No decree for divorce on one isolated incident can be passed.

The Hon’ble Supreme Court held that :-

“We are not impressed by the submission of the learned counsel for the
respondent that an incident which occurred somewhere in 2010 when the
appellant visited the office of the respondent and alleged to have
misbehaved with the respondent in front of other officers would constitute
an act of cruelty on the part of the appellant so as to enable the
respondent to claim divorce. In the first place, no decree for divorce on
one isolated incident can be passed. Secondly, there could be myriad
reasons for causing such isolated incident. Merely because both exchanged
some verbal conversation in presence of others would not be enough to
constitute an act of cruelty unless it is further supported by some
incidents of alike nature. It was not so.”

We are also not impressed by the submission of the learned counsel
for the respondent that since the appellant had made allegation against the
respondent of his having extra-marital relation and hence such allegation
would also constitute an act of cruelty on the part of the appellant
entitling the respondent to claim decree for dissolution of marriage.
34) Similarly, we are also not impressed by the submission of learned
counsel for the respondent that since both have been living separately for
quite some time and hence this may be considered a good ground to give
divorce.

In the first place, the respondent did not seek a decree of
dissolution of marriage on these grounds. Second, the grounds of cruelty
taken by the respondent in his petition does not include these grounds.
Third, even if some stray allegations were made by the wife in her
pleading/evidence as were relied upon by the learned counsel are of no
relevance because, as mentioned above, these ground were not pleaded in the
petition by the respondent for seeking a decree of divorce and nor were put
in issue; and lastly, the burden being on the respondent, the same could be
discharged by the respondent by pleading and then proving. It was not so
done. It is for these reasons, we cannot accept the aforementioned two
submissions for affirming the decree of divorce.

————————————————————————————

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.7114-7115 OF 2014

Suman Singh ….Appellant(s)
VERSUS
Sanjay Singh …Respondent(s)

J U D G M E N T
Abhay Manohar Sapre, J.
1) These appeals are filed by the appellant (wife) against the final
judgment and order dated 23.05.2013 passed by the High Court of Delhi at
New Delhi in F.A.O. No.108 of 2013 and F.A.O. No.109 of 2013 by which the
High Court dismissed the appeals filed by the appellant and confirmed the
judgment dated 14.12.2010 of the Principal Judge, Family Courts, Rohini
which had granted decree for dissolution of marriage in favour of the
respondent (husband) and, in consequence, also affirmed the order
dismissing the petition filed by the appellant (wife) for restitution of
conjugal rights.
2) Facts, in brief, to appreciate the controversy involved in the
appeals need mention infra.
3) The marriage between the appellant and the respondent was solemnized
on 26.02.1999 at Delhi as per the Hindu rites. The respondent-husband is
working as “Caretaker” in the Government of NCT of Delhi whereas the
appellant is a housewife. Out of this wedlock, one daughter was born on
15.06.2002 and the second daughter was born on 10.02.2006. Both daughters
are living with the appellant.
4) On 11.07.2010, the respondent (husband) filed a petition for
dissolution of marriage under Section 13 of the Hindu Marriage Act, 1955
(hereinafter referred to as “The Act”) in the Family Courts, Rohini, Delhi
against the appellant (wife). The respondent sought decree for dissolution
of marriage essentially on the ground of “cruelty”.
5) In substance, the respondent, in his petition, pleaded 9 instances
which, according to him, constituted “cruelty” within the meaning of
Section 13(1)(i-a) of the Act entitling him to claim dissolution of
marriage against the appellant.
6) The first ground of cruelty was related to wife’s behavior on the
next day of marriage, i.e., 27.02.1999. It was alleged that the appellant
came out of the bedroom in night dress and that too late when the close
relatives of the respondent were sitting in the house. It was alleged that
she did not pay respect and wishes to the elders. (Para 9 of the plaint)
7) The second ground of cruelty was again about the appellant’s behavior
with the respondent on the eve of New Year. However, the year was not
mentioned. According to the respondent, he agreed to celebrate the new
year with the appellant on her parental house as the parents of the
appellant gave repeated calls. After reaching her parental house, most of
the time the appellant was busy with her family members and left him alone
in the drawing room. Even at the time of dinner, the family members of the
appellant did not behave properly. (Para 10).
8) The third ground of cruelty was that the appellant did not show any
inclination or enthusiasm to attend any important family function or
festivals at the respondent’s house whenever held. However, no details were
given about the date and the function held. The allegations are general in
nature (Para 11).
9) The fourth ground of cruelty was again about the indecent behavior of
the appellant towards the respondent’s family members. However, no details
were pleaded except making general averments (Para 12).
10) The fifth ground of cruelty was in relation to an incident which,
according to the respondent, occurred in July 1999. It was alleged that the
appellant, on that day, insisted that the couple should live separately
from the respondent’s parents (Para 13).
11) The sixth ground of cruelty was again general with no details. It was
alleged that the appellant was not interested in doing any household work
nor was interested in preparing meals and used to insist the respondent to
have his lunch from outside. (Para 14).
12) The seventh ground of cruelty was in relation to one incident which,
according to the respondent, occurred on Diwali day in the year 2000. It
was again about the behavior of the appellant with the family members of
the respondent which, according to the respondent, was rude (Para 16).
13) The eighth ground of cruelty was in relation to one isolated incident
which, according to the respondent, occurred on 15.04.2001. It was again
about the behavior of the appellant with the friends of the respondent who
had come to the respondent’s house. According to the respondent, the family
members did not like it (Para 17).
14) The ninth ground of cruelty was that one day in year 2010, the
appellant visited the respondent’s office and misbehaved with the
respondent in the presence of other officials (Para 27).
15) The respondent also alleged some instances in the petition. They,
however, again essentially relate to the appellant’s behaviour with the
respondent and his family members.
16) The appellant filed her written statement and denied these
allegations. The appellant also applied for restitution of conjugal rights
against the respondent in the same proceedings by filing petition under
Section 9 of the Act and inter alia alleged in her petition that it was the
respondent who has withdrawn from her company without there being a
reasonable cause. She also while denying the case set up by the respondent
justified her case for restitution of conjugal rights.
17) The Trial Court framed the following issues on the basis of pleadings
in the case:
Whether after solemnization of marriage, the Respondent has
treated the Petitioner with cruelty? OPP
Whether the Petitioner is entitled to the decree of
divorce as prayed? OPP
3. Relief

The following issues were framed based on the pleadings in the petition
under Section 9 of the Act:

Whether the Petitioner is entitled to the restitution of conjugal rights as
prayed? OPP
Relief

