Author Archives: Prachi Singh Advocate,Divorce Lawyer, Family Law Attorney, Divorce Lawyer in Delhi,India.

About Prachi Singh Advocate,Divorce Lawyer, Family Law Attorney, Divorce Lawyer in Delhi,India.

Prachi Singh Advocate, B.Com, LLB,MBA and is Practicing Lawyer at Supreme Court of India,Delhi High Court and all Districts Courts in Delhi and other Jurisdiction of all Indian Courts and forum...She is regularly drafting,advising and contesting matters last so many years in legal field of Family Law & Divorce,Child Custody,Arbitration,Property Matters,Criminal Matters,Domestic Violence,Maintenance,Civil Litigation,Money Suit etc.. PROFESSIONAL MEMBERSHIP WITH: -Supreme Court Bar Association -Delhi High Court Bar Association -Delhi Bar Association -Indian National Bar Association -Associate Member of American Bar Association International Section. -Indian Council of Arbitration (ICA) -Associate Member of The Indian Society of International Law -INTERNATIONAL SOCIETY OF FAMILY LAW Advising on Legal Issues:- -International Commercial Arbitration,arbitral award execution,appointment of arbitrator,objection of claim..etc.., - Family Matters( Divorce,Annulment of Marriage,Mutual Divorce,International Divorce Matters,Maintenance Case,Domestic Violence, all Family Law Matters.) -Property Matters: Partition Suit,Will & probate matters, Succession Matters, Property Injunction Suit,Will Drafting,Collaboration Agreement draft,all property case. -Civil Matters: Recovery of Money Suit,Injunction, declaration Suit,Specific relief matters,Civil Writ Petition..etc.. -Criminal Matters : Bail Matters, Criminal Defense, etc.. -Litigation : supreme Court, High Court,Districts Court,Consumer Court,DRT,etc.. Specialties: Divorce,Family Matters,Civil Law,Criminal Law & property Law. COURT PRACTICE : -Supreme Court of India -Delhi High Court -Karkardooma District Court,Delhi -Tis Hazari District Court,Delhi -Saket District Court,South Delhi -Dawarka District Court,,Delhi -New Delhi District Court at Patiala House Court -Rohni District Court,New Delhi -Debt Recovery Tribunal,Delhi -Central Administrative Tribunal,(CAT),New Delhi -National State Commission,New Delhi -Company Law Board,New Delhi -Con summers Forum at Delhi We also accept out stations High Courts and all districts courts within India.

Legal Status and rights of women’s who are in Live-in-Relationship in India.

What is Live-in-relationship.

There is no legal definition for a live-in relationship. It is understood to be a domestic relationship between two people in a romantic relationship. Sexual intimacy is popularly accepted, although not mandatory.

In the Case Judgment of:

Indira Sarma vs VKV Sarma

The judgment of Indira Sarma vs VKV Sarma by the Supreme Court, came in as a breath of fresh air. Amidst the lack of specific legislation on the subject, the apex court made an important decision to discuss live-in relationships under the pretext of the Domestic Violence Act. The court stated, “Live-in or marriage-like relationship is neither a crime nor a sin though socially unacceptable in this country. The decision to marry or not to marry or to have a heterosexual relationship is intensely personal”.

It was the task of the court to determine whether this live-in relationship fell under the definition of “domestic relationship” under section 2(f) of the Protection of Women from Domestic Violence Act, 2005. Thus the court had to determine if this relationship amounted to a “relationship in the nature of marriage”.

Live-in and domestic violence, nature of relationship:

D.Velusamy vs D.Patchaiammal

The Supreme Court in this case allowed a live-in relationship to come within the purview of the Domestic Violence Act (DV Act), 2005, subject to fulfillment of some additional criterion.

A woman under DV Act can request compensation in case of physical, mental, verbal or economic abuse. The victim has been granted several rights and protections under this legislation. The woman is allowed custody of her children and a right to claim compensation for any harm caused.

In the Velusamy case the relationship was considered as a “relationship in the nature of marriage”. There are certain pre-requisites of such a relationship, for instance, the couple must be of legal marriageable age, they must present themselves in society as akin to spouses, they must have voluntarily cohabited, they must be qualified to marry, therefore be unmarried.

If these guidelines are met, then the relationship is considered to be a marriage, and a complaint can be filed under the DV Act. In the Velusamy case the guidelines were quite vague, however, there are cases where the court suggests specific guidelines for the couple. Such as ‘Domestic Arrangement’, in which case the relationship will only be considered in the nature of marriage if the woman is bearing the responsibility of ‘running the household’. She must do the household activities of cleaning, cooking and maintenance.

So, according to the Supreme Court, a woman’s role in a marriage is restricted only to household activities. Could one suggest then, that a woman who does not fulfil this role is unmarried?

Live-in and having children:

SPS Balasubramanyam  vs  Suruttayan

In this case, the court suggested that since the relationship extended over a long period of time, any child born out of this union will be considered legitimate. There are however, certain complexities in this matter. The Hindu Marriage Act, 1955 considers all children born even out of a wedlock to be legitimate and therefore entitled to any inheritance. Thus inheritance rights have been granted to children of live-in relationships, with respect to both ancestral and self-acquired property.

The more common questions related to this relation are as under:-

1.whether women in live-in relation can claim maintenance under sec.125 of Cr P C.?

  1. legal status ?

3.whether a woman can claim that she should be given a legal status as a wife?

  1. whether child born out of live in relation should get legal status and rights in the property of parents?

5 . whether live in relation is  legalized?

Definition of Marriage according to Wikipedia

Marriage, also called matrimony or wedlock, is a socially or ritually recognized union or legal contract between spouses that establishes rights and obligations between them, between they and their children, and between them and their in-laws. The definition of marriage varies according to different cultures, but it is principally an institution in which interpersonal relationships, usually sexual, are acknowledged. In some cultures, marriage is recommended or considered to be compulsory before pursuing any sexual activity. When defined broadly, marriage is considered a cultural universal.

Individuals may marry for several reasons, including legal, social, libidinal, emotional, financial, spiritual, and religious purposes. Whom they marry may be influenced by socially determined rules of incest, prescriptive marriage rules, parental choice and individual desire.

Marriage in India under Hindu Law.

Marriage. According to general definition, Marriage is a state of being united to a person of the opposite sex as husband or a wife in a consensual and contractual relationship recognized by law. When it comes to Hindu Law, marriage is termed as a sacred relationship.

The Hindu Marriage Act 1955 provides for essential conditions for the validity of a Hindu Marriage, registration of Hindu Marriages, Restitution of Conjugal rights, Judicial separation, Nullity of Marriage, Divorce etc. (Given in Sections 5- 13 under the topic Marriage)
Essentials of Valid Hindu Marriage
Under the Hindu Marriage Act ,1955 certain conditions are necessary for a valid Hindu Marriage. Those conditions have been laid own in Sec 5 and 7of the Act. Section reads as follows.

By virtue of section 5 of the Hindu Marriage Act 1955, a marriage will be valid only if both the parties to the marriage are Hindus. If one of the parties to the marriage is a Christian or Muslim, the marriage will not be a valid Hindu marriage

“A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:-

1.neither party has a spouse living at the time of the marriage;
2.at the time of marriage, neither party:
a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
c) has been subject to recurrent attacks of insanity or epilepsy
3. the bridegroom has completed the age of 21 years and the bride the age of 18 years at the time of marriage;
4. the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two
5.the parties are not sapindas (one is a lineal ascendant of the other) of each other, unless the custom or usage governing each of them permits of a marriage between the two.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2009 OF 2013

(@ SPECIAL LEAVE PETITION (CRL.) NO.4895 OF 2012)

Indra Sarma                             … Appellant

Versus

V.K.V. Sarma                                 … Respondent

J U D G M E N T

K.S. Radhakrishnan, J.

Leave granted.

  1. Live-in or marriage like relationship is neither a crime nor a sin though socially unacceptable in this country. The decision to marry or not to marry or to have a heterosexual relationship is intensely personal.
  2. We are, in this case, concerned with the question whether a “live-in relationship” would amount to a “relationship in the nature of marriage” falling within the definition of “domestic relationship” under Section 2(f)of the Protection of Women from Domestic Violence Act, 2005 (for short “the DV Act”) and the disruption of such a relationship by failure to maintain a women involved in such a relationship amounts to “domestic violence” within the meaning of Section 3of the DV Act.

FACTS:

  1. Appellant and respondent were working together in a private company. The Respondent, who was working as a Personal Officer of the Company, was a married person having two children and the appellant, aged 33 years, was unmarried. Constant contacts between them developed intimacy and in the year 1992, appellant left the job from the above-mentioned Company and started living with the respondent in a shared household. Appellant’s family members, including her father, brother and sister, and also the wife of the respondent, opposed that live-in-relationship. She has also maintained the stand that the respondent, in fact, started a business in her name and that they were earning from that business. After some time, the respondent shifted the business to his residence and continued the business with the help of his son, thereby depriving her right of working and earning. Appellant has also stated that both of them lived together in a shared household and, due to their relationship, appellant became pregnant on three occasions, though all resulted in abortion. Respondent, it was alleged, used to force the appellant to take contraceptive methods to avoid pregnancy. Further, it was also stated that the respondent took a sum of Rs.1,00,000/- from the appellant stating that he would buy a land in her name, but the same was not done. Respondent also took money from the appellant to start a beauty parlour for his wife. Appellant also alleged that, during the year 2006, respondent took a loan of Rs.2,50,000/- from her and had not returned. Further, it was also stated that the respondent, all along, was harassing the appellant by not exposing her as his wife publicly, or permitting to suffix his name after the name of the appellant. Appellant also alleged that the respondent never used to take her anywhere, either to the houses of relatives or friends or functions. Appellant also alleged that the respondent never used to accompany her to the hospital or make joint Bank account, execute documents, etc. Respondent’s family constantly opposed their live-in relationship and ultimately forced him to leave the company of the appellant and it was alleged that he left the company of the appellant without maintaining her.
  2. Appellant then preferred Criminal Misc. No. 692 of 2007 under Section 12of the DV Act before the III Additional Chief Metropolitan Magistrate, Bangalore, seeking the following reliefs:

1) Pass a Protection Order under Section 18 of the DV Act prohibiting the respondent from committing any act of domestic violence against the appellant and her relatives, and further prohibiting the respondent from alienating the assets both moveable and immoveable properties owned by the respondent;

2) Pass a residence order under Section 19 of the DV Act and direct the respondent to provide for an independent residence as being provided by the respondent or in the alternative a joint residence along with the respondent where he is residing presently and for the maintenance of Rs.25,000/- per month regularly as being provided earlier or in the alternative to pay the permanent maintenance charges at the rate of Rs.25,000/- per month for the rest of the life;

3) Pass a monetary order under Section 20 of the DV Act directing the respondent to pay a sum of Rs.75,000/- towards the operation, pre and post operative medication, tests etc and follow up treatments;

4) Pass a compensation order under Section 22 of the DV Act to a sum of Rs.3,50,000/- towards damages for misusing the funds of the sister of the appellant, mental torture and emotional feelings; and

5) Pass an ex-parte interim order under Section 23 of the DV Act directing the respondent to pay Rs.75,000/- towards the medical expenses and pay the maintenance charges @ Rs.25,000/- per month as being paid by the respondent earlier.

  1. Respondent filed detailed objections to the application stating that it was on sympathetical grounds that he gave shelter to her in a separate house after noticing the fact that she was abandoned by her parents and relatives, especially after the demise of her father. She had also few litigations against her sister for her father’s property and she had approached the respondent for moral as well as monetary support since they were working together in a Company. The respondent has admitted that he had cohabited with the appellant since 1993. The fact that he was married and had two children was known to the appellant. Pregnancy of the appellant was terminated with her as well as her brother’s consent since she was not maintaining good health. The respondent had also spent large amounts for her medical treatment and the allegation that he had taken money from the appellant was denied. During the month of April, 2007, the respondent had sent a cheque for Rs.2,50,000/- towards her medical expenses, drawn in the name of her sister which was encashed. Further, it was stated, it was for getting further amounts and to tarnish the image of the respondent, the application was preferred under the DV Act. Before the learned Magistrate, appellant examined herself as P.W.1 and gave evidence according to the averments made in the petition. Respondent examined himself as R.W.1. Child Development Project Officer was examined as R.W.2. The learned Magistrate found proof that the parties had lived together for a considerable period of time, for about 18 years, and then the respondent left the company of the appellant without maintaining her. Learned Magistrate took the view that the plea of “domestic violence” had been established, due to the non-maintenance of the appellant and passed the order dated 21.7.2009 directing the respondent to pay an amount of Rs.18,000/- per month towards maintenance from the date of the petition.
  2. Respondent, aggrieved by the said order of the learned Magistrate, filed an appeal before the Sessions Court under Section 29of the DV Act. The Appellate Court, after having noticed that the respondent had admitted the relationship with appellant for over a period of 14 years, took the view that, due to their live-in relationship for a considerable long period, non-maintenance of the appellant would amount to domestic violence within the meaning of Section 3of the DV Act. The appellate Court also concluded that the appellant has no source of income and that the respondent is legally obliged to maintain her and confirmed the order passed by the learned Magistrate.
  3. The respondent took up the matter in appeal before the High Court. It was contended before the High Court that the appellant was aware of the fact that the respondent was a married person having two children, yet she developed a relationship, in spite of the opposition raised by the wife of the respondent and also by the appellant’s parents. Reliance was also placed on the judgment of this Court in D. Velusamy v. D. Patchaiammal(2010) 10 SCC 469 and submitted that the tests laid down in Velusamy case (supra) had not been satisfied. The High Court held that the relationship between the parties would not fall within the ambit of “relationship in the nature of marriage” and the tests laid down in Velusamy case (supra) have not been satisfied. Consequently, the High Court allowed the appeal and set aside the order passed by the Courts below. Aggrieved by the same, this appeal has been preferred.
  4. Shri Anish Kumar Gupta, learned counsel appearing for the appellant, submitted that the relationship between the parties continued from 1992 to 2006 and since then, the respondent started avoiding the appellant without maintaining her. Learned counsel submitted that the relationship between them constituted a “relationship in the nature of marriage” within the meaning of Section 2(f)of the DV Act, which takes in every relationship by a man with a woman, sharing household, irrespective of the fact whether the respondent is a married person or not. Learned counsel also submitted that the tests laid down in Velusamy case (supra) have also been satisfied.
  5. Ms. Jyotika Kalra, learned amicus curiae, took us elaborately through the provisions of the DV Actas well as the objects and reasons for enacting such a legislation. Learned amicus curiae submitted that the Act is intended to provide for protection of rights of women who are victims of violence of any type occurring in the family. Learned amicus curiae also submitted that the various provisions of the DV Actare intended to achieve the constitutional principles laid down inArticle 15(3), reinforced vide Article 39 of the Constitution of India. Learned amicus curiae also made reference to the Malimath Committee report and submitted that a man who marries a second wife, during the subsistence of the first wife, should not escape his liability to maintain his second wife, even under Section 125 CrPC. Learned amicus curiae also referred to a recent judgment of this Court in Deoki Panjhiyara v. Shashi Bhushan Narayan Azad and Another (2013) 2 SCC 137 in support of her contention.
  6. Mr. Nikhil Majithia, learned counsel appearing for the respondent, made extensive research on the subject and made available valuable materials. Learned counsel referred to several judgments of the Constitutional Courts of South Africa, Australia, New Zealand, Canada, etc. and also referred to parallel legislations on the subject in other countries. Learned counsel submitted that the principle laid down in Velusamy case (supra) has been correctly applied by the High Court and, on facts, appellant could not establish that their relationship is a “relationship in the nature of marriage” so as to fall within Section 2(f)of the DV Act. Learned counsel also submitted that the parties were not qualified to enter into a legal marriage and the appellant knew that the respondent was a married person. Further, the appellant was not a victim of any fraudulent or bigamous marriage and it was a live-in relationship for mutual benefits, consequently, the High Court was right in holding that there has not been any domestic violence, within the scope ofSection 3of the DV Act entitling the appellant to claim maintenance.
  7. We have to examine whether the non maintenance of the appellant in a broken live-in-relationship, which is stated to be a relationship not in the nature of a marriage, will amount to “domestic violence” within the definition of Section 3of the DV Act, enabling the appellant to seek one or more reliefs provided under Section 12of the DV Act.
  8. Before examining the various issues raised in this appeal, which have far reaching consequences with regard to the rights and liabilities of parties indulging in live-in relationship, let us examine the relevant provisions of the DV Actand the impact of those provisions on such relationships.

D.V. ACT

  1. The D.V. Acthas been enacted to provide a remedy in Civil Law for protection of women from being victims of domestic violence and to prevent occurrence of domestic violence in the society.The DV Act has been enacted also to provide an effective protection of the rights of women guaranteed under the Constitution, who are victims of violence of any kind occurring within the family.
  2. “Domestic Violence” is undoubtedly a human rights issue, which was not properly taken care of in this country even though the Vienna Accord 1994 and the Beijing Declaration and Platform for Action (1995) had acknowledged that domestic violence was undoubtedly a human rights issue. UN Committee on Convention on Elimination of All Forms of Discrimination Against Women in its general recommendations had also exhorted the member countries to take steps to protect women against violence of any kind, especially that occurring within the family, a phenomenon widely prevalent in India. Presently, when a woman is subjected to cruelty by husband or his relatives, it is an offence punishable under Section 498AIPC. The Civil Law, it was noticed, did not address this phenomenon in its entirety. Consequently, the Parliament, to provide more effective protection of rights of women guaranteed under the Constitution under Articles 14, 15 and 21, who are victims of violence of any kind occurring in the family, enacted theDV Act.
  3. Chapter IV is the heart and soul of the DV Act, which provides various reliefs to a woman who has or has been in domestic relationship with any adult male person and seeks one or more reliefs provided under the Act. The Magistrate, while entertaining an application from an aggrieved person under Section 12of the DV Act, can grant the following reliefs:

1) Payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for injuries caused by the acts of domestic violence committed by the adult male member, with a prayer for set off against the amount payable under a decree obtained in Court;

2) The Magistrate, under Section 18 of the DV Act, can pass a “protection order” in favour of the aggrieved person and prohibit the respondent from:

  1. a) committing any act of domestic violence;
  2. b) aiding or abetting in the commission of acts of domestic violence;
  3. c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person;
  4. d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact;
  5. e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate;
  6. f) causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence;
  7. g) committing any other act as specified in the protection order.

