the Act which unfortunately suffered at the hands of persons who drafted the Bill and the various provisions contained therein. The results were startling. Since the Rule of Legitimacy was made dependent upon the marriage (void or voidable) being annulled by a decree of annulment, the children born of such marriage, would continue to be illegitimate if the decree of annulment was not passed, which, incidentally, would always be the case, if the parties did not approach the Court. The other result was that the illegitimate children came to be divided in two groups; those born of marriage held prior to the Act and those born of marriage after the Act. There was no distinction between these two groups of illegitimate children, but they came to suffer hostile legislative discrimination on account of the language employed therein. Indeed, language is an imperfect instrument for the expression of human thought.

The object of Section 16 was to protect legitimacy of children born of void or voidable marriages. In leaving out one group of illegitimate children from being treated as legitimate, there did not appear to be any nexus between the object sought to be achieved by Section 16 and the classification made in respect of illegitimate children similarly situate or circumstanced. The provisions of Section 16 were, therefore, to that extent, clearly violative of Article 14 of the Constitution.

The legislature, as a matter of fact, committed the mistake of borrowing in this Section the language of Section 9 of the Matrimonial Clauses Act, 1850 made by the British Parliament which dealt with the legitimacy of children of only voidable marriages and not the children of marriages void ipso jure.

Parayankandiyal Eravath Kanapravan v. K. Devi [Bench Strength 2], CA 5473-75/1995 (26/04/1996), 1996 AIR(SC) 1963: 1996(Supp-2) SCR 1: 1996(4) SCC 76: 1996(4) JT 656: 1996(4) SCALE 131: 1996(2) SCJ 645: 1996(3) CLT 27(SC): 1996(2) DMC 82: 1996(4) AD(SC) 333 [Kuldip Singh, J.: S. Saghir Ahmad, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 13-B & 12 — Divorce by mutual consent — Substitution of order of High Court of annulment of marriage — Permissibility — High Court’s order relating to the annulment of the marriage — Parties before Supreme Court desiring that the marriage between them may be kept dissolved but not on annulment but by mutual consent effective from the date of the High Court Judgment — Terms of compromise entered into by the parties put on record in writing — Supreme Court accepting the request of parties substituted the order of High Court from the date of its judgment — Marriage between the parties stood dissolved by a decree of divorce upon mutual consent — Hindu Law — Dissolution of marriage — Grounds of.

Radha v. Mohinder Kumar [Bench Strength 2], CA 7632/1995 (20/03/1996), 1998(8) SCC 530 [M.M. Punchhi, J.: Sujata V. Manohar, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 16 r/w Sections 11 & 12 — Declaration of void marriage — Effect on children born from marriage — Irrespective of the fact whether the children were born before or after the amendment, such children are legitimate and entitled to inherit the property — Effect of Amendment 68 of 1976.

HELD: Preceding the amendment, declaration of nullity by a decree of a Court is a precondition. Amendment 68 of 1976 has done away with it and declared that notwithstanding the marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid shall be legitimate whether such child is born before or after the commencement of the Amendment 68 of 1976 and whether or not a decree of nullity is granted in respect of that marriage under the Act and whether or not the marriage is held to be void otherwise then on a petition under the Act. Thus, if would be clear that declaration of validity or a marriage on a petition of either party or, in other words, declaration of the marriage as nullity under a decree which were pre-conditions under Section 12 of the Act, is done away with. Consequentially, as if the marriage had been valid, the child shall be legitimate whether such child was born before or after the commencement of Act 68 of 1976. By operation of Section 8 of the Hindu Succession Act 1956 read with Schedule I, appellant being the daughter of Ram Singh, is entitled to the property of her father. The decree is accordingly granted. Application for appointing a guardian of the minor is allowed.

Gurnam Kaur v. Puran Singh [Bench Strength 2], CA 1542/1975 (08/02/1996), 1996(2) SCR 322: 1996(2) SCC 567: 1996(5) JT 664: 1996(2) SCALE 382: 1996(2) Supreme 365: 1996(1) UJ 657: 1996(1) CCC 269(2)(SC): 1996(1) CLT 530(SC): 1996(1) HLR 446: 1996(2) AD(SC) 310 [K. Ramaswamy, J.: G.B. Pattanaik, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13-B — Divorce by mutual consent — The husband agreeing to maintain the wife — All proceedings between the parties directed to be closed — Decree for divorce by mutual consent granted.