18) Parties adduced the evidence. By order dated 14.12.2012, the Family
Court allowed the petition filed by the respondent. It was held that the
grounds alleged by the respondent amounted to mental cruelty within the
meaning of Section 13(1)(ia) of the Act and the same having been proved by
the respondent, he was entitled to claim a decree for dissolution of
marriage against the appellant. Accordingly, the Trial Court granted decree
for dissolution of marriage in favour of the respondent and dissolved the
marriage. Since the decree for dissolution of marriage was passed against
the appellant, the petition filed by the appellant against the respondent
seeking restitution of conjugal rights was dismissed.
19) The appellant, felt aggrieved by the aforesaid order, filed first
appeals before the High Court. In appeals, the question was whether the
Trial Court was justified in granting decree for dissolution of marriage to
the respondent (husband) and, in consequence, was justified in dismissing
the petition for restitution of conjugal rights filed by the appellant
(wife).
20) By impugned judgment, the High Court dismissed the appeals and
affirmed the judgment/decree of the Trial Court. The appellant (wife), felt
aggrieved, has filed these appeals by special leave against the judgment of
the High Court.
21) Heard Mr. D.N. Goburdhan, learned counsel for the appellant and Mr.
Gaurav Goel, learned counsel for the respondent.
22) Having heard the learned counsel for the parties and on perusal of
the record of the case, we are inclined to allow the appeals and while
setting aside the impugned order, dismiss the divorce petition filed by the
respondent(husband) against the appellant and, in consequence, allow the
petition filed by the appellant(wife) for restitution of conjugal rights
against the respondent (husband).
23) The word “cruelty” used in Section 13(1)(ia) of the Act is not
defined under the Act. However, this expression was the subject matter of
interpretation in several cases of this Court. What amounts to “mental
cruelty” was succinctly explained by this Court (three Judge Bench) in
Samar Ghosh vs. Jaya Ghosh [(2007) 4 SCC 511]. Their Lordships speaking
through Justice Dalveer Bhandari observed that no uniform standard can ever
be laid down for guidance, yet it is appropriate to enumerate some
instances of human behavior which may be considered relevant in dealing
with the cases of “mental cruelty”.
24) Their Lordships then broadly enumerated 16 category of cases which
are considered relevant while examining the question as to whether the
facts alleged and proved constitute “mental cruelty” so as to attract the
provisions of Section 13 (1) (ia) of the Act for granting decree of
divorce.
25) Keeping in view the law laid down in Samar Ghosh’s case (supra), when
we examine the grounds taken by the respondent in his petition for proving
the mental cruelty for grant of divorce against the appellant, we find that
none of the grounds satisfies either individually or collectively the test
laid down in Samar Ghosh’s case (supra) so as to entitle the respondent to
claim a decree of divorce.
26) This we hold for more than one reason. First, almost all the grounds
taken by the respondent in his petition were stale or/and isolated and did
not subsist to enable the respondent to seek a decree for dissolution of
marriage. In other words, the incidents of cruelty alleged had taken place
even, according to the respondent, immediately after marriage. They were
solitary incidents relating to the behavior of the appellant. Second,
assuming that one or more grounds constituted an act of cruelty, yet we
find that the acts complained of were condoned by the parties due to their
subsequent conduct inasmuch as admittedly both lived together till 2006 and
the appellant gave birth to their second daughter in 2006. Third, most of
the incidents of alleged cruelty pertained to the period prior to 2006 and
some were alleged to have occurred after 2006. Those pertained to period
after 2006 were founded on general allegations with no details pleaded such
as when such incident occurred (year, month, date etc.), what was its
background, who witnessed, what the appellant actually said etc.
27) In our view, the incidents which occurred prior to 2006 could not be
relied on to prove the instances of cruelty because they were deemed to
have been condoned by the acts of the parties. So far as the instances
alleged after 2006 were concerned, they being isolated instances, did not
constitute an act of cruelty.
28) A petition seeking divorce on some isolated incidents alleged to have
occurred 8-10 years prior to filing of the date of petition cannot furnish
a subsisting cause of action to seek divorce after 10 years or so of
occurrence of such incidents. The incidents alleged should be of recurring
nature or continuing one and they should be in near proximity with the
filing of the petition.
29) Few isolated incidents of long past and that too found to have been
condoned due to compromising behavior of the parties cannot constitute an
act of cruelty within the meaning of Section 13 (1)(ia)of the Act.
30) In our considered opinion, both the Courts below failed to take note
of this material aspect of the case and thus committed jurisdictional error
in passing a decree for dissolution of marriage.
31) We cannot, therefore, countenance the approach of the High Court
because it did not, in the first instance, examine the grounds taken in the
petition to find out as to whether such grounds constitute mental cruelty
or not? The finding, therefore, though concurrent does not bind this
Court.
32) We are not impressed by the submission of the learned counsel for the
respondent that an incident which occurred somewhere in 2010 when the
appellant visited the office of the respondent and alleged to have
misbehaved with the respondent in front of other officers would constitute
an act of cruelty on the part of the appellant so as to enable the
respondent to claim divorce. In the first place, no decree for divorce on
one isolated incident can be passed. Secondly, there could be myriad
reasons for causing such isolated incident. Merely because both exchanged
some verbal conversation in presence of others would not be enough to
constitute an act of cruelty unless it is further supported by some
incidents of alike nature. It was not so.
33) We are also not impressed by the submission of the learned counsel
for the respondent that since the appellant had made allegation against the
respondent of his having extra-marital relation and hence such allegation
would also constitute an act of cruelty on the part of the appellant
entitling the respondent to claim decree for dissolution of marriage.
34) Similarly, we are also not impressed by the submission of learned
counsel for the respondent that since both have been living separately for
quite some time and hence this may be considered a good ground to give
divorce.
35) In the first place, the respondent did not seek a decree of
dissolution of marriage on these grounds. Second, the grounds of cruelty
taken by the respondent in his petition does not include these grounds.
Third, even if some stray allegations were made by the wife in her
pleading/evidence as were relied upon by the learned counsel are of no
relevance because, as mentioned above, these ground were not pleaded in the
petition by the respondent for seeking a decree of divorce and nor were put
in issue; and lastly, the burden being on the respondent, the same could be
discharged by the respondent by pleading and then proving. It was not so
done. It is for these reasons, we cannot accept the aforementioned two
submissions for affirming the decree of divorce.
36) This takes us to the next question as to whether the appellant was
able to make out any case for restitution of conjugal rights against the
respondent.
37) Having perused her petition and evidence, we are of the view that the
appellant is entitled for a decree for restitution of conjugal rights
against the respondent.
38) In our considered view, as it appears to us from perusal of the
evidence that it is the respondent who withdrew from the appellant’s
company without there being any reasonable cause to do so. Now that we have
held on facts that the respondent failed to make out any case of cruelty
against the appellant, it is clear to us that it was the respondent who
withdrew from the company of the appellant without reasonable cause and not
the vice versa.
39) In view of foregoing discussion, the appeals succeed and are allowed.
The impugned judgment is set aside. As a result, the petition filed by the
respondent (husband) under Section 13(1) of the Act seeking dissolution of
marriage is dismissed. As a consequence thereof, the marriage between the
parties is held to subsist whereas the petition filed by the appellant
against the respondent under Section 9 of the Act seeking restitution of
conjugal right is allowed. A decree for restitution of conjugal right is,
accordingly, passed against the respondent.
40) We hope and trust that the parties would now realize their duties and
obligations against each other as also would realize their joint
obligations as mother and father towards their grown up daughters. Both
should, therefore, give quite burial to their past deeds/acts and bitter
experiences and start living together and see that their daughters are well
settled in their respective lives. Such reunion, we feel, would be in the
interest of all family members in the long run and will bring peace,
harmony and happiness. We find that the respondent is working as a
“Caretaker” in the Government Department (see Para 4 of his petition). He
must, therefore, be the “Caretaker” of his own family that being his first
obligation and at the same time attend to his Government duties to maintain
his family.

……………………………………..J.
[R.K. AGRAWAL]

….………………………………….J.
[ABHAY MANOHAR SAPRE]
New Delhi;
March 08, 2017
———————–
18

Judgement

Divorce on ground of wife’s cruel behavior.

. It is settled legal position that making unfounded indecent defamatory allegations against the spouse or his relatives in the pleadings/complaints amount to causing mental cruelty. (Rel. (2014) 16 SCC 34 K. Srinivas Vs. K. Sunita).