3) The Magistrate, while disposing of an application under Section 12(1) of the DV Act, can pass a “residence order” under Section 19 of the DV Act, in the following manner:

“19. Residence orders.- (1) While disposing of an application under sub- section (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order-

  1. a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;
  2. b) directing the respondent to remove himself from the shared household;

(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;

(d) restraining the respondent from alienating or disposing off the shared household or encumbering the same;

(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or

(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require:

Provided that no order under clause (b) shall be passed against any person who is a woman.

xxx           xxx        xxx

xxx           xxx        xxx”

(4) An aggrieved person, while filing an application under Section 12(1) of the DV Act, is also entitled, under Section 20 of the DV Act, to get “monetary reliefs” to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but is not limited to,-

“20. Monetary reliefs.- (1) While disposing of an application under sub- section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but not limited to,-

(a) the loss of earnings;

(b) the medical expenses;

(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and

(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974 ) or any other law for the time being in force.

xxx         xxx        xxx

xxx         xxx        xxx”

The monetary reliefs granted under the above mentioned section shall be adequate, fair, reasonable and consistent with the standard of living to which an aggrieved person is accustomed and the Magistrate has the power to order an appropriate lump sum payment or monthly payments of maintenance.

(5) The Magistrate, under Section 21 of the DV Act, has the power to grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf and specify, if necessary, the arrangements for visit of such child or children by the respondent.

(6) The Magistrate, in addition to other reliefs, under Section 22 of the DV Act, can pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by the respondent.

  1. Section 26of the DV Act provides that any relief available under Sections 18192021 and 22may also be sought in any legal proceeding, before a Civil Court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act. Further, any relief referred to above may be sought for in addition to and along with any other reliefs that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court. Further, if any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief.
  2. Section 3of the DV Act deals with “domestic violence” and reads as under:

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

(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or

(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

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

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

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

(iii) “verbal and emotional abuse” includes-

(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and

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

(iv) “economic abuse” includes-

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

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

(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.

Explanation II.- For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes” domestic violence” under this section, the overall facts and circumstances of the case shall be taken into consideration.”

  1. In order to examine as to whether there has been any act, omission, or commission or conduct so as to constitute domestic violence, it is necessary to examine some of the definition clauses under Section 2of the DV Act. Section 2(a)of the DV Act defines the expression “aggrieved person” as follows:

“2(a). “Aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.” Section 2(f) defines the expression “domestic relationship” as follows:

“2(f). “Domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.” Section 2(q) defines the expression “respondent” as follows:

“2(q). “Respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:

Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.” Section 2(s) defines the expression “shared household” and reads as follows:

“2(s). “shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.”

  1. We are, in this case, concerned with a “live-in relationship” which, according to the aggrieved person, is a “relationship in the nature of marriage” and it is that relationship which has been disrupted in the sense that the respondent failed to maintain the aggrieved person, which, according to the appellant, amounts to “domestic violence”. The respondent maintained the stand that the relationship between the appellant and the respondent was not a relationship in the nature of marriage but a live-in-relationship simplicitor and the alleged act, omission, commission or conduct of the respondent would not constitute “domestic violence” so as to claim any protection orders under Section 1819or 20 of the DV Act.
  2. We have to first examine whether the appellant was involved in a domestic relationship with the respondent. Section 2(f)refers to five categories of relationship, such as, related by consanguinity, marriage, relationship in the nature of marriage, adoption, family members living together as a joint family, of which we are, in this case, concerned with an alleged relationship in the nature of marriage.
  3. Before we examine whether the respondent has committed any act of domestic violence, we have to first examine whether the relationship between them was a “relationship in the nature of marriage” within the definition of Section 3read with Section 2(f)of the DV Act. Before examining the term “relationship in the nature of marriage”, we have to first examine what is “marriage”, as understood in law.

MARRIAGE AND MARITAL RELATIONSHIP:

  1. Marriage is often described as one of the basic civil rights of man/woman, which is voluntarily undertaken by the parties in public in a formal way, and once concluded, recognizes the parties as husband and wife. Three elements of common law marriage are (1) agreement to be married (2) living together as husband and wife, (3) holding out to the public that they are married. Sharing a common household and duty to live together form part of the ‘Consortium Omnis Vitae” which obliges spouses to live together, afford each other reasonable marital privileges and rights and be honest and faithful to each other. One of the most important invariable consequences of marriage is the reciprocal support and the responsibility of maintenance of the common household, jointly and severally. Marriage as an institution has great legal significance and various obligations and duties flow out of marital relationship, as per law, in the matter of inheritance of property, successionship, etc. Marriage, therefore, involves legal requirements of formality, publicity, exclusivity and all the legal consequences flow out of that relationship.
  2. Marriages in India take place either following the personal Law of the Religion to which a party is belonged or following the provisions of the Special Marriage Act. Marriage, as per the Common Law, constitutes a contract between a man and a woman, in which the parties undertake to live together and support each other. Marriage, as a concept, is also nationally and internationally recognized. O’Regan, J., in Dawood and Another v. Minister of Home Affairs and Others 2000 (3) SA 936 (CC) noted as follows:

“Marriage and the family are social institutions of vital importance. Entering into and sustaining a marriage is a matter of intense private significance to the parties to that marriage for they make a promise to one another to establish and maintain an intimate relationship for the rest of their lives which they acknowledge obliges them to support one another, to live together and to be faithful to one another. Such relationships are of profound significance to the individuals concerned. But such relationships have more than personal significance at least in part because human beings are social beings whose humanity is expressed through their relationships with others. Entering into marriage therefore is to enter into a relationship that has public significance as well.

The institutions of marriage and the family are important social institutions that provide for the security, support and companionship of members of our society and bear an important role in the rearing of children. The celebration of a marriage gives rise to moral and legal obligations, particularly the reciprocal duty of support placed upon spouses and their joint responsibility for supporting and raising children born of the marriage. These legal obligations perform an important social function. This importance is symbolically acknowledged in part by the fact that marriage is celebrated generally in a public ceremony, often before family and close friends….”

  1. South African Constitutional Court in various judgments recognized the above mentioned principle. In Satchwell v. President of the Republic of South Africa and Another 2002 (6) SA 1 (CC), Du Toit and Another v. Minister of Welfare and Population Development and Others (Lesbian and Gay Equality Project as Amicus Curiae) 2003 (2) SA 198 (CC), the Constitutional Court of South Africa recognized the right “free to marry and to raise family”. Section 15(3)(a)(i) of the Constitution of South Africa, in substance makes provision for the recognition of “marriages concluded under the tradition, or a system of religious, personal or family law.” Section 9(3) of the Constitution of South Africa reads as follows:

“The State may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.”

  1. Article 23of the International Covenant on Civil and Political Rights, 1966 (ICCPR) provides that:

“1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

  1. The right of men and women of marriageable age to marry and to found a family shall be recognized.
  2. No marriage shall be entered into without the free and full consent of the intending spouses.
  3. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.”
  4. Article 16of the Universal Declaration of Human Rights, 1948 provides that:

“1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at it dissolution.

  1. Marriage shall be entered into only with the free and full consent of the intending spouses.
  2. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”
  3. Parties in the present case are Hindus by religion and are governed by the Hindu Marriage Act, 1955. The expression “marriage”, as stated, is not defined under the Hindu Marriage Act, but the “conditions for a Hindu marriage” are dealt with in Section 5of the Hindu Marriage Act and which reads as under:

“5. Conditions for a Hindu marriage – A marriage may be solemnized between any two hindus, if the following conditions are fulfilled, namely:-

(i)  neither party has a spouse living at the time of the marriage

(ii) at the time of the marriage, neither party-

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(c) has been subject to recurrent attacks of insanity;

(iii) the bridegroom has completed the age of twenty- one years and the bride the age of eighteen years at the time of the marriage;

(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;

(v)  the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.”

  1. Section 7of the Hindu Marriage Act deals with the “Ceremonies for a Hindu marriage” and reads as follows:

“7. Ceremonies for a Hindu marriage. –

(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.

(2) Where such rites and ceremonies include the saptapadi (that is, 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.”

  1. Entering into a marriage, therefore, either through the Hindu Marriage Actor the Special Marriage Actor any other Personal Law, applicable to the parties, is entering into a relationship of “public significance”, since marriage being a social institution, many rights and liabilities flow out of that legal relationship. The concept of marriage as a “civil right” has been recognised by various courts all over the world, for example, Skinner v. Oklahoma 316 US 535 (1942), Perez v. Lippold 198 P.2d 17, 20.1 (1948), Loving v. Virginia 388 US 1 (1967).
  2. We have referred to, in extenso, about the concept of “marriage and marital relationship” to indicate that the law has distinguished between married and unmarried people, which cannot be said to be unfair when we look at the rights and obligations which flow out of the legally wedded marriage. A married couple has to discharge legally various rights and obligations, unlike the case of persons having live-in relationship or, marriage-like relationship or defacto relationship.
  3. Married couples who choose to marry are fully cognizant of the legal obligation which arises by the operation of law on solemnization of the marriage and the rights and duties they owe to their children and the family as a whole, unlike the case of persons entering into live-in relationship. This Court in Pinakin Mahipatray Rawal v. State of Gujarat(2013) 2 SCALE 198 held that marital relationship means the legally protected marital interest of one spouse to another which include marital obligation to another like companionship, living under the same roof, sexual relation and the exclusive enjoyment of them, to have children, their up-bringing, services in the home, support, affection, love, liking and so on.

RELATIONSHIP IN THE NATURE OF MARRIAGE:

  1. Modern Indian society through the DV Actrecognizes in reality, various other forms of familial relations, shedding the idea that such relationship can only be through some acceptable modes hitherto understood. Section 2(f), as already indicated, deals with a relationship between two persons (of the opposite sex) who live or have lived together in a shared household when they are related by:
  2. a) Consanguinity
  3. b) Marriage
  4. c) Through a relationship in the nature of marriage
  5. d) Adoption
  6. e) Family members living together as joint family.
  7. The definition clause mentions only five categories of relationships which exhausts itself since the expression “means”, has been used. When a definition clause is defined to “mean” such and such, the definition is prima facie restrictive and exhaustive. Section 2(f)has not used the expression “include” so as to make the definition exhaustive. It is in that context we have to examine the meaning of the expression “relationship in the nature of marriage”.
  8. We have already dealt with what is “marriage”, “marital relationship” and “marital obligations”. Let us now examine the meaning and scope of the expression “relationship in the nature of marriage” which falls within the definition of Section 2(f)of the DV Act. Our concern in this case is of the third enumerated category that is “relationship in the nature of marriage” which means a relationship which has some inherent or essential characteristics of a marriage though not a marriage legally recognized, and, hence, a comparison of both will have to be resorted, to determine whether the relationship in a given case constitutes the characteristics of a regular marriage.
  9. Distinction between the relationship in the nature of marriage and marital relationship has to be noted first. Relationship of marriage continues, notwithstanding the fact that there are differences of opinions, marital unrest etc., even if they are not sharing a shared household, being based on law. But live-in-relationship is purely an arrangement between the parties unlike, a legal marriage. Once a party to a live-in- relationship determines that he/she does not wish to live in such a relationship, that relationship comes to an end. Further, in a relationship in the nature of marriage, the party asserting the existence of the relationship, at any stage or at any point of time, must positively prove the existence of the identifying characteristics of that relationship, since the legislature has used the expression “in the nature of”.
  10. Reference to certain situations, in which the relationship between an aggrieved person referred to in Section 2(a)and the respondent referred to in Section 2(q)of the DV Act, would or would not amount to a relationship in the nature of marriage, would be apposite. Following are some of the categories of cases which are only illustrative:
  11. a) Domestic relationship between an unmarried adult woman and an unmarried adult male: Relationship between an unmarried adult woman and an unmarried adult male who lived or, at any point of time lived together in a shared household, will fall under the definition of Section 2(f)of the DV Act and in case, there is any domestic violence, the same will fall under Section 3of the DV Act and the aggrieved person can always seek reliefs provided under Chapter IV of the DV Act.
  12. b) Domestic relationship between an unmarried woman and a married adult male: Situations may arise when an unmarried adult women knowingly enters into a relationship with a married adult male. The question is whether such a relationship is a relationship “in the nature of marriage” so as to fall within the definition of Section 2(f)of the DV Act.
  13. c) Domestic relationship between a married adult woman and an unmarried adult male: Situations may also arise where an adult married woman, knowingly enters into a relationship with an unmarried adult male, the question is whether such a relationship would fall within the expression relationship “in the nature of marriage”.
  14. d) Domestic relationship between an unmarried woman unknowingly enters into a relationship with a married adult male: An unmarried woman unknowingly enters into a relationship with a married adult male, may, in a given situation, fall within the definition of Section 2(f)of the DV Act and such a relationship may be a relationship in the “nature of marriage”, so far as the aggrieved person is concerned.
  15. e) Domestic relationship between same sex partners (Gay and Lesbians): DV Actdoes not recognize such a relationship and that relationship cannot be termed as a relationship in the nature of marriage under the Act. Legislatures in some countries, like the Interpretation Act, 1984 (Western Australia), the Interpretation Act, 1999 (New Zealand), the Domestic Violence Act, 1998 (South Africa), the Domestic Violence, Crime and Victims Act, 2004 (U.K.), have recognized the relationship between the same sex couples and have brought these relationships into the definition of Domestic relationship.
  16. Section 2(f)of the DV Act though uses the expression “two persons”, the expression “aggrieved person” under Section 2(a) takes in only “woman”, hence, the Act does not recognize the relationship of same sex (gay or lesbian) and, hence, any act, omission, commission or conduct of any of the parties, would not lead to domestic violence, entitling any relief under theDV Act.
  17. We should, therefore, while determining whether any act, omission, commission or conduct of the respondent constitutes “domestic violence”, have a common sense/balanced approach, after weighing up the various factors which exist in a particular relationship and then reach a conclusion as to whether a particular relationship is a relationship in the “nature of marriage”. Many a times, it is the common intention of the parties to that relationship as to what their relationship is to be, and to involve and as to their respective roles and responsibilities, that primarily governs that relationship. Intention may be expressed or implied and what is relevant is their intention as to matters that are characteristic of a marriage. The expression “relationship in the nature of marriage”, of course, cannot be construed in the abstract, we must take it in the context in which it appears and apply the same bearing in mind the purpose and object of the Act as well as the meaning of the expression “in the nature of marriage”. Plight of a vulnerable section of women in that relationship needs attention. Many a times, the women are taken advantage of and essential contribution of women in a joint household through labour and emotional support have been lost sight of especially by the women who fall in the categories mentioned in (a) and (d) supra. Women, who fall under categories (b) and (c), stand on a different footing, which we will deal with later. In the present case, the appellant falls under category (b), referred to in paragraph 37(b) of the Judgment.
  18. We have, therefore, come across various permutations and combinations, in such relationships, and to test whether a particular relationship would fall within the expression “relationship in the nature of marriage”, certain guiding principles have to be evolved since the expression has not been defined in the Act.
  19. Section 2(f)of the DV Act defines “domestic relationship” to mean, inter alia, a relationship between two persons who live or have lived together at such point of time in a shared household, through a relationship in the nature of marriage. The expression “relationship in the nature of marriage” is also described as defacto relationship, marriage – like relationship, cohabitation, couple relationship, meretricious relationship (now known as committed intimate relationship) etc.
  20. Courts and legislatures of various countries now began to think that denying certain benefits to a certain class of persons on the basis of their marital status is unjust where the need of those benefits is felt by both unmarried and married cohabitants. Courts in various countries have extended certain benefits to heterosexual unmarried cohabitants. Legislatures too, of late, through legislations started giving benefits to heterosexual cohabitants.
  21. In U.K. through the Civil Partnership Act, 2004, the rights of even the same-sex couple have been recognized. Family Law Act, 1996, through the Chapter IV, titled ‘Family Homes and Domestic Violence’, cohabitants can seek reliefs if there is domestic violence. Canada has also enacted the Domestic Violence Intervention Act, 2001. In USA, the violence against woman is a crime with far-reaching consequences under the Violence Against Women Act, 1994 (now Violence Against Women Reauthorization Act, 2013).
  22. The Interpretation Act, 1984 (Australia) has laid down certain indicators to determine the meaning of “de facto relationship”, which are as follows:

“13A . De facto relationship and de facto partner, references to (1) A reference in a written law to a de facto relationship shall be construed as a reference to a relationship (other than a legal marriage) between 2 persons who live together in a marriage-like relationship.

(2) The following factors are indicators of whether or not a de facto relationship exists between 2 persons, but are not essential —

(a) the length of the relationship between them;

(b)   whether the 2 persons have resided together;

(c)   the nature and extent of common residence;

(d)   whether there is, or has been, a sexual relationship between them;

(e) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

(f)  the ownership, use and acquisition of their property (including property they own individually);

(g) the degree of mutual commitment by them to a shared life;

(h)  whether they care for and support children;

(i)  the reputation, and public aspects, of the relationship between them.

xxx            xxx        xxx

xxx            xxx        xxx”

  1. The Domestic and Family Violence Protection Act, 2012 (Queensland) has defined the expression “couple relationship” to mean as follows”:

“18. Meaning of couple relationship

1) xxx xxx xxx

2) In deciding whether a couple relationship exists, a court may have regard to the following –

  1. a) the circumstances of the relationship between the persons, including, for example–

(i) the degree of trust between the persons; and

(ii) the level of each person’s dependence on, and commitment to, the other person;

  1. b) the length of time for which the relationship has existed or did exist;
  2. c) the frequency of contact between the persons;
  3. d) the degree of intimacy between the persons.

3) Without limiting sub-section (2), the court may consider the following factors in deciding whether a couple relationship exists-

  1. a) Whether the trust, dependence or commitment is or was of the same level;
  2. b) Whether one of the persons is or was financially dependent on the other;
  3. c) Whether the persons jointly own or owned any property;
  4. d) Whether the persons have or had joint bank accounts;
  5. e) Whether the relationship involves or involved a relationship of a sexual nature;
  6. f) Whether the relationship is or was exclusive.

4) A couple relationship may exist even if the court makes a negative finding in relation to any or all of the factors mentioned in subsection (3).

5) A couple relationship may exist between two persons whether the persons are of the same or a different gender.

6) A couple relationship does not exist merely because two persons date or dated each other on a number of occasions.”

