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Family Law: All India Half Yearly Digest 2023
Navya Benny & Tellmy Jolly
7 Oct 2023 10:27 AM GMT
SUPREME COURTCriminal Proceedings For Dowry Demand Cannot Be Quashed Merely Because Divorce Petition Is PendingCase Title: X vs State of Uttar Pradesh Case Citation: 2023 LiveLaw (SC) 26The Supreme Court bench comprising of Justices M R Shah and C T Ravikumar observed that criminal proceedings for demand of dowry cannot be quashed merely because divorce petition is pending.'Woman Not A...
SUPREME COURT
Criminal Proceedings For Dowry Demand Cannot Be Quashed Merely Because Divorce Petition Is Pending
Case Title: X vs State of Uttar Pradesh
Case Citation: 2023 LiveLaw (SC) 26
The Supreme Court bench comprising of Justices M R Shah and C T Ravikumar observed that criminal proceedings for demand of dowry cannot be quashed merely because divorce petition is pending.
Case Title: Association of Old Settlers of Sikkim vs Union of India
Case Citation: 2023 LiveLaw (SC) 28
The Supreme Court bench comprising of Justices M R Shah and B V Nagarathna held that excluding Sikkimese woman merely because she marries a non-Sikkimese after 01.04.2008 from exemption provision under Section 10(26AAA) Income Tax Act is is totally discriminatory and thus unconstitutional.
Child Adopted By Widow After Death Of Govt. Employee Not Entitled To Family Pension
Case Title: Shri Ram Shridhar Chimurkar vs Union of India
Case Citation: 2023 LiveLaw (SC) 40
The Supreme Court bench comprising of Justices K M Joseph and B V Nagarathna held that a son or daughter adopted by the widow of a deceased government servant, after the death of the government servant, cannot be included within the definition of ‘family’ under Rule 54(14)(b) of the Central Civil Services (Pension) Rules, 1972 to claim family pension.
Case Title: Elumalai @Venkatesan And Anr. v. M. Kamala And Ors. And Etc.
Case Citation: 2023 LiveLaw (SC) 65
The Supreme Court held that the effect of estoppel from laying a claim on property cannot be warded off by persons claiming through the person whose conduct has generated the estoppel. A Bench comprising Justices K.M. Joseph and Hrishikesh Roy observed that when a son relinquishes their right to the self-acquired property of the father; and the conduct is accompanied by receipt of a consideration the principle of estoppel will apply qua the son and his successors.
Case Title: Naim Ahamed vs State (NCT of Delhi) | CrA 257 OF 2023 | 30 Jan 2023
Case Citation: 2023 LiveLaw (SC) 66
The Supreme Court bench comprising of Justices Ajay Rastogi and Bela M. Trivedi observed that it would be a folly to treat every breach of promise to marry as a false promise and to prosecute a person for the offence of rape under Section 376 IPC.
Case Title: Rangappa Javoor vs State Of Karnataka
Case Citation: 2023 LiveLaw (SC) 74
The Supreme Court bench comprising of Justices Sanjiv Khanna and M M Sundresh observed that criminal proceedings inter-se parties in cases of offences relating to matrimonial disputes can be quashed if the Court is satisfied that the parties have genuinely settled the disputes amicably.
Conviction U/S 498A IPC Not Sustainable When Marriage Is Found To Be Null & Void
Case Title: P Sivakumar vs State
Case Citation: 2023 LiveLaw (SC) 116
The Supreme Court bench comprising of Justices B R Gavai and Vikram Nath observed that the conviction under Section 498-A IPC would not be sustainable when the marriage was found to be null and void.
Case Title: Aparna Ajinkya Firodia vs Ajinkya Arun Firodia
Case Citation: 2023 LiveLaw (SC) 122
The Supreme Court bench comprising of Justices V Ramasubramanian and B V Nagarathna observed that DNA tests of children born during the subsistence of a valid marriage may be directed only when there is sufficient prima-facie material to dislodge the presumption under Section 112 of the Evidence Act.
Courts Should Not Impose Onerous Conditions On Complainants Under Domestic Violence Act
Case Title: Bhawna Versus Bhay Ram And Others
Case Citation : 2023 LiveLaw (SC) 148
The Supreme Court bench comprising of Justices V Ramasubramanian and Pankaj Mithal set aside a condition imposed by the Delhi High Court which had allowed a victim of domestic violence to lead evidence during trial subject to payment of Rs.20,000 per witness.
Case Title: Joseph Shine vs Union of India
Case Citation: 2023 LiveLaw (SC) 117
It is not as if this Court approved of adultery, the Supreme Court observed in its order clarifying that its 2018 judgment striking down Section 497 IPC [Joseph Shine v. Union of India (2019) 3 SCC 39 ] will not impact court martial proceedings initiated against personnel serving the armed forces for adulterous conduct. A bench comprising of Justices KM Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar stated that Armed Forces Personnel liable to face disciplinary action for adultery despite striking down of Section 497 IPC.
Supreme Court Dismisses Plea To Raise Age Of Marriage For Women As 21 Years, Says It's For Parliament To Decide
Case Title: Ashwini Kumar Upadhyay v. UoI And Anr
Case Citation: 2023 LiveLaw (SC) 143
The Supreme Court bench comprising of Chief Justice DY Chandrachud, Justice PS Narasimha and Justice JB Pardiwala refused to entertain a petition filed by Advocate Ashwini Upadhyay seeking uniform age of marriage for men and women.
Sex With Minor Wife : Supreme Court Acquits Husband Of Rape Relying On Exception 2 To Sec 375 IPC
Case Title : Siddaruda @ Karna vs State of Karnataka
Case Citation : 2023 LiveLaw (SC) 170
The Supreme Court bench comprising of Justices B.R. Gavai and Sanjay Karol acquitted a man who was convicted for the offence of rape for sexual intercourse with his minor wife by relying on Exception 2 to Section 375 of the Indian Penal Code, which exempts marital rape from punishment if the wife was aged above 15 years.
Case Title : Sundar @ Sundarrajan v. State by Inspector of Police
Case Citation: 2023 LiveLaw (SC) 217
The Supreme Court has advised Courts to refrain from making patriarchal remarks in judgments. A bench comprising Chief Justice of India DY Chandrachud, Justice Hima Kohli and Justice PS Narasimha was deciding a petition seeking to review the death penalty awarded to a convict for the kidnap and murder of a 7-year old boy.
If Law Gets Amended Before Passing Final Decree In Partition Suit, Parties Can Seek Its Benefit
Case Title: Prasanta Kumar Sahoo & Ors. v Charulata Sahu & Ors.
Case Citation: 2023 LiveLaw (SC) 262
The Supreme Court bench comprising of Justice A.S. Bopanna and Justice J.B. Pardiwala has held that during the pendency of a partition suit, the parties can seek benefit of the amended law, when final decree has not been passed. Accordingly, the preliminary decree in a partition suit can be varied in the final decree proceedings, if the law governing the parties has been amended.
Case Title: Charan Singh @ Charanjit Singh v. State of Uttarakhand
Case Citation: 2023 LiveLaw SC 341
The Supreme Court Bench comprising Justices AS Oka and Rajesh Bindal held that mere death of a wife under unnatural circumstances, in a matrimonial home, within seven years of marriage is not sufficient to convict the husband for dowry death.
Irretrievably Broken Down Marriage Can Be Dissolved On Ground Of 'Cruelty'
Case Title: Shri Rakesh Raman v. Smt. Kavita
Case Citation: 2023 LiveLaw (SC) 353]
The Supreme Court Bench comprising Justices Sudhanshu Dhulia and JB Pardiwala held that irretrievable breakdown of marriage can be read as the ground of "cruelty" under Section 13 (1)(ia) of the Hindu Marriage Act for the dissolution of marriage.
'Irretrievable Breakdown of Marriage' A Ground To Dissolve Marriage Invoking Article 142 Powers
Case Title: Shilpa Sailesh v. Varun Sreenivasan and other connected matters
Case Citation : 2023 LiveLaw (SC) 375
A Constitution Bench of the Supreme Court comprising of Justices Sanjay Kishan Kaul, Sanjiv Khanna, A.S. Oka, Vikram Nath and J.K. Maheshwari held that it can invoke its special powers under Article 142 of the Constitution of India to grant divorce on the ground of irretrievable breakdown of marriage, which is not yet a statutorily recognised ground.