HELD: Learned counsel for the parties. They agreed across the Bar, at the suggestion of the Court, that respondent No.1 would pay to respondent a sum of Rs.700/- (Rupees seven hundred) per month starting from November 1, 1995 on or before 5th of every succeeding month. All the pending proceedings between the parties stand closed. There shall be a decree of divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1956, with effect from the date of the judgment of the lower appellate court, i.e., from December 22, 1989. In case the respondents commit any default in payment of alimony the appellant would be at liberty to have it recovered by arrest and detention in prison.

Pramila v. Rameshwar [Bench Strength 2], CA 10261/1995 (03/11/1995), 1995(Supp-4) SCR 768: 1995(Supp-4) SCC 614: 1995(9) JT 134: 1995(6) SCALE 400(1) [K. Ramaswamy, J.: B.L. Hansaria, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 11 — Void marriage — Meaning of — Conversion of a hindu person to Islam and marrying again does not by itself dissolve the first marriage of such hindu person — The second marriage however, shall be void under Section 494 of IPC and invalid under the provisions of the Act.

Sarla Mudgal v. Union of India [Bench Strength 2], WP(C) 1079/1989 (10/05/1995), 1995 AIR(SC) 1531: 1995(Supp-1) SCR 250: 1995(3) SCC 635: 1995(4) JT 331: 1995(3) SCALE 286: 1995(2) UJ 764: 1995 CrLJ 2926: 1995 SCC(Cr) 569: 1996(1) CCR 11(SC): 1995(3) CCR 12(SC): 1996(1) HLR 659: 1995 MLR 294 [Kuldip Singh, J.: R.M. Sahai, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Article 142 r/w Sections 13-B(1) and (2) of Hindu Marriage Act, 1956 — Diverse by mutual consent — Petition duly signed by both the parties taken on the record of the Court and decree of dissolution of marriage effective from the date of the order, passed.

Preeti Singh v. Sandeep Singh [Bench Strength 2], CrMP 1207/1992 (25/04/1995), 1995 AIR(SC) 1851: 1995(3) SCR 743: 1995(3) SCALE 165: 1995(2) SCJ 241: 1995(2) UJ 270: 1995(3) CCR 53(SC): 1997(1) DMC 104 [K. Ramaswamy, J.: B.L. Hansaria, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1-A) and 13(iii) — Divorce — Decree of, on the ground of mental cruelty and unsoundness of mind — Challenge to — Delay in — Decree of divorce granted only based on the statement of the husband — No medical or any other evidence led to prove the unsoundness of mind or mental cruelty — Held, not valid — Court set aside the findings of trial Court except decree of divorce keeping in view the fact that wife was fully aware about the ex-parte decree and that the husband has remarried within two month of divorce even though she filed application for setting aside the ex-parte decree after about 6 years, which was also not pressed — Held appellant almost acquiesced to the divorce decree — Hindu Law — Divorce — Decree of — Challenge to — Delay in — Refusal to set aside — Limitation Act, 1963 — Section 3.

S. Jayalakshmi v. T. Prakash Rao [Bench Strength 2], CA 1245/1995 (18/04/1995), 1996(8) SCC 501 [Kuldip Singh, J.: S. Saghir Ahmad, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(ia) — Dissolution of marriage on the ground of cruelty — The litigation continuing for 25 years is itself a cruelty when the marriage itself is dead — The marriage dissolved in exercise of power under Article 142 of the Constitution subject to husband transferring a house in the name of his wife.

Romesh Chander v. Savitri [Bench Strength 2], CA 714/1995 (13/01/1995), 1995 AIR(SC) 851: 1995(1) SCR 212: 1995(2) SCC 7: 1995(1) JT 362: 1995(1) SCALE 177: 1995(1) UJ 434: 1995(1) CCC 97: 1995(1) DMC 231: 1995(1) DMC 514: 1995(1) HLR 325: 1995 MLR 111 [R.M. Sahai, J.: S.B. Majmudar, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Article 142 — Decree of divorce — Special leave to appeal against the decree of Trial Court for restitution of conjugal rights, affirmed by the High Court — No possibility of the parties to live together — The divorce petition filed by the husband during the pendency of SLP, pending before the Trial Court — Decree of divorce granted with provision of maintenance of the children. (Hindu Marriage Act, 1955 — Sections 9, 13, 25, 26 & 27)

HELD: This appeal is pending in this Court since 1979 and during that period efforts were made by this Court on several occasions to have the differences between the parties settled but with no success. At one point of time the parties had started living together as a result of conciliation by this Court and a daughter was born during that period but again they separated and there seems to be no chance of their living together. We have also tried to persuade the parties to live together, specially for the sake of their two grown up daughters, but there seems to be no possibility of their living together. Since the decree of restitution of conjugal rights has not been executed, the respondent has filed a divorce petition which is pending before the Trial Court at Chandigarh.