  1. The Property (Relationships) Act, 1984 of North South Wales, Australia also provides for some guidelines with regard to the meaning and content of the expression “de facto relationship”, which reads as follows:

1 “4 De facto relationships (1) For the purposes of this Act, a de facto relationship is a relationship between two adult persons:

(a) who live together as a couple, and

(b) who are not married to one another or related by family. (2) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case:

(a) the duration of the relationship,

(b) the nature and extent of common residence,

(c) whether or not a sexual relationship exists,

(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties,

(e) the ownership, use and acquisition of property,

(f) the degree of mutual commitment to a shared life,

(g) the care and support of children,

(h) the performance of household duties,

(i) the reputation and public aspects of the relationship.

(3) No finding in respect of any of the matters mentioned in subsection (2) (a)-(i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship, and a court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

(4) Except as provided by section 6, a reference in this Act to a party to a de facto relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship.”

  1. “In Re Marriage of Lindsay, 101 Wn.2d 299 (1984), Litham v. Hennessey 87 Wn.2d 550 (1976), Pennington 93 Wash.App. at 917, the Courts in United States took the view that the relevant factors establishing a meretricious relationship include continuous cohabitation, duration of the relationship, purpose of the relationship, and the pooling of resources and services for joint projects. The Courts also ruled that a relationship need not be “long term” to be characterized as meretricious relationship. While a long term relationship is not a threshold requirement, duration is a significant factor. Further, the Court also noticed that a short term relationship may be characterized as a meretricious, but a number of other important factors must be present.
  2. In Stack v. Dowden [2007] 2 AC 432, Baroness Hale of Richmond said:

“Cohabitation comes in many different shapes and sizes. People embarking on their first serious relationship more commonly cohabit than marry. Many of these relationships may be quite short-lived and childless. But most people these days cohabit before marriage….. So many couples are cohabiting with a view to marriage at some later date – as long ago as 1998 the British Household Panel Survey found that 75% of current cohabitants expected to marry, although only a third had firm plans: John Ermisch, Personal Relationships and Marriage Expectations (2000) Working Papers of the Institute of Social and Economic Research: Paper 2000-27. Cohabitation is much more likely to end in separation than is marriage, and cohabitations which end in separation tend to last for a shorter time than marriages which end in divorce. But increasing numbers of couples cohabit for long periods without marrying and their reasons for doing so vary from conscious rejection of marriage as a legal institution to regarding themselves ‘as good as married’ anyway: Law Commission, Consultation Paper No 179, Part 2, para 2.45.”

  1. In MW v. The Department of Community Services [2008] HCA 12, Gleeson, CJ, made the following observations:

“Finn J was correct to stress the difference between living together and living together ‘as a couple in a relationship in the nature of marriage or civil union’. The relationship between two people who live together, even though it is a sexual relationship, may, or may not, be a relationship in the nature of marriage or civil union. One consequence of relationships of the former kind becoming commonplace is that it may now be more difficult, rather than easier, to infer that they have the nature of marriage or civil union, at least where the care and upbringing of children are not involved.”

  1. In Lynam v. The Director-General of Social Security (1983) 52 ALR 128, the Court considered whether a man and a woman living together ‘as husband and wife on a bona fide domestic basis’ and Fitzgerald, J. said:

“Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.”

  1. Tipping, J. in Thompson v. Department of Social Welfare (1994) 2 SZLR 369 (HC), listed few characteristics which are relevant to determine relationship in the nature of marriage as follows:

“(1) Whether and how frequently the parties live in the same house. (2) Whether the parties have a sexual relationship. (3) Whether the parties give each other emotional support and companionship.

(4) Whether the parties socialize together or attend activities together as a couple.

(5) Whether and to what extent the parties share the responsibility for bringing up and supporting any relevant children. (6) Whether the parties share household and other domestic tasks. (7) Whether the parties share costs and other financial responsibilities by the pooling of resources or otherwise. (8) Whether the parties run a common household, even if one or other partner is absent for periods of time.

(9) Whether the parties go on holiday together. (10) Whether the parties conduct themselves towards, and are treated by friends, relations and others as if they were a married couple.”

  1. Live-in relationship, as such, as already indicated, is a relationship which has not been socially accepted in India, unlike many other countries. In Lata Singh v. State of U.P. [AIR 2006 SC 2522] it was observed that a live-in relationship between two consenting adults of heterosexual sex does not amount to any offence even though it may be perceived as immoral. However, in order to provide a remedy in Civil Law for protection of women, from being victims of such relationship, and to prevent the occurrence of domestic violence in the society, first time in India, the DV Acthas been enacted to cover the couple having relationship in the nature of marriage, persons related by consanguinity, marriages etc. We have few other legislations also where reliefs have been provided to woman placed in certain vulnerable situations.
  2. Section 125Cr.P.C., of course, provides for maintenance of a destitute wife and Section 498AIPC is related to mental cruelty inflicted on women by her husband and in-laws. Section 304-BIPC deals with the cases relating to dowry death. The Dowry Prohibition Act, 1961 was enacted to deal with the cases of dowry demands by the husband and family members. The Hindu Adoptions and Maintenance Act, 1956 provides for grant of maintenance to a legally wedded Hindu wife, and also deals with rules for adoption. The Hindu Marriage Act, 1955 refers to the provisions dealing with solemnization of marriage also deals with the provisions for divorce. For the first time, through, the DV Act, the Parliament has recognized a “relationship in the nature of marriage” and not a live-in relationship simplicitor.
  3. We have already stated, when we examine whether a relationship will fall within the expression “relationship in the nature of marriage” within the meaning of Section 2(f)of the DV Act, we should have a close analysis of the entire relationship, in other words, all facets of the interpersonal relationship need to be taken into account. We cannot isolate individual factors, because there may be endless scope for differences in human attitudes and activities and a variety of combinations of circumstances which may fall for consideration. Invariably, it may be a question of fact and degree, whether a relationship between two unrelated persons of the opposite sex meets the tests judicially evolved.
  4. We may, on the basis of above discussion cull out some guidelines for testing under what circumstances, a live-in relationship will fall within the expression “relationship in the nature of marriage” under Section 2(f)of the DV Act. The guidelines, of course, are not exhaustive, but will definitely give some insight to such relationships.

1) Duration of period of relationship Section 2(f) of the DV Act has used the expression “at any point of time”, which means a reasonable period of time to maintain and continue a relationship which may vary from case to case, depending upon the fact situation.

(2) Shared household The expression has been defined under Section 2(s) of the DV Act and, hence, need no further elaboration.

(3) Pooling of Resources and Financial Arrangements Supporting each other, or any one of them, financially, sharing bank accounts, acquiring immovable properties in joint names or in the name of the woman, long term investments in business, shares in separate and joint names, so as to have a long standing relationship, may be a guiding factor.

(4) Domestic Arrangements Entrusting the responsibility, especially on the woman to run the home, do the household activities like cleaning, cooking, maintaining or upkeeping the house, etc. is an indication of a relationship in the nature of marriage.

(5) Sexual Relationship Marriage like relationship refers to sexual relationship, not just for pleasure, but for emotional and intimate relationship, for procreation of children, so as to give emotional support, companionship and also material affection, caring etc. (6) Children Having children is a strong indication of a relationship in the nature of marriage. Parties, therefore, intend to have a long standing relationship. Sharing the responsibility for bringing up and supporting them is also a strong indication.

(7) Socialization in Public Holding out to the public and socializing with friends, relations and others, as if they are husband and wife is a strong circumstance to hold the relationship is in the nature of marriage.

(8) Intention and conduct of the parties Common intention of parties as to what their relationship is to be and to involve, and as to their respective roles and responsibilities, primarily determines the nature of that relationship.

STATUS OF THE APPELLANT

  1. Appellant, admittedly, entered into a live-in-relationship with the respondent knowing that he was married person, with wife and two children, hence, the generic proposition laid down by the Privy Council in Andrahennedige Dinohamy v. Wiketunge Liyanapatabendage Balshamy, AIR 1927 PC 185, that where a man and a woman are proved to have lived together as husband and wife, the law presumes that they are living together in consequence of a valid marriage will not apply and, hence, the relationship between the appellant and the respondent was not a relationship in the nature of a marriage, and the status of the appellant was that of a concubine. A concubine cannot maintain a relationship in the nature of marriage because such a relationship will not have exclusivity and will not be monogamous in character. Reference may also be made to the judgments of this Court in Badri Prasad v. Director of Consolidation1978 (3) SCC 527 andTulsa v. Durghatiya2008 (4) SCC 520. In Gokal Chand v. Parvin Kumari AIR 1952 SC 231 this Court held that the continuous cohabitation of man and woman as husband and wife may raise the presumption of marriage, but the presumption which may be drawn from long cohabition is a rebuttable one and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore them. Polygamy, that is a relationship or practice of having more than one wife or husband at the same time, or a relationship by way of a bigamous marriage that is marrying someone while already married to another and/or maintaining an adulterous relationship that is having voluntary sexual intercourse between a married person who is not one’s husband or wife, cannot be said to be a relationship in the nature of marriage.
  2. We may note, in the instant case, there is no necessity to rebut the presumption, since the appellant was aware that the respondent was a married person even before the commencement of their relationship, hence the status of the appellant is that of a concubine or a mistress, who cannot enter into relationship in the nature of a marriage. Long standing relationship as a concubine, though not a relationship in the nature of a marriage, of course, may at times, deserves protection because that woman might not be financially independent, but we are afraid that DV Actdoes not take care of such relationships which may perhaps call for an amendment of the definition of Section 2(f)of the DV Act, which is restrictive and exhaustive.
  3. Velusamy case (supra) stated that instances are many where married person maintain and support such types of women, either for sexual pleasure or sometimes for emotional support. Woman, a party to that relationship does suffer social disadvantages and prejudices, and historically, such a person has been regarded as less worthy than the married woman. Concubine suffers social ostracism through the denial of status and benefits, who cannot, of course, enter into a relationship in the nature of marriage.
  4. We cannot, however, lose sight of the fact that inequities do exist in such relationships and on breaking down such relationship, the woman invariably is the sufferer. Law of Constructive Trust developed as a means of recognizing the contributions, both pecuniary and non-pecuniary, perhaps comes to their aid in such situations, which may remain as a recourse for such a woman who find herself unfairly disadvantaged. Unfortunately, there is no express statutory provision to regulate such types of live-in relationships upon termination or disruption since those relationships are not in the nature of marriage. We can also come across situations where the parties entering into live-in-relationship and due to their joint efforts or otherwise acquiring properties, rearing children, etc. and disputes may also arise when one of the parties dies intestate.
  5. American Jurisprudence, Second Edition, Vol. 24 (2008) speaks of Rights and Remedies of property accumulated by man and woman living together in illicit relations or under void marriage, which reads as under:

“Although the courts have recognized the property rights of persons cohabiting without benefit of marriage, these rights are not based on the equitable distribution provisions of the marriage and divorce laws because the judicial recognition of mutual property rights between unmarried cohabitants would violate the policy of the state to strengthen and preserve the integrity of marriage, as demonstrated by its abolition of common-law marriage.”

  1. Such relationship, it may be noted, may endure for a long time and can result pattern of dependency and vulnerability, and increasing number of such relationships, calls for adequate and effective protection, especially to the woman and children born out of that live-in-relationship. Legislature, of course, cannot promote pre-marital sex, though, at times, such relationships are intensively personal and people may express their opinion, for and against. See S. Khushboo v. Kanniammal and another(2010) 5 SCC 600.
  2. Parliament has to ponder over these issues, bring in proper legislation or make a proper amendment of the Act, so that women and the children, born out of such kinds of relationships be protected, though those types of relationship might not be a relationship in the nature of a marriage.
  3. We may now consider whether the tests, we have laid down, have been satisfied in the instant case. We have found that the appellant was not ignorant of the fact that the respondent was a married person with wife and two children, hence, was party to an adulterous and bigamous relationship. Admittedly, the relationship between the appellant and respondent was opposed by the wife of the respondent, so also by the parents of the appellant and her brother and sister and they knew that they could not have entered into a legal marriage or maintained a relationship in the nature of marriage. Parties never entertained any intention to rear children and on three occasions the pregnancy was terminated. Having children is a strong circumstance to indicate a relationship in the nature of marriage. No evidence has been adduced to show that the parties gave each other mutual support and companionship. No material has been produced to show that the parties have ever projected or conducted themselves as husband and wife and treated by friends, relatives and others, as if they are a married couple. On the other hand, it is the specific case of the appellant that the respondent had never held out to the public that she was his wife. No evidence of socialization in public has been produced. There is nothing to show that there was pooling of resources or financial arrangements between them. On the other hand, it is the specific case of the appellant that the respondent had never opened any joint account or executed any document in the joint name. Further, it was also submitted that the respondent never permitted to suffix his name after the name of the appellant. No evidence is forthcoming, in this case, to show that the respondent had caused any harm or injuries or endangered the health, safely, life, limb or well- being, or caused any physical or sexual abuse on the appellant, except that he did not maintain her or continued with the relationship.

ALIENATION OF AFFECTION

  1. Appellant had entered into this relationship knowing well that the respondent was a married person and encouraged bigamous relationship. By entering into such a relationship, the appellant has committed an intentional tort, i.e. interference in the marital relationship with intentionally alienating respondent from his family, i.e. his wife and children. If the case set up by the appellant is accepted, we have to conclude that there has been an attempt on the part of the appellant to alienate respondent from his family, resulting in loss of marital relationship, companionship, assistance, loss of consortium etc., so far as the legally wedded wife and children of the respondent are concerned, who resisted the relationship from the very inception. Marriage and family are social institutions of vital importance. Alienation of affection, in that context, is an intentional tort, as held by this Court in Pinakin Mahipatray Rawal case (supra), which gives a cause of action to the wife and children of the respondent to sue the appellant for alienating the husband/father from the company of his wife/children, knowing fully well they are legally wedded wife/children of the respondent..
  2. We are, therefore, of the view that the appellant, having been fully aware of the fact that the respondent was a married person, could not have entered into a live-in relationship in the nature of marriage. All live-in- relationships are not relationships in the nature of marriage. Appellant’s and the respondent’s relationship is, therefore, not a “relationship in the nature of marriage” because it has no inherent or essential characteristic of a marriage, but a relationship other than “in the nature of marriage” and the appellant’s status is lower than the status of a wife and that relationship would not fall within the definition of “domestic relationship” under Section 2(f)of the DV Act. If we hold that the relationship between the appellant and the respondent is a relationship in the nature of a marriage, we will be doing an injustice to the legally wedded wife and children who opposed that relationship. Consequently, any act, omission or commission or conduct of the respondent in connection with that type of relationship, would not amount to “domestic violence” under Section 3of the DV Act.
  3. We have, on facts, found that the appellant’s status was that of a mistress, who is in distress, a survivor of a live-in relationship which is of serious concern, especially when such persons are poor and illiterate, in the event of which vulnerability is more pronounced, which is a societal reality. Children born out of such relationship also suffer most which calls for bringing in remedial measures by the Parliament, through proper legislation.
  4. We are conscious of the fact that if any direction is given to the respondent to pay maintenance or monetary consideration to the appellant, that would be at the cost of the legally wedded wife and children of the respondent, especially when they had opposed that relationship and have a cause of action against the appellant for alienating the companionship and affection of the husband/parent which is an intentional tort.
  5. We, therefore, find no reason to interfere with the judgment of the High Court and the appeal is accordingly dismissed.

………………………….……J.

(K.S. Radhakrishnan) ………………………………J.

(Pinaki Chandra Ghose) New Delhi

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maintenance after divorce but Maintain ‘Sexual Purity’ After Divorce

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 05.08.2015

CORAM
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU

CRL.RC.(MD)No.26 of 2015
and
M.P.No.1 of 2015

R.Mathialagan : Petitioner

Vs.

V.Ravichandrika : Respondent

PRAYER: Petition is filed under Section 397 r/w 401 of the Code of Criminal
Procedure, to call for the records in pursuance to the order dated
04.12.2013, passed in M.C.No.39 of 2011, passed by the learned Family Court,
Madurai and set aside the same and allow this Criminal Revision Case.
[Date of reserving the Judgment – 30.06.2015]
[Date of pronouncing the Judgment – 04.08.2015]

!For Petitioner : Mr.M.Karthikeya Venkatachalapathy

^For Respondent : Mr.Gnanasekaran
Legal Aid Counsel

:ORDER
The petitioner is the husband of the respondent herein. The marriage
between them was solemnized on 12.09.1991. They have got a male child born on
09.12.1997. Thereafter, there there was no love-lost between them. The
petitioner filed H.M.O.P.No.119 of 2007, before the Family Court, Madurai,
seeking divorce to dissolve the marriage between him and the respondent on
the ground that the respondent had deserted him voluntarily and she was not
willing to live with him, without any sufficient cause. The Trial Court, by
Judgment and Decree, dated 01.06.2010, granted divorce, accepting the plea of
the petitioner. While granting divorce, the Family Court directed the
petitioner to pay a sum of Rs.750/- per month as alimony. The said order has
become final. Subsequently, the respondent filed M.C.No.39 of 2011, before
the Family Court, Madurai, claiming maintenance, at the rate of Rs.6,000/-
per month, under Section 125 of the Code of Criminal Procedure, [for brevity,
“the Code”]. The Family Court, by order dated 04.12.2013, allowed the said
petition directing the petitioner to pay a sum of Rs.2,000/- per month to the
respondent towards her maintenance. Challenging the same, the petitioner has
come up with the present Criminal Revision Case.
2. I have heard the learned counsel appearing for the petitioner. Since
the respondent had not appeared, despite service of notice, this Court
appointed Mr.D.Gnanasekaran, as Legal Aid Counsel, to argue the case on
behalf of the respondent. I have heard him also and perused the records
carefully.

3. The main contention of the learned counsel for the petitioner is
that since there was a decree for divorce granted by the Family Court, on the
ground of desertion, the respondent is not entitled for maintenance under
sub-section 4 of Section 125 of the Code.

4. But, the learned counsel appearing for the respondent would submit
that sub-section 4 of Section 125 of the Code is applicable only to a wife
whose marriage is still in subsistence and the said provision is not
applicable to a wife whose marriage has already been dissolved. For this
proposition, the learned counsel would rely on the Judgment of the Hon’ble
Supreme Court in Rohtash Singh Vs. Ramendri [Smt] and others, reported in
2000 (3) SCC 180.