It is a marriage which could not take off right from inception as the worst kind of mental cruelty was faced by the respondent/husband during his honeymoon and thereafter. All his efforts to save the marriage by arranging various meetings, visiting the parental home of the appellant/wife, agreeing to take a separate accommodation to keep her, statement by the mother-inlaw of the appellant/wife before CAW Cell that let them (parties to the marriage) live happily wherever they want, could not save this marriage. After she left the matrimonial home on April 03, 2004, for the last more than 12 years, she has been litigating not only against her husband and his family members but also do not hesitate to implicate the advocate for her husband in the criminal case as well Sh.Trilochan Singh, a neighbour of her husband.


MAT.APP. (F.C.) 68/2015 Page 1 of 17

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment Reserved on: September 22, 2016

% Judgment Delivered on: September 30, 2016

+ MAT.APP.(F.C.) 68/2015

 

ANU SETH ….. Appellant Represented by: Mr.S.K.Srivastava, Advocate with appellant in person.

versus

SUNIL SETH ….. Respondent Represented by: Mr.Kirti Uppal, Senior Advocate instructed by Mr.P.P.Tiwari and Ms.Sahiba Pantel, Advocates

 

. CORAM:

HON’BLE MR. JUSTICE PRADEEP NANDRAJOG

HON’BLE MS. JUSTICE PRATIBHA RANI PRATIBHA RANI, J.

  1. In the case of arranged marriages where both the spouses are in the age group of 30 plus, honeymoon period is the best time to know, understand and come close to each other. This case is an exception in the sense that just a day after the marriage the parties left for their honeymoon to Shimla and returned with bitter memories and a spoiled honeymoon.
  2. Before applying for dissolution of marriage on the ground of cruelty, the respondent/husband has shown exceptional patience in dealing with the problem inspite of facing humiliation and scandalous allegations being made against him and his family members. The case is also different in a way that after staying intermittently at the matrimonial home, within less than three months of the marriage, the appellant/wife left for her parental home and despite the respondent/husband repeatedly visiting and persuading her to join him, she served detailed legal notice making various accusations. MAT.APP. (F.C.) 68/2015 Page 2 of 17
  3. Before replying the legal notice, again the respondent/husband tried to resolve the issues through their counsel by assuring of a separate accommodation for her on the assurance that none from their respective family would interfere for 5-6 months during that period. Even that did not succeed.
  4. When the complaint before CAW Cell was filed on May 26, 2005, the respondent/husband while requesting for a copy of the complaint to properly reply the same the concluding lines written by him are that : ‘I again request the authority to make her understand that marriage is solemnised to form the family and not to destroy the sanskar of marriage please.

’ 5. The respondent/husband had to beat a hasty retreat when FIR No.763/2005 under Sections 498-A/406/34 IPC was registered on August 27, 2005 against him and his other family members including married sister and her husband (jija) and had to run for cover by applying for anticipatory bail. Unfortunately the counsel who applied and obtained anticipatory bail for the respondent/husband and his family from the Court of Law, was also in a soup when in a complaint under Domestic Violence Act, he was impleaded as respondent No.7 though he was in no way in domestic relationship with the appellant.

  1. The voluminous record in this case pertains to a marriage which lasted just for three months. The marriage was solemnised on January 31, 2004. The parties at the time of their marriage were quite mature. While the respondent/husband Sunil Seth was aged about 33 years, the appellant/wife Anu Seth was aged about 31 years at that time. Both are well qualified. The respondent/husband is employed in AIIMS as UDC and the appellant/wife is Graduate and also having vocational skills i.e. Diploma in Boutique Embroidery. MAT.APP. (F.C.) 68/2015 Page 3 of 17

 