Case Title : Shilpa Sailesh vs Varun Sreenivasan
Case Citation : 2023 LiveLaw (SC) 375
A Constitution Bench of the Supreme Court comprising of Justices Sanjay Kishan Kaul, Sanjiv Khanna, A.S. Oka, Vikram Nath and J.K. Maheshwari has held that it can invoke the special powers under Article 142 of the Constitution of India to waive the waiting period of 6 to 8 months prescribed for seeking divorce through mutual consent as per Section 13-B of the Hindu Marriage Act 1955.
Parties Cannot Directly Approach Supreme Court Under Article 32 Seeking Divorce On Ground Of Irretrievable Breakdown Of Marriage
Case Title : Shilpa Sailesh vs Varun Sreenivasan]
Case Citation : 2023 LiveLaw (SC) 375
While holding that irretrievable breakdown of marriage can be a ground to grant divorce by invoking powers under Article 142 of the Constitution, a Constitution Bench of the Supreme Court comprising of Justices Sanjay Kishan Kaul, Sanjiv Khanna, A.S. Oka, Vikram Nath and J.K. Maheshwari clarified that a party cannot file a writ petition under Article 32 of the Constitution of India and seek relief of dissolution of marriage on the ground of irretrievable breakdown of marriage directly from it.
In a special sitting held on Saturday, the Supreme Court bench comprising of Justice Sudhanshu Dhulia and Justice Pankaj Mithal stayed an order passed by the Allahabad High Court which directed the Head of Astrology Department, Lucknow University to determine if an alleged rape victim is a Mangali/Mangalik by examining her Kundali. A vacation bench comprising Justice Sudhanshu Dhulia and Justice Pankaj Mithal passed the order after taking suo motu cognizance of the High Court's order.
HIGH COURTS
ALLAHABAD HIGH COURT:
Case title: Zahid Khatoon vs. Nurul Haque Khan
Case Citation: 2023 LiveLaw (AB) 5
The Allahabad High Court has observed that as per Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, a divorced Muslim woman is entitled to receive maintenance from her former husband not just till the completion of the ‘Iddat’ period, but for the rest of her life until she remarries. The bench of Justice Surya Prakash Kesarwani and Justice Mohd. Azhar Husain Idrisi observed thus while setting aside an order of the family court wherein a divorced Muslim woman was found entitled to maintenance only for the period of iddat.
Case title: Bitola @ Rinku vs. State Of U.P. And Another
Case Citation: 2023 LiveLaw (AB) 53
The Allahabad High Court set aside an order of the Family Court rejecting the application of one Bitola (revisionist/wife) seeking maintenance from her Husband on the ground that she is staying away from her husband without any sufficient reason. The bench of Justice Raj Beer Singh observed that the Family Court conducted the proceedings without being alive to the objects and reasons and the spirit of the provisions under Section 125 of CrPC and disregarded the basic canon of law that it is the sacrosanct duty of the husband to provide financial support to the wife, who is unable to maintain herself.
Case title: Aditya Raj Verma vs. State Of U.P. . And Another
Case Citation: 2023 LiveLaw (AB) 75
Granting bail to a man accused of raping his married live-in partner, the Allahabad High Court observed that it is difficult for a woman to live alone after breaking of live-in relationship. Opining that Indian Society, at large, does not recognize such relationships as acceptable, the Court added that a woman, therefore, is left with no option but to lodge a first information report against her live-in partner, as it happened in the present case.
Case title: Shakila Khatun vs. State of U.P. and Another
Case Citation: 2023 LiveLaw (AB) 77
The Allahabad High Court has observed that a divorced Muslim woman is entitled to claim maintenance under Section 125 CrPC even for the period after iddat and for her whole life unless she is disqualified for the reasons such as marriage with someone else. While observing thus, the bench of Justice Raj Beer Singh set aside an order of the Family Court whereby the plea filed by one Shakila Khatun, a divorcee, under Section 125 CrPC was dismissed by holding that a divorced Muslim woman is not entitled to maintenance under Section 125 Cr.P.C
Society's Dark Face That Families Still Feel Shy Marrying Their Son/ Daughter Out Of Caste
Case title: XXX And Another vs. State Of U.P. Thr.Its Sec. Home U.P. And Others
Case Citation: 2023 LiveLaw (AB) 121
The Allahabad High Court observed that it is society's dark face that Indian families still feel shy to get their son or daughter married to someone from outside their caste. The bench of Justice Rahul Chaturvedi observed thus while dealing with a joint plea filed by a woman (victim) and her husband (accused) seeking to quash the chargesheet filed against the accused under sections 363, 366 IPC, and Section 7/8 of the POCSO Act.
Case title: Durvesh vs. State of U.P
Case Citation: 2023 LiveLaw (AB) 126
The Allahabad High Court recently called it a curse for a society that women are still subjected to occult (तांत्रिक) rituals to treat their infertility even before ascertaining that it might be a case of male infertility. The bench of Justice Saurabh Shyam Shamshery observed thus while denying bail to an accused who, along with his family members, has been accused of giving repeated burn injuries to her bhabhi (brother's wife) purportedly on the directions of an occultist so as to treat her infertility. "The mindset of applicant and co-accused who still believe in occultism to be a cure of female infertility even before ascertaining that it might be a case of male infertility, is of persons living in stone age and not in 21st Century, where science as developed to such extent that even infertility (of male or of female) may be medically cured, therefore, there is absolutely no case of bail at this stage," the Court observed.
Case title: Pappu vs. State Of U.P. And Others
Case Citation: 2023 LiveLaw (AB) 134
The Allahabad High Court directed the ‘Sarvadeshik Arya Pratinidhi Sabha’, the apex body of the Arya Samaj, to introspect and issue guidelines to avoid solemnising marriages involving minors. The Court also directed the ‘Sabha’ to counsel proposed couples so that they may not enter into any criminal act i.e solemnizing a marriage before reaching marriageable age.
Case title: Ajay Diwakar vs. State Of U.P. And Others
Case Citation: 2023 LiveLaw (AB) 143
In a significant ruling, the Allahabad High Court has held that unless a minor victim denies explicitly the existence of physical relation, it can be presumed that the victim and accused, who lived as husband-wife or that they solemnised marriage, had established physical relation. The Bench of Justice Saurabh Shyam Shamshery further held in those cases where the existence of a physical relationship between the minor victim and accused could be presumed, then a rape case could be made out as the fact of whether consent was given or not, is immaterial.
Not Allowing Spouse To Have Sexual Intercourse For A Long Time Amounts To Mental Cruelty
Case title: Ravindra Pratap Yadav vs. Asha Devi And Others
Case Citation: 2023 LiveLaw (AB) 160
The Allahabad High Court dissolved the marriage between a couple on the ground of cruelty by observing that not allowing a spouse for a long time, to have sexual intercourse with his or her partner, without sufficient reason, itself amounts to mental cruelty to such spouse. With this, the bench of Justice Suneet Kumar and Justice Rajendra Kumar-IV allowed the appeal filed by the Husband challenging a family court's order dismissing his divorce petition under Section 13 Hindu Marriage Act, 1955. "Since there is no acceptable view in which a spouse can be compelled to resume life with the consort, nothing is given by trying to keep the parties tied forever to a marriage than that has ceased to in fact," the Court said as it quashed and set aside the order of the Principal Judge, Family Court, Varanasi.
Case title: Chand Babu @ Vishal vs. State of U.P.
Case Citation: 2023 LiveLaw (AB) 180
The Allahabad High Court recently refused to grant bail to a man who has been accused of establishing sexual relations with the victim by making a false promise to marry her after concealing his real religion. The Bench of Justice Saurabh Shyam Shamshery observed that it was a case wherein the accused trapped the victim by representing himself to be a person of different religion and made a physical relationship with her against her will. “…the applicant has introduced himself as a person of a different religion to deceive the victim and made a promise of marriage to have a physical relationship with her, then it would be a case of a false promise of marriage,” the Court added.