The couple have two daughters, namely, Bhawana Vaid, aged 28 years and Gargi Vaid, aged about 10 years. Both the girls are students. The appellant is working as teacher in a government school. She is drawing rupees 4,000/- per month as salary. We have given our thoughtful consideration to the facts of this case specially the financial position of both the parties. The two daughters are living with the appellant and she has to bear the education and other expenses to support the girls. She has also to save money for the marriage of the girls. Keeping in view these circumstances, we direct Ravinder Kumar (respondent) to pay a sum of ruppes 4,000/- per month to the appellant for maintaining the two daughters. The maintenance amount of Rs.4,000/- shall be paid by the respondent till the time both the girls are married or both of them are in a position to earn their livelihood. We give liberty to the girls to approach the District Judge, Chandigarh for further financial assistance from the respondent at the time of the marriage of any one of them. We also direct that the sum of rupees 4,000/- per month as maintenance awarded by us, shall be the first charge on the property described as house No. 1012, Sector 38-B, Chandigarh owned by respondent Ravinder Kumar. The respondent shall not alienate or dispose of the property or create any encumbrance in respect of the said property without prior permission of the District Judge, Chandigarh. The amount of rupees 4,000/- shall be payable by the respondent to the appellant from January 1, 1995. It shall be paid before 15th of each month in which the maintenance is due.

Sneh Prabha v. Ravinder Kumar [Bench Strength 3], CA 1028/1979 (10/01/1995), 1995 AIR(SC) 2170: 1995(Supp-3) SCC 440: 1996(1) HLR 280 [Kuldip Singh, J.: B.L. Hansaria, J.: S.B. Majmudar, J.] <<LAWPACK SUPREME COURT>>
Private International Law — NRI married Indian girl and left her in India itself — After few days of marriage — Obtained marriage annulment certificate from USA — Suit filed for compensation and ex-parte money decree for Rs. 22 lakhs obtained by wife in India — Execution stayed by High Court of Delhi subject to conditions — Conditions modified by enhancing to deposit amount — Suggestions made to legislate on protection of woman and executability of order/decree passed in India — Hindu Marriage Act, 1955 — Section 13 — Civil Procedure Code, 1908 — Section 44-A.

HELD: For the father-in-law it was an unfortunate experiment, an effort, `hoping against hope’ forgetting that failure of it would be ruination of the other. For the son it was a pleasure trip. But for the daughter-in-law it was loss of everything, her maiden hood, status, service, dignity and peace. Her dreams stood shattered and she is reduced to nothing. `Accepting moral responsibility’, `not knowing the son’, `sharing the grief’ by the father-in-law are of little avail to the appellant. There is no whisper in the letter that he was willing to compensate for the wrong done to the appellant due to error in his assessment of his own son. It is not the soothing words alone which were needed but some practical solution to the disaster brought by him. In these desperate circumstances, the wife having been forsaken by her husband and having lost the job had no alternative except to file a suit for damages against the husband and father-in-law for ruining her life in forma pauperis. And the father-in-law who has words of sympathy for the appellant contested her claim to sue in forma pauperis vehemently, though without any success. The suit was decreed ex-parte for Rs.22 lakhs and odd. In an appeal filed by the respondent No.2 the High Court stayed the operation of the decree subject to the appellant, who is respondent No.2 in this Court, depositing a sum of Rs.1,00,000/- within one month from the date the order was passed. It permitted the appellant to withdraw 50% of it. Various submissions have been advanced on behalf of the father-in-law to support the order of the High Court including his helplessness financially. Is it a case of any sympathy for the father-in-law at this Stage? In our opinion not. True the decree is ex-parte. Yet it is a money decree. However, no opinion is expressed on this aspect as the appeal is pending in the High Court. But the order of the High Court is modified by directing that the execution of the decree shall remain stayed if the respondents deposit a sum of Rs.3,00,000/- including Rs. 1,00,000/- directed by the High Court within a period of two months from today, with the Registrar of the High Court. The appellant shall be entitled to withdraw Rs. 1,00,000/- without any security. The remaining Rs.2,00,000/- shall be deposited in a nationalised bank in fixed deposit. The interest accruing on it shall be paid to the appellant every month. If the proceedings are not decided within reasonable time, it shall be open to the appellant to move an application for withdrawal of further amount.