5. At the first, let us have a quick look into sub-section 4 of Section
125 of the Code, which reads as follows:-
(4) No wife shall be entitled to receive an allowance from her husband
under this section she is living in adultery, or if, without any sufficient
reason, she refuses to live with her, husband, or if they are living
separately by mutual consent.

6. A perusal of the said provision would go to show that a “wife”, who
refuses to live with her husband, without any sufficient reasons, is not
entitled for maintenance under sub-section 4 of Section 125 of the Code. The
term “wife” has been defined by means of Explanation ‘b’ to sub-section 1 of
Section 125 of the Code, which states that “Wife includes a woman who has
been divorced or has obtained a divorce from her husband and has not
remarried”. Thus, for the purpose of Section sub-section 1 of Section 125 of
the Code, the term “wife” includes a divorced wife also. It is on this
premise, the learned counsel for the petitioner would submit that sub-section
4 of Section 125 of the Code is applicable to a divorced wife also. But, a
perusal of the Judgment of the Supreme Court in Rohtash Singh’s case, cited
supra, would go to show that the Hon’ble Supreme Court has found two parts in
sub-section 4 of Section 125 of the Code. The Hon’ble Supreme Court has also
held that the claim for maintenance under the first part of sub-section 4 of
Section 125 of the Code 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 of the Code. The Hon’ble
Supreme Court further went on to say that if the divorced wife is unable to
maintain herself and if she has not remarried, she will be entitled to
maintenance allowance.

7. The Hon’ble Supreme Court has also held that a wife, after divorce,
becomes a destitute and 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 Hon’ble Supreme Court has
further held that so far as the wife whose marriage is still in subsistence,
if she refuses to live with her husband, which is her matrimonial obligation,
then, she is not entitled for maintenance. To that extent, it is crystal
clear that when sub-section 4 of Section 125 of the Code is applicable to a
wife whose marriage is in subsistence. But, for a divorced wife, there is no
moral or statutory obligation to live with her husband. Therefore, for a
divorced wife to claim maintenance under Section 125 of the Code, even if the
divorce is on the ground of desertion, it is not a bar for her to claim
maintenance under Section 125 of the Code, as sub-section 4 of Section 125 of
the Code is not applicable.

8. In Rohtash Singh’s, in Paragraph No.11, the Hon’ble Supreme Court
has held as follows:-
” 10. Claim for maintenance under the first part of Section 125 CrPC 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 CrPC. If the divorced wife is unable to maintain
herself and if she has not remarried, she will be entitled to maintenance
allowance. The Calcutta High Court had an occasion to consider an identical
situation where the husband had obtained divorce on the ground of desertion
by the wife but she was held entitled to maintenance allowance as a divorced
wife under Section 125 CrPC and the fact that she had deserted her husband
and on that basis a decree for divorce was passed against her was not treated
as a bar to her claim for maintenance as a divorced wife. (See: Sukumar
Dhibar v. Anjali Dasi.) The Allahabad High Court also, in the instant case,
has taken a similar view. We approve these decisions as they represent the
correct legal position.
11. Learned counsel for the petitioner then submitted that once a
decree for divorce was passed against the respondent and marital relations
between the petitioner and the respondent came to an end, the mutual rights,
duties and obligations should also come to an end. He pleaded that in this
situation, the obligation of the petitioner to maintain a woman with whom all
relations came to an end should also be treated to have come to an end. This
plea, as we have already indicated above, cannot be accepted as a woman has
two distinct rights for maintenance. 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”.

9. The above conclusion of the Hon’ble Supreme Court is founded on the
ground that so long as the marriage is in subsistence, since there is a
statutory obligation for the wife to live with her husband and since she
refuses to live with the husband, without assigning any reason, she is not
entitled for maintenance under Section 125 of the Code. The Hon’ble Supreme
Court has further clarified that after the decree is passed for divorce on
the ground of desertion, since there is no legal obligation for the wife to
live with the husband, sub-section 4 of Section 125 of the Code is not
applicable and therefore, for the period commencing from the date of divorce,
she is not entitled for divorce and for the period from preceding decree for
divorce, she is not entitled for maintenance. In the instant case, the
divorce was granted on 11.06.2010, whereas the petition for maintenance was
filed only on 30.05.2011. Therefore, from 30.05.2011 onwards, she would be
entitled for maintenance under Section 125 of the Code, though the marriage
was dissolved by means of decree for divorce on the ground of desertion by
the respondent.

10. Now, turning to the quantum of maintenance ordered already, as per
the order of the Family Court, the petitioner has to pay a sum of Rs.750/-.
The petitioner has got no fixed income. He is only an Astrologer by
profession. The Lower Court has estimated his normal income at Rs.10,000/-
per month. In my considered view, in the absence of any evidence to prove the
income of the petitioner, simply by taking into account the fact that the
petitioner is an Astrologer, the Lower Court ought not to have arrived at a
conclusion that his monthly income would have been Rs.10,000/-. Going by the
normal earnings of a man of his stature, at the most, he can be directed to
pay a sum of Rs.1,000/- per month as maintenance, in addition to a sum of
Rs.750/-, which has already been ordered by the Family Court, Madurai, in
H.M.O.P.No.119 of 2007. To that extent, the order of the Lower Court deserves
to be modified.

11. In the result, the Criminal Revision Case is partly allowed, the
impugned order dated 04.12.2013, made in M.C.No.39 of 2011, passed by the
learned Family Court, Madurai, is modified and the petitioner is directed to
pay a sum of Rs.1,000/- per month towards maintenance of the respondent from
the date of petition, in addition to a sum of Rs.750/-, which has already
been ordered to be paid by the petitioner in H.M.O.P.No.119 of 2007.
Consequently, connected Miscellaneous Petition is closed. Before parting with
this case, I record my appreciation for the service rendered by
Mr.Gnanasekaran. The Legal Services Authority is directed to pay remuneration
to Mr.Gnanasekaran, the learned counsel, who has been appointed as legal aid
counsel to argue the case on behalf of the respondent.

To

1.The Family Court, Madurai.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.

.

declaring the ex parte divorce judgment passed by USA court is null and void.

The appellant Harpreet Singh Sekhon has filed this appeal through his father and General Power of Attorney Dilraj Singh Sekhon against the judgment and decree dated 25.08.2010 passed by the learned District Judge, Family Court, Faridabad whereby the suit filed by the respondent-wife Rajwant Kaur Sekhon for declaring the ex parte judgment dated 23.05.2005 passed by the Circuit Court of Cook County, Illinois, United States of America (USA-for short) to be illegal has been decreed in her favour and the aforesaid divorce decree has been declared null and void and not binding on the rights of the plaintiff-respondent Rajwant Kaur Sekhon.

The marriage between the plaintiff-respondent Smt. Rajwant Kaur Sekhon and the defendant-appellant-Harpreet Singh Sekhon was solemnized by way of Anand Karaj on 09.02.2000. Theplaintiff alleged that her marriage was a decent marriage. Her parents, brothers and sisters spent about Rs.30,00,000/- on the marriage. A list of expenses on the dowry articles and the other expenses including ring ceremony expenses has been attached. The defendant-appellant along with his parents had been permanently residing in USA. They are green card holders of United States of America. The father of the defendant-appellant namely Dilraj Singh Sekhon Ex Joint Director of Central Bureau of Investigation after leaving his job in India settled permanently in USA. He was working as a lecturer at Columbia College, Chicago, USA.

The divorce judgment passed by the Circuit Court of Cook County, it is submitted is a valid divorce judgment and the Court had jurisdiction over the subject matter. On the pleadings of the parties, the following issues were framed by the learned Civil Judge (Junior Division) Faridabad on 13.05.2009:-

1. Whether the plaintiff is entitled to decree of declaration as prayed for? OPD

2. Whether the suit is time barred? OPD

3. Whether the Court has no jurisdiction to entertain the present suit? OPD.

4. Relief.

After the said issues were framed by the learned Civil Judge (Junior Division), Faridabad on 13.05.2009, the case on the establishment of the Family Court, was transferred and received by the District Judge, Faridabad on 27.05.2009. On 04.11.2009, the learned District Judge, Family Court observed that it had been brought to the notice of the said Family Court that the issues settled on 13.05.2009 were not specific. Therefore, it was expedient to reframe the issues. The parties had not led any evidence till the said date i.e. 04.11.2009. Accordingly, the following issues were settled for adjudication by re-framing them:-

1. Whether the judgment and decree dated 23.05.2005 of Circuit Court of Cook County, Illinois County Department-Domestic Relations Division of Judge Jeanne R. Cleveland Bernstein in case titled Harpreet Singh Sekhon and Rajwant Kaur Sekhon dated May 23, 2005 dissolving the marriage is liable to be set aside, as alleged? OPP.

2. Whether this Court has no territorial jurisdiction to try this suit, as alleged? OPD

3. Whether the suit is time barred? OPD

4. Whether the suit is not maintainable before the Civil Court? OPD

5. Relief.

No other issues were pressed or claimed.

The learned District Judge after considering the evidence and material on record decreed the suit of the plaintiff-respondent with costs. The divorce decree dated 30.05.2005 passed by the Circuit Court of Cook County, Illinois, USA was declared null and void and not binding on the rights of the plaintiff; besides, the suit was held to be within limitation and as regards jurisdiction of the Court at Faridabad, the same was not pressed during the course of arguments. The plaintiff had also sought alimony/maintenance allowance for a sum of Rs.75000/- per month. However, the said plea was not supported by any kind of evidence. Accordingly the same was declined.

Aggrieved against the said judgment and decree, the defendant-appellant through his father and Attorney Dilraj Singh Sekhon has filed the present appeal. This Court on 04.10.2010 subject to the appellant’s depositing an amount of Rs.70,000/- (provisional) towards litigation expenses, to be paid to the respondent, issued notice of motion on the application regarding condonation of delay and also in the main appeal. The service was complete. Thereafter on 09.02.2011 to explore the possibility of a compromise between the parties the case was adjourned to 16.02.2011. On the said date as per the attorney (Dilraj Singh Sekhon) of the appellant, there were no chances of compromise. The case was adjourned to 20.04.2011 for arguments. On 27.04.2011, counsel for the parties were in agreement that efforts were being made to compromise the matter and the case on request was adjourned to 06.05.2011. On 06.05.2011, the following order was passed:-

Therefore, it is a case of transfer of the case to the Court of District Judge (Family Court), Faridabad on its establishment. Section 7 of the Family Courts Act deals with the jurisdiction of the Family Court and the same reads as under:-

“Jurisdiction.-

(1) Subject to the other provision of this Act, a Family Court shall–

(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and (b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends.

Explanation.– The suits and proceedings referred to in this sub- section are suits and proceedings of the following nature, namely:–

(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;

(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;

(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;

(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;

(e) a suit or proceeding for a declaration as to the legitimacy of any person;

(f) a suit or proceeding for maintenance;

(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor. (2) Subject to the other provisions of this Act, a Family Court shall also have and exercise–

(a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974 ); and

(b) such other jurisdiction as may be conferred on it by any other enactment.”

————————————————————————

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                      CHANDIGARH

                            FAO NO.5742 of 2010 (O & M)
                            Date of decision: 22.02.2013

Harpreet Singh Sekhon                              .....Appellant


                            Versus



Rajwant Kaur                                       ..... Respondent

CORAM: HON'BLE MR. JUSTICE S.S. SARON
       HON'BLE MR. JUSTICE S.P. BANGARH

Present:   Mr. Surjit Singh, Senior Advocate with
           Ms. Ishreet Kaur, Advocate for the appellant and
           Mr. Dilraj Singh Sekhon, GPA Holder of the appellant in
           person.

         Mr. Manish Jain, Advocate, Mr. Aman Singla, Advocate
         and Mr. Tajinder Singh, Advocate for the respondent with
         respondent-Rajwant Kaur in person.
S.S. SARON, J.

The appellant Harpreet Singh Sekhon has filed this appeal through his father and General Power of Attorney Dilraj Singh Sekhon against the judgment and decree dated 25.08.2010 passed by the learned District Judge, Family Court, Faridabad whereby the suit filed by the respondent-wife Rajwant Kaur Sekhon for declaring the ex parte judgment dated 23.05.2005 passed by the Circuit Court of Cook County, Illinois, United States of America (USA-for short) to be illegal has been decreed in her favour and the aforesaid divorce decree has been declared null and void and not binding on the rights of the plaintiff-respondent Rajwant Kaur Sekhon.

The marriage between the plaintiff-respondent Smt. Rajwant Kaur Sekhon and the defendant-appellant-Harpreet Singh Sekhon was solemnized by way of Anand Karaj on 09.02.2000. Theplaintiff alleged that her marriage was a decent marriage. Her parents, brothers and sisters spent about Rs.30,00,000/- on the marriage. A list of expenses on the dowry articles and the other expenses including ring ceremony expenses has been attached. The defendant-appellant along with his parents had been permanently residing in USA. They are green card holders of United States of America. The father of the defendant-appellant namely Dilraj Singh Sekhon Ex Joint Director of Central Bureau of Investigation after leaving his job in India settled permanently in USA. He was working as a lecturer at Columbia College, Chicago, USA. However, for the last about three years, he was living at Mohali in Punjab in his own house. He is owner of more than 70 ‘killas’ (acres) of agricultural land in village Issawal, Ludhiana (Punjab). The plaintiff-respondent was residing at House No.645 Sector-16, Faridabad (Haryana). The said house is owned by the father of the defendant/appellant and is a Joint Hindu Family property. According to the plaintiff-respondent, the minor daughter of the parties namely Sirut (sic. Seerat) Sekhon through her mother and guardian Rajwant Kaur Sekhon (plaintiff- respondent) filed a suit against her father Harpreet Singh Sekhon (defendant/appellant), her grand parents namely Dilraj Singh Sekhon and Smt. Tejinder Kaur, her father’s brother namely Sarabjit Singh Sekhon and paternal aunt namely Smt. Satnam Kaur inter alia claiming that she is also co-owner in possession in equal share of the residential House No.645 Sector-16, Faridabad; besides, co-owner in equal share of property in village Issawal, District Ludhiana (Punjab) and co-owner in residential House No.722 Phase-IX, near Cricket Stadium, Mohali. The said suit was pending in the Court of Civil Judge (Junior Division), Faridabad at the time of filing of the present suit out of which the present appeal arises. On 24.02.2002, the plaintiff/respondent received a telephone message from Dilraj Singh Sekhon (father-in-law of the plaintiff), the husband of the plaintiff and her mother-in-law as also other family members namely Satnam Kaur and Pikky Aulakh. It is alleged that they were taunting her for bringing inadequate dowry. They were harassing her mentally and physically by beating her. First Information Report (FIR) for the offences under Sections 498-A and 406 read with Section 34 of the Indian Penal Code (IPC-for short) was got registered in this regard at Police Station Central, Faridabad. After marriage, the plaintiff and defendant resided at Mohali, Ludhiana and village Issawal. The defendant-appellant then went to USA leaving the plaintiff at her parental house at Faridabad. There she had a daughter on 04.12.2000. The in-laws of the plaintiff did not cook food for three days as they did not want a female child. On 30.12.2000, the defendant came back to India and took the plaintiff with him to Mohali. The defendant, it is alleged, came to India from USA on several occasions, however, despite promising to take the plaintiff to USA, he never took her and each time he would say that he would take her next time. The plaintiff in this way felt that she was being made a fool of. Thereafter on 23.05.2005, the defendant obtained a decree of divorce from the Circuit Court of Cook County, Illinios Department-Domestic Relations Division. In terms of the said decree it is alleged that an ex parte and a fraudulent divorce decree was got passed in favour of the defendant. The said divorce decree being a foreign judgment it was prayed was liable to be set aside being not a valid decree in view of Section 13 of the Code of Civil Procedure (C.P.C-for short) and on other grounds as well. It was submitted that under the provision of Hindu Marriage Act, 1955 only the District Courts within the local limits of whose ordinary civil jurisdiction (i) the marriage was solemnized, or (ii) the respondent, at the time of the presentation of the petition, resides, or (iii) the parties to the marriage last resided together, or (iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive would have the jurisdiction to entertain and try the petition. Therefore, it was submitted that the Circuit Court of Cook County, Illinos had no jurisdiction to entertain the petition. According to the provisions of the Hindu Marriage Act under which the parties were admittedly married, irretrievable break down of marriage as a ground for dissolution of the marriage was not recognised. It was submitted that the defendant by way of filing the divorce petition in USA committed fraud and forged grounds, which were not available to him; besides, no valid ground mentioned in the divorce petition by the defendant was existing at the time of filing the divorce petition. The parties never resided in USA together and the plaintiff never refused to reside with the defendant in USA or in India. The defendant does not provide or send from USA any kind of maintenance to the plaintiff and her daughter in India. The defendant and her family had been avoiding services in all Court cases which were pending at Faridabad. The plaintiff and her minor daughter were fully dependent on her parents. The plaintiff had also filed a petition under Section 9 of the Hindu Marriage Act for seeking restitution of conjugal rights.