Case title: Aarfa Bano Thru. Mohd. Hasim vs. State Of U.P. Thru. Prin. Secy. Home Lko. And Others
Case Citation: 2023 LiveLaw (AB) 182
The Allahabad High Court has observed that a Muslim father-in-law has no locus to file a habeas corpus plea seeking the presence/custody of his daughter-in-law. With this, the bench of Justice Shamim Ahmed disposed of a Habeas plea filed by one Mohd. Hasim seeking custody of his daughter-in-law alleging that she is in illegal custody of her parents since 2021 and that they are not allowing her to go to her matrimonial house.
Case title: Shyam Bahadur Singh vs. State of U.P. and Another
Case Citation: 2023 LiveLaw (AB) 199
The Allahabad High Court has observed that a second application seeking maintenance under Section 125 of CrPC can sustain, after the rejection of the first application, if there are changes in the circumstances, entitling a person to be a claimant under the said provision. Stressing that the liability to maintain under section 125 CrPC is a continuing one, the bench of Justice Jyotsna Sharma was of the view that if the right to file an application for maintenance is foreclosed, it shall frustrate the very purpose of section 125 CrPC.
Case title: Kiran Rawat And Another vs. State Of U.P. Thru. Secy. Home Lko. And Others
Case Citation: 2023 LiveLaw (AB) 201
While dismissing a plea filed by an interfaith live-in couple seeking protection against alleged harassment at the hands of the police, the Allahabad High Court observed that the views expressed by the Supreme Court pertaining to 'live-in' relationships "cannot be considered to promote such relationships" Observing that traditionally, Law has been biased in favour of marriage, the Bench of Justice Sangeeta Chandra and Justice Narendra Kumar Johari also stressed upon the need to create awareness in young minds regarding the emotional and societal pressures and legal hassles which may be created by such relations.
ANDHRA PRADESH HIGH COURT
Case title: Shaik Jareena v. Shaik Dariyavali
Case citation: 2023 LiveLaw (AP) 3
The Andhra Pradesh High Court, while setting aside a trial court order and rejecting a husband's plaint for declaration of a divorce decree upon pronouncement of triple talaq, has ruled that the operation of the Supreme Court's decision in Shayara Bano v. Union of India and Others on triple talaq is retrospective in nature. Justice V.R.K. Krupa Sagaralso said that law declared by the Supreme Court of India is law and it binds on all the Courts. "Triple Talaq is held against law and is considered to be unconstitutional and the statutory base for application of persona laws, which allow Triple Talaq, were held unconstitutional," it added.
A bench comprising Justice Dr VRK Krupa Sagar was hearing the appeal of a mother-in-law and her son, aggrieved by conviction under Section 304B IPC (Dowry death) and sentence of rigorous imprisonment for ten years. The bench highlighted that there was never an incident of any of the accused sending away the deceased from the house nor the deceased rushing away from the matrimonial home and reaching her mother and brother complaining of any trouble to her by the accused. The Court held that a married lady being told by her mother-in-law that she required more perfection in doing or attending household work can never be said to be cruelty or harassment. It set aside the conviction.
Case citation: 2023 LiveLaw (AP) 11
Case Title- GMR v. Smt. GS
Case Citation: 2023 LiveLaw (AP) 14
The Andhra Pradesh High Court recently quashed a criminal case filed by a woman against her husband and in-laws and held that neglecting the child and refusing to take responsibility for his treatment does not fall under the ambit of cruelty as per Section 498-A or criminal intimidation under section 506 Indian Penal Code,1860 (IPC). Justice R.Raghunandan Rao held that actions of neglect would not fall within ambit of Section 498-A of I.P.C.
Case Title: Md Asif v. State of Andhra Pradesh
Case Citation: 2023 LiveLaw (AP) 23
The Andhra Pradesh High Court said that under Muslim law, the father is the lawful guardian of his male children during their minority, and the mother can claim custody of such a child until the age of seven. Justice K. Sreenivasa Reddy said it is thus clear that under the Mohammedan law, the mother is entitled to the custody of her minor child only up to a certain age, depending upon the sex of the child. The court concluded that, it is the father who is the lawful guardian of his male children during their minority and mother can claim custody of such child till 7 years of his age of the child.
Case title: RK & others. v. State of A.P & ors.
Case citation: 2023 LiveLaw (AP) 26
The Andhra Pradesh High Court has permitted an elderly couple to travel to the US and observed that pendency of the criminal proceedings against them shall not come in the way of renewal of their passports. The couple are accused in a case, related to matrimonial dispute of their son, under Sections 498-A and 417 of the Indian Penal Code (IPC), as well as Sections 3 and 4 of the Dowry Prohibition Act. Justice Ninala Jayasurya stated that they cannot be deprived of their Right to Travel on the premise that the Criminal proceedings are pending against them.
BOMBAY HIGH COURT
Case Title: Namdeo s/o. Digambar Giri v. Seema
Case Citation: 2023 LiveLaw (Bom) 16
The Bombay High Court dismissed a man’s petition challenging the grant of maintenance to his wife, observing that a claim regarding wife's refusal during cross examination to undergo DNA test for ascertaining the paternity of girl child is not sufficient to draw an adverse inference. Justice Kishore C. Sant of the Aurangabad bench said: “Mere submission that question was asked in cross-examination to wife that whether she is ready to go for DNA test, where she has answered that she is not ready itself would not be sufficient to draw adverse inference against the wife.”
Case Title: Nisha Pradeep Pandya alias Nisha Amit Gor & Anr. v. Union of India & Ors
Case Citation: 2023 LiveLaw (Bom) 20
The Bombay High Court granted interim stay on transfer of pending adoption matters to the District Magistrates and directed the courts to continue with adjudication in such cases. The division bench of Justice G. S. Patel and Justice S. G. Dige, in a writ petition challenging the Juvenile Justice (Care and Protection of Children) Amendment Act 2021 to the extent that the word ‘Court’ is replaced with ‘District Magistrates’, said that if the petition succeeds, any orders passed by the District Magistrates will immediately become vulnerable. “While considering interim relief, we must bear in mind the primary objective which is the interest of the children and infants who are to be adopted whether these are domestic or foreign adoptions. The concerns of the adoptive parents are also involved," the court added.
Bombay High Court Quashes FIR Under Section 498A IPC Against Judicial Officer
Case Title: Vrushali Jayesh Kore v. State of Maharashtra and Anr.
Case Citation: 2023 LiveLaw (Bom) 27
The Bombay High Court recently quashed an FIR against a judicial officer accused of subjecting her brother’s wife to physical and mental cruelty. A division bench of Justice Anuja Prabhudessai and Justice R. M. Joshi of Aurangabad said that this case of Section 498A IPC is being used to settle personal score. The court reiterated that an individual’s right to reputation and dignity is an integral part of Articles 21 and 19(2) of the Constitution. The court said that unfounded criminal charges and long drawn criminal prosecution can have serious consequences such as mental drama, humiliation, and monetary loss. “It is to be noted that loss of character or bruised reputation cannot be restored even by judicial reprieve”, the court added.
Mental Cruelty Possible Even If In-Laws Reside Separately
Case Title: Sunita Kumari and Ors. v. State of Maharashtra and Anr.
Case Citation: 2023 LiveLaw (Bom) 32
The Bombay High Court recently observed that mental cruelty is an abstract concept and can be committed even if in-laws reside separately. "The mental cruelty is an abstract concept and it is a matter of experience for a person who is subjected to cruelty … Sometimes, the taunts might be seen to be innocuous by one person, while they may not be necessarily so perceived by another person … Such being the nature of mental cruelty, it is not necessary that it must take place in the physical presence of persons and that it can be handed out even from a distant place," the court observed.
A division bench of Justice Sunil B. Shukre and Justice M. W. Chandwani of Nagpur dismissed with costs an application filed by relatives of a man seeking quashing of criminal proceedings against them instituted by his wife. The court said that there is a prima facie case from the allegations despite the applicants residing away from the complainant. Cruelty is not only physical but can also be mental, the court observed. FIR forms a foundation of a criminal case. No strong edifice of a criminal case can be built unless its foundation is sound if the foundation is strong, it would give rise to a strong criminal case which is the case in the present matter, the court said.