Why the facts of this case have been narrated in brief with little background is to impress upon the need and necessity for appropriate steps to be taken in this direction to safeguard the interest of women. Although it is a problem of private International Law and is not easy to be resolved, but with change in social structure and rise of marriages with NRI the Union of India may consider enacting a law like the Foreign Judgments (Reciprocal Enforcement) Act, 1933 enacted by the British Parliament under Section (1) in pursuance of which the Government of United Kingdom issued Reciprocal Enforcement of Judgments (India) Order, 1958. Apart from it there are other enactments such as Indian and Colonial Divorce Jurisdiction Act, 1940 which safeguard the interest so far United Kingdom is concerned. But the rule of domicile replacing the nationality rule in most of the countries for assumption of jurisdiction and granting relief in matrimonial matters has resulted in conflict of laws. What this domicile rule is not necessary to be gone into. But feasibility of a legislation safeguarding interest of women may be examined by incorporating such provisions as –

(1) no marriage between a NRI and an Indian woman which has taken place in India may be annulled by a foreign court;

(2) provision may be made for adequate alimony to the wife in the property of the husband both in India and abroad.

(3) the decree granted by Indian courts may be made executable in foreign courts both on principle of comity and by entering into reciprocal agreements like Section 44-A of the Civil Procedure Code which makes a foreign decree executable as it would have been a decree passed by that court.

Neeraja Saraph v. Jayant V.Saraph [Bench Strength 2], CA 6584-85/1994 (06/10/1994), 1994(Supp-4) SCR 289: 1994(6) SCC 461: 1994(6) JT 488: 1994(4) SCALE 445: 1995(1) DMC 478: 1994(2) HLR 451 [R.M. Sahai, J.: N.P. Singh, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13(1)(ia) — Decree of divorce — Practice and Procedure — Remarriage by spouse — No useful purpose likely to be served by going into the merits of the controversy.

Kirti Malhotra v. M.K. Malhotra [Bench Strength 2], CA 2795/1987 (19/07/1994), 1995(Supp-3) SCC 522 [Kuldip Singh, J.: B.L. Hansaria, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 25 — Maintenance to children — Quantum and period of maintenance — Direction given to the husband/father pay Rs.3000/- per month for the maintenance of the son till he attains the age of 27 years.

Kirti Malhotra v. M.K. Malhotra [Bench Strength 2], CA 2795/1987 (19/07/1994), 1995(Supp-3) SCC 522 [Kuldip Singh, J.: B.L. Hansaria, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 13-B — Divorce — The party living separately for more than three years — The marriage between the parties broken down irretrievably and no chances of their coming together — On the basis of joint request decree for divorce granted.

Sandhya Rani v. Kalyanram Narayanan [Bench Strength 2], TP(C) 786/1993 (10/01/1994), 1994(Supp-2) SCC 588 [Kuldip Singh, J.: Yogeshwar Dayal, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 27 & 13 — Claim of Istridhan — Delay and laches — The application filed in proceedings for divorce, after the evidence of the parties was over and two years had passed since the filing of divorce petition — Maintainability of petition under Section 27 — Order dismissing the application, set aside and direction given to the Court below to dispose of the same at the time of passing of decree in divorce petition.

Urmila Rani v. Raj Kishan Gupta [Bench Strength 2], CA 3059/1982 (04/08/1993), 1995(Supp-4) SCC 602 [S. Ratnavel Pandian, J.: R.M. Sahai, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Article 142 — Decree of divorce — Consent of parties — The marriage found to have irretrievably broken down — The parties mutually agreed for divorce — In order to do complete justice between the parties, decree for divorce granted with immediate effect in proceedings for transfer of divorce proceedings pending before Court below — Civil Procedure Code, 1908 — Section 25 — Hindu Marriage Act, 1955 — Section 13-B.

Payal Jindal v. A.K. Jindal [Bench Strength 2], TP(C) 540/1992 (20/11/1992), 1995(Supp-4) SCC 411 [Kuldip Singh, J.: P.B. Sawant, J.] <<LAWPACK SUPREME COURT>>

Entry Filed under: Matrimonial Laws

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