Divorced Wife Not Entitled To Right Of Residence Under Section 17 Domestic Violence Act.

In the matter of MR.RAMACHANDRA WARRIOR  VS  JAYASREE, the Hon”ble High of Kerla held tha in para no.23 of the judgments as under:-                               

23.  On the above  reasoning, we answer the reference as follows:

       (i)   A divorced wife would not be entitled to the right of residence conferred under S.17 under the Protection of Women from Domestic Violence Act, 2005, for reason of that right being available only to a woman in a domestic relationship.

(ii) A divorced wife would be included under the definition ‘aggrieved person’. A divorced wife occupying a shared household can be evicted only in accordance with law. A divorced wife can approach the Magistrate’s Court for an order under S.19 if she is residing in the shared household. The residence orders passed in such cases, would be subject to any proceeding for eviction in accordance with law, initiated by the husband, as contemplated under S.17(2).

(iii) There can be no order to put a divorced woman in possession of a shared household, from where she had separated long back, and the relief can only be of restraining dispossession.

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

                   Crl.Rev.Pet.No.3079 OF 2009

               MR.RAMACHANDRA WARRIOR……Revisionist

                                              VERSUS

                 JAYASREE                                ,,,,,,,Respondent

                                           O R D E R

Vinod Chandran, J.

The above revision is placed before us by virtue of a reference order made by a Single Judge finding conflict in the decisions rendered by two other Single Judges in Sulaiman Kunju v. Nabeesa Beevi [2015 (3) KHC 5] and Bipin v. Meera [2016(5)KHC 367]. The apparent conflict is with respect to the rights of a divorced woman to invoke the provisions of Protection of Women from Domestic Violence Act, 2005 (‘DV Act’ for brevity). In the course of hearing, from facts, we perceive a further question, which is as to whether the order of residence obtained by a wife in a shared household would seize automatically on a divorce being granted subsequently. This question arises both from the facts of this case and Sulaiman Kunju. In Bipin there was no order of residence sought by the divorced wife, but the declaration was insofar as a divorced woman being entitled to invoke the provisions of DV Act as against her husband. The declaration if applicable to the other reliefs that could be obtained under the DV Act, would equally apply to an order of residence sought under S.19, is the argument of the respondent herein.

2. Considering the complexity of the questions raised and its ramifications, particularly in seeking an order of residence, we requested Sri.S Sreekumar and Sri. P.Vijaya Bhanu Senior Counsels who were present in Court at the time of the earlier hearing to assist us. Smt. C.G Preetha appeared for the appellant/husband and Sri. Shaji Thomas appeared for the respondent/wife. Going by the dictum of Kallara Sukumaran v. Union of India [1987 (1) KLT 226] the reference being of the case itself, we need to answer the questions posed first and then decide the revision itself.

3. Smt. C G Preetha argued for sustaining the dictum in Sulaiman Kunju. If a divorced wife is allowed to reside in the divorced husband’s home, even if it be a shared household when the marriage subsisted, it could lead to absurd results. It would almost amount to the Magistrates Court interfering with the order of divorce which in this case has been passed by the High Court itself as is evident from Annexure VIII produced in the revision; as held in Inderjit Singh Grewall v. State of Punjab [2011(12) 588]. The definition of ‘aggrieved person’ and ‘domestic relationship’ as available in the DV Act clearly indicates that only a person having subsisting domestic relationship can invoke the provisions of the Act. Sri Shaji Thomas submitted that Annexure VIII order of divorce could not be challenged due to the penurious circumstances in which the respondent is living, along with her daughter. It is pointed out that the definition of ‘domestic relationship’ takes in every relationship of consanguinity, marriage, a relationship in the nature of marriage, adoption and members of a joint family. If Sulaiman Kunju is upheld it would be absurd insofar as a women having relationship in the nature of marriage, will perpetually have the right to invoke the provisions of the DV Act, while one legally married would be denied that remedy by reason of a divorce granted. The legislative intention is otherwise and the decisions of the Hon’ble Supreme Court and the High Courts lean in favour of the divorced wife, is the argument.

4. Sri. Vijaya Bhanu specifically referred to S.17 by which the right to reside in a shared household is conferred on ‘every woman in a domestic relationship’. This requires a subsisting relationship as distinguished from the definition of ‘aggrieved person’. The employment of the words ‘is or has been’ as used in the definition clause of ‘aggrieved person’ is absent in S.17; which confers the right to reside. S.19 also speaks of restraining the respondent from dispossession (a), directing him to remove himself from the shared household

(b) and restraining the respondent or his relatives from entering any portion of the shared household in which the aggrieved person resides (c). S.19 does not enable a divorced wife who is no more living in the shared household to be put back in possession. It is also pointed out that S.25 provides the respondent with a remedy to apply to the Magistrate for discharge on grounds of change in circumstances. Even this Court, in this revision could take ‘cautious cognizance’ of subsequent changes of fact and law and mould the relief and proceed beyond the rights and obligations of the parties as obtained at the commencement of the lis, as held in Ramesh Kumar v. Kesho Ram 1992 Supp (2) SCC 623. Sri.Sreekumar refers to Inderjit Grewal to further buttress the argument and points out that S.17(2) only bars an eviction of an aggrieved person other than in accordance with law.

5. Sulaiman Kunju was a case in which the wife made an application under S.12 to restrain the husband from causing any obstruction to the peaceful life of herself and her children in the shared household. The facts as discernible from the narration indicates the application under S.12 having been filed in 2009 and the same having been allowed with additional monetary relief of maintenance. Subsequent to that a divorce petition filed by the husband, also in the year 2009, was allowed by the Family Court in 2012, against which no appeal was filed by the wife. Looking at the definition of ‘aggrieved person’ and ‘domestic relationship’ under S.2(a)and(f)of the Act it was held that the latter definition has two limbs. For finding ‘domestic relationship’ between two, firstly they should be persons who live or have at any point of time lived together in a shared household and secondly they should be related by one of the forms of relationship enumerated in the definition clause. It was declared that the applicant seeking residence order has to be in a subsisting relationship and in the event of severance of such relationship by virtue of a decree of divorce issued by a competent Court, she would be excluded from the definition of aggrieved person.

6. Bipin again considered the question whether the subsistence of a matrimonial relationship is the sine qua non for seeking relief under the DV Act. There the spouses, after a child was born to them, divorced under S.13B of the Hindu Marriage Act 1955 [HMA], on mutual consent. Later the wife approached the Magistrates Court under S’s.18 and 20 seeking a protection order, return of gold ornaments, passport and an injunction from operating the bank locker. The contention that a divorced wife cannot seek relief under the Act was repelled relying on Priya v. Shibu [2008(3)KHC 125] and Juveriya Abdul Majeed Patni v. Atif Iqbal [2014(10)SCC 736]. The learned Judge observed that though it is a paradox to permit a divorced woman to invoke the provisions of the DV Act; instances where the need arise would not be rare, especially relating to obligations arising from the past matrimonial relationship like maintenance, custody of children, liability to return amounts or assets received from the  wife, operation of bank accounts and personal safety of wife and children born in the wedlock. While Priya upheld the order passed under S.19(8) and S.20, Bipin extended it to S.18. In Priya the contention raised to non-suit the divorced wife was that the words employed in the definition clause of ‘aggrieved person’, ‘is’ or ‘has been’, is in the present perfect continuous tense. The learned Judge held that this only indicates the past relationship and there is no requirement for the relationship to be continuing on the date of application.

7. Juveriya Abdul Majeed held that a subsequent decree of divorce will not absolve the liability of the husband under the DV Act for an act of domestic violence committed earlier. The wife sought protection under S.18, monetary relief under S.20, custody order under S.21, and compensation under S.22. Therein the husband asserted a divorce in accordance with the Muslim Personal Law, for which no evidence was placed before Court. It was authoritatively declared that even if it is presumed that there was a divorce, the claim of the wife with respect to the obligations arising under the past relationship will not stand effaced; to enforce which the provisions of the DV Act could be invoked. In fact the learned Judges distinguished the decision in Inderjit Singh Grewal where an identical issue on different facts was considered. Therein  the spouses had applied under S.13B of the HMA and  after  the    statutory  period   their  statements  were recorded    based      on   which    the      marriage    stood   dissolved.Later, contention was raised by the wife that the decree obtained was a sham, insofar as the spouses lived together even after the decree of divorce. The complaint filed before the Police was referred, finding no case made out against the divorced husband. The divorced wife invoked the provisions of the DV Act and also filed a civil suit for declaration of the decree of divorce as null and void; having been obtained by fraud. The Hon’ble Supreme Court found that the respondent wife had been consistently before the Family Court, admitted to the marriage having broken down and there was enough evidence that they were living separately after the divorce, with the custody of the only child conceded to the husband. It was held that the Magistrates Court, under the DV Act cannot sit in appeal from the decree of divorce. Allowing the appeal the proceedings before the Magistrate were found to be incompetent, but leaving open the divorced wife’s remedy before the civil court.

8. Having gone through the precedents of the Hon’ble Supreme Court, we pertinently notice that in none of these decisions the question arose, as to whether a divorced wife would be entitled to seek a residence order so as to continue living in the shared household, which was shared at the time of the subsisting marital relationship ie, when the relationship was cordial or rather it had not broken down completely. We specifically observe so since rare would be cases where the spouses approach the Family Court to file and contest a divorce petition, when they are living together in the same house. But we are conscious that there could be such instances also since human conduct can never be put in a strait jacket. If after divorce the wife is allowed to invoke the right conferred under S.17 then it could lead to absurd results. But we have to keep in mind that the Hon’ble Supreme Court had time and again held that a divorced wife could invoke the provisions of the DV Act for the purpose of enforcing obligations arising from the past relationship like custody, maintenance and other monetary reliefs, compensation and even orders ensuring personal safety of the wife and children. In that context the definition of ‘aggrieved person’ cannot be given a restrictive meaning only in cases where a residence order is sought under S.19. The definition clause of ‘aggrieved person’, as per the dictum of the Hon’ble Supreme Court includes a divorced woman and Sulaiman Kunju to that extent is not good law.

9. In this context we refer to Satish Chander Ahooja v. Sneha Ahooja 2021(1) SCC 414 wherein a three Judge Bench of the Hon’ble Supreme Court examined the Statement of Objects and Reasons of the DV Act and opined that the enactment was a mile stone for protection of women in the country. The learned Judges noticed that domestic violence in this country is rampant and often the woman resigns to her fate, suffering violence and discrimination, while discharging the different roles she plays in a family. Often the women are cowed down, for reason of the patriarchal society still demanding her to be subservient to the man coupled with the social stigma attached to any measure of retaliation. The Statement of Objects and Reasons, it was observed, refer to three International Conventions recommending participating States to take measures including legislation to protect women against violence; even that occurring within the family.