The defendant/appellant filed written statement through his father and General Power of Attorney (GPA) Dilraj Singh Sekhon. Preliminary objections were raised to the effect that the petition was time barred. The divorce judgment by the Court of Cook County Illinos, it is stated, was passed on 23.05.2005 and the petition to set aside the divorce judgment was filed on 15.04.2008. The case did not fall within the territorial jurisdiction of Faridabad Court. The marriage was solemnized at Jalandhar in Punjab. The plaintiff and defendant had lived together as husband and wife in H.No.722, Phase-9, Mohali. They had never lived in House No.645 Sector-16, Faridaband. The said house was occupied by a tenant. The divorce granted by the Circuit Court of Cook County, Illinios was a valid divorce. On receipt of notice from the said Court, it is stated that the plaintiff had filed her appearance voluntarily through her attorney. By filing her appearance, she had submitted to the jurisdiction of the said Court. By filing reply to the same she had contested the case in the Circuit Court of Cook County, Illinios. It is stated that the defendant Harpreet Singh Sekhon could not file divorce petition in India because he was not a domicile of India. He has been a domicile and permanent resident of USA. A reference was made to the case of Dr. David Chakravarthy Arunmainayagan vs. Geetha Chakravarthy Arunmainayagan 2002 (1) Marriage Law Journal 254 (Madras) wherein in the context of theDivorce Act, 1869, it is stated that the parties to marriage should be domiciled in India which is a condition precedent under Section 2 of the Divorce Act to file a petition. It is further stated that the list relating to expenditure on dowry articles was false and baseless. It was a simple and dowry less marriage. The dowry articles such as furniture, TV, Refrigerator and other such items were not required to be taken to USA where non-resident Indians (NRIs) live. On 11.06.2002, the plaintiff and her father Sarwan Singh Nijjar got the marriage registered with the Registrar of Marriages, Jalandhar-I, Punjab when Harpreet Singh Sekhon defendant was living in USA. This fraudulent registration of marriage was being investigated by the Deputy Commissioner, Jalandhar and the Punjab Police, Jalandhar. The plaintiff it is stated is not residing in House No.645 Sector-16, Faridabad. The said house was in forcible possession of her brother Jagjit Singh who had taken its possession after breaking open the lock of the house with the help of his relative. On 06.07.2005, case FIR No.252 had been registered at Central Police Station, Faridabad for the offence under Section 448 of the IPC. The plaintiff had never lived in the said house. She lived in her parental house i.e. H.No.2382 Sector-9, Faridabad. She reaches that house whenever Investigating Officer goes there. The said house is a self-acquired property of Harpreet Singh Sekhon who had constructed the house to live in it after retirement from the Central Government. Baby Sirut (sic. Seerat) Sekhon minor it is stated was being misused by the plaintiff and her relative to grab the property. No Court had declared the plaintiff as her guardian. Harpreet Singh Sekhon defendant had filed a case for custody of Baby Sirut (Seerat) Sekhon. On 30.11.2005, the Additional District Judge, Faridabad had vacated the stay granted by the lower Court. Thereafter the High Court had granted interim stay in this case. On 24.02.2002, it is stated that no telephone call was made from USA to the husband of plaintiff and her mother-in-law in India because during that period they were living in USA. A false dowry complaint was got registered under Section 498-A and 406 IPC. A complaint under Section 498-A IPC was not maintainable at the behest of a divorcee. Besides, Section 34 IPC was not incorporated in the FIR as had been alleged by the plaintiff in this para. Out of five accused, three had been discharged as the police had found them innocent. Regarding the remaining two accused, the allegations of ill-treatment, physical assaults and dowry demand pertain to the periods they were living in USA. The letters written by the plaintiff to her mothere-in-law at an address in USA during the said periods it is stated contradict the allegations in the FIR. Dowry articles cannot be entrusted to NRIs who live in USA and NRIs living in USA cannot misuse dowry articles in India. It is alleged that the father of Harpreet Singh Sekhon defendant had arranged admission of plaintiff in an institute in USA where he was teaching. He had also sent sponsorship for her but she did not get a visa from the American Embassy. Brother of Harpreet Singh Sekhon-defendant had also sent sponsorship for the plaintiff from Canada but the plaintiff did not go to the Canadian Embassy for an interview. Thereafter Harpreet Singh Sekhon had sent Immigration Forms to the plaintiff to be filled up for immigration to USA, which she did not fill up. This showed that the plaintiff did not want to join her husband in USA. When the defendant came to India, he was subjected to mental cruelty which was unendurable. She had inflicted immeasurable mental agony and torture. During his short stay in India, she had made his life miserable and they had lived separate and apart in India. It is alleged that she did not cook food in the house and was getting food from a hotel. She had stated that she had not dined in less than five star hotels. It is alleged that her father and mother were illiterate. Her father had worked as a tempo driver in Faridabad and the marriage was a fraud. It is further alleged by the defendant that the character and loyalty of the plaintiff were found doubtful. Unknown men were coming to meet her. Those men did not know that her husband had come from USA and was sitting inside the house. The defendant did not know where his wife was going in a car. Her whereabouts were not known. Attitude and behaviour of his wife showed total disrespect towards him. She had used filthy and abusive language against him. When her husband had raised objections about her undesirable activities then she had threatened him that she would get him put behind bars by lodging a dowry complaint which she later did in the year 2005. There was no temperamental compatibility. She was hot headed and quarrelsome. On 11.09.2007, she had misbehaved with the father of the defendant Harpreet Singh Sekhon in the District Courts, Faridabad. On this the father of the defendant had lodged a written complaint with the SSP, Faridabad seeking protection and to restrain her not to come near him during the period he remains in the District Courts, Faridabad. About half a dozen cases filed by plaintiff against the defendant were pending in the District Courts, Faridabad. On 23.05.2005, it is stated that the Circuit Court of Cook County had passed a decree for dissolution of the marriage between the parties after the plaintiff had filed her appearance through her attorney and had contested the case on receipt of notice from the said Court. The parties were married under Hindu Law but the said law did not allow the defendant Harpreet Singh Sekhon to file a divorce petition in India because he was not a domicile of India. The plaintiff had stated that she had not submitted to the jurisdiction of that Court but by filing her apearance she had in fact submited to the jurisdiction of the said Court. The Circuit Court of Cook County was a Court of competent jurisdiction. The said Court had gone through the reply to the claims submitted by the plaintiff and had taken a decision. This confirmed that the decision of the Court was based on contest between the parties. As per the judgment for dissolution of marriage passed by the Circuit Court of Cook County, the Court at Faridabad, it is submitted, expressly retains jurisdiction of this case for the purpose of enforcing all the terms of the said judgment for dissolution of marriage. The defendant Harpreet Singh Sekhon was a domicile of that country. It is submitted that there was no fraud with relation to merits of the case and the jurisdictional facts. The said Court had the jurisdiction because the defendant in this case was a domicile of that country. The custody of Baby Sirut (sic. Seerat) Sekhon had been reserved in the judgment passed by Circuit Court of Cook County. The objection of plaintiff that divorce petition was not maintainable in USA was dismissed on the ground that the petitioner (now defendant) satisfied all the conditions laid down by that Court. Baby Sirut (sic. Seerat) Sekhon, it is submitted, was being misused by the plaintiff and her relatives to grab the property. The defendant-Harpreet Singh Sekhon wants to take her to USA to give her education there. The conjugal rights cannot be restored to a divorcee who had filed a criminal complaint underSections 498-A and 406 IPC, besides, about half a dozen cases against the defendant in District Courts, Faridabad. The divorce judgment passed by the Circuit Court of Cook County, it is submitted is a valid divorce judgment and the Court had jurisdiction over the subject matter. On the pleadings of the parties, the following issues were framed by the learned Civil Judge (Junior Division) Faridabad on 13.05.2009:-

1. Whether the plaintiff is entitled to decree of declaration as prayed for? OPD

2. Whether the suit is time barred? OPD

3. Whether the Court has no jurisdiction to entertain the present suit? OPD.

4. Relief.

After the said issues were framed by the learned Civil Judge (Junior Division), Faridabad on 13.05.2009, the case on the establishment of the Family Court, was transferred and received by the District Judge, Faridabad on 27.05.2009. On 04.11.2009, the learned District Judge, Family Court observed that it had been brought to the notice of the said Family Court that the issues settled on 13.05.2009 were not specific. Therefore, it was expedient to reframe the issues. The parties had not led any evidence till the said date i.e. 04.11.2009. Accordingly, the following issues were settled for adjudication by re-framing them:-

1. Whether the judgment and decree dated 23.05.2005 of Circuit Court of Cook County, Illinois County Department-Domestic Relations Division of Judge Jeanne R. Cleveland Bernstein in case titled Harpreet Singh Sekhon and Rajwant Kaur Sekhon dated May 23, 2005 dissolving the marriage is liable to be set aside, as alleged? OPP.

2. Whether this Court has no territorial jurisdiction to try this suit, as alleged? OPD

3. Whether the suit is time barred? OPD

4. Whether the suit is not maintainable before the Civil Court? OPD

5. Relief.

No other issues were pressed or claimed.

The learned District Judge after considering the evidence and material on record decreed the suit of the plaintiff-respondent with costs. The divorce decree dated 30.05.2005 passed by the Circuit Court of Cook County, Illinois, USA was declared null and void and not binding on the rights of the plaintiff; besides, the suit was held to be within limitation and as regards jurisdiction of the Court at Faridabad, the same was not pressed during the course of arguments. The plaintiff had also sought alimony/maintenance allowance for a sum of Rs.75000/- per month. However, the said plea was not supported by any kind of evidence. Accordingly the same was declined.

Aggrieved against the said judgment and decree, the defendant-appellant through his father and Attorney Dilraj Singh Sekhon has filed the present appeal. This Court on 04.10.2010 subject to the appellant’s depositing an amount of Rs.70,000/- (provisional) towards litigation expenses, to be paid to the respondent, issued notice of motion on the application regarding condonation of delay and also in the main appeal. The service was complete. Thereafter on 09.02.2011 to explore the possibility of a compromise between the parties the case was adjourned to 16.02.2011. On the said date as per the attorney (Dilraj Singh Sekhon) of the appellant, there were no chances of compromise. The case was adjourned to 20.04.2011 for arguments. On 27.04.2011, counsel for the parties were in agreement that efforts were being made to compromise the matter and the case on request was adjourned to 06.05.2011. On 06.05.2011, the following order was passed:-

“Present: Mr. Robin Dutt, Advocate for the appellant.

Mr. Manish Jain, Advocate for the respondent.

*** Efforts were made to settle the matter amicably. However, it appears that the appellant is not ready to arrive at a reasonable settlement. It has also been brought to our notice that the Court at Faridabad, granted an interim maintenance to the respondent-wife @ Rs.30,000/- per month and Rs.20,000/- per month to the child. It is stated that despite directions issued by the appellate Court, where the dispute is pending at the instance of the appellant, the amount of maintenance has not been paid, which is to the tune of about Rs.11 lacs. Unless that amount is paid, probably, this appeal cannot be pressed by the appellant.

Under the circumstances, we direct the appellant to deposit amount of compensation granted, before the next date of hearing with the Court below, where the appeal is pending under the Domestic Violence Act, 2005.

Adjourned to 20.05.2011.”

The appellant, however, did not deposit the amount in terms of the said order. He filed CM No.13227-CII of 2011 for modification of the above said order dated 06.05.2011. It was submitted that it had wrongly been presented before this court that the appellant was liable to pay the respondent Rs.11 lacs as arrears of maintenance. It was submitted that the Judicial Magistrate Ist Class, Faridabad vide order dated 13.12.2010 (in proceedings under the Protetion of Women fromDomestic Violence Act, 2005) had directed the appellant to make payment of Rs.30,000/- to applicant No.1 (Rajwant Kaur) and Rs.20,000/- to applicant No.2 (Seerat) before 10th of every from the date of application. Besides, the employer of respondent No.1 was also directed to deduct the same amount and deposit it in the account of applicant No.1 (on behalf of applicant No.2 as well) before 10th of every month. Therefore, according to the appellant, it was evident that the maintenance in fact was to be paid from 13.12.2010 and the judgment dated 13.12.2010 was under appeal and the appellant had applied for stay of operation of the judgment before the appellate Court and no order regarding payment of the maintenance amount had been directed by the appellate Court and the stay matter was to come up for hearing before the appellate Court on 26.05.2011. Therefore, the direction to pay the maintenance amount mentioned in the order dated 06.05.2011, it was submitted, needed to be modified. The said CM came up before the Bench which had passed the earlier order on 11.07.2011. A copy of the order dated 03.06.2011 passed by the learned Additional Sessions Judge, Faridabad in appeal against the order dated 13.12.2010 passed by the Judicial Magistrate Ist Class, Faridabad was shown in this regard. A perusal of the same indicated that the appeal filed by the applicant/appellant against the order dated 13.12.2010 passed by the learned Judicial Magistrate Ist Class, Faridabad was not being heard on account of the aforesaid order dated 06.05.2011 passed by this Court. The appeal before the Court below was fixed for 24.07.2011. The application for modification of the order dated 06.05.2011 passed by this Court and also the main appeal on 11.07.2011 were adjourned to 26.07.2011. The appellate Court (Addl. Sessions Judge, Faridabad) was directed to decide the appeal filed by the appellant on the date fixed without being influenced by any observation made by this Court in its order dated 06.05.2011. On 26.07.2011, it was brought to the notice of the Court that on account of some unavoidable circumstances, the appeal could not be heard by the Court below on the date fixed. The Court below was directed to comply with the order passed by this Court on 11.07.2011 and the case was adjourned to 09.08.2011 and then to 17.08.2011. On the said date it was adjounred to 26.08.2011. On 26.08.2011, the record from the learned trial Court was received and the case was adjourned to 16.09.2011 for arguments. On 14.10.2011, CM No.13277-C2 of 2011 seeking clarification (sic.-modification) of the order dated 06.05.2011 it was observed had become infructuous in view of order passed subsequent thereto. In view of the above this matter, it was ordered be listed before a Bench as per roster on 07.11.2011, on which date it was adjourned to 29.11.2011. On 29.11.2011 this court observed that the appeal filed by the appellant against the order dated 13.12.2010 passed by the court of Judicial Magistrate Ist Class, Faridabad i.e. in proceedings under the Protection of Women from Domestic Violence Act had been dismissed by the court of Additional Sessions Judge, Faridabad on 08.08.2011 and the order regarding payment of interim maintenance to the extent of Rs.30,000/- and Rs.20,000/- per month to the respondent and her minor daughter respectively had been upheld. Though Criminal Misc. No.M-24964 of 2011 had been filed against the order dated 08.08.2011 but no stay regarding the payment of interim maintenance had been granted. Before addressing arguments, learned counsel for the appellant had sought time to seek instructions with regard to the payment of said amount to the destitute wife and child of the appellant. The case was adjourned to 19.12.2011. It was made clear that if the aforesaid interim maintenance in terms of order dated 13.12.2010 passed by the Judicial Magistrate Ist Class, Faridabad was not paid, the plea taken by the respondent wife that this appeal is to be dismissed would be considered on the adjourned date. On 19.12.2011 learned counsel for the appellant sought more time to have instructions whether the order regarding payment of interim maintenance to the respondent had been complied with or not. For the said purpose the case was adjourned to 02.02.2012. On 02.02.2012 a week’s time was granted to make payment of maintenance as it prima facie appeared that the appellant was not providing for his wife and minor daughter. The case was adjourned to 09.02.2012. On 09.02.2012 a detailed order was passed by this Court. It was inter alia observed by the Bench that passed the order that it was prima facie satisfied that the appellant may be guilty of contempt of court. However, before initiating any proceeding the Bench intended to grant the appellant a week’s time to purge the contempt. The Bench also recorded its opinion that interim maintenance was not prayed for or assessed in the appeal as maintenance had already been assessed by Judicial Magistrate Ist Class, Faridabad. The case was then adjourned to 21.02.2012. On 21.02.2012, the appellant had not filed any reply or affidavit in response to order dated 09.02.2012. On the request of learned counsel for the appellant, the case was adjourned to 14.03.2012, on which date it was adjourned to 23.03.2012 and then to 02.05.2012. On the last of the dates, it was adjourned to 29.05.2012 for arguments and then to 23.07.2012. On 23.07.2012, learned Senior counsel Mr. Surjit Singh, Advocate who had been appearing for the appellant did not appear. He was called for by the Court and he submitted that his client had taken the brief from him. It was, however, accepted that he had not been discharged by the Court. In order to effectively decide the case, it was observed that it would be just and expedient that he assists the Court. Learned Senior counsel gracefully agreed to assist the Court. He prayed for time. On his request, the case was adjourned to 30.07.2011. On the said date, Mr. Manish Jain, Advocate for the respondent submitted that since the appellant had not complied with the orders passed by this Court on 06.05.2011, 11.07.2011, 26.07.2011, 29.11.2011 and 09.02.2012, this appeal may be dismissed and contempt proceedings be initiated against the appellant. The case was adjourned to 14.08.2012 and the trial Court records were requisitioned for the said date. The case was heard on 05.10.2012 and thereafter on 06.10.2012. The case was heard on 06.10.2012 at length. Mr. Manish Jain, Advocate appearing for the respondent had submitted that this case is liable to be dismissed for non-payment of maintenance.

Mr. Surjit Singh, learned Senior Advocate appearing with Ms. Ishreet Kaur, Advocate submitted that Crl. Misc.No.M-24964 of 2011 had been filed by the appellant against the order dated 08.08.2011 passed by the learned Additional Sessions Judge, Faridabad ordering the payment of maintenance in proceedings under the Protection of Women from Domestic Violence Act. Eventhough no stay had been granted but an application for grant of stay was pending. It is also submitted that an order passed in another proceedings under the Protection of Women fromDomestic Violence Act, 2005 for payment of maintenance could not be executed in the present appeal which is a suit for declaration.

Mr. Manish Jain, Advocate leaned counsel for the plaintiff-respondent, however, submitted that this Court on 09.02.2012 had recorded its opinion that interim maintenance was not prayed for or assessed in the appeal as maintenance had already been assessed by the Judicial Magistrate Ist Class which it is submitted is in proceedings under the Protection of Women from Domestic Violence Act, 2005.

After deliberations it was agreed between the learned counsel for the parties and Mr.Dilraj Singh Sekhon GPA for the appellant that the main appeal as also the effect of non-payment of maintenance and the connected appeal (FAO No.6208 of 2011) claiming custody of the minor child Seerat be heard together. Accordingly, the main appeal as also the effect of non-payment of maintenance amount and the connected appeal are taken up and have been heard.

Insofar as the main appeal is concerned Mr. Surjit Singh, learned Senior Advocate with Ms. Ishreet Kaur, Advocate for the appellant has contended that the learned trial Court wrongly held that the plaintiff-respondent had not submitted herself to the Circuit Court of Cook Country, Illinios in USA. In fact she had filed her appearance in the said Court. A reference has been made to the judgment dated 23.05.2005 of the Circuit Court of Cook County, Illinois, the letter to the notice issued on 07.04.2005 by Dorothy Brown,Clerk of the Circuit Court of Cook County, Illinois which is a publication in the press and a letter dated 13.05.2005 in which appearance has been entered on behalf of respondent by Shri Mandeep Singh Sachdev, Advocate at Jalandhar and a letter dated 19.04.2005 written by Malhotra & Malhotra Associates International Lawyers at Chandigarh regarding appearance; besides, the application (Ex.P5) written by the respondent through her counsel Shri Mandeep Singh Sachdev, Advocate at Jalandhar to Ms. Dorothy Brown Clerk of the Circuit Court of Cook County, Illinois and another letter dated 05.09.2005 (Ex.P6) written by Shri Mandeep Singh Sachdev, Advocate at Jalandhar to Ms. Dorothy Brown, Clerk of the Circuit Court of Cook County, Illinois. According to learned Senior Counsel the said documents evidently show that the respondent had put in her appearance before the Circuit Court of Cook County, Illinios. It is submitted that even though some of the documents are not exhibited, however, strict rules of Evidence Act are inapplicable in view of the provisions ofSections 14 and 16 of the Family Courts Act 1984 and the same can be read in evidence. It is next contended that the suit filed was not within the jurisdiction of the Family Court. A reference has been made to Section 7 of the Family Courts Act. A suit for specific relief, it is contended, would not be covered under the Family Courts Act. It is lastly contended that a foreign judgment is conclusive as to any matter thereby adjudicated upon between the parties in view of Section13 CPC. Therefore, the decree (Ex.P7) passed by the Circuit Court of Cook County, Illinois is valid.