  1. The differences started just a day after when the parties went to Shimla for their honeymoon on February 02, 2004. The reasons given by the parties for the unpleasant honeymoon are: (i) As per the respondent/husband, the appellant/wife did not allow him to consummate the marriage and tried her best to avoid him in the process. Not only that, she even threatened to commit suicide if he dare touch her body against her mood, willingness and consent. (ii) The appellant/wife’s stand is that while in Shimla the respondent/husband, who is short tempered and behaves cruelly and gets irritated if anything is said or done against his dictates, declared that the status of a lady in their family is that of ‘a sandal in a foot’ and his words to be treated as God’s words, an averment which did not find mention in the detailed legal notice sent by her on March 14, 2005.
  2. It is admitted case of the parties that after honeymoon when they returned to Delhi, the relationship was unlike a newlywed couple. The appellant/wife had been visiting her parents frequently. However, it is admitted case of the parties that they were behaving normally when both of them were together in Dehradun at the alleged Grehpravesh ceremony at the house of sister of the appellant/wife as well at Hoshiarpur to perform some puja at the behest of the appellant/wife of Mataji at Hoshiarpur i.e. spiritual Guru of wife’s family. Despite puja being performed by the parties at the behest of the appellant/wife and her parents, Mataji did not permit her to join the matrimonial home. It is admitted case of the parties that the appellant/wife left the matrimonial home on April 03, 2004 alongwith her parents at about 11.00 am. It is also not disputed that on April 05, 2004 the respondent/husband visited his wife to bring her back. Thereafter when she served a legal notice, efforts to reconcile were made by him through MAT.APP. (F.C.) 68/2015 Page 4 of 17 respective advocates by holding chamber meetings. Private meetings between the two families to iron out the differences are also admitted by the parties.
  3. Litigation started when the appellant/wife filed a complaint on May 26, 2005 before CAW Cell and FIR No.763/2005 under Section 498-A/406/34 IPC was registered on August 27, 2005 against the respondent/husband and his family. The appellant/wife has also filed a complaint under Domestic Violence Act in January, 2007 wherein sister-inlaw (jethani) and Mr.Kehar Singh, Advocate for the respondent/husband in bail application were not even spared. A maintenance petition under Section 125 Cr.P.C. was also filed by the appellant/wife in January, 2007.
  4. On not being able to make her agreeable to join him, the respondent/husband filed divorce petition bearing HMA No. 1327/14/05 on the ground of cruelty which has been vigorously contested by the appellant/wife.
  5. Perusal of the impugned judgment shows that by referring to the contradictions in the testimony of the witnesses, she also filed application under Section 340 Cr.P.C. which has also been dismissed vide impugned judgment.
  6. Not only that PW-4 Sh.Trilochan Singh – a neighbour who mustered the courage to appear in the Court to depose what he had witnessed on April 03, 2004 when the appellant/wife finally left the matrimonial home in the company of her family members after allegedly creating a scene in the area was taken to task by her. PW-4 Sh.Trilochan Singh was served with the following notice by her through counsel in respect of the statement made by him before the Family Court:- ‘TRILOCHAN SINGHOCTOBER 20, 2008 SON OF LATE S. KIRPAL SINGH MAT.APP. (F.C.) 68/2015 Page 5 of 17 39A, OLD SAHIBPURA, BHUPINDER SINGH NAGAR TILAK WaGAR, NEW DELHI Sir, I am legally wedded wife of Shri Sunil Seth, your neighbour. In the divorce-petition filed by my husband in the court of Shri P.K. Barthwal ADJ, Delhi, you appeared as witness of my husband, on 04- 09-2008 as PW 4. You had filed your affidavit dated 19-12-2007 in examination in chief. In paragraph 3 of the affidavit you stated that “I say that during the last week, o n Sunday of October 2004 about noon, the respondent along, with her parents and one person came to the house of the petitioner, they misbehaved with the family members of the petitioner and created a scene by shouting while standing on the road in front of my house and later on they went along with two suitcases. When the mother of the petitioner tried to pacify the matter, she was pushed and misbehaved very badly by the respondent.” WHEREAS in cross examination you stated that “No scene had been created outside my house. I had not witnessed any manhandling or scuffle at that time.” From the above it is clear that you, in order to support the case of my husband have deliberately, intentionally and knowingly deposed in the court falsely and misled the Hon’ble Court for which I intend to file petition under section 340 Cr.P.C. and other related sections. I call upon you to send reply to my letter. In your deposition, you named one Mrs.Gogi and Mr.Balwinder Singh, her husband but have not given- their address. I have inquired and came to know that there is no neighbour of my husband namely Mrs.Gogi and Mr.Balwinder Singh. I request you to send me the addresses of Mrs.Gogi and Mr.Balwinder Singh as I want to. call them in Court for deposition because you have informed all wrong things, to the Court. I hope you will reply my this letter otherwise I shall file application in MAT.APP. (F.C.) 68/2015 Page 6 of 17 the Hon’ble court for appropriate action, under the law. (ARCHITA@ANUSETH) wife of Shri Sunil Seth H – 46, G.S. Apartments Sector-13, Rohini Delhi-110 085 C.C. – Shri Sunil Seth, with request to ask Mr. Trilochan Singh to furnish the required information in reply to my letter.’
  7. Written submissions have been filed by the parties mainly referring to the various discrepancies appearing in the statement of the witnesses and the evidence adduced by the parties.
  8. With a view to satisfy our judicial conscience about the correctness of the decision rendered by the Family Court granting divorce to the respondent/husband on the ground of cruelty, we will be examining only the following four incidents: (i) Filing criminal case in January, 2007 under Domestic Violence Act after about two years and nine months of leaving the matrimonial home in April, 2004 implicating her jethani Hemlata and Sh.Kehar Singh, Advocate, who represented her husband in bail matter by making false allegations. (ii) Malicious, scandalous and defamatory allegations made by the appellant/wife in the legal notice Ex.PW1/4 dated March 14, 2005 against her husband, mother-in-law, brother-in-law (jeth), married Nanand and Nandoi. (iii) Various threats being extended to the husband and his family to falsely implicate them to the extent that he was constrained to repeatedly report the matter to the police vide DDs Ex.PW2/1, Ex.PW3/1 & Ex.PW3/3. (iv) Making false allegations of dowry demand and demand of a car by the husband and in-laws. MAT.APP. (F.C.) 68/2015 Page 7 of 17
  9. Since all the contentions, as referred to the written submissions by the parties, have been dealt with by the learned Judge, Family Court in the lengthy judgment running into 86 pages, we will not repeat the same exercise by re-examining each and every accusation made by the parties against each other and their family members or the contradictions appearing on some aspects in the testimony of the witnesses.
  10. The accusations made above by the appellant/wife against her husband and in-laws have not been substantiated by any oral or documentary evidence.
  11. Perusal of certified copy of the Criminal Complaint Case No.66/1/07 filed on January 08, 2007 filed under Domestic Violence Act reveals that Sh.Kehar Singh Advocate has been impleaded as R-7 though he is not related to the parties. In the said complaint case, she levelled allegations against all the respondents about dowry demands being made and not bringing a car in dowry. She again referred to 3-4 marriages being performed by her jeth (R-3). Sh. Kehar Singh, Advocate was constrained to serve the appellant/wife with a legal notice through Sh.Prem P.Tiwari, Advocate demanding compensation of ₹10 lacs mentioning therein about the professional services rendered by him by filing anticipatory bail application on behalf of his clients namely Sunil Seth (respondent/husband) his mother Raj Seth, brother Anil Seth as well on behalf of Smt.Seema Rao and Sh.Balwant Rai (married Nanad and Nandoi) in case FIR No.763/2005 under Section 498-A/406/34 IPC, PS Prashant Vihar, which was granted. Para 4 of the notice by him served upon the appellant/wife reads as under:- “4. That you, feeling aggrieved with the professional obligations and duties discharged by my aforesaid client towards his abovesaid five clients, implicate him as a co-accused at serial No.7 in the complaint filed by you under Section 12 of Protection of Women from Domestic Violence Act, 2005 for the grant of relief under Section 18, MAT.APP. (F.C.) 68/2015 Page 8 of 17 19 (i) (f), 20 and 22 of the said Act, with malafide intentions and ulterior motives to cause harassment and tarnish the image of my client at the Bar and in the society. You have intentionally and deliberately dragged my client in the aforesaid complaint without any basis under the Protection of Women from Domestic Violence Act, 2005 which is now pending in the Court of Ms. Rekha, M.M. Rohini Courts, Delhi. In the said complaint all the allegations made by you against my client are totally false, frivolous, baseless, concocted and afterthought. My client has nothing to do with the allegations levelled by you in the said complaint against my client. It is submitted that my client has already submitted a detailed reply to the said complaint and has denied all the allegations in toto.”
  12. The legal notice Ex.PW1/4 dated March 14, 2005 sent by the appellant/wife which was addressed to (1) Sh.Sunil Seth, Husband; (2) Mrs.Raj Seth, Mother-in-law; (3) Mr.Anil Seth, Jeth; (4) Mrs.Simmy Rai, married Nanad; and (5) Mr.Balwant Rai, Nandoi. The relevant paragraphs of the said legal notice read as under:- “Paragraph No.3 “…….that the addressee No.3 have already left 3 wife and is now having 4th spouse namely Smt.Lata Seth. Smt.Lata Seth has been kept in dark to this effect for the reasons best known to you the above addressees. That you the addressee No.4 insisted for an Air conditioned car after the solemnisation of marriage on the pretext that addressee No.2 despite being widow has given 2 wheelar (sick wheeler) in the marriage of addressee No.4.” Paragraph No.10 “That you the addressees No. 2-4 & 5 have got no consideration of social values and are adament (sick adamant) to ruine (sick ruin) the mental peace and married life of my client. The addressee No.3 who is elder brother-in-law (Jeith of my client attempted to maline (sick malign) the modesty of my client but my client saved her sancitity (sick sanctity) from the ill attempts and designs of addressee No.3. My client brought to the knowledge of this incident to addressee No.1 but he ignored the same by saying that such things are common in their family and rebuked my client.” MAT.APP. (F.C.) 68/2015 Page 9 of 17 Paragraph No.11 “That my client was harassed and humilated (sick humiliated) as well as physically and mentally by you all the addressees and compelled her to leave the matrimonail (matrimonial) home on 3.4.2004. Thereafter you the addressees No.2, 4 & 5 insisted my client to have divorce from the addressee No.1 so that the marriage of the addressee No.1 can be solemnised in a rich family. My client in order to collect some clothes went to the matrimonail (sick matrimonial) home on 4-5- 2004 and found that the steel almirah in not openable condition by its key. A key maker person was called who some how managed to open the almirah who stated that almirah’s lock have been damaged by some one, after opening the almirah it was to the utter surprise of my client that clothes, suits, sarees etc. were missing, the above addressees despite being asked avoided to give any reply and made my client a laughing stock, my client could not bear and returned back.”
  13. The respondent/husband has sent the reply Ex.PW1/5 dated May 02, 2005 wherein before replying to the accusations made in the legal notice, he has given the details of the various meetings and the proposed settlement terms which were initially agreed by the parties but subsequently she backed out on the issue of no interference by her family members at least for a period of six months in a rented accommodation.
  14. The two cases filed by the appellant/wife i.e. petition under Section 125 Cr.P.C. and petition under Section 12 of Domestic Violence Act have been dismissed. In the above proceedings in her cross examination the appellant/wife has admitted the following facts: Cross examination of Smt.Archita, petitioner dated 10.08.2011. “……It is correct that on 05.04.2004 my husband came to take me back in the matrimonial home but I refused. Vol. Because my husband had stated that his mother does not want to see her face and I want to take you in the rented accommodation because he has not taken any rented accommodation………” MAT.APP. (F.C.) 68/2015 Page 10 of 17 Cross-examination of Smt.Archita, petitioner dated 14.10.2011. “I stayed in my matrimonial house from 1.2.04 till 3.4.04. I went for 2-3 days to Hoshiarpur with my husband for puja. I went to Honeymoon to Shimla from 2.2.04 to 07.02.04. It is correct that I had visited Dehradun at the place of my elder sister house from 28.3.04 till 30.3.04 along with my husband. It is correct that behavior of my husband was alright in the trip to Hoshiarpur and Dehradun but it is incorrect that his behavior was correct on our honeymoon. I have already mentioned about his misbehavior in honeymoon trip in my petition. It is correct that my husband had visited my parental home on 5.4.04 in order to take me along with him and he also came to take me on 13.2.05. It is wrong to suggest that respondent requested me with folded hands to accompany him but I refused. It is correct that before filing of litigation by either party efforts were made by the side of the respondent and his counsel to talk to me, my parents and my counsel for compromise of the matter. It is correct that on 23.3.05 respondent had offered me to take a premises on rent near his office ie AIIMS if I am ready and willing to live with him. It is also correct that when it was discussed that respondent will take premises on rent near AIIMMS it was also discussed that parents of both parties will not visit that home for about 5 months or 6 months. It is wrong to suggest that a fresh meeting was called on 31.3.05 for finalizing the compromise where my father refused to send me in rented accommodation. It is wrong to suggest that despite deciding that parents of both parties will not interfere in their lives my parents had interfered in our life. It is wrong to suggest that after meeting of 4.4.05 another meeting was called on 12.4.05 for settlement of the dispute. It is correct that in a petition filed by me before Hon’ble High Court of Delhi in 2009 I had admitted that I am still ready and willing to live with my husband. Q: I put to you that although you filed FIR against respondent u/s 498A/406 IPC but still you are willing and ready to live with him. Does it mean that your allegations are incorrect? Ans: I want to live with my husband as he has never demanded anything directly from me or my parents. I had filed the case of 498A against him and his family on the ground that whenever my mother in law and sister in law used to demand anything my husband (respondent) used to remain silent. Within two months of living with him I could not have understood his nature completely. MAT.APP. (F.C.) 68/2015 Page 11 of 17 It is wrong to suggest that whenever my husband had tried to take me with him I had refused on the ground that till the time Puja (Mataji) of our Guru in Hoshiapur is done and she allows me to go I will not go with him. It is wrong to suggest that I have submitted so in my statement in case before Ld. MM dealing with DV case. It is wrong to suggest that whenever my husband approached to take me with him my parents and my family members threatened him by saying that they have approached to higher levels and respondent will have to face the consequences. I had not stated before any Court that I do not want to go with my husband. At this stage witness is confronted with certified copy of her statement EX. PW-1/RX given on 15.09.10 in the case had not stated before any court that I do not want to go with my husband. At this stage witness is confronted with certified copy of Archita vs Sunil in D.V. Case from point A to A………….” “……….. It is correct that husband had never demanded car from me. Vol but he has demanded car from my father when he met him in India Gate meeting. I had inquired from the office of elder brother of respondent about his various marriages, I came to know from Mr Jain who is owner of Enkay Rubber co. that brother of respondent had married 3-4 times………..” Cross-examination of Archita, Petitioner dated 16.11.2011 “I have stated before the Hon’ble High Court in my petition that I am ready to live with my husband without any pre-condition. Just immediate after my marriage, I had gone to my matrimonial home. I was happy with my husband in my matrimonial home. My husband is not smoking or drinking. Respondent had never beaten me and I am confident that I will live happily with my husband in the matrimonial home. My mother in law has also stated in writing in CAW Cell to wish the couple to live happily………..”
  15. In the complaint case bearing No.66/1/07 filed under Section 12 of Domestic Violence Act the appellant/wife impleaded her jethani Hemlata also as respondent despite the fact that prior to that there was no accusation against her in any regard. We have already noted that even Mr.Kehar Singh, Advocate who was a counsel at the time of seeking anticipatory bail was MAT.APP. (F.C.) 68/2015 Page 12 of 17 impleaded as respondent. The petition under Section 12 of Domestic Violence Act has been dismissed on April 29, 2016 for the following reasons: “8. Considering the testimony of complainant which has many contradictions, at one stage complainant has admitted that no act of cruelty committed upon her and that she had cordial relationship with the respondent till she resided at the matrimonial house. It is also admitted by her that incident of Tatapani were not raised in the petition under Section 125 Cr.P.C. and has been raised first time in the present petition. 9. With respect to respondent no. 2 to 7, there is no specific allegation either in the complaint nor in the petition filed by the complainant. With respect to respondent no.2 only allegation has been made that she had demanded AC car and gold bangles and the allegations are undated and not specific despite her short stay at her matrimonial house. Accordingly, complainant has failed to prove that she is an aggrieved person qua respondents no. 2 to 7. 10.With respect to respondent no.1 she has also admitted that only grievance against respondent no. 1 is that he has filed several complaints against her family and threw her against the wall on 03.04.2004, however the said allegations neither mentioned in the affidavit in evidence nor in the petition showing that it is an afterthought.” 22. Vide order dated May 07, 2015 the Petition No.202/2014 filed under Section 125 Cr.P.C. by the appellant/wife was dismissed inter-alia for the following reasons: “40. The petitioner has failed to show that she has sufficient cause for living separately and therefore, is not entitled to any maintenance u/s 125 Cr.PC in any case, she is a graduate and vocationally qualified, but if she chooses to while away her life in motivated prosecution, the respondent cannot be burdened to make payment for such sadistic conduct of the petitioner. Therefore, it is held that the petitioner is not entitled to any maintenance from the respondent. Issue no.1 is accordingly, decided in favour of the respondent and MAT.APP. (F.C.) 68/2015 Page 13 of 17 against the petitioner. ISSUE No.2 RELIEF 41.In view of my findings above on issue no.1, the petition of the petitioner u/w 125 Cr.PC is dismissed. No orders as to costs.”
  16. In the affidavit Ex.RW1/1 by way of evidence filed by the appellant/wife in HMA Petition No.771/2006 her version in paras 20, 23, 26 to 28 is as under:- “20. I also state that at the instance of my husband, my father and brother met the petitioner at India Gate and during the course of meeting my husband, his sister and her husband raised vague and indefinite issues and made false allegations against me. My husband further stated that he finds it difficult to go to his office without car and my father declined to fulfil the said demand of A.C. Car. The sister of the petitioner openly asked my father that in case they are not ready to fulfil the said demand, they would break the marriage as her elder brother had married four times and there was no problem in getting divorce as her brother got divorce two-three times from the court and they are acquainted with the process of the court.”