10. The learned Judges referred to Capt.Ramesh Chander Kaushal v. Veena Kaushal [1978 (4) SCC 70] and quoted the following paragraph from the decision authored by Krishna Iyer. J, on the objectives of enacting S.125 Cr.P.C:

9. This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. We have no doubt that sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advance the cause — the cause of the derelicts.

11. The interpretation of the provisions of the DV Act also should advance the cause it seeks to serve; that of destitute women subjected to domestic violence. The DV Act attempts to fulfill an amalgamation of civil rights available to an aggrieved woman, with the intention to protect women against violence of all kind, including that occurring within the family, especially in the context of the civil laws having not addressed the phenomena in its entirety (Kunapareddy v.Kunapareddy Swarnakumari [2016(11)SCC 774]). This overwhelming social function which the Act attempts to fulfill restrains us from denying a divorced woman the right to approach a Magistrate under the DV Act. Especially when the remedy under the Civil Laws, either before the civil Court or the Family Court, for reason of the cumbersome procedure and the delay in realizing the cause, would frustrate the very life of a woman deserted by her husband; even if it is by permissible legal modes.

12. Having found, on the strength of binding precedents that even a divorced woman could avail the remedy under the DV Act, we are still faced with the question of whether a divorced woman can seek an order of residence under S.19, as per the right conferred under S.17. The reliefs available under the DV Act are protection orders under S.18, residence orders under S.19, monetary reliefs under S.20, custody orders under S.21, compensation orders under S.22 as also interim and ex parte orders under S.23. As has been held by the Hon’ble Supreme Court in Kunapareddy the remedies provided under the DV Act enable realization of a number of civil rights available to a distressed woman. Pertinently with respect to the right of residence there is specific conferment of that right under the DV Act itself by S.17. As we noticed, the precedents we discussed above did not specifically deal with the question of a divorced woman enforcing the right of residence under S.17. We have not discussed the numerous decisions of the various High Courts produced before us, because most of them, again, are on the aspect of whether a divorced woman would fall under the definition of ‘aggrieved person’. We have come across two decisions of Single Judges of the High Courts of Bombay and Chhattisgarh High Courts,(Bharati Naik v. Ravi Ramnath Halamkar and another[2011 CriLJ 3572] and Ajay Kumar Reddy and others v. State of Chhattisgarh and another [2018 CriLJ 1155]), where the specific question of a residence order claimed by a divorced wife came to be considered. In both the said cases the divorced wife was living in the shared household, when the Magistrates Court was approached, under the DV Act.

13. As we noticed, the right to reside in a shared household is specifically conferred under S.17 of  the DV Act, which is a non obstante provision and reads as under:

“17. Right to reside in a shared household-

(1)Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same. (2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.”

We discern a perceptive legislative exercise having gone into the design of the specific provision. As per sub- section (1), the right to reside in the shared household has been conferred on ‘every woman in a domestic relationship’. There is substantial variation insofar as the words ‘has been’ ‘had’ or ‘have’ not having been used in the above provision and the right conferred is on a woman in a subsisting relationship. However, sub-section (2) of S.17 and S.19 speaks again of ‘aggrieved person’, which takes in a divorced wife. A divorced wife continuing in a shared household would be entitled to seek the remedy under S.19 and can be evicted therefrom only in accordance with law (S.17(2)). The order passed under S.19 would be subject to any proceedings in accordance with law. This takes in circumstances in which the divorced woman, who is at the time of the divorce or thereafter, residing in the shared household itself being enabled to approach the Magistrate under the DV Act. Insofar as a divorced wife, who is no longer living in the shared household, she cannot be put back in possession. The perceptive legislative exercise is in so far as conferring a woman in a domestic relationship, the right of residence in the shared household, while a divorced wife who is continuing in the shared household at the time of divorce though entitled to seek for a residence order under S.19, can continue only till she is evicted by due process of law.

14. In this context, we also notice that the absurdity pointed out by the learned Counsel for the petitioner, insofar as a divorced wife being allowed to continue in the house of the divorced husband can be avoided by resorting to Clause (f) of S.19, which enables the Court to direct the respondent to secure the same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same. This comes within the scope of maintenance entitled to a distressed woman. In addition, the Court will also be empowered to grant compensation as provided under S.22 and continued maintenance, which even a divorced wife who remains unmarried, is entitled under S.125, for which S.20 of the DV Act can be invoked. Thus the legislation advances the cause of destitute and derelict women and ensures that they are not left to the vagaries of life only for reason of a divorce obtained by the husband.

15. Now we come to the second question, which has to be looked at on the particular facts as available in the instant case as also Sulaiman Kunju. In both the instances, the complainant was in a domestic relationship as a wife at the time the application was filed before the Magistrate’s Court under the DV Act. In the present case an order granting residence was passed by the Magistrate and the same confirmed in appeal by the impugned orders dated 14.05.2007 and 27.04.2009. Annexure-VIII judgment of this Court in Mat.Appeal No.136 of 2008, dissolving the marriage at the instance of the petitioner-husband, came to be passed on 22.08.2017, long after the residence order was passed. Hence the impugned orders have to be tested as on the date of application. We have already noticed the decision of the Hon’ble Supreme Court in Ramesh Kumar, wherein the Hon’ble Supreme Court permitted ‘cautious cognizance’ of the subsequent changes of law and fact to mould the relief; travelling beyond the rights and obligations of the parties as obtained at the commencement of the lis. We are of the opinion that the present case is not one, where such cognizance can be taken, especially when there is available a remedy to the petitioner- divorced husband under S.25(2), which is extracted here under:

“25. Duration and alteration of orders-

(1)x x x (2) If the Magistrate, on receipt of an application from the aggrieved person or the respondent, is satisfied that there is a change in the circumstances requiring alteration, modification or revocation of any order made under this Act, he may, for reasons to be recorded in writing pass such order, as he may deem appropriate.”

Hence the respondent-husband is entitled to approach the Magistrate Court for alteration, modification or revocation of the order passed on the ground that there is a change in circumstances.

16. Now we come to the merits of the matter. The complainant approached the Magistrate and there is a report filed by the Protection Officer also. The marriage of the parties was solemnized on 01.04.1998 and a daughter was born in the wedlock. The wife complained of constant ill-treatment at the hands of the husband and on 09.01.2007 she was evicted from the matrimonial home. The husband filed objection contesting the marriage, but admitting to have lived together for four days and denying the parentage of the child born. It was also alleged that they were residing separate for almost 9 years and the present residence of the husband named ‘Subhadra Nivas’ was not the matrimonial home or the shared household.

17. The learned Magistrate found that ‘Ananthapurath Warriam’ was the shared household of the Crl.R.P 3079/2009 – 17 –

parties and there was clear admission of the respondent that there was a form of marriage with exchange of garlands and tying of the Thali in front of a lighted lamp, in the presence of relatives of both. It was also noticed that in any event domestic relationship as defined in S.2(f) takes in a relationship in the nature of marriage, which, definitely, the parties had gone through. The contention of the wife was that due to constant ill- treatment for reason of doubts raised on her chastity, she had to leave the matrimonial home with the child and approach the Family Court with a maintenance case. The respondent then came for rapprochement and took back the petitioner to her matrimonial home and their child was enrolled at a nearby School. The domestic violence continued and on 09.01.2007 again the wife and child were evicted from the house and they had to take shelter in a neighbouring house of an aged couple. The husband had made wild allegations of the wife having very many relationships outside the marriage and even alleged that the present house in which she was staying was rented out by her paramours. From the facts and circumstances pleaded, the learned Magistrate accepted the grounds raised by the wife. None of the allegations raised by the husband stood substantiated and even Ext.D1, Building Permit produced by the husband was found to be for a reconstruction or alteration. It was found that the subject house was the shared household of the parties and the domestic violence was specifically spoken of by the wife. The wife alleged that she was ill-treated and her chastity was questioned and even the daughter’s parentage was disowned. Finding domestic violence having been proved, the learned Magistrate passed an order under S.18 prohibiting the respondent-husband from committing any act of domestic violence and also restrained dispossession of the wife from the shared household, under S.19 of the DV Act. The Appellate Court concurred with the judgment of the Magistrate.

18. The learned Counsel for the husband, on the merits of the case, argued that the finding as to shared household is incorrect. The Courts below did not properly appreciate the report of the Protection Officer, wherein it was reported that the allegations of domestic violence are suspicious in nature. It was also argued that the pleadings in the complaint were vague and the additional evidence produced as Annexure-III to VII were ignored by the lower courts. Per contra it was pointed out that the revision petitioner had no consistent case before the Magistrate’s Court and the order as affirmed by the Appellate Court ought to be sustained.

19. We agree with the respondent-wife that there was no consistent case for the revision petitioner-husband before the lower courts. The marriage was disputed and it was also alleged that the couple stayed together only for four days but, obviously a child was born in the wedlock.Before Court, the husband, who was examined as DW1, spoke of a ceremony akin to marriage having been conducted and relatives of both parties having attended the same. We are convinced that there was a valid marriage between the parties, which fact is further fortified by the petition filed before the Family Court by the husband for divorce, which has culminated in Annexure-VIII judgment, dissolving the marriage at the instance of the husband.

20. The petitioner has relied on Annexure-III to VII to contend that the subject house was not a shared household. Annexure III is the voter’s list and Annexure VI the husbands Voters ID. Merely because the voters list does not disclose the name of the wife along with the husband, it is not established that the wife was not living along with the husband, since it is not compulsory that every citizen should enroll themselves in the voter’s list. Annexure-IV is an application for Building Permit, which speaks of a new construction having been intended and Annexure-V is the Completion Certificate issued by the Municipality. The Building Permit as such has not been produced and from Annexure-V it is not clear as to whether the construction was a new one or there was only alteration. Be that as it may, the husband having admitted cohabitation of at least four days; does not specify the building in which they were residing together. As rightly found by the lower courts, ‘Ananthapurath Warriam’, in all probability, is the ancestral house of the husband and there is no such residential building pointed out by the husband as distinct from the newly constructed house named ‘Subhadra Nivas’. Annexure-VII puts to peril the contention of the husband, since it shows three residences having the name ‘Ananthapurath Warriam’. Obviously, every family member takes the family (Tharavadu) name for their individual residences as is the custom in the State. If at all a new building was constructed, Annexure-VII only indicates that it has been named ‘Subhadra Nivas’, probably to defeat the claim made by the wife.