Mr. Dilraj Singh Sekhon GPA for the appellant has vehemently contended that the Circuit Court of Cook County, Illinois was the only competent Court to grant the decree of divorce as the defendant-appellant was not a domicile in India and, therefore, in view of Section 2 of the Divorce Act, a suit filed by him for grant of divorce would not be maintainable in India. A pointed reference has been made to the case of Dr. David Chakaravarthy Arumainayagam and another versus Geetha Chakravarthy (supra); besides, it is submitted that the application for ordering payment of maintenance under the Protection of Women from Domestic Violence Act, 2005 was not maintainable and a criminal miscellaneous application under Section 482 of the Code of Criminal Procedure against the order dated 13.12.2010 passed by the learned Judicial Magistrate Ist Class, Faridabad and order dated 08.08.2011 passed by the learned Additional Sessions Judge, Faridabad is pending in this court.

In response Mr.Manish Jain, Advocate learned counsel for the respondent has submitted that the judgment and decree passed by the learned Court below are perfectly legal and valid. It is submitted that the plaintiff respondent never submitted to the Circuit Court of Cook County, Illinois. She had been proceeded against ex parte there. A reference has been made to the copy of the passport (Ex.P8) to contend that she had never visited USA. Therefore, there was no question of her defending the case; besides, it is submitted that the notices received from Ms. Dorothy Brown, Clerk of the Circuit Court of Cook County, Illinois have been placed on record as Ex.P2and Ex.P3 by the plaintiff herself and even the form filled by Mr. Mandeep Singh Sachdev, Advocate at Jalandhar and the application (Ex.P8) and the letter dated 05.09.2009 (Ex.P5) of Mr. Mandeep Singh Sachdev, Advocate at Jalandhar have been placed on record by the plaintiff herself to show that she had been demanding the necessary documents and procedure for filing a reply which was not responded to by the Circuit Court of Cook County, Illinois. Besides, it is submitted that the parties are Sikhs and governed by Hindu law in the matters of marriage specially when one of them is not a citizen of America. The Circuit Court of Cook County, Illinois, it is submitted, had no jurisdiction to dissolve the marriage. In any case it is submitted that the decree comes within the exceptions to Section 13 CPC inasmuch as it has not been pronounced by a court of competent jurisdiction and it has not been given on merits of the case; besides, it is opposed to the principles of natural justice. Therefore, the same comes within the exceptions as envisaged by clauses (a), (b), (c) and (d) of Section 13 CPC. The proceedings before the Family Court are valid and there is no infirmity in the same. Besides, it is submitted that for failure to pay the maintenance amount as ordered by this Court, the appeal is liable to be dismissed on that account alone.

During the course of hearing, it has also been submitted by Mr. Manish Jain, Advocate for the respondent that Dilraj Singh Sekhon, who has filed the appeal does not have a valid attorney to present the appeal and the attorney given in his favour by his son (appellant) does not authorise him to file an appeal on his behalf.

We have given our thoughtful considerations to the contentions of the learned counsel for the parties and with their assistance gone through the records. The primary issue, which is involved in the case is whether the marriage between the parties stands dissolved on account of the judgment dated 23.05.2005 (Ex.P7) passed by the Circuit Court of Cook County, Illinois or whether the said judgment is null and void and does not affect the matrimonial status of the plaintiff respondent to continue to be the wife of the appellant-Harpreet Singh Sekhon. In order to appreciate the said contention, the said judgment (Ex.P7) as has been filed in Court in its entirety is reproduced as under:-

“PERSONAL SERVICE OR DEFAULT IN THE CIRCUIT COURT OF COOK COUNTY ILLINOIS COUNTY DEPARTMENT- DOMESTIC RELATIONS DIVISION In Re the Marriage of: ) Judge Jeanne R.

      HARPREET SINGH SEKHON                 ) Cleveland Bernstein
            Petitioner                      ) May 23, 2005
            and                             ) Circuit Court-1883
      RAJWANT KAUR SEKHON                   ) 05D03518
            Respondent                      )     No.D
            JUDGMENT FOR DISSOLUTION OF MARRIAGE
            This cause coming on to be heard for prove up on the
      Verified    Petition   for   Dissolution   of   Marriage,   Petitioner

appearing pro se, personal service having been had on Respondent and Respondent having been found in default, or the Respondent having filed a pro se appearance and the parties being in agreement, the court having heard testimony FINDS:

1. Respondent did / did not appear in court.

2. The Court has jurisdiction of the parties and the subject matter.

3. Petitioner was a resident of the State of Illinois on the date the petition was filed and for 90 days preceding these findings.

4. The parties were married on 2/9/2000 in Jalandhar, Punjab, India.

5. Petitioner has proven that grounds exist for dissolution of marriage as alleged in the Petition.

6. The following children were born.

                     NAME                                BIRTH DATE
              a.     Seerat Kaur Sekhon            December 4, 2000
              Respondent is not pregnant.

7. The custody of the child Seerat Kaur Sekhon is reserved.

8. Based on the testimony of the Petitioner which has been transcribed for the record and the evidence received. IT IS HEREBY ORDERED THAT:

A. The parties are awarded a judgment of Dissolution of Marriage and the bonds of matrimony existing between Petitioner and Respondent are hereby dissolved.

              B.     Wife is granted leave to resume the use of her
                     former name.
              C.     This court expressly retains jurisdiction of this case

for the purpose of enforcing all of the terms of this judgment for Dissolution of Marriage.”

NAME                                                     ENTER
ADDRESS                                                    sd
CITY, STATE, ZIP                                         JUDGE
TELEPHONE

The decree as has been placed on record shows that it is quite unclear as to whether the respondent has been found in default or the respondent had filed a pro se appearance. Besides, it records that the parties are in agreement and the Court had found the facts as mentioned in paras 1 to 8 above to be established. Para 1 mentions respondent did/did not appear in Court. Therefore, it is unclear as to whether the respondent before the Circuit Court of Cook County, Illinois who is the plaintiff-respondent herein had appeared or did not appear. The same also records that the parties are in agreement. However, even if it is to be taken that the plaintiff-

respondent herein had appeared in the Court of Cook County, Illinios there is nothing to show that she was in agreement with the order that was passed for dissolving the marriage. The said order also mentions that the custody of child Seerat Kaur Sekhon is reserved.

In case the order is reserved, it is not shown as to whether any further order has been passed or whether the same in fact meant that it was deferred. There is a hand written note on the left side of the order (Ex.P7) that all other issues of custody, property division are reserved. There is no signature below the said note and it is unclear as to whether it is part of the Court proceedings or has been added later and, if so, by whom. The columns of name, address, city, State, zip and telephone have been left blank. Therefore, the said decree is quite unclear as regards the fact whether the respondent is taken to have appeared or not. The provisions of Section 13 and 14 CPC which are relevant for consideration may be noticed. The same read as under:-

Section 13:-When foreign judgment not conclusive. A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-

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

(b) where it has not been given on the merits of the case;

(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in case in which such law is applicable;

(d) where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) where it has been obtained by fraud;

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

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

A perusal of the above shows that a foreign judgment is conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except in six circumstances as enumerated in Clause (a) to (f); besides, there is a presumption as to foreign judgments. Therefore, it is to be ascertained whether the present case comes within the exceptions of Section 13 CPC. It may be noticed that merits of the case have not been adverted to in the judgment (Ex.P7) of the Court of Cook County, Illinios and neither have any reasons been given in support of the decision that has been passed, which indeed is a violation of the principles of natural justice and would come within the exceptions envisaged by clause (b) and (d) of Section 13 CPC. The recording of reasons in support of an order is an accepted facet of the principles of natural justice. Reasons recorded in an order indicate the link between the materials on which certain conclusions have been reached at and are based. These disclose as to how the mind has been applied to the subject matter for a decision and against plausible injustice. The reasons are liable to be given so as to reveal a rational nexus between the facts considered and the conclusion reached. These satisfy the party against whom an order is made. Although if reasons are not recorded in support of an order, it does not always vitiate decision, however, principles of natural justice enjoin the recording of reasons. The judgment (Ex.P7) of the Circuit Court of Cook County, Illinois as reproduced above indeed does not deal with the merits of the case and does not record any reasons in support of its decision which is in clear violation of the principles of natural justice. In terms of Clause (c) of Setion 13 CPC the exception to a foreign judgment being conclusive inter alia provides that a refusal to recognise the law of India in cases in which such law is applicable; besides, clause (f) thereof provides that the foreign judgment is not conclusive where it sustains a claim founded on a breach of any law in force in India. The parties to the marriage are Sikhs and are governed by Hindu law in the matter of marriage and divorce. The Hindu Marriage Act, 1955 applies to them. The question that the appellant is a domicile in USA is inconsequential as the parties were married by Anand Karaj ceremony of marriage in India. Marriage by Anand Karaj is recognized form of marriage under the Hindu Marriage Act by virtue of Section 2 of the Anand Marriage Act, 1909 which envisages that all marriages which may be or may have been duly solemnized according to the Sikh marriage ceremony called Anand shall be, and shall be deemed to have been with effect from the date of the solemnization of each respectively, good and valid in law. Therefore, for the purpose of divorce, provisions of Hindu Marriage Act, 1955 are applicable to the parties especially when the wife has been a resident of India and is shown to have never gone to USA. Therefore, it is difficult to say that she is subject to the law of a country to which she has never visited or merely because her husband has been residing there. When the marriage was solemnized in India in accordance with the Hindu Marriage Act, the law applicable to the parties would be governed by the said Act. In the circumstances the case of the plaintiff comes within the exceptions envisaged clauses (c) and (f) of Section 13 CPC as well. The question whether the plaintiff respondent appeared in the said Court as has already been noticed is quite unclear from the judgment (Ex.P7).

Learned Senior counsel appearing for the appellant has referred to the documents regarding notice (Ex.P2) issued to the plaintiff respondent. The same in fact is a publication made in the press which was issued on 07.04.2005 and was addressed to the plaintiff respondent at House No.2382, Sector-9, Faridabad. The plaintiff respondent in her evidence tendered her affidavit as Ex.PW1/A. It is inter alia submitted by her that she was married to the defendant appellant on 09.02.2000, according to Sikh rites and rituals by Anand Karaj. It is further stated that somewhere in the middle of April 2005 she found an envelope in the letter box of her House No.645, Sector 16, Faridabad containing a cutting of a newspaper wherein a notice (Ex.P2) was published that the defendant had filed a petition for dissolution of the marriage between the parties in the Circuit Court of Cook County, Chicago, Illinois USA against her and she was called upon to file her response to the said petition or otherwise make her appearance in the Office of Clerk of the Circuit Court of Cook County, Illinois, Room No.802, Richard J. Daley Centre, in the City of Chicago, Illinois on or before 06.05.2005 otherwise default may be entered against her any time after that day and a judgment for dissolution of marriage entered in accordance with the prayer of the said petition. It is further deposed by the plaintiff that she wrote a letter dated 19.04.2005 to the aforesaid Clerk of the Circuit Court of Cook County to supply the details of theabove case to her along with copy of the petition and further informing her that the aforesaid Court had no jurisdiction to hear the case because the marriage of the plaintiff and the defendant never took place in USA and she had never visited USA and stayed with her husband in USA. In response to the said letter, the plaintiff received a photocopy of letter dated 25.04.2005 (Ex.P3) from Hon’ble Dorothy A. Brown, Clerk of the Circuit Court of Cook County, Illinois, Chicago USA whereby she was required to submit fee of $143.00 so as to complete and submit appearance Form. The appearance Form (Ex.P4) was appended with the said letter. The deponent (plaintiff) wrote another letter dated 29.04.2005 (Ex.P5) to the aforesaid Clerk of the Circuit Court of Cook County, Illinois demanding a copy of petition, telephone number, E-mail address and Website of the Court and other facilities so she might contest the above case. However, she categorically stated in her letter that she was not submitting herself to the jurisdiction of the said Court. Another letter dated 05.09.2005 (Ex.P6) was also written to the aforesaid Court by the deponent (plaintiff) through her counsel Shri M. S. Sachdev, Advocate seeking the details of the next date of hearing. However, thereafter the deponent (plaintiff) did not receive any information whatsoever from the aforesaid Court. Somewhere in the end of July, 2006, she again received a plain envelope containing a photocopy of judgment of dissolution of marriage dated 23.05.2005. In terms of the ex parte judgment (Ex.P7), the marriage between the deponent (plaintiff) and the defendant was declared dissolved. According to the plaintiff, it was apparent that the copy of the divorce decree was brought at the house of the deponent (plaintiff) by the defendant through his father or somebody else. By that time multi pronged litigation was in process between the parties as the defendant and his father were trying their level best to oust the deponent (plaintiff) and her little child from House No.645, Sector-16, Faridabad which was her matrimonial home. Her petition under Section 125 of the Code of Criminal Procedure for grant of maintenance and several other cases including cases under Section 406 and 498-A IPC were also in process.

It may, therefore, be noticed that according to the plaintiff she received an envelope in her House No.645, Sector-16, Faridabad, which contained cutting of a newspaper wherein a notice (Ex.P2) was published that the defendant had filed a petition seeking dissolution of the marriage between the parties in the Circuit Court of Cook County, Chicago, Illinois. In cross-examination, it is stated by the plaintiff that she did not live in House No.2382, Sector-9, Faridabad but she was living in House No.645, Sector-16, Faridabad. It is, however, stated as correct that when her daughter Seerat Sekhon was born she had shown her address of House No.2382, Sector-9, Faridabad. She voluntarily stated that this was her parents’ house and at that time, none of her in-laws or her husband were present in India. She denied that the defendant never asked her to shift in House No.645 Sector-16, Faridabad. She further denied that in the said house her brother and his family were staying. She denied that she never stayed at Ludhiana and Issewal. She denied that her father-in-law sent sponsorship along with admission in some course in USA. She voluntarily stated that he had sent sponsorship to her as his friend’s daughter and not his (daughter) in-law and, therefore, the said sponsorship was totally illegal. At that time it is voluntarily stated that she was five months’ pregnant. It is stated as correct that elder brother of the defendant (‘Jeth’ of the plaintiff) had sent Rs.20,000/- as a gift for her daughter Baby Seerat. She denied that she was ever sent any immigration form or that she had not sent the same back duly filled. She denied the suggestion that she ever sent any appearance sheet to American Court and a copy to her father-in-law. It is voluntarily stated by her that her in-laws sent to her a newspaper slip/clipping of the American Court and then she asked the American Court to send her the details of the Court case and copy of the petition. She or her mother never received any registered cover containing judgment of divorce of American Court in July, 2005. She voluntarily stated that she had received a copy of divorce judgment in July, 2006 which was thrown in the court yard of her house by someone else in an envelope. She had only discussed with a lawyer Mr. Malhotra and had never engaged him to appear in the case in America. She voluntarily stated that she had engaged Mr. Mandeep Singh Sachdev to issue a letter to American Court which was Ex.P-6. She possessed only one passport and not two.

A letter Ex.P-5 was written by the plaintiff to Ms. Dorothy Brown, Clerk of the Circuit Court of Cook County, Illinois. It was primarily for supplying a copy of the petition to her. It was inter alia stated by the plaintiff in her said letter (Ex.P5) that she had received an envelope containing a cutting of alleged publication. The said envelope bears the name of Ms. Dorothy Brown but does not bear the seal of posting or receiving. It was possible that some prank had been committed on her, so for verification purposes, the application was being sent for assistance. The plaintiff also asked for supplying her the telephone numbers of the Hon’ble Court, E-mail address and website, so that the forms could be downloaded; besides, she requested for supplying her the relevant law to the effect as to how she could appear before the Hon’ble Court for contesting the petition and also provide the details of free legal aid assistance, in her country because she was not having any independent income and was totally dependent on the meagre income of her father as admittedly she had not been sent any maintenance by the petitioner (defendant herein). The claims mentioned by the plaintiff in her letter (Ex.P-5) were without prejudice to her legal rights of not submitting to the jurisdiction of the said Court as the divorce petition had to be challenged firstly and foremostly on the ground of jurisdiction. The letter dated 05.09.2005 (Ex.P6) is from Mandeep Singh Sachdev, Advocate for the plaintiff requesting for providing him further details as to what was the status of the case and which was the next date of hearing.