“23. I also state that on 22.11.2004 at about 8 PM or on 10.1.2005 at 6.45 as alleged or otherwise, I, my father and my brother met the petitioner and his brother and misbehaved with them by using derogatory and filthy language and/or threatened. I also state that the petitioner is a very clever person who in order to create evidence against me is misusing the process of law and has been accustomed to lodge false report with the Police Station with ulterior motives and till date no action has been taken by the police against me or my family members considering the complaint to be false and baseless.” “26. I further state that I have been deserted by my husband without any reasonable cause and excuse and forgetting about the happening of the past, I am ready to join my matrimonial home provided my husband assures me of the affectionate attitude and proper living at the matrimonial home. MAT.APP. (F.C.) 68/2015 Page 14 of 17 27. I state that the FIR bearing No.763/2005 was got registered by me for the valid and cogent reasons being the fact that I was treated with utmost cruelty on account of non fulfillment of dowry demands inasmuch as the behaviour of my husband and his family members caused mental and physical cruelty to me, resulting into ruining my life. 28. I further state that I have also filed an application U/s.125 Cr.P.C. alongwith an interim application for maintenance, besides the filing of the petition U/s.12 of the Domestic Violence Act, and the same are pending adjudication before Ms.Shunali Gupta, M.M. Delhi. The certified copies of both the petitions are Ex.RW-1/9 and RW- 1/10 respectively.”