21. The next contention is with respect to the report of the Protection Officer, which we have looked into from the records. We see from the report that under Serial No.4 ‘Incidents of domestic violence’ it is written ‘suspicious nature’. As made out by the Counsel for the respondent, this is not a report of the allegation raised of domestic violence by the wife, being suspicious. What it indicates is that the domestic violence alleged is for reason of the ‘suspicious nature’ of the husband. This is more than evident from the objection filed by the husband, which questions the wife’s’ chastity at every point and even extends to disowning the parentage of the daughter born in the wed lock. There is nothing in the report of the Protection Officer to disbelieve the version of the wife. We are not satisfied that the impugned orders are in any manner illegal or improper and consideration of Annexure-II to VII would not have resulted in a different result in the complaint filed under Section 12 of the DV Act.

22. Looking at the facts and the law as discussed above, we are of the opinion that the respondent was entitled to file the application before the Magistrate’s Court as she was in a domestic relationship with the respondent at that point of time. We have also held that on the facts and circumstances the order passed against the revision petitioner is perfectly in order. We do not find any reason to interfere with the impugned orders considering the rights of the parties as obtaining at the time of initiation of the lis. As we noticed above, we find that the judgment in Sulaiman Kunju has not been correctly decided, wherein the facts were identical; of the wife having applied under the DV Act, when there was a subsisting domestic relationship. As we already noticed, we are not intending to take cognizance of the subsequent facts and circumstances, especially of the dissolution of marriage by Annexure-VIII; since there is ample remedy available for the revision petitioner as per the DV Act itself. Sub-section (2) of S.17 enables the respondent to seek for eviction in accordance with law. Like wise, sub- section (2) of S.25 enables the revision petitioner- respondent to approach the Magistrate on satisfactory grounds of change in circumstances requiring alteration, modification or revocation of any order passed under the DV Act

     23.  On the above  reasoning, we answer the reference as follows:

       (i)   A divorced wife would not be entitled to the right of residence conferred under S.17 under the Protection of Women from Domestic Violence Act, 2005, for reason of that right being available only to a woman in a domestic relationship.

(ii) A divorced wife would be included under the definition ‘aggrieved person’. A divorced wife occupying a shared household can be evicted only in accordance with law. A divorced wife can approach the Magistrate’s Court for an order under S.19 if she is residing in the shared household. The residence orders passed in such cases, would be subject to any proceeding for eviction in accordance with law, initiated by the husband, as contemplated under S.17(2).

(iii) There can be no order to put a divorced woman in possession of a shared household, from where she had separated long back, and the relief can only be of restraining dispossession.

24. Going by the above declaration, we find the application filed by the wife against the husband before the Family Court to be maintainable, since she was in a domestic relationship at the time the jurisdiction was invoked. We find the impugned orders to be perfectly legal and sustainable. We reserve the right of the revision petitioner-husband to approach either the Civil Court as permitted under sub-section (2) of S.17 or the Magistrates Court, which passed the order, under sub-section (2) of S.25. If under S.25(2) any modification or revocation is caused, we make it clear that the Magistrate would be entitled to pass further orders on the application under S.12 for monetary relief including maintenance under S.125 of the Code of Criminal Procedure or compensation under S.22 of the DV Act.

We answer the question referred as above and dismiss the revision with the above reservations.

Sd/-

K.VINOD CHANDRAN JUDGE Sd/-

M.R.ANITHA JUDGE

Allegations by a highly educated spouse against the Husband is amount to cruelty divorce granted to husband.

“For considering dissolution of marriage at the instance of a spouse who allege mental cruelty, the result of such mental cruelty must be such that it is not possible to continue with the matrimonial relationship. In other words, the wronged party cannot be expected to condone such conduct and continue to live with his/her spouse.

The degree of tolerance will vary from one couple to another and the Court will have to bear in mind the background, the level of education and also the status of the parties, in order to determine whether the cruelty alleged is sufficient to justify dissolution of marriage, at the instance of the wronged party. In Samar Ghosh Vs. Jaya Ghosh1, this Court gave illustrative cases where inference of mental cruelty could be drawn even while emphasizing that no uniform standard can be laid down and each case will have to be decided on its own facts.

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In The Supreme Court of India

( Civil Appellate Jurisdiction)

 [Civil Appeal Nos. 3786-3787 of 2020]

Joydeep Majumdar Vs. Bharti Jaiswal Majumdar

Hrishikesh Roy, J.

1. Heard Mr. Gopal Sankaranarayanan, the learned Senior Counsel appearing for the appellant (Husband). Also heard Mr. Ahmad Ibrahim, learned counsel appearing for the respondent (Wife).

2. The challenge in these appeals is to the analogous judgment and order dated 25.6.2019 in the First Appeal No. 81 of 2017 and First Appeal No. 82 of 2017 whereby the High Court of Uttarakhand had allowed both appeals by reversing the common order dated 4.7.2017 of the Family Court, Dehradun. Before the Family Court, the appellant succeeded with his case for dissolution of marriage but the respondent failed to secure a favourable verdict in her petition for restitution of conjugal rights.

3. The appellant is an Army Officer with M.Tech qualification. The respondent is holding a faculty position in the Government P G College, Tehri with Ph.d degree. They got married on 27.9.2006 and lived together for few months at Vishakhapatnam and at Ludhiana. But from the initial days of married life, differences cropped up and since 15.9.2007, the couple have lived apart.

4. Following the estrangement, the appellant earlier applied for divorce from the Family Court at Vishakhapatnam. The respondent then filed a petition against the respondent in the Dehradun Court for restitution of conjugal rights. Later, when she learnt of the case filed by the appellant at Vishakhapatnam, the respondent filed Transfer Petition (C) No. 1366/2011 before this Court. The appellant appeared before the Supreme Court and stated that the case at Vishakhapatnam would be withdrawn. This Court then recorded the following order:

“Counsel for the respondent states that the respondent would withdraw his petition pending before the Family Court at Visakhapatnam, Andhra Pradesh and in case he has to file any petition seeking any relief against the petitioner (his estranged wife), he will file the petition only before the proper Court at Dehradun, Uttarakhand.

In view of the statement made at the Bar, the petitioner is left with no grievance. The transfer petition is disposed of. We may, however, observe that in case the respondent files a petition at Dehradun, the Dehradun Court shall take it up and dispose it of expeditiously and without any undue loss of time.”

5. In the divorce proceeding, the appellant pleaded that he was subjected to numerous malicious complaints by the respondent which have affected his career and loss of reputation, resulting in mental cruelty. On the other hand, the respondent in her case for restitution of conjugal rights contended that the husband without any reasonable cause had deserted her and accordingly she pleaded for direction to the appellant, for resumption of matrimonial life.

6. The Family Court at Dehradun analogously considered both cases. The learned judge applied his mind to the evidence led by the parties, the documents on record and the arguments advanced by the respective counsel and gave a finding that the respondent had failed to establish her allegation of adultery against the husband.

It was further found that the respondent had subjected the appellant to mental cruelty with her complaints to the Army and other authorities. Consequently, the Court allowed the appellant’s suit for dissolution of marriage and simultaneously dismissed the respondent’s petition for restitution of conjugal rights.

7. The aggrieved parties then filed respective First Appeals before the Uttarakhand High Court. On consideration of the pleadings and the issues framed by the trial Court, the High Court noted that cruelty is the core issue in the dispute. The Court then proceeded to examine whether the wife with her complaints to various authorities including the Army’s top brass, had treated the appellant with cruelty to justify his plea for dissolution of marriage.

While it was found that the wife did write to various authorities commenting on the appellant’s character and conduct, the Division Bench opined that those cannot be construed as cruelty since no court has concluded that those allegations were false or fabricated.

According to the Court, the conduct of the parties against each other would at best be squabbles of ordinary middle class married life. Accordingly, the High Court set aside the decree for dissolution of marriage and allowed the respondent’s suit for restitution of conjugal rights, under the impugned judgment.

8. Challenging the High Court’s decision, Mr. Gopal Sankaranarayanan, the learned Senior Counsel highlights that the respondent had filed a series of complaints against the appellant before the superior officers in the Army upto the level of the Chief of Army Staff and to other authorities and these complaints have irreparably damaged the reputation and mental peace of the appellant.

The appellant cannot therefore be compelled to resume matrimonial life with the respondent, in the face of such unfounded allegations and cruel treatment. Moreover, matrimonial life lasted only for few months and the couple have been separated since 15.9.2007 and after all these years, restitution would not be justified or feasible.

9. Per contra, Mr. Ahmad Ibrahim, the learned counsel submits that the respondent is keen to resume her matrimonial life with the appellant. According to the counsel, the respondent wrote letters and filed complaints only to assert her legal right as the married wife of the appellant and those communications should therefore be understood as efforts made by the wife to preserve the marital relationship.

It is further contended that only because the appellant had filed the divorce case before the Vishakhapatnam Court and had obtained an ex-parte order, the respondent was constrained to write to various authorities to assert her right as the legally wedded wife of the appellant.

10. For considering dissolution of marriage at the instance of a spouse who allege mental cruelty, the result of such mental cruelty must be such that it is not possible to continue with the matrimonial relationship. In other words, the wronged party cannot be expected to condone such conduct and continue to live with his/her spouse.

The degree of tolerance will vary from one couple to another and the Court will have to bear in mind the background, the level of education and also the status of the parties, in order to determine whether the cruelty alleged is sufficient to justify dissolution of marriage, at the instance of the wronged party. In Samar Ghosh Vs. Jaya Ghosh1, this Court gave illustrative cases where inference of mental cruelty could be drawn even while emphasizing that no uniform standard can be laid down and each case will have to be decided on its own facts.

11. The materials in the present case reveal that the respondent had made several defamatory complaints to the appellant’s superiors in the Army for which, a Court of inquiry was held by the Army authorities against the appellant. Primarily for those, the appellant’s career progress got affected. The Respondent was also making complaints to other authorities, such as, the State Commission for Women and has posted defamatory materials on other platforms. The net outcome of above is that the appellant’s career and reputation had suffered.

12. When the appellant has suffered adverse consequences in his life and career on account of the allegations made by the respondent, the legal consequences must follow and those cannot be prevented only because, no Court has determined that the allegations were false. The High Court however felt that without any definite finding on the credibility of the wife’s allegation, the wronged spouse would be disentitled to relief. This is not found to be the correct way to deal with the issue.

13. Proceeding with the above understanding, the question which requires to be answered here is whether the conduct of the respondent would fall within the realm of mental cruelty. Here the allegations are levelled by a highly educated spouse and they do have the propensity to irreparably damage the character and reputation of the appellant. When the reputation of the spouse is sullied amongst his colleagues, his superiors and the society at large, it would be difficult to expect condonation of such conduct by the affected party.