Case Title: Amit S/o. Suresh Pali v. Rita D/o. Ramavtar Pal
Case Citation: 2023 LiveLaw (Bom) 59
The Bombay High Court upheld the grant of maintenance to a woman, whose husband's petition for divorce was allowed by the family court on the ground of desertion and cruelty. Dealing with the argument that prior to the decree of divorce she had refused to live with the husband without a sufficient reason and thus cannot be held to be entitled to maintenance, the court said when she had gone back to her matrimonial home but possibly saw no change in her husband's behaviour and left again, she cannot be said to have refused cohabitation without sufficient reasons under Section 125(4) of the Cr.P.C. Justice G. A. Sanap of the Nagpur bench, while upholding the family court order, said if the wife had no desire at all to establish the cohabitation with the husband, she would not have at all agreed to join his company.
Case Title: Gajanan v. Surekha
Case Citation: 2023 LiveLaw (Bom) 61
Observing that a person's approaching the civil court for divorce itself shows that customary divorce does not exist in his caste, the Bombay High Court upheld an order granting maintenance to a woman under the Protection of Women from Domestic Violence Act, 2005 (DV Act). Justice S. G. Mehare, in the husband’s challenge to the award, held that: “For claiming any customary right, the parties claiming such right are bound to prove that the customs of their caste or race still exist and the community at large is regularly observing such customs. Since the applicant approached the Civil Court for divorce, it can safely be held that the customary divorce was not in existence in their caste. Therefore, the respondent cannot claim that after the customary divorce, the domestic relationship ceased, and the applicant is not entitled to the reliefs under D.V. Act.”
Domestic Violence Case Can Be Quashed By High Court Under Section 482 CrPC Even After Conviction
Case Title: Shaikh Shaukat S/O Majit @ Majid Patel and Ors. v. State of Maharashtra and Anr.
Case Citation: 2023 LiveLaw (Bom) 67
There is no embargo on quashing a case emanating from a matrimonial dispute even after conviction when an appeal is pending, the Bombay High Court said while quashing a domestic violence case filed by the wife against her husband and in-laws. The accused in the case had been convicted by the trial court in March 2021. A division bench of Justices Anuja Prabhudessai and RM Joshi observed that the high court's powers under Section 482 of CrPC can be exercised in post-conviction matters when an appeal is pending before a judicial forum. The court noted that the parties had settled the matter and the wife had voluntarily accepted the settlement.
Case Title: X v. Y
Case Citation: 2023 LiveLaw (Bom) 72
The Bombay High Court allowed a man’s application seeking transfer of domestic violence proceedings from the magistrate’s court to the family court, where he has filed a divorce petition. The court said it would not be inconvenient for the wife as both are in the same city. Justice Amit Borkar held that there is a possibility of conflicting verdicts and transfer will reduce the burden of one court.
Case Title: RMS v. MOP
Case Citation: 2023 LiveLaw (Bom) 84
A woman doesn’t have the right to obstruct the sale of her estranged husband’s home if he is willing to provide her a rented accommodation with similar facilities, the Bombay High Court has held. The court made the observation while refusing to interfere with an order of the Family Court permitting the husband to sell the flat for clearing an outstanding loan. The Family Court had also directed the wife to move out of the accommodation and choose a suitable two-bedroom rental flat, failing which she would be handed over Rs. 50,000 per month. The court observed that such an order takes care of the rights of both parties and the wife can’t be heard to say that she would obstruct sale merely because she is habituated to the flat.
Match-Maker Cannot Be Charged With Cheating If Groom Allegedly Illtreated Bride
Case Title: Shailendra Kumar Dubey v. XYZ
Case Citation: 2023 LiveLaw (Bom) 93
A match-maker, who praised the groom before the prospective bride’s family, cannot be charged with cheating merely because the man allegedly treated the woman badly and is now accused of domestic violence, the Bombay High Court observed. A division bench of Justices Revati Mohite Dere and Prithviraj Chavan quashed the FIR against the matchmaker, a senior banker, booked along with the husband and his family.
Case Title: Ashwini Sanjay Babar v. State of Maharashtra
Case Citation: 2023 LiveLaw (Bom) 101
Objectionable to morality and human rights that a one-year-old girl has been sold by her mother, the Bombay High Court observed while granting bail to a woman accused of buying another woman’s daughter. Justice S. M. Modak observed said that the mother sold the child as she was in need of money. “I am at great pains when the word ‘sale’ is used. But the other side of the coin is that her own mother has done this act and the hard reality of the life is that she is in need of money as her husband is behind bar.” The court noted that now the complainant’s daughter is with her parents. Further, applicant/accused also has two minor children whose welfare has to be considered. The court said that it is not known when the trial will start and finish and hence there is no need to detain the applicant till the conclusion of the trial.
Case Title: Sunil Rama Kuchkoravi v. State of Maharashtra
Case Citation: 2023 LiveLaw (Bom) 111
The Bombay High Court allowed a death row convict, who murdered his mother and cut her body parts to eat them, to attend his daughter’s marriage. An Escort Party in civil dress will remain present at the venues. A division bench of Justice A. S. Gadkari and Justice P. D. Naik observed that his presence is necessary for performing religious ceremonies.
Case Title: Mayur Vaijanath Tawde & Anr. v. State of Maharashtra & Ors.
Case Citation: 2023 LiveLaw (Bom) 123
The Bombay High Court upheld the eviction of two individuals who allegedly mistreated their stepmother from their deceased father's house observing that the elderly stepmother needs comfort and peace in the evening of her life. Justice RG Avachat upheld the order of the tribunal constituted under section 7 of the Maintenance And Welfare of Parents And Senior Citizens Act, 2007 directing the petitioners to vacate the premises.
Bombay High Court Orders Child’s custody to Given to the Father At the Police Station
Case Title: Rakesh Tulsidas Rathod V/s. Jayraj Vishram Vapikar & Ors
Case Citation - 2023 LiveLaw (Bom) 128
Amid the cries of a 10-year-old child refusing to be taken away by his biological father, the Bombay High Court asked the maternal grandfather to handover the child’s custody to the father at the police station later in the day. A division bench of Justices AS Gadkari and PD Naik denied to look at video footage of the child screaming for help and then physically fighting off the father while the latter attempted to forcibly take him away from the High Court premises. The court was seized with a contempt petition filed by the father against the maternal grandfather and uncle to handover the child's custody.
Daughter Does Not Lose Right In Family Property Merely Because Dowry Was Paid At Her Marriage
Case Title: Terezinha Martins David v. Miguel Guarda Rosario Martins and Ors.
Case Citation: 2023 LiveLaw (Bom) 149
The Goa bench of Bombay High Court held that daughter’s right to family property does not extinguish merely because she was provided dowry at her marriage. Justice MS Sonak quashed a Transfer Deed made by brothers transferring family property without the consent of the appellant sister.
No Maintenance Under Domestic Violence Act For "Refusal Or Neglect" To Maintain Wife
Case Title: Sunil and Ors. v. Jayashri
Case Citation: 2023 LiveLaw (Bom) 163
When no domestic violence is found in a domestic violence case, maintenance cannot be awarded to wife on the ground that husband refused and neglected to maintain her, the Bombay High Court held. Justice SG Mehare of Aurangabad bench observed that the concept of “refusal and neglect to maintain wife” given in section 125 CrPC does not exist in the Protection of Women From Domestic Violence Act, 2005 (DV Act).
The court held that granting maintenance to wife in a domestic violence case based on concept of refusal and neglect to maintain is beyond the jurisdiction of the Additional Sessions Judge.
Case Title: Uday v. Rupali
Case Citation: 2023 LiveLaw (Bom) 165
The Bombay High Court ruled that the wife’s reputation is lowered by the mere fact that husband has made allegations against her in a newspaper, whether or not the news report is actually defamatory. A division bench of Justice RD Dhanuka and Justice MM Sathaye upheld family court’s decree granting divorce to the wife and held that the husband’s overall behaviour constitutes mental cruelty. The court further noted that the appellant filed criminal complaints not only against his mother-in-law before the Anti-Corruption Bureau but also against the investigating officer, the prosecutor who is a relative of the wife, as well as his wife’s current lawyer. The court opined that such a person is difficult to deal with and would certainly cause mental harassment.
Remarriage Not A Taboo Against Compensation To Widow Of Deceased
Case Title: The Iffco Tokio General Insurance Company Ltd. v. Bhagyashri Ganesh Gaikwad
Case Citation: 2023 LiveLaw (Bom) 176
The Bombay High Court held that remarriage will not disentitle the widow of a deceased in a motor accident from receiving compensation. Justice SG Dige observed that remarriage cannot be a taboo against motor accident compensation. The court noted that at the time of accident, the wife of the deceased was only 19 years old. She remarried during the pendency of the claim petition. The court said that a widow cannot be expected to remain a widow for life or till getting compensation.