  1. So far as various threats being extended to the respondent/husband and his family members to implicated them in a false case are concerned, DD No.23A dated October 05, 2004 marked as Ex.PW3/1 was recorded at the instance of the husband at 6:15 PM at PS Rajouri Garden about threat being extended by his wife at Vishal Cinema as well the threats earlier being extended for the previous six months on phone by the appellant/wife and her father that by using political influence they would ruin the respondent/husband and complaints would be made against him in the women cell. DD No.27 dated November 22, 2004 at PS Rajouri Garden Ex.PW3/2 is about threats given to the husband at Bikaner Sweets by the father and brother of his wife to ruin him and his family. The third report was registered vide DD No.18A dated January 10, 2005 at PS Tilak Nagar marked as PW-2/1 whereby he was asked either to pay `5 lakhs or he and his entire family would be implicated in some case/CAW cell.
  2. It may be noted here that demand of air conditioned car was earlier attributed to only Smt.Seema (married Nanad) in the legal notice Ex.PW1/4 dated March 14, 2005 whereas during trial of HMA Petition No.771/2006 MAT.APP. (F.C.) 68/2015 Page 15 of 17 this demand was made by her husband from her father and during the meeting at India Gate where she was not even present

. 26. The appellant/wife has also placed on record the transcript Ex.RW1/5 of the conversations dated 05.05.2004, 30.06.2004, 20.12.2004, 19.03.2005, 18.05.2005, 25.07.2005, 27.07.2005, 09.09.2005 and 23.01.2006 between the parties/family members.

  1. The learned Judge, Family Court has referred to this conversation in paras 69 and 72 to 85 of the impugned judgment. After referring to the above telephonic conversation which was consciously recorded by the appellant/wife or at her instance without other party being aware that the conversation between the two is being tape recorded to be used in litigation, was still found lacking in proving the plea taken by the appellant/wife or the accusations made by her against her husband and in law. Referring to the conversation, in para 69 finding has been returned by the learned Judge, Family Court that the appellant/wife left the matrimonial home of her own with her family member.
  2. The allegations repeatedly made in the legal notice, written statement and other proceedings against jeth that he tried to molest her and that when it was brought to the notice of the husband, he said that it was a family culture, remained unproved. The allegation made that the jeth had married 3-4 times also remained unproved. When his wife appeared Hemlata in the witness box as PW-3, no such question was put to her. The admissions made by the appellant/wife during her cross examination in the proceedings under Domestic Violence Act extracted above shows that it was not a case of dowry demand. The meeting at India Gate on October 03, 2004 when she claimed that the car was demanded by her husband from her father is falsified from her own version recorded in the criminal cases filed by her. MAT.APP. (F.C.) 68/2015 Page 16 of 17 Otherwise also it is highly improbable that after so many meetings in Lawyer’s chamber, at personal level and other places and lot of bitterness being created after she finally left on April 03, 2004, the husband could have demanded a car from her father during meeting at India Gate fixed to save the marriage. One thing is clear from this admission of the appellant/wife that prior to that there was no demand of car though false allegation was made about this demand in the legal notice dated March 14, 2005.
  3. In view of above admitted position as well judicial findings in the cases filed by the appellant/wife herein, the respondent/husband was able to establish that during their honeymoon not only consummation of marriage was resisted by her, even thereafter causing embarrassment and humiliation accusations have been made against him and his entire family. The allegations made against his elder brother by the complainant that he tried to molest her by way of serving a legal notice and also filing complaints implicating not only the husband but his entire family including his married sister and brother-in-law as well his counsel, with a motive to harass them, is nothing but a ruthless act on the part of the appellant/wife to cause mental cruelty and harassment to her husband and his family. It is settled legal position that making unfounded indecent defamatory allegations against the spouse or his relatives in the pleadings/complaints amount to causing mental cruelty. (Rel. (2014) 16 SCC 34 K. Srinivas Vs. K. Sunita).
  4. From the admissions of the appellant/wife during her cross examination, we have no hesitation to hold that the respondent/husband and his entire family had been subjected to worst kind of mental cruelty by the appellant/wife in this case. In all judicial proceedings, her projection as a victim at the hands of her husband and in-laws or being subjected to cruelty has been disbelieved. The learned Judge, Family Court had given valid MAT.APP. (F.C.) 68/2015 Page 17 of 17 reasons for dissolution of marriage on the issue of cruelty by discussing each and every contention thread bare in the impugned judgment.
  5. It is a marriage which could not take off right from inception as the worst kind of mental cruelty was faced by the respondent/husband during his honeymoon and thereafter. All his efforts to save the marriage by arranging various meetings, visiting the parental home of the appellant/wife, agreeing to take a separate accommodation to keep her, statement by the mother-inlaw of the appellant/wife before CAW Cell that let them (parties to the marriage) live happily wherever they want, could not save this marriage. After she left the matrimonial home on April 03, 2004, for the last more than 12 years, she has been litigating not only against her husband and his family members but also do not hesitate to implicate the advocate for her husband in the criminal case as well Sh.Trilochan Singh, a neighbour of her husband.
  6. We are of the considered opinion that the conduct of the appellant/wife in the instant case was such that it was not possible for the husband to bear such type of cruelty

. 33. The appeal has no merits and the same is hereby dismissed.

  1. No costs.
  2. LCR be sent back alongwith copy of this order.

PRATIBHA RANI (JUDGE)

PRADEEP NANDRAJOG (JUDGE)

SEPTEMBER 30, 2016 ‘st’

dissolution of marriage/Divorce/Annulment/Separation/divorce by mutual consent under Hindu Marriage Act 1955.

Divorce can be sought by husband or wife on certain grounds, including: continuous period of desertion for two or more years, conversion to a religion other than Hindu, mental abnormality, venereal disease, and leprosy.  Newly married couples cannot file a petition for divorce within one year of marriage.

This Act may be called the Hindu Marriage Act, 1955.

(2) It extends to the whole of India except the State of Jammu and Kashmir 1 , and applies also to Hindus domiciled in the territories to which this Act extends who are outside the said territories.