14. The explanation of the wife that she made those complaints in order to protect the matrimonial ties would not in our view, justify the persistent effort made by her to undermine the dignity and reputation of the appellant. In circumstances like this, the wronged party cannot be expected to continue with the matrimonial relationship and there is enough justification for him to seek separation.

15. Therefore, we are of the considered opinion that the High Court was in error in describing the broken relationship as normal wear and tear of middle class married life. It is a definite case of cruelty inflicted by the respondent against the appellant and as such enough justification is found to set aside the impugned judgment of the High Court and to restore the order passed by the Family Court.

The appellant is accordingly held entitled to dissolution of his marriage and consequently the respondent’s application for restitution of conjugal rights stands dismissed. It is ordered accordingly.

16. With the above order, the appeals stand disposed of leaving the parties to bear their own cost.

…………………..J. (Sanjay Kishan Kaul)

…………………..J. (Dinesh Maheshwari)

…………………..J. (Hrishikesh Roy)

whether a major and unmarried daughter can claim maintenance from her father in sec.125 of Cr.p.c. ?

The following two questions arise for consideration in the Appeal titles as “     ABHILASHA      vs   PARKASH & ORS. In  CRIMINAL APPEAL NO. 615 of 2020  (arising out of SLP (Crl.) No.8260/2018

  • Whether the daughter, who although had attained majority and is still unmarried is entitled to claim maintenance from her father in proceedings under Section 125 Cr.P.C. although she is not suffering from any physical or mental abnormality/injury?
  • Whether the orders passed by learned Judicial Magistrate as well as learned Revisional Court limiting the claim of the appellant to claim maintenance till she attains majority on 26.04.2005 deserves to be set aside with direction to the respondent No.1 to continue to give maintenance even after 26.04.2005 till the appellant remains unmarried?

Both the questions being interconnected, we proceed to take them together. Application under Section125 Cr.P.C.was filed on 17.10.2002 by the 
applicants including the appellant as applicant No.4 against Parkash, father of the appellant. The date of birth of the appellant being 26.04.1987, she was minor at the time when the application was filed. Learned Judicial Magistrate allowed the application of the appellant for maintenance till she attains majority. Learned Revisional Court has also affirmed the judgment with modification that appellant was entitled to receive maintenance till 26.04.2005 instead of 07.02.2005, which is date when she attains majority. In support of application under Section 125 Cr.P.C., applicant had examined Surya Dev Pandey as PW1, Chunni Lal Saini as PW2, Vikas Saini as PW3 and Dr. Raj Saini as PW4. The claim of the applicant Nos. 1, 2 and 3 was rejected, which was also affirmed by Courts below and is not subject matter of this appeal.

9. The question to be answered in the present case is as to whether a Hindu unmarried daughter is entitled to claim maintenance from her father under Section 125 Cr.P.C. only till she attains majority or she can claim maintenance till she remains unmarried. Section 125(1) Cr.P.C., which is relevant for the present case is as follows:-

“125. Order for maintenance of wives, children and parents.–(1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself, XXXXXXXXXXXXXXXXXXXXXXXX”

The provision on which learned counsel for the appellant has placed reliance, i.e., Section 20 of the Hindu Adoptions and Maintenance Act, 1956, needs to be noted, which provides for maintenance of children and aged parents, which is as follows:-

“20. Maintenance of children and aged parents.— (1) Subject to the provisions of this section a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents. (2) A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor. (3) The obligation of a person to maintain his or her aged or infirm parent or a daughter who is unmarried extends in so far as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property. Explanation.— In this section “parent” includes a childless step-mother.”

The Act, 1956 was enacted to amend and codify the law relating to adoptions and maintenance among Hindus. A bare perusal of Section 125(1) Cr.P.C. as well as Section 20 of Act, 1956 indicates that whereas Section 125 Cr.P.C. limits the claim of maintenance of a child until he or she attains majority. By virtue of Section 125(1)(c), an unmarried daughter even though she has attained majority is entitled for maintenance, where such unmarried daughter is by reason of any physical or mental abnormality or injury is unable to maintain itself. The Scheme under Section 125(1) Cr.P.C., thus, contemplate that claim of maintenance by a daughter, who has attained majority is admissible only when by reason of any physical or mental abnormality or injury, she is unable to maintain herself. In the present case, the Revisional Court has returned a finding that appellant is not suffering from any physical or mental abnormality or injury due to which she is unable to maintain herself. The above findings are not even questioned before us. What is contended that even if she is not suffering from any physical or mental abnormality or
injury, by virtue of Section 20 of Act, 1956, she is entitled to claim maintenance till she is unmarried.

The provision of Section 20 of Act, 1956 cast clear statutory obligation on a Hindu to maintain his unmarried daughter who is unable to maintain herself. The right of unmarried daughter under Section 20 to claim maintenance from her father when she is unable to maintain herself is absolute and the right given to unmarried daughter under Section 20 is right granted under personal law, which can very well be enforced by her against her father. The judgment of this Court in Jagdish Jugtawat (supra) laid down that Section 20(3) of Act, 1956 recognised the right of a minor girl to claim maintenance after she attains majority till her marriage from her father. Unmarried daughter is clearly entitled for maintenance from her father till she is married even though she has become major, which is a statutory right recognised by Section 20(3) and can be enforced by unmarried daughter in accordance with law.

 After enactment of Family Courts Act, 1984, a Family Court shall also have the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX of Cr.P.C. relating to order for maintenance of wife, children and parents. Family Courts shall have the jurisdiction only with respect to city or town whose population exceeds one million, where there is no Family Courts, proceedings under Section 125 Cr.P.C. shall have to be before the Magistrate of the First Class. In an area where the Family Court is not established, a suit or proceedings for maintenance including the proceedings under Section 20 of the Act, 1956 shall only be before the District Court or any subordinate Civil Court.

 There may be a case where the Family Court has jurisdiction to decide a case under Section 125 Cr.P.C. as well as the suit under Section 20 of Act, 1956, in such eventuality, Family Court can exercise jurisdiction under both the Acts and in an appropriate case can grant maintenance to unmarried daughter even though she has become major enforcing
her right under Section 20 of Act, 1956 so as to avoid multiplicity of proceedings as observed by this Court in the case of Jagdish Jugtawat (supra). However the Magistrate in exercise of powers under Section 125 Cr.P.C. cannot pass such order.

In the case before us, the application was filed under Section 125 Cr.P.C. before Judicial Magistrate First Class, Rewari who passed the order dated 16.02.2011. The Magistrate while deciding proceedings under Section 125 Cr.P.C. could not have exercised the jurisdiction under Section 20(3) of Act, 1956 and the submission of the appellant cannot be accepted that the Court below should have allowed the application for maintenance even though she has become major. We do not find any infirmity in the order of the Judicial Magistrate First Class as well as learned Additional Magistrate in not granting maintenance to appellant who had become major.

Without adulterer as a party or co respondent in divorce petition can not be proved the adultery.

Section 11 in THE DIVORCE ACT, 1869

17 [ 11 Adulterer Or Adulteress To Be Co-Respondent. —On A Petition For Dissolution Of Marriage Presented By A Husband Or Wife On The Ground Of Adultery, The Petitioner Shall Make The Alleged Adulterer Or Adulteress A Co-Respondent, Unless The Petitioner Is Excused By The Court From So Doing On Any Of The Following Grounds, Namely:—

(A) That The Wife, Being The Respondent Is Leading The Life Of A Prostitute Or The Husband, Being Respondent Is Leading An Immoral Life And That The Petitioner Knows Of No Person With Whom The Adultery Has Been Committed;

(B) That The Name Of The Alleged Adulterer Or Adulteress Is Unknown To The Petitioner Although The Petitioner Has Made Due Efforts To Discover It;

(C) That The Alleged Adulterer Or Adulteress Is Dead.]

——————————————————————————————————————————-

JAIDEEP SHAH V. RASHMI SHAH MISS RASHMI VYAS .

4. Brief facts leading to filing of the writ petition are that petitioner had filed a petition seeking divorce against respondent No. 1 on the ground of adultery and cruelty. In the petition filed by the petitioner under section 13 of the Hindu Marriage Act the petitioner impleaded the respondent No. 2 as respondent in the petition. However, the trial Court held that section 13 of the Hindu Marriage Act, 1955, relates only to proceedings of divorce between husband and wife and, therefore, the third party cannot be impleaded in the aforesaid proceedings. It was further held that presence of respondent No. 2 is not necessary to pass an effective decree in the case. Accordingly, the petitioner was directed to delete the name of respondent No. 2 from the cause title.

 The petitioner has referred to Rule 2 as well as Rule 5 of the Rules framed by this Court under the provisions of Hindu Marriage Act. Learned counsel for the petitioner submits that under Rule 2(7)(e)(2), in a petition of divorce on the ground of adultery, rape or sodomy, the date and the place of the act or the acts and the name and address of the person or persons with whom these acts were committed by the respondent are required to be mentioned. While referring to Rule 5 of the Rules, learned counsel for the petitioner has submitted that Rule 5 enjoins a duty on the Court to issue notice to the respondent and co-respondent, if any. Learned counsel for the petitioner has further submitted that in a petition based on adultery, the Court will have to record a finding that the spouse has voluntarily sexual intercourse with another person and, therefore, such a finding will adversely affect the reputation of a person who has alleged to have committed an adulterous act and, therefore, an adulterer is a proper party to the petition. In support of his submission, learned counsel for the petitioner has placed reliance on a Division Bench decision of Karnataka High Court in the case of Arun Kumar Agrawal vs. Radha Arun and other, AIR 2003 Karnataka 508.

The question of addition of a party under Order 1, Rule 10 of the Code of Civil Procedure is generally of judicial discretion which has to be exercised in the facts and circumstances of a particular case. Where the Court is of the opinion that by adding a party it would be in a better position to effectively and completely adjudicate the controversy involved in the suit, in such a case the concerned person should be impleaded as a party in the proceeding. See: Razia Begum vs. Sahebzadi Anwar Begum and othersAIR 1958 SG 886, Balraj Taneja and another vs. Sunil Madan and another, AIR 1999 SC 3381 and Ruma Chakraborty vs. Sudha Rani Banerjee and another, AIR 2005 SC 3557. The distinction between necessary and proper party is also well settled in law. A necessary party is one without whom no order can be made effectively. A proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. See: Ramesh Hirachand Kundanmal vs. Municipal Corporation of Greater Bombay and others, (1992) 2 SCC 524.