The contention of the learned senior counsel for the defendant/appellant that the Forms had been tendered as appearance on behalf of the plaintiff before the Circuit Court of Cook County, Illinois is not of much significance. The said Forms are not exhibited on record and have not been proved in accordance with the mode of proving documents. Section 14 of the Family Courts Actrelates to application of Indian Evidence Act. It is provided therein that a Family Court may receive as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872. Therefore, in terms of Section 14 of the Family Courts Act, a Family Court may receive evidence and the strict rules of evidence for proving a document are not rigorously applicable. However, even then the said documents are not of much significance or relevance. The documents which are referred to are admittedly not exhibited documents but in fact these have not even been marked. One of the documents is a cutting of the newspaper, the other is a document of putting in appearance in which only the name of the parties is mentioned and is signed by Advocate Mr. Mandeep Singh Sachdev of Jalandhar and is signed by the plaintiff entering her appearance but it is not shown whether the same had indeed been filed or whether the same was considered to have been filed by the Circuit Court of Cook County, Illinois. The letter dated 19.04.2005 of Malhotra and Malhotra Associates is addressed to the Minister Counsellor for Counsular Affairs and Counsul General, American Embassy, Santipath, Chankyapuyri, New Delhi in which entry of details of Harpreet Singh Sekhon (defendant) bearing Indian passport number A5692155 issued in Chicago, on October 21, 1998 and valid till June 17, 2007 are mentioned. It is stated that the wife Rajwant Kaur Sekhon (plaintiff) is contesting the proceedings of divorce pending in the State of Illinois, County of Cook and a copy of the newspaper notice in this regard was enclosed. The matrimonial proceedings initiated by Harpreet Singh Sekhon (defendant) were being contested by Rajwant Kaur Sekhon, therefore, a note of the matter with regard to Harpreet Singh Sekhon may be made as he may try to remarry and obtain another spouse visa for another helpless Indian Girl. The said letter it may be noticed was primarily an intimation to refrain the defendant-appellant from remarrying another person and obtaining another spouse visa for another helpless girl. The letter was not addressed to the Court but to the American Embassy at New Delhi. The benefit which the defendant- appellant seeks to derive from the said letter is that it is mentioned therein that the plaintiff was contesting the proceedings for divorce. This by itself in fact is quite an innocuous statement as she in fact all along had been expressing her desire to contest the petition by asking for a copy of the petition, the proceedings in that case, the procedure to be followed for putting in appearance and whether free legal aid was available as she had no means to bear the expenses for the litigation. Therefore, the said letter of ‘Malhotra & Malhotra Associates is also quite inconsequential. Another document is of biographic information which has various columns. The said document is signed by the plaintiff-respondent. The columns are all blank. Therefore, the said document is also quite inconsequential.

The above circumstances indicate that the plaintiff- respondent had not put in appearance in the Circuit Court of Cook County, Illinois. It is not clearly mentioned in the judgment dated 23.05.2005 (Ex.P7) as to whether she had put in appearance. It does not say whether she put in appearance or she had been found in default. In fact both are mentioned. The documents that had been in the Circuit Court of Cook County, Illinois do not show that she filed her reply. In fact she had not received a copy of the petition, which she had been asking for. In the absence of a copy of the petition she could not have made an effective contest. Therefore, for all intents and purposes, the judgment dated 23.05.2005 (Ex.P7) of the Circuit Court of Cook County, Illinois was/is an ex parte judgment; besides, it failed to comply with principles of natural justice.

In International Woolen Mill versus Standard Wood (U.K) Ltd. (2001) 5 SCC 265, it was held that the broad proposition that any decree passed in the absence of defendant, is a decree on merits as it would be the same as if the defendant had appeared and contested the judgment cannot be accepted. In respect of the judgment in question in the said case, it was observed that the same did not indicate whether any documents were looked into and/or whether the merits of the case were at all considered. It merely granted to the respondent a decree for the amounts mentioned therein. It was noticed that the appellant in the said case by his letter dated 8.11.1997, replied to the notice of the respondent dated 18.10.1997. In the said reply it had been mentioned that the goods were of an inferior quality and not as per contract. It was held that the Court had not applied its mind or dealt with this aspect. It had not examined points at controversy between the parties. It had given an ex parte order as the appellant did not appear at the hearing of the suit. It was not a judgment on merits and such a decree it was held cannot be enforced in India. In respect of Section 114 Illustration (e) of the Indian Evidence Act, it was observed that the same merely raises a presumption that judicial acts have been regularly performed. However, to say that a decree had been passed regularly is completely different from saying that the decree had been passed on merits. An ex parte decree passed without consideration of merits may be a decree passed regularly if permitted by the rules of that Court. Such a decree would be valid in that country in which it is passed unless set aside by a Court of appeal. However, even though it may be a valid and enforceable decree in that country, it would not be enforceable in India if it has not been passed on merits. Therefore, for a decision on the question whether a decree has been passed on merits or not, the presumption under Section 114 of the Evidence Act would be of no help at all. Even if it were to be presumed that all formalities were complied with and the decree was passed regularly it still would not lead to the conclusion that it was passed on merits. Therefore, the ratio of the said judgment in International woolen Mill versus Standard Wood (U.K) Ltd. (supra) applies to the facts and circumstances of the present case inasmuch as the impugned judgment (Ex.P7) is not on merits of the case, it is not clear whether the respondent had put in appearance; besides, it is in violation of the principles of natural justice.

Another aspect which requires consideration is whether the judgment (Ex.P7) being passed by a Foreign Court is valid in respect of matters where the parties are governed by Hindu Law and theHindu Marriage Act in respect of the marriage. The Hon’ble Supreme Court in Y. Narasimha Rao and others versus Y. Venkata Lakshmi and another, (1991) 3 SCC 451 held that marriages performed under Hindu Marriage Act can be dissolved only under the said Act. The parties in the said case were married at Tirupati on 27.02.1975. They separated in July, 1978. The Ist appellant therein filed a petition for dissolution of the marriage in the Circuit Court of St. Louis County, Missouri, USA. The Ist respondent sent her reply from here under protest. The Circuit Court passed a decree for dissolution of marriage on 19.02.1980 in the absence of Ist respondent. Certain facts relating to the decree of dissolution of marriage passed by the Circuit Court of St. Louis County, Missouri, USA were that the Court assumed jurisdiction over the matter on the ground that the 1st appellant had been a resident of the State of Missouri for 90 days next preceding the commencement of the action and the petition in that Court. Secondly, the decree had been passed on the only ground that there remained no reasonable likelihood that the marriage between the parties could be preserved and that the marriage had, therefore, irretrievably broken. Thirdly, the 1st respondent had not submitted to the jurisdiction of the Court. From the records it appeared that to the petition, the respondent therein had filed two replies of the same date. Both were identical in nature except that one of the replies began with an additional averment as follows: “without prejudice to the contention that this respondent is not submitting to the jurisdiction of this Hon’ble court, this respondent submits as follows”. She had also stated in the replies, among other things, that (i) the petition was not maintainable, (ii) she was not aware if the first appellant had been living in the State of Missouri for more than 90 days and that he was entitled to file the petition before the Court, (iii) the parties were Hindus and governed by Hindu Law,

(iv) she was an Indian citizen and was not governed by laws in force in the State of Missouri and , therefore, the Court had no jurisdiction to entertain the petition, (v) the dissolution of the marriage between the parties was governed by the Hindu Marriage Act and that it could not be dissolved in any other way except as provided under the said Act, (vi) the Court had no jurisdiction to enforce the foreign laws and none of the grounds pleaded in the petition was sufficient to grant any divorce under the Hindu Marriage Act. The Hon’ble Supreme Court observed that under the provisions of the Hindu Marriage Act, 1955 only the District Court within the local limits of whose original civil jurisdiction-(i) the marriage was solemnized, or (ii) the respondent, at the time of the presentation of the petition resides, or

(iii) the parties to the marriage last resided together, or (iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at the time, residing outside the territories to which the Act extends, or has not been heard of as being alive for a period of seven years of more by those persons who would naturally have heard of him if he were alive, has jurisdiction to entertain the petition. The Circuit Court of St. Louis Country, Missouri had, therefore, no jurisdiction to entertain the petition according to the Act under which admittedly the parties were married. Secondly, irretrievable breakdown of marriage is not one of the grounds recognised by the Act for the dissolution of marriage. Hence, the decree of divorce passed by the foreign court was on a ground unavailable under the Hindu Marriage Act. A reference was made to Section 13 CPC, which states that a foreign judgment is not conclusive as to any matter thereby directly adjudicated upon between the parties if (a) it has not been pronounced by a court of competent jurisdiction; (b) it has not been given on the merits of the case; (c) it is founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable; (d) the proceedings are opposed to natural justice, (e) it is obtained by fraud, (f) it sustains a claim founded on a breach of any law in force in India. The decree in the said case dissolving the marriage passed by the foreign court it was held was without jurisdiction according to the Hindu Marriage Act as neither the marriage was celebrated nor the parties last resided together nor the respondent resided within the jurisdiction of that Court. The decree was also held to be passed on a ground which was not available under the Hindu Marriage Act which was applicable to the marriage. Further, the decree it was held had been obtained by the 1st appellant by stating that he was a resident of the Missouri State when the record showed that he was only a bird passage there and was ordinarily a resident of the State of Louisiana. He had, if at all, only technically satisfied the requirement of residence of ninety days with the only purpose of obtaining the divorce. He was neither domiciled in that State nor had he an intention to make it his home. He had also no substantial connection with the forum. The 1st appellant had further brought no rules on record under which the St. Louis Court could assume jurisdiction over the matter. On the contrary, he had in his petition made a false averment that the 1st respondent had refused to continue to stay with him in the State of Missouri where she had never been. In the absence of the rules of jurisdiction of that Court, it was observed by their Lordships that they were not aware whether the residence of the 1st respondent within the State of Missouri was necessary to confer jurisdiction on that court, and if not, of the reasons for making the said averment. In respect of clause (a) of Section 13 CPC it was held that the said clause should be interpreted to mean that only that court would be a court of competent jurisdiction to which theHindu Marriage Act or the law under which the parties were married recognises as a court of competent jurisdiction to entertain the matrimonial dispute. Any other Court should be held to be a court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that court. The expression “competent court” in Section 41 of the Evidence Act, it was observed was also to be construed likewise. It was further observed that Clause (b) of Section 13 CPC states that if a foreign judgment has not been given on merits of the case, the courts in this country will not recognise such judgment. This clause, it was held, should be interpreted to mean (a) that the decision of the foreign court should be on a ground available under the law under which the parties are married, and (b) that the decision should be a result of the contest between the parties. The latter requirement, it was held, is fulfilled only when the respondent is duly served and voluntarily and unconditionally submits himself/herself to the jurisdiction of the court and contests the claim, or agrees to the passing of the decree with or without appearance. A mere filing of the reply to the claim under protest and without submitting to the jurisdiction of the court, or an appearance in the Court either in person or through a representative for objecting to the jurisdiction of the Court, is not to be considered as a decision on the merits of the case. In this respect the general rules of the acquiescence to the jurisdiction of the Court which may be valid in other matters and areas should be ignored and deemed inappropriate. It was further held that clause (c) of Section 13 CPC states that where a judgment is founded on a refusal to recognise the law of this country in cases in which such law is applicable, the judgment will not be recognised by the courts in this country. It was observed that the marriages which take place in this country can only be under either the customary or the statutory law in force in this country. Hence, the only law that can be applicable to the matrimonial disputes is the one under which the parties are married, and no other law. When, therefore, a foreign judgment is founded on a jurisdiction or on a ground not recognised by such law, it is a judgment which is in defiance of the Law. Hence, it is not conclusive of the matters adjudicated therein and therefore, unenforceable in this country. For the same reason, such a judgment will also be unenforceable under clause (f) of Section 13, since such a judgment would obviously be in breach of the matrimonial law in force in this country. Clause (d) of Section 13 CPC which makes a foreign judgment unenforceable on the ground that the proceedings in which it is obtained are opposed to natural justice, it was observed, states no more than an elementary principle on which any civilised system of justice rests. However, in matters concerning the family law such as the matrimonial disputes, this principle has to be extended to mean something more than mere compliance with the technical rules of procedure. If the rule of audi alteram partem has any meaning with reference to the proceedings in a foreign court, for the purposes of the rule it should not be deemed sufficient that the respondent has been duly served with the process of the court. It is necessary to ascertain whether the respondent was in a position to present or represent himself/herself and contest effectively the said proceedings. This requirement should apply equally to the appellate proceedings if and when they are filed by either party. If the foreign court has not ascertained and ensured such effective contest by requiring the petitioner to make all necessary provisions for the respondent to defend including the costs of travel, residence and litigation where necessary, it should be held that the proceedings are in breach of the principles of natural justice. It is for this reason that their Lordships found that the rules of Private International Law of some countries insist, even in commercial matters, that the action should be filed in the forum where the defendant is either domiciled or is habitually a resident. It is only in special cases which is called special jurisdiction where the claim has some real link with other forum that a judgment of such forum is recognised. This jurisdiction principle is also recognised by the Judgments Convention of the European Community. It is, therefore, the courts in this country also insist as a matter of rule that a foreign matrimonial judgment will be recognised only it it is of the forum where the respondent is domiciled or habitually and permanently resides, the provisions of clause (d) of Section 13 CPC may be held to have been satisfied. The provision of clause (e) of Section 13 CPC which requires that the courts in this country will not recognise a foreign judgment if it had been obtained by fraud, it was observed, is self-evident. It was held that the said rule could be deduced for recognising foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may be as follows: (i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.

The present case does not come in any of the aforementioned exceptions as the respondent before the Circuit Court of Cook County, Illinois (i.e. the plaintiff herein) is not domiciled nor habitually and permanently residing in USA. In fact the plaintiff has placed on record her passport in terms of which she has never visited USA. Relief that has been granted by the Circuit Court of Cook County, Illinois is not available under the matrimonial law in this country i.e. the Hindu Marriage Act, 1955 under which the parties have been married. The claim for dissolution of the marriage as laid is not available under the matrimonial law i.e. Hindu Marriage Act by which the parties are governed. The parties are Sikhs and had married in accordance with Anand Karaj and are governed by Hindu Marriage Act. The respondent before the Circuit Court of Cook County, Illinois never voluntarily or effectively submitted to the jurisdiction of the said forum and did not contest the claim inasmuch as she was never given copy of the petition. The respondent before the Circuit Court of Cook County, Illinois never consented to the grant of relief. Therefore, the decree (Ex.P7) of the Circuit Court of Cook County is not a decree which can be said to be valid between the parties. In terms of the ratio of the judgment in Y. Narasimha Rao and others versus Y. Venkata Lakshmi and another (supra), the decree (Ex.P7) cannot be said to be valid. Insofar as the rights of the parties are concerned, the parties are Indians. The marriage was solemnized in India and they are governed by the Hindu Marriage Act. The law is well-settled by the judgment in Y. Narasimha Rao and others versus Y. Venkata Lakshmi and another (supra) and the decree (Ex.P7) of the Circuit Court of Cook County cannot be said to be valid on any ground in view of the aforesaid enunciation of the law.

In Harmeeta Singh versus Rajat Taneja 2003 (2) RCR (Civil) 197 (Delhi) it was held that the parties lived together for a very short time in the United States of America. The wife had lived in India for almost her whole life and was presently domiciled in India. The defendant (husband) was of Indian origin and his parents and family members were Indian citizens and were domiciled in India. The defendant in the said case it was alleged had substantial interests in immovable properties in India. It was held that in the said event the marriage dissolved by a decree in America, in consonance with principles of private international law which are embodied in Section 13 CPC, inter alia, the said decree would have to be confirmed by a Court in this country. Furthermore, if the defendant (husband) were to remarry in the United States of America on the strength of the decree of divorce granted in that country, until this decree is recognized in India he would have committed the criminal offence of bigamy and would have rendered himself vulnerable to be punished for bigamy. It was further observed that the plaintiff (wife) had not submitted to the jurisdiction of the Courts in the United States of America. In the context of their residing together as husband and wife, the Plaintiff’s stay in the United States of America could well be viewed as transient, temporary and casual. Having not received a spouse visa she may not even be in a position to enter USA. The defendant (husband) was restrained from continuing with the proceedings in the United States of America.

From the afore-stated propositions, it is quite evident that for a decree of divorce by a foreign Court to be valid in India in respect of matrimonial matters, it must be passed (a) in accordancewith the law applicable for the grant of matrimonial relief by which the parties are governed; (b) only that Court would be a Court of competent jurisdiction by which the parties are governed in the matters of marriage or the law under which the parties are married recognises as a Court of competent jurisdiction to entertain the matrimonial dispute. Any other Court would be a Court without jurisdiction unless both the parties voluntarily and unconditionally submit themselves to the jurisdiction of that Court; (c) the decision of the foreign Court should be as a result of contest between the parties which requirement would be fulfilled only when the respondent before the foreign Court is duly served and he/she voluntarily and unconditionally submits himself/herself to the jurisdiction of the Court and contests the claim or agrees to the passing of the decree with or without appearance. A mere filing of the reply to the claim under protest and without submitting to the jurisdiction of the court, or an appearance in the Court either in person or through a representative for objecting to the jurisdiction of the Court, is not to be considered as a decision on the merits of the case; (d) the foreign matrimonial judgment is to be recognized only if it is of the forum where the respondent is domiciled or habitually and permanently resides; (e) it is to be ascertained that the foreign Court had ensured an effective contest to a petition seeking matrimonial relief by requiring the petitioner to make a necessary provisions for the respondent to defend including the cost of travel, residence and litigation where necessary and if not is to be held that the provisions are in breach of the principles of natural justice.

The contention of the learned Senior counsel that the Family Court has no jurisdiction is devoid of merit. A perusal of the record shows that the suit had been filed by the plaintiff for declaring the decree (Ex.P7) to be void in the Court of the learned Civil Judge (Senior Division), Faridabad. The Additional Civil Judge (Senior Division), Faridabad on 17.04.2008 on perusal of the office report ordered the suit to be registered and defendant summoned for settlement of issues. The proceedings were conducted for sometime by the learned Additional Civil Judge (Senior Division), Faridabad. Then on 01.04.2009, it was transferred to the Court of Civil Judge (Junior Division), Faridabad. The issues in the case were framed on 13.05.2009 by the Civil Judge (Junior Division), Faridabad. At the time of framing issues the learned trial Judge heard arguments on the jurisdiction of the Court. It was observed that the suit was for declaration that the ex parte judgment dated 23.05.2005 passed by the Circuit Court of Cook County in USA be declared as null and void. The learned counsel for the defendant contested the suit on the ground that since ex parte injunction had been granted by the Court in USA, therefore, the appeal/suit to set aside the ex parte order of Circuit Court should be filed in USA only. The learned Civil Judge (Junior Division) referred to the case of Y Narasihma Rao versus Ventaka Lakshmi (supra) wherein it has been held that parties married according to Hindu rites in India, petition for divorce was filed in American Court where parties never last resided. Therefore, under Sections 13 and 9 of CPC, prima facie the Court had jurisdiction to entertain the present suit. Thereafter on 27.05.2009, it was received in the Family Court on its establishment and the proceedings were conducted before the District Judge (Family Court), Faridabad. Issues were re-framed on 04.11.2009. Therefore, it is a case of transfer of the case to the Court of District Judge (Family Court), Faridabad on its establishment. Section 7 of the Family Courts Act deals with the jurisdiction of the Family Court and the same reads as under:-

“Jurisdiction.-

(1) Subject to the other provision of this Act, a Family Court shall–

(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and (b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends.