Father Cannot Avoid Paying Maintenance To Child By Seeking Frivolous Paternity Test
Case Title: X v. Y
Case Citation: 2023 LiveLaw (Bom) 178
The Bombay High Court held that a child can be ordered to undergo paternity test only in exceptional cases and father’s attempt to avoid paying maintenance to son by seeking DNA testing should be thwarted at the very inception. Justice GA Sanap of the Nagpur bench dismissed a man’s plea seeking paternity test of a child born during cohabitation with his wife. The man did not allege infidelity on his wife’s part.
One Person Can't Be Prosecuted For Rape Merely Because Mutual Relationship Turned Sour
Case Title: Sameer Amrut Kondekar v. State of Maharashtra
Case Citation: 2023 LiveLaw (Bom) 180
When two people invest in a relationship, one of them cannot be blamed merely because the other alleged rape after things went south and the relationship didn’t culminate into a marriage, the Bombay High Court observed while discharging a man accused of raping his girlfriend of eight years. Justice Bharati Dangre set aside the trial court’s order refusing to discharge the man under sections 376, 323 of the IPC on a complaint filed by his 27-year-old girlfriend in 2016.
Children Not Property, Parents Don’t Have Absolute Rights Over Their Destiny
Case Title: Ashu Dutt v. Aneesha Dutt
Case Citation: 2023 LiveLaw (Bom) 189
“In India, matrimonial disputes constitute the most bitterly fought adversarial litigations and a stage comes when warring couples stop seeing reasons…In such cases, court’s must exercise the parent patriae jurisdiction,” the Bombay High Court observed while making visitation arrangements in a bitterly fought, long drawn matrimonial dispute. A division bench comprising Justices RD Dhanuka and Gauri Godse added that parents don’t have an absolute right over their child’s destiny and the most important consideration would be a child’s welfare and not the parent’s legal rights.
Single Working Woman Can Adopt Child Under Juvenile Justice Act
Case Title: Shabnamjahan & Ors. v. State of Maharashtra
Case Citation: 2023 LiveLaw (Bom) 192
The Bombay High Court has set aside an order disallowing a woman from adopting her sister’s child on the ground that she was a single working woman and wouldn’t be able to give personal attention to the child. The judge’s views displayed a medieval conservative mindset on family, the High Court said. Justice Gauri Godse observed that a divorcee or a single parent was eligible to adopt as per the Juvenile Justice (Care and Protection of Children) Act, 2015 and the district court’s job was merely to ascertain, if all necessary criteria were fulfilled.
Case Title: Mansi Bhavin Dharani v. Bhavin Jagdish Dharani
Case Citation: 2023 LiveLaw (Bom) 194
The Bombay High Court held that a family court cannot pass a divorce decree on admission assuming that the marriage is dissolved in the hearts and minds of the parties when the parties have not led any evidence or withdrawn their allegations against each other. A division bench of Justice RD Dhanuka and Justice Gauri Godse set aside a divorce decree on admission passed by the family court.
Widow Not Liable To Maintain In-Laws Under Section 125 CrPC
Case Title: Shobha w/o Sanjay Tidke v. Kishanrao S/o. Ramrao Tidke and Anr.
Case Citation: 2023 LiveLaw (Bom) 202
The Bombay High Court held that parents-in-law are not entitled to maintenance from their widowed daughter-in-law under section 125 of CrPC. Justice Kishore C Sant sitting at Aurangabad noted that the list of relatives entitled to claim maintenance under the section is exhaustive and does not include father-in-law and mother-in-law.
Case Title: R v. S
Case Citation: 2023 LiveLaw (Bom) 203
The Bombay High Court set aside a custody order citing the trial court's failure to interview the child to ascertain his wish. Justice Urmila Joshi Phalke of the Nagpur bench sent the case back to the trial court for fresh consideration observing that the trial court should have conducted an in-camera interview of the child before deciding the matter. The trial court was bound to make thorough enquiry to ascertain the welfare of the child, the court held.
Bombay High Court Refuses Relief To Divorced Woman Who Remarried During Appeal Period
Case Title: Akash Kanwarlal Kamal v. Himani Akash Kamal
Case Citation: 2023 LiveLaw (Bom) 205
The Bombay High Court rejected a woman’s interim application seeking dismissal of her husband’s appeal against their divorce decree on the ground that she had already married someone else. The court observed that the “Family Court Appeal filed by the husband within the appeal period (of 90 days) would not be rendered infructuous upon the Applicant (wife) having contracted second marriage and that also during the appeal period.”
Indian Court Can Entertain Complaint Against Domestic Violence Committed Abroad
Case Title: S v. H
Case Citation: 2023 LiveLaw (Bom) 207
The Bombay High Court held that judicial magistrate in India can take cognizance of domestic violence committed in foreign soil under the Protection of Women From Domestic Violence Act, 2005 (DV Act). Justice GA Sanap of the Nagpur bench observed that the Act is a social beneficial legislation and the lawmakers worded section 27 of the Act keeping in mind possible domestic violence outside India.
Spouse's Consent Not Necessary For Organ Donation Especially When Withheld For Extraneous Reasons
Case Title: Prasanna Laxmikant Joshi and Anr. v. State of Maharastra and Ors.
Case Citation: 2023 LiveLaw (Bom) 219
Spouse’s consent is not a mandatory requirement for organ donation under the Transplantation of Human Organs and Tissues Act, 1994 especially if the consent it being withheld unreasonably or for extraneous reasons, the Bombay High Court held. A division bench comprising Justices Gautam Patel and Neela Gokhale allowed a 55-year-old Pune resident to donate one of his kidneys to his sister’s husband (aged 65) despite objections from his estranged wife.
Case Title: XYZ v. ABC
Case Citation: 2023 LiveLaw (Bom) 240
Child custody orders can be altered and moulded at various stages of a child’s life keeping in mind his welfare, the Bombay High Court has observed. A single bench of Justice Neela Gokhale allowed a man to re-approach the Family Court to alter the mutual consent divorce terms with his ex-wife regarding child access, owing to the wife’s remarriage.
Muslim Woman Can Seek Maintenance Even After Divorce
Case Title: ABC v. XYZ
Case Citation: 2023 LiveLaw (Bom) 294
The Bombay High Court held that a Muslim woman can seek relief under the Protection of Women from Domestic Violence Act, 2005 (DV Act) even after divorce.
Justice GA Sanap of the Nagpur bench dismissed a man’s revision application against sessions court order enhancing maintenance to his wife in a domestic violence case.
CALCUTTA HIGH COURT
Case Title: Sekhar Kr Roy v Lila Roy & Anr
Case Citation: 2023 LiveLaw (Cal) 151
The Calcutta High Court clarified that the mere transfer of money from a husband to his wife for the purchase of property would not qualify as a benami transaction. In other words, even if it is proved that husband paid the consideration money, it will have to be proved that the husband really intended to enjoy the full benefit of the title in him alone in order to imply the existence of a benami transaction. It held that, to prove a benami transaction, the burden of proof would lay heavily on the party claiming the existence of such a transaction. In the absence of any proof regarding the same, the preponderance of probability shall rest in favour of the person in whose name the property was registered.
Case Title: Deepak Chatterjee @ Dipak Chatterjee & Ors. v. The State of West Bengal & Anr
Case Citation: 2023 LiveLaw (Cal) 152
The Calcutta High Court quashed a domestic violence complaint filed by a woman against her in-laws for allegedly trying to strangulate her, upon noting that the parties never resided together. The bench relied on the case of Prakash Singh Badal v State of Punjab AIR 2007 SC 124 and reiterated that the ultimate test would be whether allegations such as the one made by the respondent have substance. There being no merit to her claim due to have never resided with the petitioners, the respondent’s complaint was found to be baseless and thereby quashed.
Case Title : The State of West Bengal and Others v Sabita Roy and connected petitions.