 In a petition under section 13(1)(i) of the Hindu Marriage Act, 1955, an allegation of voluntary sexual intercourse by the spouse with a third party is required to be adjudicated. The High Court in exercise of power under sections 14 and 21 of the Hindu Marriage Act 1955 has framed Rules. Under Rule 2(7)(e)(2) of the Rules, in a petition seeking dissolution of marriage on the ground of adultery, the date and place of the adultery and the name and address of the person with whom the adultery was committed by the respondent is required to be stated. Rule 5 enjoins a duty on the Court to issue notice to the respondent and co-respondent, if any. The aforesaid Rule is in consonance with the principles of natural justice as the finding recorded in the suit would adversely affect the reputation of the concerned person and, therefore, such a person should have an opportunity to defend his reputation before such a finding is recorded. My aforesaid conclusion finds support from a Division Bench decision of Karnataka High Court reported in Arun Kumar Agrawal, supra. So far as the reliance placed by the learned counsel for the respondent No. 2 on the decision of this Court in Neelam Tiwari, supra is concerned, in the said case, the adulterer was not impleaded as a party in the petition for divorce before the trial Court. In appeal, an objection was raised that since the adulterer was not impleaded as co-respondent, therefore, the petition filed under section 13 of the Hindu Marriage Act, 1955 was bad on account of non-joinder of necessary party. In the aforesaid context, the learned Single Judge of this Court held that Rules framed by this Court does not mandatorily require the impleadment of the adulterer. The ratio laid down in the aforesaid case is of no assistance to learned counsel for the respondent No. 2, in the facts and circumstances of the case.

After filing mutual divorce petition wife can withdraw and ask for more money or face contempt of court proceeding.

After filing mutual divorce petition wife can withdraw and ask for more money or face contempt of court proceeding.

  1. A) Whether a party, which has under a settlement agreement decreed by a Court undertaken to file a petition under Section 13B(1) or a motion under Section 13B(2) of the Act, 1955 or both and has also undertaken to appear before the said Court for obtaining divorce ―can be held liable for contempt‖, if the said party fails to file or appear in the petition or motion or both to obtain divorce in view of the option to reconsider/renege the decision of taking divorce by mutual consent under Section 13B(2) of the Act?
  2. B) Whether by undertaking before a Court to file a second motion under Section 13B(2) of the Act, 1955 at Section 13B(1) stage or by giving an undertaking to a Court to that effect in a separate court proceeding, a party waives its right to rethink/renege under 13B(2) of the Act, 1955? If yes, whether such right can be waived by a party under Section 13B(2) of the Act, 1955?
  3. C) Whether any guidelines are required to be followed by the Court while recording the undertaking/agreement of the parties with respect to a petition under Section 13B(1) or a motion under Section 13B(2) of the Act, 1955 or both for obtaining divorce?
  4. D) Whether the judgment in Avneesh Sood (supra) and Shikha Bhatia (supra) are good law in view of the doubts expressed by this Court in paras 19 to 28 and in view of the Division Bench judgment in Dinesh Gulati (supra).‖

wherein the following four questions of law have been framed for consideration in the above matters : REFERENCE IN CONT.CAS(C) 772/2013, 347/2013, 484/2014,584/2014, 648/2014, 48/2016, 483/2016, 484/2016, 1147/2016,1116/2016, 1251/2016, 78/2017, 132/2017, 197/2017, 204/2017,216/2017 and 270/2017 before the Hon’ble High Court of Delhi.

RELEVANT STATUTORY PROVISIONS 

The relevant provisions of the Hindu Marriage Act, 1955 and the Contempt of Courts Act, 1971 are extracted below:- THE HINDU MARRIAGE ACT, 1955 Section 13B Divorce by mutual consent. — (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

23 Decree in proceedings .— (1) In any proceeding under this Act, whether defended or not, if the court is satisfied that– [(bb) when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence, and]  (2) Before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties: [Provided that nothing contained in this sub-section shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause (ii), clause (iii), clause (iv), clause(v), clause (vi) or clause (vii) of sub-section (1) of section 13.]

CONTEMPT OF COURTS ACT, 19712. Definitions – In this Act, unless the context otherwise requires, -(a) XXX XXX XXX(b) ―civil contempt‖ means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court.

Power of High Court to punish contempts of subordinate courts. – Every High Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempt of courts subordinate to it as it has and exercises in respect of contempts of itself:Provided that no High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is an offence punishable under the Indian Penal Code (45 of 1860).  Power of High Court to try offences committed or offenders found outside jurisdiction. – A High Court shall have jurisdiction to inquire into or try a contempt of itself or of any court subordinate to it, whether the contempt is alleged to have been committed within or outside the local limits of its jurisdiction, and whether the person alleged to be guilty of contempt is within or outside such limits.

Punishment for contempt of court. – (1) Save as otherwise expressly provided in this Act or in any other law, a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both: Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court.Explanation. – An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide.

(2) Notwithstanding anything contained in any law for the time being in force, no court shall impose a sentence in excess of that specified in sub-section (1) for any contempt either in respect of itself or of a court subordinate to it.

(3) Notwithstanding anything contained in this section, where a person is found guilty of a civil contempt, the court, if it considers that a fine will not meet the ends of justice and that a sentence of imprisonment is necessary shall, instead of sentencing him to simple imprisonment, direct that he be detained in a civil prison for such period not exceeding six months as it may think fit.13.

Contempts not punishable in certain cases.- Notwithstanding anything contained in any law for the time being in force,-(a) no court shall impose a sentence under this Act for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice;(b) the court may permit, in any proceeding for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bonafides.‖ DECISIONS IN SHIKHA BHATIA (SUPRA), AVNEESH SOOD (SUPRA) AND DINESH GULATI (SUPRA)

The Division Bench in the case of Dinesh Gulati (supra), in the said case, the appellant/husband and the respondent/wife had made a joint statement before the Family Court on 22.07.2014, stating that they had resolved all their matrimonial disputes including disputes relating to dowry/Stridhan articles and permanent alimony and they had decided to dissolve their marriage by mutual consent. One of the terms of settlement between the parties was that the husband would transfer an immovable property in the name of his wife within one month and pay her a particular sum of money on or before the Second motion was moved by the parties under Section 13B(2) of the Act. After about two years from the date their joint statement was recorded before the Family Court, the husband filed an application for initiating contempt proceedings against the wife on the ground of non-compliance of the order dated 22.07.2014, stating inter alia that she was not coming forth to file a joint petition under Section 13B(1) of the Act for obtaining a decree of divorce by mutual consent. The wife had countered the said submission by pointing out to the Family Court that the husband had not complied with his part of the obligations undertaken in the joint statement, having failed to transfer the immovable property in her name, within the agreed timeline.

An interpretation of Section 13B of the Act in the context of maintainability of contempt proceedings in the event one party fails to file or appear for moving a petition under Section 13B(1) or a motion under Section 13B(2) of the Act or take both steps, to obtain divorce. We have also been called upon to express a view on the effect of furnishing an undertaking before a court, either at the two stages contemplated in Section 13B or in separate court proceedings and whether such an act will amount to waiving the rights of a party under Section 13B(2) of the Act. Question No.(C) formulated by the learned Single Judge invites guidelines, if any, to be followed by the courts at the time of recording undertakings/agreements of the parties with respect to the two stages contemplated under Section 13B of the Act, for obtaining divorce. Question No. (D) juxtaposes the views expressed by the two learned Single Judges in the cases of Shikha Bhatia (supra) and Avneesh Sood (supra), wherein the defaulting spouses were held guilty of contempt of court for breaching the undertakings given by them, for obtaining divorce by mutual consent, against the decision of the Division Bench in the case of Dinesh Gulati (supra), wherein suo moto contempt proceedings initiated by the Family Court against the husband for breaching the undertaking recorded in his statement made jointly with the wife before the Family court, were quashed and the original divorce petition restored to its original position.

Question (C) Whether any guidelines are required to be followed by the Court while recording the undertaking/agreement of the parties with respect to a petition under Section 13B(1) or a motion under Section 13B(2) of the Act, 1955 or both for obtaining divorce?

Answer: The general guidelines suggested to be followed by the Court while recording undertaking/agreement of the parties are as below:- (1) If the parties amicably settle their inter se disputes and differences, and arrive at a settlement, whether of their own accord, or with the aid and assistance of the court or on exercising the ADR processes (mediation/conciliation/Lok Adalat), or otherwise, the settlement agreement that may be drawn up, must incorporate the following:-

  1. i) Record in clear, specific and unambiguous language, the terms/stipulations agreed upon between the parties;
  2. ii) Record in clear, specific, simple and unambiguous language, the mode, manner, mechanism and/or method for the implementation or compliances of the terms/stipulations agreed upon between the parties;

iii) Record an undertaking of the parties that they will abide by and be bound by the agreed terms /stipulations of the settlement agreement;

iv) Stipulate a fine or penalty as may be agreed upon, in the event of a default of the agreed terms/stipulations of the settlement agreement by either side;

v) Provide for the consequences of the breach of the terms/stipulations of the settlement agreement;

vi) Record a declaration of both the parties in unequivocal and unambiguous terms that they have agreed on each and every term recorded in the settlement agreement, after carefully reading over and fully understanding and appreciating the contents, scope and effect thereof, as also the consequences of the breach thereof, including payment of the fine/penalty, if so agreed;

vii) The settlement agreement must state that the terms have been settled between the parties of their own free will, violation and consent and without there being any undue pressure, coercion, influence, misrepresentation or mistake (both of law and fact), in any form whatsoever. It should also be stated that the settlement agreement has correctly recorded the said agreed terms.

(2) The settlement agreement may include a term/stipulation that the parties have agreed that they would dissolve their marriage by mutual consent, which necessarily has to be in accordance with the law, as provided under Section 13B of the Hindu Marriage Act.

(3) The settlement agreement may include other terms/stipulations settled between the parties including payment of money, transfer of moveable/immovable properties as for example, jewellery/stridhan, maintenance amounts, alimony etc. or plans for the custody of the children/visitation rights of children. The said terms must be scrutinized by the court to satisfy itself that they are in accordance with the spirit of law and are enforceable and executable. (4) On the said settlement agreement being presented, along with a report (in the event the settlement is arrived at through mediation or conciliation or Lok Adalat) to the court where the proceedings between the parties are sub judice, the said court should apply the procedure and principles to be followed by a civil court under and/or analogous to the provisions of Order XXIII Rule 3 of the Code of Civil Procedure.

(5) To avoid any ambiguity or misunderstanding on the part of either of the parties, at a later stage, a clear and unambiguous undertaking to the court must be recorded.

(6) The statements of the parties may be recorded by the court after putting them on oath in the following manner:-

a) the parties should affirm the terms of the settlement;

b) the fact that they have executed the settlement agreement after fully understanding the terms, consents, effect and consequences thereof;

c) that the same has been arrived at of their own free will and volition;

d) that they would be liable for penal consequences in case of breach. (7) In the alternative, the court may direct the parties to file their respective affidavits affirming the terms and conditions of the settlement. If considered necessary, the court may ask the parties to formally prove not only the said affidavits, but also the settlement agreement executed by them.