 Application of Act. —

 This Act applies—

(a) to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,

(b) to any person who is a Buddhist, Jaina or Sikh by religion, and

(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.

Explanation. —The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:—

(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;

(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged; and

(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.

(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.

(3) The expression “Hindu” in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section. State Amendment Pondicherry: In section 2, insert the following sub-section:— “(2A) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the Renoncants of the Union territory of Pondicherry

Conditions for a Hindu marriage. —A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:—

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

2 [(ii) at the time of the marriage, neither party—

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

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

(c) has been subject to recurrent attacks of insanity 3 [***];]

(iii) the bridegroom has completed the age of 4 [twenty-one years] and the bride, the age of 5 [eighteen years] at the time of the marriage;

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

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

Ceremonies for a Hindu marriage. —

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

(2) Where such rites and ceremonies include the saptpadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken. State Amendments Section 7A Pondicherry: After section 7, insert the following section, namely:—

(a) by each party to the marriage declaring in any language understood by the parties that each takes the other to be his wife or, as the case may be, her husband; or

(b) by each party to the marriage garlanding the other or putting a ring upon any finger of the other; or

(c) by the tying of the thali.

Restitution of conjugal rights.

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.

Judicial separation .—

(1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.]

(2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.

Void marriages.

—Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto 11 [against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses

(i) , (iv) and (v) of section 5.

Voidable marriages .—

(1) Any marriage solemnised, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:—

12 [(a) that the marriage has not been consummated owing to the impotence of the respondent; or]

(b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; or

(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner 13 [was required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978)*], the consent of such guardian was obtained by force 14 [or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent]; or

(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage—

(a) on the ground specified in clause (c) of sub-section (1) shall be entertained if—

(i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or

(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;

(b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied—

(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;

(ii) that proceedings have been instituted in the case of a marriage solemnised before the commencement of this Act within one year of such commencement and in the case of marriages solemnised after such commencement within one year from the date of the marriage; and

(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of 15 [the said ground].

Divorce. —

(1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party—

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

(ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or]

(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]

(ii) has ceased to be a Hindu by conversion to another religion; or

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

Explanation .—In this clause,—

(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or]

(iv) has 18 [***] been suffering from a virulent and incurable form of leprosy; or

(v) has 18 [***] been suffering from venereal disease in a communicable form; or

(vi) has renounced the world by entering any religious order; or

(vi) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; 19 [***] 20 [ Explanation. —In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.] 21 [***]

(1A) Either party to a marriage, whether solemnised before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground—

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of 22 [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of 22 [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]

(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,—

(i) in the case of any marriage solemnised before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnisation of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or

(ii) that the husband has, since the solemnisation of the marriage, been guilty of rape, sodomy or 23 [bestiality; or]

(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) [or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898)], a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or

(iv) that her marriage (whether consummated or not) was solemnised before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.]

 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.]

 

 

 

 

Divorce under The Special Marriage Act 1954 in India.

 

Divorce under  The Special Marriage Act, 1954

images-123

(1) ] Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the district court either by the husband or the wife on the ground that the respondent— 2[(a) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or

(b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]

(c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code (45 of 1860); 3[***]

(d) has since the solemnization of the marriage treated the petitioner with cruelty; or 4[(e) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Explanation.—In this clause,—

(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the respondent, and whether or not it requires or is susceptible to medical treatment; or

(f) has been suffering from venereal disease in a communicable form]; or

(g) has 5[***] been suffering from leprosy, the disease not having been contacted from the petitioner; or

(h) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive; 6[***] 7[Explanation.—In this sub-section, the expression “desertion” means desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly;] 8[***] 9[***] 7[(1A) A wife may also present a petition for divorce to the district court on the ground,—

(i) that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality;

(ii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898) (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards.] 10[(2) Subject to the provisions of this Act and to the rules made thereunder, either party to a marriage, whether solemnized before or after the commencement of the Special Marriage (Amendment) Act, 1970 (29 of 1970), may present a petition for divorce to the district court on the ground—

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]

 

Grounds for Divorce under Special Marriage Act are as follows:

(1)Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the district court either by the husband or the wife on the ground that the respondent”

(a) has since the solemnization of the marriage committed adultery; or

(b) has deserted the petitioner without cause for a period of at least three years immediately preceding the presentation of the petition; or

(c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code (Act XLV of 1860): or

(d) has since the solemnization of the marriage treated the petitioner with cruelty; or

(e) has been incurably of unsound mind for a continuous period of not less than three years immediately proceeding the presentation of the petition; or

(f) has for a period of not less than three years immediately preceding the presentation of the petition been suffering from venereal disease in a communicable form, the disease not having been contracted from the petitioner; or

(g) has been suffering from leprosy, the disease not having been contracted from the petitioner; or

(h) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive; or

 

and by the wife on the ground that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality.

 

 

 Divorce by mutual consent The Special Marriage Act, 1954

 

(1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the district court by both the parties together 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) 1[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 district court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized under this Act, and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of the decree.

HOW TO GET A DIVORCE IN INDIA

29_12_2013-divorce29_s

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

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

Muslims : Dissolution of Muslim Marriages Act, 1939

Christians : Indian Divorce Act, 1869

Parsis : The Parsi Marriage and Divorce Act, 1936

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

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

Grounds for Divorce in India

In India divorce is granted mainly on 4 different grounds.

  1. Adultery
  2. Desertion
  3. Cruelty
  4. Impotency
  5. Chronic Diseases

 

Contested Divorce under Hindu Marriage Act 1955

Divorce. —

(1) Any marriage solemnised, 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—

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

16 [(ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or]

16 [(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]

(ii) has ceased to be a Hindu by conversion to another religion; or

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

Explanation .—In this clause,—

(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or]

(iv) has 18 [***] been suffering from a virulent and incurable form of leprosy; or

(v) has 18 [***] been suffering from venereal disease in a communicable form; or

(vi) has renounced the world by entering any religious order; or

(vi) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; 19 [***] 20 [ Explanation. —In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.]

Mutual Consent Divorce under Hindu Marriage Act.

mutual divorce

Divorce by Mutual Consent

Seeking a divorce in India is a long-drawn out legal affair, where the period of prosecution takes a minimum of six months. However, the time and money required to obtain a divorce can be considerably shortened if the couple seeks divorce by mutual consent. In this case, estranged spouses can mutually agree to a settlement and file for a “no-fault divorce” under Section 13B of the Hindu Marriage Act 1955. All marriages which have been solemnized before or after the Marriage Laws (Amendment) Act 1976, are entitled to make use of the provision of divorce by mutual consent. However, for filing for a divorce on this ground, it is necessary for the husband and wife to have lived separately for at least a year.

Sec.13-B of Hindu Marriage Act 1955- 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 solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 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 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 mean time, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

Procedure for Filing for Divorce

The procedure for seeking a divorce by mutual consent, is initiated by filing a petition, supported by affidavits from both partners, in the district court. Known as the First Motion Petition for Mutual Consent Divorce, this should contain a joint statement by both partners, that due to their irreconcilable differences, they can no longer stay together and should be granted a divorce by the court. After six months, the Second Motion Petition for Mutual Consent Divorce should be filed by the couple and they are required reappear in the court. A gap of six months is given between the two motions, so as to offer the estranged couple adequate time to reconsider their decision of dissolving their marriage. After hearings from the husband and wife, if the judge is satisfied that all the necessary grounds and requirements for the divorce have been met, the couple is granted a mutual divorce decree. Some of the important issues on which the couple should have agreed, in their petition for divorce by mutual consent, are custody of child, alimony to wife, return of dowry items or “streedhan” and litigation expenses.