Case Citation: 2023 LiveLaw (Cal) 167
A Full bench of the Calcutta High Court held that family pension can be extended to unmarried/ widowed daughter of an employee who superannuated or died prior to coming into force of the Non-Government Educational Institution Employees (Death-cum-Retirement Benefit) Scheme, 1981, which came into effect on and from 1st April, 1981. The bench comprising Justice Harish Tandon, Justice Shampa Sarkar and Justice Rabindranath Samanta made the observation while answering a reference in connection with three petitions relating to grant of family pension to (i) widowed daughter of a deceased Assistant Teacher, (ii) widowed daughter of a retired (now deceased) high school clerk and (iii) unmarried and handicapped daughter of a retired (now deceased) Assistant Teacher.
Case Title: Sk. Sohel Ashik v. State of West Bengal & Anr.
Case Citation: 2023 LiveLaw (Cal) 121
The Calcutta High Court quashed criminal proceedings against an accused for the alleged offence of rape on the ground that the physical relationship between him and the victim was consensual and the issue of marriage cropped up only after the physical relationship. Justice Tirthankar Ghosh quashed the criminal proceedings and the charge-sheet filed against the accused-petitioner based on Apex Court decisions.
Case Title: Gaurav Bir Basnet @ Gaurav Basnet v. The State of West Bengal & Anr.
Case Citation: 2023 LiveLaw (Cal) 119
The Calcutta High Court set aside trial court's decision to convict under Section 417 of IPC a man accused of inducing a woman to have sexual relation with him on the promise to marry her after the dissolution of his previous marriage. Justice Siddhartha Roy Chowdhury in order to invoke the provision of Section 415 of I.P.C., prosecution is under obligation to prove that the accused person induced the victim to indulge in any such sexual relationship with him. The court set aside the impugned conviction order passed by the Trial Court and acquitted the appellant for the alleged offence under Section 417 of IPC as the prosecution has not been able to prove that since the inception the accused person had this evil design to exploit the victim both financially and sexually.
Calcutta High Court Acquits Man In Rape Case, Says Physical Relationship Was Consensual
Case Title: Farmuj Ali @ Farmiz Ali v. The State of West Bengal
Case Citation: 2023 LiveLaw (Cal) 126
The Calcutta High Court set aside the conviction under Section 376 of IPC of a rape accused, on the ground that physical relationship between the appellant and the victim was consensual and the age of the victim was not conclusively established by the prosecution before the Trial Court. The division bench of Justice Debangsu Basak and Justice Md. Shabbar Rashidi observed that charge against the appellant was not proved beyond reasonable doubt. The bench observed that the testimony of the victim and her subsequent conduct does not inspire the confidence of the court. "We, therefore, set aside the impugned judgment of conviction and the order of sentence and acquit the appellant of the charge framed," it said.
Case Title: Rupen Dhar & Ors. v. The State of West Bengal & Ors.
Case Citation: 2023 LiveLaw (Cal) 142
The Calcutta High Court quashed the criminal proceedings under Section 498A of IPC initiated by a woman against her husband and his relatives alleging that she was subjected to physical and mental torture and was driven out from the matrimonial home, on the ground that an earlier proceeding initiated by her on the basis of almost same allegations against the same accused persons had ended in acquittal and no appeal was preferred by her. Justice Ajoy Kumar Mukherjee observed that the Apex Court and High Courts in numerous cases have expressed concern over the misuse of section 498A IPC and the increased tendency of implicating husband and relatives of the husband in matrimonial disputes.
CHHATTISGARH HIGH COURT
Case Title: Mohammed Husham v. State of Chhattisgarh
Case Citation: 2023 LiveLaw (Chh) 19
The Chhattisgarh High Court recently denied anticipatory bail to a Muslim man accused of pronouncing ‘talaq-e-biddat’ to his wife for ending their marriage. Anticipating his arrest, the accused approached the High Court for grant of an anticipatory bail, which was denied by the Court. Therefore, he filed this second successive application for anticipatory bail. The Court placed reliance upon the Mohd. Shamim Khan v. State of Jharkhand, Raj Bahadur Singh v. State of UP and also observing that there is no change of circumstances and as the first anticipatory bail application was dismissed on merits, the Court dismissed the second anticipatory bail application as non-maintainable.
Case Title: P. Venkat Rao v. Smt. P. Padmavati
Case Citation: 2023 LiveLaw (Chh) 11
The Chhattisgarh High Court has recently ruled that setting a pre-condition for marriage to deprive the wife from begetting child of her own cannot be enforced in law. The Division Bench of Justice Goutam Bhaduri and Justice N.K. Chandravanshi observed that under the Hindu religion, marriage has a sacred character of sacrament and it is necessarily a basis of social organisation and the foundation of important legal rights and obligation.
Maintenance Tribunal Has Power To Order Eviction Of Children From House Of Parents
Case Title: Neeraj Baghel v. The Collector, Raipur & Ors.
Case Citation: 2023 LiveLaw (Chh) 2
The Chhattisgarh High Court has held that Maintenance Tribunal possesses power under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (‘the Act’) to order eviction of children from the houses of their parents. Justice Deepak Kumar Tiwari stated that the Act is required to be interpreted in such a manner that mischief for which the Act has been enacted is fulfilled. It said, when the parents, who are owners of the house, require the petitioner to leave the house, the petitioner is bound to obey such order.
DELHI HIGH COURT
Title: AKSHAY DHINGRA v. STATE (GOVT. OF NCT OF DELHI)
Citation: 2023 LiveLaw (Del) 3
The Delhi High Court has observed that the law does not permit a husband to take away the wife's household articles including jewellery without her consent and knowledge.
Observing that no person can be allowed to take law in his own hands with an excuse that the parties are litigating, Justice Amit Mahajan observed:
“Only because a complaint of wife in relation to istridhan is pending, does not mean that the husband can be allowed to surreptitiously throw the wife out of the matrimonial house and take away the articles.”
The court made the observation while denying pre-arrest bail to a man in a complaint lodged by his wife alleging that her household articles were stolen while she was away from the house. The FIR was registered under Section 380 of Indian Penal Code, 1860.
Title: VIRENDRA KUMAR v. UNION OF INDIA & ORS.
Citation: 2023 LiveLaw (Del) 17
The Delhi High Court has upheld the constitutional validity of Section 92 (i) of the Air Force Act, 1950 which allows deduction from the pay and allowance of Air Force personnel for maintenance of the wife and their children.
A division bench of Justice Sanjeev Sachdeva and Justice Rajnish Bhatnagar also upheld an office order issued by Air Force on February 6, 2013 providing the procedure for grant, modification or cessation of maintenance allowance to the wife and the children of such personnel.
Delhi High Court Directs CARA To Issue NOC To NRI Couple For 2011 Adoption
Case Title: Anil Kumar Singh & Anr. versus Union of India
Citation: 2023 LiveLaw (Del) 38
Directing CARA to issue an NOC within 30 days to an NRI couple for adoption of a child, the Delhi High Court in a ruling said the application being prior to the coming into force of Adoption Regulations, 2022, the "adoption would not be strictly required to be dealt with in the procedure prescribed in the said Regulations."
"The Court finds that in the present case the adoption dates back to 2011 and the application seeking NOC was filed much before the Regulations came into force on 23rd September, 2022. The Regulations have been notified and current applications, would require verification by the District Magistrate," said the court.
Title: ARUSHI MEHRA & ANR. v. GOVT. OF NCT OF DELHI & ANR.
Citation: 2023 LiveLaw (Del) 53
The Delhi High Court has observed that there is no requirement of “at least one party being a citizen of India” for solemnization and registration of marriage of a couple under the provisions of Special Marriage Act, 1954.
Justice Prathiba M Singh noted that section 4 of the enactment leaves no doubt that any two persons can seek solemnization of their marriage so long as conditions stipulated in the provision are fulfilled.
“Sub-Sections (a), (b), (c) and (d) of Section 4 do not make any reference to citizens. It is only in Sub-Section (e) of Section 4, where the statute requires that in case of marriages solemnized in Jammu and Kashmir, both parties have to be citizens of India,” the court said.
Title: UNION OF INDIA v. KOLLI UDAY KUMARI
Citation: 2023 LiveLaw (Del) 71
The Delhi High Court has said that a widowed or divorced daughter is entitled to the benefit under freedom fighter pension scheme of 1980, noting that the scheme does not contemplate their exclusion.