(8) The Court must apply its judicial mind to satisfy itself that the settlement arrived at between the parties is not only bonafide, equitable and voluntary in nature, but is enforceable in law and is not opposed to public policy. The court must also satisfy itself that there is no impediment of any nature in accepting the said settlement and the undertakings of the parties and binding them down thereto. (9) After perusing the settlement agreement, recording the statements of the parties and/or examining the affidavits filed by them, as the case may be, the Court must specifically accept the statements of the parties and/or the undertakings given by them as also the terms/stipulations of the settlement agreement and direct that they shall remain bound by the same.

(10) Depending upon the jurisdiction of the Court, appropriate orders/decree be passed. The said order/decree, as the case may be, should clearly spell out the consequences of breach, violation of any of the terms of the settlement agreement. In the event any fine/penalty has been agreed to be paid under the terms of the settlement agreement or in case of breach of the same, the order shall state that the said amount will be recovered from the defaulting party. The parties must be informed that they will be liable to be punished for contempt of court in the event of any breach/violation/willful/deliberate disobedience of the terms of the settlement agreement.

(11) A decree/order shall be passed by the Court in respect of the subject matter of the suit/proceedings. For those matters/disputes that are not the subject matter of the suit/proceedings, where a settlement has been reached before a non-adjudicatory ADR fora, the Court shall direct that the settlement agreement shall be governed by Section 74 of the Arbitration and Conciliation Act (in case of a settlement through conciliation) and/or Section 21 of The Legal Services Authorities Act, 1987. (in respect of a settlement by a Mediator or a Lok Adalat) [Refer: Afcons Infrastructure Ltd. (supra)] (12) If the obligations under the settlement agreement/undertaking/consent order/decree are breached by one party, then, at the instance of the aggrieved party, appropriate orders shall be passed in accordance with law.

(13) For breach of the undertaking given to the concerned court or willful/deliberate violation of a consent order/decree, if so approached or otherwise, the court would take appropriate action as permissible in law to enforce compliance by the defaulting party by exercising contempt jurisdiction as contemplated under Section 2(b) of the Contempt of Court Act, 1971. This will however exclude any coercive orders compelling the defaulting party to give its consent for grant of a decree of divorce by mutual consent, notwithstanding any settlement/undertaking given by the parties before any fora.

Marriage is totally unworkable, emotionally dead, beyond salvage of Irretrievable breakdown of marriage: Supreme Court invokes Article 142 to grant divorce.

Marriage is totally unworkable, emotionally dead, beyond salvage of  Irretrievable breakdown of marriage:  Supreme Court invokes Article 142 to grant divorce

In a series of judgments, has exercised its inherent powers under Article 142 of the Constitution of India for dissolution of a marriage where the Court finds that the marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably, even if the facts of the case do not provide a ground in law on which the divorce could be granted. In the present case, admittedly, the appellant­husband and the respondent­wife have been living separately for more than 22 years and it will not be possible for the parties to live together. Therefore, we are of the opinion that while protecting the interest of the respondent­wife to compensate her by way of lump sum permanent alimony, this is a fit case to exercise the powers under Article 142 of the Constitution of India and to dissolve the marriage between the parties.

In view of the above and for the reasons stated above, the application for divorce filed by the appellant­husband for dissolution of marriage is hereby allowed. The marriage between the appellant­husband and the respondent­wife is ordered to be dissolved in exercise of powers under Article 142 of the Constitution of India on the condition and as agreed by the learned Senior Advocate appearing on behalf of the appellant­ husband that the appellant­husband shall pay to the respondent­ wife a lump sum permanent alimony, quantified at Rs.20,00,000/­ (Rupees Twenty Lakhs) to be paid directly to the respondent­wife by way of demand draft within a period of eight weeks from today. Till the permanent alimony as above is paid to the respondent­wife, the appellant­husband to continue to pay the maintenance as being paid to her.

In the case of Naveen Kohli (supra), a three Judge Bench of this Court has observed as under:

“74. ……Once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.

  1. Undoubtedly, it is the obligation of the court and all concerned that the marriage status should, as far as possible, as long as possible and whenever possible, be maintained, but when the marriage is totally dead, in that event, nothing is gained by trying to keep the parties tied forever to a marriage which in fact has ceased to exist….
  2. In view of the fact that the parties have been living separately for more than 10 years and a very large number of aforementioned criminal and civil proceedings have been initiated by the respondent against the appellant and some proceedings have been initiated by the appellant against the respondent, the matrimonial bond between the parties is beyond repair.———————————————————————————————————————————

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4696 OF 2013

Srinivas Kumar …Appellant

Versus

Shametha …Respondent

 

 

Rights of Married women in India.

Meaning of Marriage in Indian Culture.

In India, marriage is considered as a pure institution that not only ties two individuals but two families. Marriage as a social institution is an affirmance of civilized social order where two individuals, capable of entering into wedlock

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.

Legal Rights of a married women in India.

It is ironical that most women are unaware of their legal rights, and thus keep mum. In order to fight injustice, it is important to have through knowledge about the rights. The Constitution of India, under Article 14, backs women and their rights in the country. It ensures women equality and equal protection of the laws. Article 15(3) empowers the state to take affirmative action in favour of a daughter-in-law.

Here is a list of rights every married woman should be aware of:

Right to Reside in Marital Home

The Hindu Adoptions and Maintenance Act, 1956, entitles wives a basic right to reside in the matrimonial/marital household. The term matrimonial home refers to a household a woman shares with her husband. Also, she has the right to live in her matrimonial residence even if her husband is not there or is dead.

Many cases have come to light where a husband leaves a rented accommodation when his relationship with the wife turns sour. However, this does not free the man from providing basic maintenance to his wife and children.

That courts in India have upheld the right to reside in a household that must qualify as ‘adequate’ under the right to housing, is clear from several judgments in favour of the domestic violence survivor and her right to adequate housing, granted as part of right to residence under the Protection of Women from Domestic Violence Act, 2005 (PWDVA).

The Protection of Women from Domestic Violence Act, 2005.

Sec.17. Right to reside in a shared household.—

(1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.

(2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.

Right to Stridhan.

According to the Hindu Succession Law, Stidhan refers to the gifts a woman receives during pre-marriage or marriage ceremonies and during childbirth. This includes any movable, immovable property, jewellery, gifts, money and more (e.g. god bharai, baraat, mooh dikhai).

The main objective of providing Stridhan to a married woman is to provide her some monetary safeguards after marriage.

Domestic Violence Act, 2005- Section 12 of the Domestic Violence Act, 2005 provides for women right to her Stridhan in cases where she is a victim of domestic violence. The provisions of this law can be easily invoked for recovery of Stridhan. Under the residence orders: Prov. (8) the magistrate may direct the respondent to return to the possession of the aggrieved person her Stridhan or any other property or valuable security to which she is entitled.

The Hon’ble Supreme court has given inalienable rights over Stridhan to the married woman. It rules that the right is not lost even after separation from her husband. That is, a wife has complete ownership rights to all her Stridhan, the gifts and money given to her before and after marriage.

Right to Maintenance by Husband.

A wife has the right to claim decent living standards and basic comforts of life from her husband. However, the benefits are subject to the husband’s living standards, his income and property. In case of ties souring, he has to provide basic maintenance facilities to his wife and children.

The basic amenities include food, clothing, residence, education and medical treatment. Section 125 of the Criminal Procedure Code, 1973, supports this right.

What is the Law on Maintenance:

Section 125 in The Code Of Criminal Procedure, 1973

  1. Order for maintenance of wives, children and parents.

(1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

  1. Subs. by Act 45 of 1978, s. 12, for” Chief Judicial Magistrate” (w. e. f, 18- 12- 1978 ).

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means. Explanation.- For the purposes of this Chapter,-

(a) ” minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875 ); is deemed not to have attained his majority;

(b) ” wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

(2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.

(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’ s allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such

Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation.- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’ s refusal to live with him.

(4) No Wife shall be entitled to receive an allowance from her husband under this section if 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.

(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order..

Maintenance under Domestic Violence Act.

Sec. 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 is 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.

(2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.

(3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.

Maintenance in Divorce Proceeding.

Section 24 in The Hindu Marriage Act, 1955

24 Maintenance pendente lite and expenses of proceedings. —Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the court to be reasonable: 54 [Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.]

Right to Child Maintenance.

It is the duty of the husband and the wife to provide the required facilities to their minor child. In case the woman is not capable earning a living, then it is the duty of the man to provide financial assistance.

In case both partners are monetarily incapacitated, they can take support from their parents to look after the child.

In the matter of Farooq Ahmed Shala v. Marie Chanel Gillier, The Hon’ble High of Delhi held that:

That no doubt, mother, if she is earning, should also contribute towards the expenses of the child but the expenses cannot be divided equally between the two. However, merely because the Respondent wife is earning, does not give an excuse to the husband to avoid working or undertake the responsibility of maintaining his children.

To read judgments related to Maintenance click the above link of our Legal Blog:

https://maintenancelawinindia.wordpress.com/

 

Right to Restitution of conjugal rights.

Section 9 in The Hindu Marriage Act, 1955

 Restitution of conjugal rights. — 7 [***] When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. 8 [ Explanation. —Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.

Right to Property in Husband  Share.

Inheritance: The Hindu Succession Act, 1956, did not give daughters and sons equal right in the father’s property. As per the old Act, the daughter enjoyed rights on her father’s property only until she got married. But the Act was amended in 2005. As per the amendments introduced in the Hindu Succession Act in 2005, every daughter, whether married or unmarried, has equal rights as her male sibling to inherit her father’s property after his death. That is, every married daughter has equal rights, liabilities, and duties as her brother’s. Additionally, the daughters also have a share in the mother’s property. If the father does not sign any will before his death, they can turn to the court for legal aid.

Daughters as Coparceners: A coparcenary is formed with the four generations of a family. Earlier, daughters were excluded from being a coparcener. However, according to the Hindu Succession Act (2005), a married woman has equal rights to be a coparcener. It enables the women’s legal rights on coparcenary property. This implies that women of the family have the right to equally inherit a share in the undivided property since birth. They have similar rights and liabilities as the son.

Laws and Act on Property of married women in India.

Hindu Succession Act —- The Act an amending and codifying law provides under section 14 that,(1)Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

explanation— In this subsection “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase any such property held by her as stridhana immediately before commencement of this Act.

(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a Civil Court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.