ANNULMENT OF MARRIAGE UNDER HINDU MARRIAGE ACT:

marriage

There are two ways to legally end a marriage – annulment and divorce. An annulment is a legal procedure which cancels a marriage between a man and a woman. Annulling a marriage is as though it is completely erased – legally, it declares that the marriage never technically existed and was never valid. A divorce, or legal dissolution of a marriage, is the ending of a valid marriage between a man and a woman returning both parties to single status with the ability to remarry. While each individual state has its own laws regarding the grounds for an annulment or for a divorce, certain requirements apply nationwide.

An annulment case can be initiated by either the husband or the wife in the marriage. The party initiating the annulment must prove that he or she has the grounds to do so and if it can be proven, the marriage will be considered null and void by the court. The following is a list of common grounds for annulment and a short explanation of each point:

Bigamy – either party was already married to another person at the time of the marriage
Forced Consent – one of the spouses was forced or threatened into marriage and only entered into it under duress.

Fraud – one of the spouses agreed to the marriage based on the lies or misrepresentation of the other.

Marriage Prohibited By Law – Marriage between parties that based on their familial relationship is considered incestuous.

Mental Illness – either spouse was mentally ill or emotionally disturbed at the time of the marriage.

Mental Incapacity – either spouse was under the influence of alcohol or drugs at the time of the marriage and was unable to make informed consent.

Inability to Consummate Marriage –
 either spouse was physically incapable of having sexual relations or impotent during the marriage.

Underage Marriage – either spouse was too young to enter into marriage without parental consent or court approval.

Depending on your state of residence, a divorce can be much more complicated than an annulment. Like annulment cases, each state has its own set of laws regarding divorce. In most divorce cases, marital assets are divided and debts are settled. If the marriage has produced children, a divorce proceeding determines custody of the children, visitation rights and spousal and child support issues.

Each state can have either a “no-fault” divorce or a “fault” divorce. A no-fault divorce allows the dissolution of a legal marriage with neither spouse being named the “guilty party” or the cause for the marital break-up.

Many states now offer the “no-fault” divorce option, a dissolution of a legal marriage in which neither party accepts blame for the marital break-up. In the absence of a “guilty party,” some states require a waiting period of a legal separation before a no-fault divorce can take place. For this reason, in addition to cases where one spouse wishes to assign blame, some parties seek to expedite the legal process by pursuing a traditional, “fault” divorce.

A “fault” divorce is only granted when one spouse can prove adequate grounds. Like an annulment, these grounds vary from state to state, however, there are some overarching commonalities. These guidelines often include addition to drugs, alcohol or gambling, incurable mental illness, and conviction of a crime. The major grounds for divorce that apply in every state are listed below:
Adultery – one or both spouses engages in extramarital relationships with others during the marriage.

Desertion – one spouse abandons the other, physically and emotionally, for a lengthy period of time.

Physical/Emotional Abuse – one spouse subjects the other to physical or violent attacks or emotional or psychological abuse such as abusive language, and threats of physical violence.

Your state law and particular situation will determine whether or not your annulment or divorce will be simple or complex. Familiarizing yourself with the laws for your particular state is the best way to learn what your rights are in the case of a marital dissolution.

Nullity of marriage and divorce:- Void marriages Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v), Section 5. 12. Voidable.

Marriages.-(1) Any marriage solemnized, whether before or after the
commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-
(a) that the marriage has not been consummated owing to the impotency of the respondent; or

(b) that the marriage is in contravention of the condition specified in clause (ii) of Section 5; or

(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978, the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or

(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage-

(a) on the ground specified in clause (c) of sub-section (1) shall be entertained if-

(i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered ; or

(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;

(b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied-

(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;

(ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and

(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground.

 

maintenance after divorce but Maintain ‘Sexual Purity’ After Divorce

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 05.08.2015

CORAM
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU

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

R.Mathialagan : Petitioner

Vs.

V.Ravichandrika : Respondent

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

!For Petitioner : Mr.M.Karthikeya Venkatachalapathy

^For Respondent : Mr.Gnanasekaran
Legal Aid Counsel

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

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

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

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

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

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

8. In Rohtash Singh’s, in Paragraph No.11, the Hon’ble Supreme Court
has held as follows:-
” 10. Claim for maintenance under the first part of Section 125 CrPC is
based on the subsistence of marriage while claim for maintenance of a
divorced wife is based on the foundation provided by Explanation (b) to sub-
section (1) of Section 125 CrPC. If the divorced wife is unable to maintain
herself and if she has not remarried, she will be entitled to maintenance
allowance. The Calcutta High Court had an occasion to consider an identical
situation where the husband had obtained divorce on the ground of desertion
by the wife but she was held entitled to maintenance allowance as a divorced
wife under Section 125 CrPC and the fact that she had deserted her husband
and on that basis a decree for divorce was passed against her was not treated
as a bar to her claim for maintenance as a divorced wife. (See: Sukumar
Dhibar v. Anjali Dasi.) The Allahabad High Court also, in the instant case,
has taken a similar view. We approve these decisions as they represent the
correct legal position.
11. Learned counsel for the petitioner then submitted that once a
decree for divorce was passed against the respondent and marital relations
between the petitioner and the respondent came to an end, the mutual rights,
duties and obligations should also come to an end. He pleaded that in this
situation, the obligation of the petitioner to maintain a woman with whom all
relations came to an end should also be treated to have come to an end. This
plea, as we have already indicated above, cannot be accepted as a woman has
two distinct rights for maintenance. As a wife, she is entitled to
maintenance unless she suffers from any of the disabilities indicated in
Section 125(4). In another capacity, namely, as a divorced woman, she is
again entitled to claim maintenance from the person of whom she was once the
wife. A woman after divorce becomes a destitute. If she cannot maintain
herself or remains unmarried, the man who was once her husband continues to
be under a statutory duty and obligation to provide maintenance to her”.

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

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

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

To

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

.

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

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

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

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

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

2. Whether the suit is time barred? OPD

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

4. Relief.

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

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

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

3. Whether the suit is time barred? OPD

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

5. Relief.

No other issues were pressed or claimed.

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

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

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

“Jurisdiction.-

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

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

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

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

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

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

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

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

(f) a suit or proceeding for maintenance;

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

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

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

————————————————————————

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                      CHANDIGARH

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

Harpreet Singh Sekhon                              .....Appellant


                            Versus



Rajwant Kaur                                       ..... Respondent

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

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

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

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

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

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

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

2. Whether the suit is time barred? OPD

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

4. Relief.

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

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

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

3. Whether the suit is time barred? OPD

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

5. Relief.

No other issues were pressed or claimed.

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

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

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

Mr. Manish Jain, Advocate for the respondent.

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

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

Adjourned to 20.05.2011.”

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

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

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

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

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

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

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

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

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

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

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

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

1. Respondent did / did not appear in court.

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

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

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

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

6. The following children were born.

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

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

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

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

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

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

NAME                                                     ENTER
ADDRESS                                                    sd
CITY, STATE, ZIP                                         JUDGE
TELEPHONE

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

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

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

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

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

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

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

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

(e) where it has been obtained by fraud;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“Jurisdiction.-

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

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

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

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

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

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

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

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

(f) a suit or proceeding for maintenance;

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

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

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

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

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

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

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

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

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

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

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

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

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