A division bench of Justice Rajiv Shakdher and Justice Talwant Singh observed that a “quick read” of the 1980 Scheme and 2014 Guidelines framed under it would show that an unmarried daughter falls in the category of eligible dependents and hence, is entitled to pension upon the expiry of the freedom fighter.
“The expression “unmarried” adverts to a person who is not married. It includes a woman who is single i.e., who was married but divorced and even a woman who is widowed,” the court said.
Title: X v. GNCTD
Citation: 2023 LiveLaw (Del) 94
Delhi High Court has granted bail to a 20-year-old in a POCSO case after the victim — the wife of accused, told the court that they were in a consensual relationship at the time of alleged offence, and is offering to stand as surety for him in case he is granted bail.
In the decision on the bail application moved by the accused, Justice Anup Jairam Bhambhani said the offences under Section 376 (2) and Section 6 POCSO Act are alleged to have been committed when the victim, who is over 19 years old now, was at the cusp of majority.
Title: NT v. VT
Citation: 2023 LiveLaw (Del) 107
Expressing a prima facie view, the Delhi High Court has said that the protection under Protection of Women from Domestic Violence Act, 2005 is not available to a husband or male member of the family, in view of sections 2(a) of the statute.
Section 2(a) defines an “aggrieved person” as any woman who is, or has been, in a domestic relationship with the 'respondent' and alleges to have been subjected to any act of domestic violence.
Justice Jasmeet Singh was hearing a plea moved by a wife challenging the proceedings initiated by her husband under section 12 of the Protection of Women from Domestic Violence Act.
Title: AKASH versus STATE OF NCT OF DELHI & ANR
Citation: 2023 LiveLaw (Del) 139
The Delhi High Court has granted bail to a 21-year-old in a case registered under Protection of Children from Sexual Offences (POCSO) Act after the prosecutrix, who was 17 years old on the date of commission of alleged offence, submitted that she is desirous of marrying him. The couple already have a child, who is now about 18 months old.
The petitioner was in custody for more than one year as on January 16 in the case registered in November 2021 under Sections 363, 366, 366A and 376 of the Indian Penal Code and Section 6 of the POCSO Act.
Title: DB v. RB
Citation: 2023 LiveLaw (Del) 153
While upholding dissolution of a couple’s marriage on the ground of cruelty, the Delhi High Court has observed that repeated use of derogatory and humiliating words by the wife against husband and his family amounts to cruelty.
The court said every person is entitled to live with dignity and honour, and no one can be expected to live with constant abuse being hurled upon him.
Title: RKY v. MD
Citation: 2023 LiveLaw (Del) 207
The Delhi High Court has observed that an individual marrying a person who has a child cannot be allowed to argue later that the child is not his or her responsibility.
“When a person solemnizes a marriage with a person who already has a child, said person shall be presumed to have undertaken the responsibility of the child and also cannot later be permitted to contend that the child is not his/her responsibility,” a division bench of Justice Sanjeev Sachdeva and Justice Vikas Mahajan observed.
Case Title: STATE (NCT OF DELHI) v. VS
Citation: 2023 LiveLaw (Del) 218
While framing charges under POCSO Act against a man despite the victim stating in her statement recorded under section 164 of Cr.P.C. that she had a consensual relationship with him, the Delhi High Court has observed that its hands are tied till any amendment is carried out in law, though it may be desirable that cases of teenage relationships be dealt with on a different footing.
“Therefore, though it may be desirable that the cases of teenage infatuation and voluntary living with each other, eloping with each other or maintaining relationship, such as the present case, are dealt with on a different footing, the Court's hands are tied as far as framing of charge is concerned till any amendment is carried out by the wisdom of the Parliament of this country, if deemed appropriate,” Justice Swarana Kanta Sharma observed.
Title: MS. X THR. HER NATURAL GURADIAN /FATHER AND ANR.
Citation: 2023 LiveLaw (Del) 226
The Delhi High Court has allowed a 16-year-old minor to undergo medical termination of pregnancy after her father, who had earlier gave consent in the court for the procedure, failed to come forward to fulfil the formality of signing the consent form.
Keeping in view the fact that only two or three days were left for the minor to complete 24 weeks of pregnancy, Justice Dinesh Kumar Sharma allowed the Superintendent of Nirmal Chhaya Complex who was appointed as victim’s guardian by the Child Welfare Committee to sign the consent form.
The victim was in the custody of Nirmal Chhaya Complex since October 17 last year.
Right To Residence In Matrimonial Home Includes Right To Safe And Healthy Living: Delhi High Court
Title: NG v. SG & ANR
Citation: 2023 LiveLaw (Del) 285
The Delhi High Court has observed that the right to residence in a matrimonial home under the provisions of Protection of Women from Domestic Violence Act, 2005, also includes the right to safe and healthy living.
While issuing notice on a wife’s plea challenging the order passed by the First Appellate Court in a civil case relating to matrimonial dispute, Justice Tushar Rao Gedela said:
“…. it goes without saying that the right to residence in a matrimonial home, under the provisions of the Protection of Women from Domestic Violence Act, 2005, also would subsume within itself, the definition of “right to safe and healthy living” too. Hence, requiring interference by this Court.”
Title: SD v. RKB
Citation: 2023 LiveLaw (Del) 331
The Delhi High Court has held that either party to a marriage under the Hindu Marriage Act, 1955, can marry again if no appeal is filed against an ex-parte decree of divorce within the period of limitation.
A division bench of Justice Sanjeev Sachdeva and Justice Vikas Mahajan said that section 15 of the Hindu Marriage Act enables the parties to marry again only after the decree of divorce has become final.
“Therefore, in case of an ex parte decree of divorce also it shall be lawful for either party to the marriage to marry again if no appeal is filed against such decree within the period of limitation,” the court said.
Case Title: AK & Ors. v. State & Anr.
Citation: 2023 LiveLaw (Del) 334
The Delhi High Court has observed that the act of pressing rape charges in matrimonial cases by the complainant against the husband and his family members which are later settled needs to be curbed.
Justice Yogesh Khanna noted that serious offence of rape under section 376 of Indian Penal Code, 1860 is being pressed during investigation of cases by complainants in a matrimonial lis against the husband and even his family members “putting the entire family to malign.”
The court added that subsequently, the rape charges are being with the settlement of matrimonial disputes between the parties.
Minor’s Passport Can Be Issued Without Father’s Name, Depending Upon Circumstances: Delhi High Court
Title: SMITA MAAN AND ANR. v. REGIONAL PASSPORT OFFICER
Citation: 2023 LiveLaw (Del) 359
The Delhi High Court has observed that the passport of a minor child can be issued without the biological father’s name under “varying circumstances” and that such a relief depends upon the “facts of each case.”
Emphasising that no hard and fast rule can be applied in such cases, Justice Prathiba M Singh said that the Passport Manual of 2020 and the official memorandum issued by Union Ministry of External Affairs on February 28 last year recognise that passports can be issued under different circumstances without father’s name.
Title: MAHESH KUMAR v. STATE (NCT OF DELHI)
Citation: 2023 LiveLaw (Del) 386
The Delhi High Court has said that “adolescent love” cannot be controlled by courts and judges have to be careful while rejecting or granting bail in such cases depending on facts and circumstances of each case.
Observing that teenagers who “try to imitate romantic culture of films and novels” remain unaware about the laws and age of consent, Justice Sawarana Kanta Sharma said:
“This Court also observes that the attitude towards early love relationships, especially adolescent love, has to be scrutinised in the backdrop of their real life situations to understand their actions in a given situation.”
Title: SA v. MA
Citation: 2023 LiveLaw (Del) 390
The Delhi High Court has observed that a wife can seek production of evidence or documents to prove the charge of adultery levelled by her against the husband in a divorce petition before family court and same will be in consonance with section 14 of Family Courts Act.
“….when a wife seeks the help of the Court for procuring evidence which would go a long way to prove adultery on the part of her husband, the Court must step in; this would be in consonance with Section 14 of the Family Courts Act which gives a leeway to the Court to consider evidence which may be not admissible or relevant under the Indian Evidence Act,” Justice Rekha Palli said.
Title: X & Y v. Z
Citation: 2023 LiveLaw (Del) 391
The Delhi High Court has directed preservation of guest register, booking invoices, CCTV footage of a hotel based in Goa and phone records of a husband, whose wife has sought divorce on the ground that he was living in adultery with another woman.