The Married women’s property Act, 1874- Its statement of object and reasons provides that The Indian Succession Act(X of 1865) section 4, declares that no person shall by marriage acquire any interest in the property of the person whom he or she marries. This section however does not apply to marriage contracted before 1st January 1866.

Part III of Indian Succession Act,1925

Section 20 of Indian Succession Act, 1925 which is a consolidating Act provides that, (1) No person shall, by marriage acquire any interest in the property of the person whom he or she marries or become incapable of doing any act in respect of his or her own property which he or she could have done if unmarried.

(2) This section—

(a) Shall not apply to any marriage contacted before the first day of January,1866.

(b) shall not apply, and shall be deemed never to have applied to any marriage one or both of the parties to which professed at the time of the marriage, the Hindu, Muhammadan, Buddhist, Sikh or Jaina religion.

The Hindu Marriage Act, 1955 Section 25 (1) Permanent alimony and maintenance–— (1) Any Court exercising Jurisdiction under this Act may, at the time of passing any decree or at any time subsequent there to, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant, as having regard to the respondent’s own income and other property , if any, the income and other property of the applicant it may seem to the Court to be Just, and any such payment may be secured, if necessary by a charge on the immovable property of the respondent.

Section 27 ,Disposal of property — In any proceeding under this Act, the Court may make such provisions in the decree as it deems Just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly both the husband and wife.

The Hindu Women’s Rights to property Act,1937 An Act to amend the Hindu Law governing Hindu Women’s rights to property.

(3) Any interest devolving on a Hindu widow under the provisions of this section shall be limited interest known as Hindu woman’s estate, provided however that she shall have the same right of claiming partition as a male owner,

Right to Live with Dignity and Respect

A wife has the legal authority to live with proper dignity and self-respect with her in-laws. She also has the right to have the same lifestyle that her husband’s and in-laws have. This legal right provides married woman independence after marriage.

Whether Ex-Parte Foreign Divorce Decree is Valid/Enforceable or Invalid in India ?

Whether Ex-Parte Foreign Divorce Decree is Valid/Enforceable or Invalid in India

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The Hon’ble Delhi High Court held in this case as under:-

The Supreme Court in Y Narsimha Rao and ors v Y.Venkata Lakshmi (supra) declined to give its imprimatur to foreign decree which did not take into consideration the provisions of Hindu Marriage Act under which the parties were married. The Supreme Court while interpreting Section 13 of CPC has held that unless the respondent voluntarily and effectively submitted to the jurisdiction of the foreign court and contested the claim which is based on the grounds available in the matrimonial law under which the parties were married, the judgment of the foreign court could not be relied upon. The relevant portion of the judgment of the Supreme Court is reproduced as under:-

” We believe that the relevant provisions of Section 13 of the Code are capable of being interpreted to secure the required certainty in the sphere of this branch of law in conformity with public policy, justice, equity and good conscience, and the rules so evolved will protect the sanctity of the institution of marriage and the unity of family which are the corner stones of our societal life.

Clause (a) of Section 13 states that a foreign judgment shall not be recognised if it has not been pronounced by a court of competent jurisdiction. We are of the view that this clause should be interpreted to mean that only that court will be a court of competent jurisdiction which the Act or the law under which the parties are 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 Indian Evidence Act has also to be construed likewise.

Clause (b) of Section 13 states that if a foreign judgment has not been given on the merits of the case, the courts in this country will not recognise such judgment. This clause 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 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, should not be considered as a decision on the merits of the case. In this respect the general rules of the acquiscence to the jurisdiction of the Court which may be valid in other matters and areas should be ignored and deemed inappropriate.

The second part of Clause (c) of Section 13 states that where the 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. 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 cine 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 which makes a foreign judgment unenforceable on the ground that the proceedings in which it is obtained are opposed to natural justice, 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 we find 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 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 this European Community. If, therefore, the courts in this country also insist as a matter of rule that foreign matrimonial judgment will be recognised only if it is of the forum where the respondent is domiciled or habitually and permanently resides, the provisions of Clause (d) may be held to have been satisfied.

The provision of Clause (e) of Section 13 which requires that the courts in this country will nor recognise a foreign judgment if it has been obtained by fraud, is self-evident. However, in view of the decision of this Court in Smt. Satya v. Teja Singh (supra) it must be understood that the fraud need not be only in relation to the merits of the matter but may also be in relation to jurisdictional facts.

  1. From the aforesaid discussion the following rule can be deduced for recognising foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the ground 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 Le as follows: (i) where the matrimonial action is filed in the forum where the respondent is domiciled 01 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 aforesaid rule with its stated exceptions has the merit of being just and equitable. It does no injustice to any of the parties. The parties do and ought to know their rights and obligations when they marry under a particular law. They cannot be heard to make a grievance about it later or allowed to bypass it by subterfuges as in the present case. The rule also has an advantage of rescuing the institution of marriage from the uncertain maze of the rules of the Private international Law of the different countries with regard to jurisdiction and merits based variously on domicile, nationality, residence-permanent or temporary or ad hoc forum, proper law etc. and ensuring certainly in the most vital field of national life and conformity with pubic policy. The rule further takes account of the needs of modern life and makes due allowance to accommodate them. Above all, it gives protection to women, the most vulnerable section of our society, whatever the strata to which they may belong. In particular it frees them from the bondage of the tyrannical and servile rule that wife’s domicile follows that of her husband and that it is the husband’s domiciliary law which determines the jurisdiction and judges the merits of the case.”

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IN THE HIGH COURT OF DELHI AT NEW DELHI

C.R.P.148/2011

PRITAM ASHOK SADAPHULE                         ….. Petitioner

versus

HIMA CHUGH                                                 …. Respondent

CORAM:

HON’BLE MS. JUSTICE VEENA BIRBAL

  1. By this revision petition challenge has been made to order dated 22nd September, 2011 passed by the ld.Addl. District Judge-1, New Delhi District, Patiala House Courts, New Delhi in HMA No.15/2011 whereby the application of the petitioner/husband under section 13 of the CPC has been dismissed.
  2. Briefly the facts relevant for the disposal of the present petition are as under:-

The parties met each other in England in the year 2004 and developed liking for each other. On 5th March, 2005, both got married at New Delhi. After about one week of marriage, they went back to England on 12th March, 2005. With the passage of time, disputes and differences arose between them as a result of which they could not live together. In September, 2009, respondent/wife had lodged a complaint of domestic violence, cruelty and assault against the petitioner/husband in Ilford Police Station, England. It is alleged that respondent/wife also invoked the jurisdiction of UK Family Court (Brentford County Court) for Non-Molestation and Occupation order in September, 2009. Thereafter, she had come back to India in December, 2009. In March, 2010, respondent/wife lodged FIR against the petitioner/husband, his parents and family members being FIR no.46/2010 under Section 498-A/34 IPC, P.S. Tilak Nagar, Mumbai. Petitioner/husband has filed a petition for quashing of aforesaid FIR which is pending disposal before the Bombay High Court.

  1. In December, 2010, petitioner/husband had filed a divorce petition before the Ilford County Court in UK for dissolution of marriage by a decree of divorce on the ground that the respondent had misbehaved with him and that he could not reasonably be expected to live with her. It is alleged that respondent was served with the divorce petition on 19th November, 2010.
  2. On 21st December, 2010, respondent/wife had filed a suit being Civil Suit (OS) No.2610/2010 before this court praying for a grant of decree of permanent injunction against the petitioner for continuing with the divorce petition before the court in UK. During the pendency of aforesaid divorce petition, respondent had filed a complaint before learned MM, Dwarka, New Delhi under The Protection of Women from Domestic Violence Act, 2005. The same was dismissed on 24th December, 2010 by the concerned ld.MM, as not maintainable. Respondent filed an appeal against the said order which was dismissed vide order dated 28.3.2011.
  3. The respondent/wife also filed a petition under section 13(1)(ia) of the Hindu Marriage Act i.e. HMA No.15/2011 in February, 2011 praying for dissolution of marriage with petitioner on the ground of cruelty which is pending disposal before learned Addl. District Judge, Delhi.
  4. The ld. Ilford County Court in UK had passed a Decree Nisi on 9th May, 2011 stating therein that marriage between the parties has been broken down irretrievably and ordered that the said marriage be dissolved unless sufficient cause be shown within six weeks as to why the same be not made “absolute”. A copy of the said decree was placed by the petitioner before the ld.Addl. District Judge, New Delhi on 10th June, 2011 hearing HMA 15/2011. Respondent filed a detailed representation before the Ld. Ilford County Court in UK on 15th June, 2011 opposing making the divorce decree absolute. However, the decree passed by the Ilford County Court was made „absolute‟ on 21st June, 2011. Thereafter, in July, 2011 an application under section 13 of CPC was filed by the petitioner for dropping the divorce proceedings against him on the ground that marriage between the parties has already been dissolved by a decree of divorce by Ilford County Court in U.K., as such divorce petition filed by respondent/wife has become infructuous. Reply was filed by the respondent to the aforesaid application contending therein that decree of divorce passed by the foreign court is not recognised in Indian Law. It was further stated that the ground on which the foreign court had dissolved the marriage i.e., irretrievable breakdown was no ground for dissolution of marriage under the Hindu Marriage Act, as such, the said decree cannot be recognised in India.
  5. After considering the contentions of the parties, the learned trial court relying on the judgment in Y Narashimha Rao & ors vs. Y.Venkata Lakshimi & another: (1991) 3 SCC 451, has dismissed the said application.
  6. Aggrieved with the same, present petition is filed.
  7. Learned counsel for the petitioner has contended that respondent-wife has not obtained any declaration from a competent court declaring the foreign decree of divorce as null and void, as such, same cannot be treated as a nullity by the ld.trial court. In support of his contention, learned counsel has relied upon the judgment of this court in Harbans Lal Malik vs. Payal Malik 171 (2010) DLT 67. It is further contended that respondent was served with summons issued by the Ilford County Court on 19 th November, 2010 and she also made a representation there. In these circumstances, it cannot be said that she has not subjected herself to the jurisdiction of the said court. It is further contended that participating or not participating before the foreign court by the respondent is immaterial. The exceptions are given in Section 13 of CPC as to when a foreign judgment is not conclusive and binding. It is contended that in the present case none of the exceptions as stated therein exist.
  8. On the other hand, learned counsel for the respondent has contended that present petition is liable to be dismissed inasmuch as the petitioner seeks to enforce a decree of divorce granted by a foreign court which is not recognised in India and it would be opposed to public policy if the said decree is afforded any recognition. It is contended that the sole ground of the petitioner hinges on averring that respondent should have obtained declaration from a competent court declaring the foreign decree as null and void. It is contended that petitioner is misleading the court inasmuch as petitioner himself made a voluntary statement before the ld.trial court that he would be filing an application under section 13 of the CPC and thereafter had moved the said application which was ultimately rejected and now the petitioner cannot turn around and contend that respondent should have approached the competent court seeking declaration of foreign divorce decree as null and void.
  9. Learned counsel for the respondent has contended that judgment of the Supreme Court in Y Narsimha Rao and ors v Y.Venkata Lakshmi (supra) is clearly applicable to the facts of the present case. It is contended that foreign divorce decree was an ex parte decree wherein respondent could not contest. The said decree is not recognised in India, as such, petitioner is not entitled for any relief.
  10. The Supreme Court in Y Narsimha Rao and ors v Y.Venkata Lakshmi (supra) declined to give its imprimatur to foreign decree which did not take into consideration the provisions of Hindu Marriage Act under which the parties were married. The Supreme Court while interpreting Section 13 of CPC has held that unless the respondent voluntarily and effectively submitted to the jurisdiction of the foreign court and contested the claim which is based on the grounds available in the matrimonial law under which the parties were married, the judgment of the foreign court could not be relied upon. The relevant portion of the judgment of the Supreme Court is reproduced as under:-

“12. We believe that the relevant provisions of Section 13 of the Code are capable of being interpreted to secure the required certainty in the sphere of this branch of law in conformity with public policy, justice, equity and good conscience, and the rules so evolved will protect the sanctity of the institution of marriage and the unity of family which are the corner stones of our societal life.