Explanation.– The suits and proceedings referred to in this sub- section are suits and proceedings of the following nature, namely:–

(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;

(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;

(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;

(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;

(e) a suit or proceeding for a declaration as to the legitimacy of any person;

(f) a suit or proceeding for maintenance;

(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor. (2) Subject to the other provisions of this Act, a Family Court shall also have and exercise–

(a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974 ); and

(b) such other jurisdiction as may be conferred on it by any other enactment.”

In terms of Section 7(1) (a), a Family Court is to exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation and it is to be deemed, for the purpose of exercising such jurisdiction under such law, to be a District Court or, as the case may be, such subordinate civil Court for the area to which the jurisdiction of the Family Court extends. Therefore, Section 7 confers powers on the Family Courts to exercise jurisdiction by which any District Court or any Subordinate Civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation are mentioned. Clause (b) of Explanation relates to suits and proceedings for any declaration as to the validity of a marriage or as to the matrimonial status of any person. A suit for declaration when clouds are cast on the matrimonial status of any person, a suit seeking a declaration as to the validity of marriage or matrimonial status can be instituted. In the present case, in view of the decree of the Circuit Court of Cook County, Illinois, the matrimonial status of the plaintiff-respondent was affected inasmuch as she was to be not treated as the wife of the defendant-appellant. Therefore, the suit for establishing her matrimonial status was clearly maintainable. A declaratory decree merely declares the rights of a decree-holder and the matrimonial status of the person seeking such declaration. Family Court, therefore, decides disputes in a judicial manner and declares the rights of the parties including the matrimonial status. Family Court in terms of Section 7 is a District Court or a Subordinate Civil Court to which the provisions of Civil Procedure Code and Criminal Procedure Code have been made applicable in terms of Section 10 thereof. Therefore, the Family Court is clothed with all powers and the jurisdiction which any District Court or any Subordinate Court exercises under the Hindu Marriage Act. Section 34 of the Specific Relief Act, 1963 entitles any person to any legal character, or to any right as to any property, to institute a suit against any person denying or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled and the plaintiff need not in such suit ask for any further relief. The said provision gives a remedy to a person against others who claim an adverse interest as to his legal character or to any right as to any property. The object is to remove the cloud which may be cast upon the legal character of the plaintiff on his rights. A declaration seeking a matrimonial status would be covered in a suit seeking declaration for the purpose. Clouds having been cast on the rights of the plaintiff as to her matrimonial status by virtue of the impugned judgment of the Circuit Court of Cook County, Illinois, USA, she was entitled to file a suit for declaration seeking the said judgment to be a nullity and it would be a suit with respect to her matrimonial status which would be within the competence of the Family Court in view of Clause (b) of Explanation to Section 7 of the Family Courts Act.

In KA Abdul Jaleel Versus T. A. Shahida (2003) 4 SCC 166, it was held that the expression “dispute relating to marriage and family affairs and for matters connected therewith” in explanation (c) to Section 7 of the Family Courts Act must be given a broad construction. It was observed that the statement of objects and reasons clearly show that the jurisdiction of the Family Court extends, inter alia, in relation to properties of spouses or of either of them which would clearly mean that the properties claim by the parties thereto as spouse of the other, irrespective of the claim whether the property is claimed during the subsistence of marriage or otherwise. It was further held that it is well-settled that the jurisdiction of a Court created specially for the resolution of disputes of certain kinds should be construed liberally. The restricted meaning if subscribed to Section 7 Explanation (c) of the Family Courts Act would frustrate the object for which the Family Courts were set up. Therefore, the Family Courts have jurisdiction to determine the status of a party of his or her being the spouse of the other. Clouds were casts on the rights of the plaintiff-respondent regarding her matrimonial status with the passing of the decree dated 23.05.2005 (Ex.P-7) passed by the Circuit Court of Cook County, Ilinios. Therefore, she had a right to seek declaration of her status in terms of Section 34 of the Specific Relief Act, 1963. The effect of the declaration is to hold the matrimonial status of the plaintiff- respondent is that of a wedded wife of the defendant-appellant. The effect would be that the plaintiff becomes entitled to the status and privileges which she has of being the wife of the defendant notwithstanding the decree of the Circuit Court of Cook County, Illinios. Such a decree entitles the plaintiff to claim necessary relief to which she is entitled to on account of her matrimonial status as the wife of the defendant. For the said purpose, the Family Court established under the Family Courts Act would have the jurisdiction to entertain and try the suit. Therefore, the contention in this regard of learned Senior Counsel for the appellant is without any basis.

The other contention that has been raised by Dilraj Singh Sekhon father and general attorney of the defendant/appellant is that the Court at Faridabad had no jurisdiction and the parties hadmarried at Jalandhar and last resided at Mohali. They had never lived at Faridabad. In this regard, it may be noticed that the plaintiff has pleaded that she was residing at Faridabad; besides, property of the defendant i.e. House No.645 Sector-16, Faridabad is situated at Faridabad. Both the parties last resided at House No.645 Sector-16, Faridabad and the cause of action to file the suit had also accrued at Faridabad within the jurisdiction of the Court at Faridabad. Issue No.2 on 04.11.2009 was framed to the effect as to whether the Family Court had no territorial jurisdiction to try the suit as alleged. The onus of this issue was on the defendant. Dilraj Singh Sekhon GPA of the defendant filed his affidavit (Ex.DW-1/A). In the said affidavit (Ex.DW-1/A) there is nothing mentioned as regards the jurisdiction of the Court at Faridabad even though the onus of the issue was on the defendant. As against this the plaintiff in her affidavit (Ex.PW-1/A) has stated that somewhere in the middle of April 2005 she found an envelope in the letter box of her House No.645, Sector-16, Faridabad containing a cutting of a newspaper wherein a notice was published that the defendant had filed a petition for dissolution of the marriage between them in the Circuit Court of Cook County, Chicago, Illinios USA against her and she was called upon to file her response to the said petition. Therefore, it is the specific averment of the plaintiff that a notice for her appearance had been found in an envelope of her letter box at Faridabad. Therefore, the cause of action had accrued to the plaintiff within the territorial jurisdiction of the civil Court at Faridabad. The objection in the written statement filed by the defendant through his attorney and father Dilraj Singh Sekhon is that the parties never last resided together at Faridabad and they were married at Jalandhar. However, the present is a suit for declaration and has been filed where the defendant has his house at Faridabad and the cause of action accrued to the plaintiff at Faridabad. It is not a case seeking dissolution of marriage under the Hindu Marriage Act, 1955 where the petition is to be filed at the place where the marriage was solemnized or where the parties last resided together. In any case in view of amendment effected to the Hindu Marriage Act by Act No.50 of 2003 Clause (iii-A) has been added to Section 19 thereof which entitles the wife who is the petitioner to present to the District Court within the local limits of whose ordinary original jurisdiction she is residing on the date of the presentation of the petition. Therefore, the contention of the defendant that the Court at Faridabad had no jurisdiction to entertain and decide the petition is devoid of merit.

Another contention that has been raised by Sh.Dilraj Singh Sekhon GPA holder is that the limitations for filing an appeal under Section 28 of the Hindu Marriage Act is 30 days from the date of decree. What is sought to be contended is that the decree dated 23.05.2005 (Ex.P-7) passed by the Circuit Court of Cook County, Illinois has been assailed after 30 days of the date of decree. However, it may be noticed that the present case relates to a suit for declaration which was filed by the plaintiff on 17.04.2008. It is not an appeal. The learned Additional Civil Judge (Senior Division), Faridabad on 17.04.2008 passed an order to the effect that the suit taken out from the petition box. Reader to put up after office report on the said day itself. The Reader reported on 17.04.2008 that the Court fee was correct. Thereafter on the same day, the learned Additional Civil Judge (Senior Division), Faridabad passed an order to the effect that office report had been perused. Suit was ordered to be registered and the defendant summoned for settlement of issues on filing of process fee. Copy of plaint and registered AD covers for 12.05.2008 were ordered. The suit was received by the learned District Judge (Family Court), Faridabad on 27.05.2009. The date of institution of the suit mentioned in the impugned judgment and decree of the District Judge (Family Court) is 25.05.2009 which, in fact is the date of transfer of the case. Otherwise, the suit was initially filed on 17.04.2008. The learned District Judge (Family Court), Faridabad while deciding issue No.2 held that the suit seeking declaration had been filed within three years of the impugned decree and, therefore, it was not time barred. The said finding is correct and is in accordance with law. The said finding in fact was to be on issue No.3 as reframed on 04.11.2009 by the learned District Judge (Family Court), Faridabad. However, this is only a technical lapse. A suit for declaration is governed by Article 113 of the Limitation Act, 1963 which is a residuary article. It is envisaged therein that any suit for which no period of limitation is provided elsewhere in the Schedule, the limitation is three years when the right to file the suit accrues which in the facts and circumstances would be when the status of the plaintiff as a wife of the defendant is denied.

Another objection which is seriously pressed by Sh.Dilraj Singh Sekhon GPA for the appellant is that the defendant is not domicile in India, therefore, he could not file a suit for claiming the matrimonial relief in India. The said contention has been urged on the basis of Section 2 of the Divorce Act, 1869. A judgement of the Hon’ble Madras High Court in Dr. David Chakaravarthy Arumainayagam and another versus Geetha Chakravarthy Armainayagam and another 2002(1) Marriage Law Journal 354 has been strenuously relied upon. The said contention in fact is absolutely misconceived as the parties are not governed by the Divorce Act, 1869. The parties are admittedly Sikhs and are governed by Hindu Law in the matters of marriage. Even during the course of hearing, Sh. Dilraj Singh Sekhon GPA for the appellant accepted that the parties profess the Sikh Religion. Section 2 of the Divorce Act, 1869 relates to extent of the Act and in respect to the extent of power to grant relief generally, it is provided that nothing hereinafter contained shall authorise any Court to grant any relief under the said Act except where the petitioner or respondent professes the Christian religion. Neither of the parties professes the Christian religion. Therefore, the said contention is absolutely untenable and misconceived. The provisions of the Divorce Act, 1869 are not even remotely applicable to the present case.

Learned counsel for the plaintiff-respondent has also raised an objection that Sh.Dilraj Singh Sekhon GPA for the appellant who claims to have a power of attorney in his favour does not have a valid power of attorney to represent his son Harpreet Singh Sekhon who is the defendant. In the connected FAO No.6208 of 2011, there was a specific issue in this regard and in the order pronounced today, it has been held that the power of attorney on the basis of which Dilraj Singh Sekhon is litigating on behalf of his son does not give him the necessary power. Therefore indeed the power of attorney executed by Harpreet Singh Sekhon defendant in favour of Dilraj Singh Sekhon on 22.02.2006 does not confer on him any power to pursue litigation on his behalf.

Another contention that has been raised by learned counsel for the plaintiff is that the defendant-appellant has failed to pay the maintenance amount and the appeal is liable to be dismissed on this account. Normally where the maintenance amount has not been paid, the Court is under an obligation to strike off the defence of the defaulting party and dismiss or allow the appeal as the case may be. However, the maintenance that has been granted in the present case is in proceedings under the Protection of Women from Domestic Violence Act, 2005. Criminal miscellaneous application against the said proceedings against the orders passed by the learned trial Magistrate and the learned Additional Sessions Judge, Faridabad is pending in this Court and the matter is still to be finally considered in the said case. Therefore, in the facts and circumstances, we are not inclined to dismiss the appeal only on account of non-payment of maintenance. However, that would not preclude the plaintiff to claim her due rights in accordance with law in the said proceedings by way of execution or other appropriate remedies as may be available to her. The defendant appellant in fact should have honoured the payment of maintenance as ordered by this Court on various dates. However, Dilraj Singh Sekhon GPA for the appellant has been reluctant in paying the amount and has contended that the same is subject matter of the criminal miscellaneous application, which is pending in this Court. Since we are dismissing the appeal on merits we need not to go into this aspect of the matter.

It may also be placed on record that Mr. Surjit Singh, Senior Advocate had been appearing in the case. However, on 23.07.2012 he did not appear. He was called for by the Court and he submitted that his client had taken the brief from him. It was, however, accepted that he had not been discharged by the Court. In order to effectively decide the case, he was asked to assist the Court for which he gracefully agreed. Therefore, it is on the request of the Court that Mr. Surjit Singh, Senior Advocate had appeared in this case. Although he had submitted that he may be allowed to withdraw and the appeal be allowed to be argued by Dilraj Singh Sekhon GPA for the appellant.

In view of the above, we find no merit in the appeal and the same is accordingly dismissed.

(S.S. SARON) JUDGE (S. P. BANGARH) JUDGE

USA-Divorce Decree is Valid in India ?

Foreign Divorce Validity in India
A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-
(a) where it has not been pronounced by a Court of competent jurisdiction.
(b) where it has not been given on the merits of the case.
(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable.
(d) where the proceedings in which the judgment was obtained are opposed to natural justice.
(e) where it has been obtained by fraud.
(f) where it sustains a claim founded on a breach of any law in force in India.
So these six conditions are fulfilled by such foreign judgment/decree of divorce then it will be valid for dissolving such Indian marriage as has been held by the Supreme Court of India in several of its judgments. The very first condition is with regard to Jurisdiction of such foreign court, what it means that both or either of the parties should be residing in the foreign country where from such decree of divorce has been obtained. The second important condition is with regard to merits of the case for divorce, whether those merits considered by the foreign court to arrive on this conclusion or not. Next, a proper notice was served to the other party with regard to such divorce proceedings & the other party was assigned a sufficient time to file his or her defense against the case, hence following the principle of natural justice. There was no fraud or force involved in such case & both the parties either mutually agreed to surrender itself to such foreign court for getting the decree of divorce or neither of them objected to such foreign court proceeding with such matter & deciding it accordingly. Lastly the decree so passed by the foreign court should not be such which may not be executable in India. In your case if you both had agreed for going through such divorce in Spain through their Family Court having similar status as Indian Family Court, such decree of divorce was passed after considering all the merits of your case, both the parties were heard & their statements properly recorded by the foreign court & a proper judgment followed by the decree passed by such foreign court dissolving your marriage, then this will be a valid dissolution of marriage & the decree of divorce executable in India. Now should you get this decree of divorce declared as valid by the family court of India or not. It all depends on you or on the precondition as mentioned in such decree of divorce by the foreign court. Some foreign courts do put a condition in the decree to any such matter to become valid only after the Indian court or competent government authority gives its ascent of approval on such decree. In such a case you have to file an application in the Family court of competent jurisdiction as discussed above in India to get the approval & validation of such decree of divorce. Otherwise it is entirely on both of you to go in for Indian court validating such foreign divorce decree or not, for all purpose you both can proceed for second marriage if such foreign divorce decree was obtained keeping in mind all the prerequisite conditions as mentioned in section13 of the CPC. Try using the Foreign Family Court divorce decree for both these purposes if the Indian government/authorities don’t agree then get this decree validated by Indian

 

Advocate Prachi Singh

+91-9811114265

www.legesjurisassociates.com

reasons for divorce in india

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Marriage as a social institution is an affirmance of

civilized social order where two individuals, capable of

entering into wedlock, have pledged themselves to the

institutional norms and values and promised to each other

a cemented bond to sustain and maintain the marital

obligation. It stands as an embodiment for continuance of

the human race. Despite the pledge and promises, on

certain occasions, individual incompatibilities,

attitudinal differences based upon egocentric perception of situations,

maladjustment phenomenon or propensity for

non-adjustment or refusal for adjustment gets eminently

projected that compels both the spouses to take intolerable

positions abandoning individual responsibility, proclivity of

asserting superiority complex, betrayal of trust which is the

cornerstone of life, and sometimes a pervert sense of

revenge, a dreadful diet, or sheer sense of envy bring the

cracks in the relationship when either both the spouses or

one of the spouses crave for dissolution of marriage –

freedom from the institutional and individual bond. The

case at hand initiated by the husband for dissolution of

marriage was viewed from a different perspective by the

learned Family Court Judge who declined to grant divorce

as the factum of desertion as requisite in law was not

proved but the High Court, considering certain facts and

taking note of subsequent events for which the appellant

was found responsible, granted divorce. The High Court

perceived the acts of the appellant as a reflection of attitude

of revenge in marriage or for vengeance after the reunion

pursuant to the decree for restitution of marriage.

meaning of marriage in Indian culture.

marriage

Marriage as a social institution is an affirmance of

civilized social order where two individuals, capable of

entering into wedlock, have pledged themselves to the

institutional norms and values and promised to each other

a cemented bond to sustain and maintain the marital

obligation. It stands as an embodiment for continuance of

the human race.

the marriage tied their nuptial knot to bring about the union of souls. The marriage creates a new relationship of love, affection, care and concern between the husband and wife. According to Hindu Vedic philosophy, it is sanskar- sacrament, one of the sixteen important sacraments essential to be taken during one’s lifetime. As a result of marriage there may be physical union between the parties of the marriage for procreation of lineal progeny and for ensuring spiritual salvation and performance of religious rites but what is essentially contemplated is the union of two souls. Marriage is considered to be a junction of three important duties i.e. social, religious and spiritual

Divorce Lawyers in Delhi

 

 

Divorce Laws in India.

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Divorce laws. Here is the list of various divorce laws in India for various religionsIndia has different divorce laws for different religions. Almost all the religions has their own divorce laws in India which are used among themselves. There are separate laws for inter-cast or inter-religion marriages.Divorce laws in India for Hindus is described in Hindu Marriage Act, 1955. Hindu Marriage Act is also used for Sikhs, Buddhists and Jains as they don’t have their own separate marriage and  divorce laws. Here is the list of various divorce laws in India for various religions

Hindu (including Sikhs, Jains and Buddists) : Hindu Marriage Act, 1955

Muslims : Dissolution of Muslim Marriages Act, 1939

Christians : Indian Divorce Act, 1869

Parsis : The Parsi Marriage and Divorce Act, 1936

Inter-Cast of Inter-Religion : Special Marriage Act, 1954

The Indian Divorce, Act Special Marriage Act, the Parsi Marriage and Divorce Act and the Hindu Marriage Act, provide for annulment of the marriage, since its very inception, on grounds such as the non-fulfillment of mandatory conditions.. The Indian Divorce act requires confirmation by the High Court to come into effect.

Grounds for Divorce in India

In India divorce is granted mainly on 4 different grounds.

1. Adultery

2. Desertion

3. Cruelty

4. Impotency

5. Chronic Diseases