Clause (a) of Section 13 states that a foreign judgment shall not be recognised if it has not been pronounced by a court of competent jurisdiction. We are of the view that this clause should be interpreted to mean that only that court will be a court of competent jurisdiction which the Act or the law under which the parties are 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 Indian Evidence Act has also to be construed likewise.

Clause (b) of Section 13 states that if a foreign judgment has not been given on the merits of the case, the courts in this country will not recognise such judgment. This clause 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 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, should not be considered as a decision on the merits of the case. In this respect the general rules of the acquiscence to the jurisdiction of the Court which may be valid in other matters and areas should be ignored and deemed inappropriate.

The second part of Clause (c) of Section 13 states that where the 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. 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 cine 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 which makes a foreign judgment unenforceable on the ground that the proceedings in which it is obtained are opposed to natural justice, 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 we find 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 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 this European Community. If, therefore, the courts in this country also insist as a matter of rule that foreign matrimonial judgment will be recognised only if it is of the forum where the respondent is domiciled or habitually and permanently resides, the provisions of Clause (d) may be held to have been satisfied.

The provision of Clause (e) of Section 13 which requires that the courts in this country will nor recognise a foreign judgment if it has been obtained by fraud, is self-evident. However, in view of the decision of this Court in Smt. Satya v. Teja Singh (supra) it must be understood that the fraud need not be only in relation to the merits of the matter but may also be in relation to jurisdictional facts.

  1. From the aforesaid discussion the following rule can be deduced for recognising foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the ground 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 Le as follows: (i) where the matrimonial action is filed in the forum where the respondent is domiciled 01 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 aforesaid rule with its stated exceptions has the merit of being just and equitable. It does no injustice to any of the parties. The parties do and ought to know their rights and obligations when they marry under a particular law. They cannot be heard to make a grievance about it later or allowed to bypass it by subterfuges as in the present case. The rule also has an advantage of rescuing the institution of marriage from the uncertain maze of the rules of the Private international Law of the different countries with regard to jurisdiction and merits based variously on domicile, nationality, residence-permanent or temporary or ad hoc forum, proper law etc. and ensuring certainly in the most vital field of national life and conformity with pubic policy. The rule further takes account of the needs of modern life and makes due allowance to accommodate them. Above all, it gives protection to women, the most vulnerable section of our society, whatever the strata to which they may belong. In particular it frees them from the bondage of the tyrannical and servile rule that wife’s domicile follows that of her husband and that it is the husband’s domiciliary law which determines the jurisdiction and judges the merits of the case.”

  1. It is admitted position that both the parties are Indians and marriage between them was solemnised at New Delhi according to Hindu rites and ceremonies and both are governed by Hindu Marriage Act, 1955. Their marriage has been dissolved by Ilford County Court in UK on the ground of having been broken down irretrievably which is not a ground for divorce under the Hindu Marriage Act. The Supreme Court in Y.Narasimha Rao and Ors vs. Y.Venkata Lakshmi and Anr (supra) has already held that foreign decree of divorce granted on a ground which is not recognized in India.
  2. The contention raised by the petitioner that there should be declaration from a competent court declaring the foreign decree null and void has no force as it is the petitioner who had moved an application under section 13 of CPC praying therein that the petitioner has already obtained a divorce decree from a foreign court thereby the marriage between the parties has been dissolved, as such, divorce petition pending before the ld.Addl. District Judge has become infructuous. Pursuant thereto reply was filed by respondent/office opposing the said application. While deciding the said application, the impugned order has been passed.
  1. Further the divorce granted by the Ilford County Court in UK is an ex parte divorce decree. Respondent never submitted herself to the jurisdiction of the said court. Respondent lodged a representation dated 15.6.2011 before the Ilford County Court informing that she was in India when the divorce petition was filed. She also informed that she was in acute financial difficulty to come to London to contest the divorce case. She wrote in detail about her financial condition and also informed that she had already filed a divorce petition in India. She requested the Ilford County Court not to make the divorce decree “absolute”. Respondent also filed CS(OS)2610/2010 before this court praying for grant of a decree of permanent injunction against the petitioner from continuing with the divorce petition before the court in UK. In these circumstances, it cannot be said that she had submitted to the jurisdiction of the foreign court.
  2. The reliance placed by learned counsel for the petitioner on the judgment of Harbans Lal Malik vs. Payal Malik (supra), is of no help to him. The facts of the said case are entirely different. The learned trial court has also considered the judgment of this court in Harmeeta Singh vs. Rajat Taneja reported in I(2003) DMC 443 and Mrs.Veena Kalia vs. Dr.Jatinder Nath Kalia and anr reported as 59(1995) Delhi Law times 635 in coming to the conclusion that decree of dissolution of marriage granted by the Ilford County Court, Essex, UK cannot be recognised as the facts of the case fall within the purview of the exceptions of Section 13 of CPC.

In view of the above discussion, no illegality is seen in the impugned order which calls for interference of this court. Petition is dismissed.

VEENA BIRBAL, J

 

Divorce Lawyers in Delhi.

Advocate Prachi Singh

(Family Law Attorney at New Delhi)

A-381,Defence Colony,New Delhi-110024

www.legesjurisassociates.com

Mob: +91-9811-11-4265

Advocate Prachi Singh is Family Law Lawyer, practicing in Supreme Court, Delhi High Court and Districts Courts in Delhi. She is contesting and advising on divorce cases, foreign and NRI divorce cases, child custody cases, International family law cases, ,Divorce Transfer Petition in Supreme Court, DV Act Cases, Maintenance Cases..etc..She has good knowledge in Family Laws Cases of India.

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Dissolution of Marriage or Divorce Laws in India

According to the Indian divorce laws there are mainly two ways to obtain you divorce, the mutual divorce and the contested divorce. In case of a mutual divorce, you can have a talk with your estranged spouse to come to a settlement and get a “no-fault divorce”. If you are seeking a contested divorce, you can file your divorce on the grounds that are specified under the particular Indian marriage act that you are entitled to. There are separate divorce laws for Hindus, Christians, Parsis and Muslims. Sikhs, Jains and Buddhists are governed by the Hindu Marriage Act, 1955 for filing for divorce in India. Laws are even laid down for Inter-cast marriages under the Special Marriage Act, 1956.
Procedure for Dissolution of marriage

Contested Divorce
Annulment or Nullity
Divorce by Mutual Consent.

The same laws according to which the marriage was solemnized govern dissolution of marriages, and the rights consequent to the dissolution.

Governing Laws

Hindus – The Hindu Marriage Act, 1955
Christians – The Divorce Act,1869, The Indian Christian Marriage Act,1872
Parsis – The Parsi Marriage and Divorce Act,1936
Muslims – Shariat Law, The Dissolution of Muslim Marriage Act,1939
Inter-cast/Secular – Special Marriage Act, 1954,
The Foreign Marriage Act,1969

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Divorce on Grounds of Cruelty under Hindu Marriage Act, 1955.

“Divorce.– (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party xxx xxx xxx (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty;”

Under the statutory provision cruelty includes both physical and mental cruelty. The legal conception of cruelty and the kind of degree of cruelty necessary to amount to a matrimonial offence has not been defined under the Act. Probably, the Legislature has advisedly refrained from making any attempt at giving a comprehensive definition of the expression that may cover all cases, realising the danger in making such attempt. The accepted legal meaning in England as also in India of this expression, which is rather difficult to define, had been ‘conduct of such character as to have caused danger to life, limb or health (bodily or mental), or as to give rise to a reasonable apprehension of such danger’ (Russel v. Russel [(1897) AC 395 and Mulla Hindu Law, 17th Edition, Volume II page 87].

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(Where the wife leveled false allegations of illicit relationship with another Lady.)

In Hemwanti Tripathi vs. Harish Narain Tripathi, 181 (2011) DLT 237, it is also held that :
“14……..That the ratio of Ashok Kumar v. Santosh Sharma (supra) and Savitri Bachman (supra) wherein it was held that a decree of divorce on the ground of cruelty can be passed on the strength of false, baseless, scandalous and malicious allegations in the written statement by one party on the other is thus found applicable to the facts of the present case because in the case at hand the husband has not led any evidence in support of his allegations.
As per the settled legal position, casting such aspersions on the character of the other spouse has the affect of causing deleterious affect on the mind of such spouse and the same is a worse form of cruelty

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Divorce on Grounds of irretrievable broken down.

In the matter of : Sardar Avtar Singh vs Amarjeet Kaur Gandhi ( Delhi High Court)
As the parties are living separately for more than sixteen years and there has been no reconciliation and the marriage has been irretrievable broken down, it is just and proper that the marriage between the parties is dissolved by decree of divorce for the reasons stated in paras 12 to 19.

In the another matter : Satish Sitole Vs Smt. Ganga( The Apex Court )

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

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Divorce on Grounds of desertion.

“It may be noted only after the amendment of the said Act by the amending Act 68 of 1976, desertion per se became a ground for divorce. On the question of desertion, the High Court held that in order to prove a case of desertion, the party alleging desertion must not only prove that the other spouse was living separately but also must prove that there is an animus deserendi on the part of the wife and the husband must prove that he has not conducted himself in a way which furnishes reasonable cause for the wife to stay away from the matrimonial home.”

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