Justice Swarana Kanta Sharma clarified that the records will not be handed over to any of the parties but will be preserved by the concerned third persons and produced before the trial court only in case they are directed to do so at the appropriate stage of trial.
Case Title: CHARANJIT SINGH AHLUWALIA v. UNION OF INDIA
Citation: 2023 LiveLaw (Del) 399
The Delhi High Court has dismissed a plea seeking retrospective effect of section 23 of Maintenance and Welfare of Parents and Senior Citizens Act, 2007 which provides certain circumstances in which transfer of property by an elderly person will be void.
A division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad dismissed the plea moved by one Chiranjit Singh Ahluwalia challenging the validity of the provision by contending that its application is restricted only to the gifts of property made by a senior citizen after the commencement of the legislation and not before.
Title: SH. CHHATTER PAL & ORS. v. STATE & ANR.
Citation: 2023 LiveLaw (Del) 422
The Delhi High Court has issued a slew of guidelines to be followed by the mediators while drafting settlement agreements in matrimonial cases and said that such agreements must also be published in Hindi language, in addition to English.
Justice Swarana Kanta Sharma observed that the guidance needed by mediators to draft agreements with a degree of coherence, consistency, and unambiguity will come a long way in “healing the lives of those in need” by immediately putting an end to a dispute and further insulating them from future litigation.
Title: SMT. CHETNA RATHEE v. CHAHIT KUNDU
Citation: 2023 LiveLaw (Del) 426
The Delhi High Court has observed that the family courts are expected to not adopt a “hyper-technical approach” and close the right of cross examination of a party in a hurried manner while dealing with matrimonial cases.
Justice Rekha Palli made the observation while setting aside an order passed by the family court rejecting a wife’s application for restoration of her right to cross examine the husband, who had appeared as a prosecution witness.
Title: RITU CHERNALIA v. AMAR CHERNALIA & ORS.
Citation: 2023 LiveLaw (Del) 440
The Delhi High Court has ruled that a daughter in law does not have an indefeasible right in a “shared household” and that the in-laws cannot be excluded from the same.
“Thus, the concept of ‘shared household’ clearly provides that the right of the daughter-in-law in a shared household is not an indefeasible right and cannot be to the exclusion of the in-laws,” Justice Prathiba M Singh said in an order passed on May 22.
Title: VK & ANR versus STATE GOVT OF NCT OF DELHI & ANR
Citation: 2023 LiveLaw (Del) 441
The Delhi High Court quashed an FIR against a husband, who was accused of cruelty by his wife after the couple settled their differences. Besides dissolving the marriage by a decree of divorce under mutual consent, the wife also paid her husband an amount of Rs.12 Lakh towards all his claims.
"Out of the said amount, an amount of Rs.6 lacs was paid by the respondent no.2 [wife] to the petitioner no.1 [husband] at the time of recording of the statement of the first motion on 06.01.2023 and the remaining amount of Rs. 6 lacs was paid at the time of recording of the statement of the second motion, the receipt of which is acknowledged by the petitioner no.1," the court recorded in the order.
Title: RENUKA v. University Grants Commission and Anr.
Citation: 2023 LiveLaw (Del) 458
Observing that women cannot be forced to choose between their right to education and right to exercise reproductive autonomy, the Delhi High Court has granted relief to a female candidate seeking relaxation of her attendance for completing Master of Education (MEd) course after having been denied maternity leave.
“The Constitution envisaged an egalitarian society where citizens could exercise their rights, and the society as well as the State would allow the manifestation of their rights. A compromise was then not sought in the Constitutional scheme. The citizens could not be forced to choose between their right to education and their right to exercise reproductive autonomy,” Justice Purushaindra Kumar Kaurav said.
Title: XXX vs. GOVT OF NCT OF DELHI AND ORS
Citation: 2023 LiveLaw (Del) 461
Terming it a case with an unusual prayer, the Delhi High Court has dismissed a woman's plea seeking directions for her husband and father-in-law to submit their DNA Samples before a DNA profiling agency in Rohini. The woman along with her two children had approached the court after the father-in-law allegedly "cast doubt" on their identity by claiming that "they are not Mehtas* but Aroras*".
Justice Prathiba M. Singh in the ruling said the prayers in the petition are extremely vague. However, the court added that DNA testing was being sought. "The settled legal position that DNA testing is to be ordered very sparingly and cannot be directed on the basis of allegations such as those that are made in this writ petition," the court said as it refused to grant the prayer.
Title: RR v. THE STATE GOVT. OF NCT OF DELHI
Citation: 2023 LiveLaw (Del) 476
The Delhi High Court on Thursday observed that it is neither appropriate nor feasible for courts to draw any conclusion or return any finding at the stage of bail of an accused as to whether a promise of marriage made to a prosecutrix was false or in bad faith.
Justice Anup Jairam Bhambhani added that such a a finding or decision must await a “thorough assessment and evaluation of evidence” to be led by the parties at the trial.
“This is also not the stage when the court must, or even can, finally decide if the purported false promise of marriage was of immediate relevance, or bore a direct nexus, to the prosecutrix's decision to engage in the sexual act,” the court said.
Case Title: GA vs TA & Anr
Citation: 2023 LiveLaw (Del) 498
The Delhi High Court has referred the issue of whether a suit for possession or injunction filed by the in-laws against the daughter-in-law concerning the suit property of which they are the exclusive owners, is required to be exclusively tried by the Family Court established under the Family Courts Act, 1984, to a larger bench.
The single bench of Justice Navin Chawla made the larger bench reference while hearing a suit for Permanent Injunction filed by the plaintiff against her daughter-in-law, seeking to restrain the later from visiting or entering the suit property.
Case Title: Darpan Kohli Versus Assistant Commissioner Of Income Tax
Citation: 2023 LiveLaw (Del) 529
The Delhi High Court held that an assessment order cannot be directed against only one of the legal heirs of a deceased assessee.
The Bench of Justice Rajiv Shakdher and Justice Girish Kathpalia has set aside an assessment order of Rs. 10 crores passed by the Income Tax Department, solely on the ground that it was passed against only one of the legal heirs of the deceased assessee and not against all legal heirs.
GAUHATI HIGH COURT
Case Title: Rahim Ali Prodhani v. The State of Assam and Anr.
Citation: 2023 LiveLaw (Gau) 6
The Gauhati High Court has observed that it is a very common plea of husbands embroiled in matrimonial litigation that they are not in a financial position to maintain their wife and children. It observed that such a plea, in absence of cogent grounds, cannot discharge the husband from his "personal liability" of maintaining the wife and children.
Justice Malasri Nandi remarked,
"In every petition, generally, a plea is advanced by the husband that he does not have the means to pay, or he does not have a job or his business is not doing well...Regarding such pleas, the judicial response has been always very clear that it is the personal liability of the husband to pay maintenance to his wife and daughter. The husband is not discharged from his this liability on such grounds."
Case Title: Mustt Junufa Bibi v. Mustt Padma Begum @ Padma Bibi and 4 Ors.
Citation: 2023 LiveLaw (Gau) 12
A three judge bench of Gauhati High Court comprising then Chief Justice RM Chhaya, Justices Achintya Malla Bujor Barua and Soumitra Saikia recently held that where parties are governed by Mohammedan Law, the second wife or the further wives are entitled to the benefits of family pension under Rule 143(1) of the Pension Rules of 1969.
The following issues were before the court to determine:
(1) Whether the second or further wives of a deceased employee where both are governed by the Mohammedan Law would be entitled to the benefits of a family pension of such deceased employee?
2) If yes, to whom the family pension is payable under the Assam Services (Pension) Rules, 1969?
Answering the first issue, the court observed that when the parties are governed by Mohammedan Law, the second wife or the further wives, are entitled to the benefits of family pension under the said rules.
The court observed:
“As reading of Rule 143(1) goes to show that for the purpose of family pension a family would comprise of the relatives of the officer, which also includes the wife in case of a male officer. If the second or further wives of a male officer are acceptable and valid under the personal law governing the parties, we see no reason as to why such second or further wives would not be construed to be a wife of the male officer.”
Citation: 2023 LiveLaw (Gau) 22
Granting anticipatory bail to certain accused in different matters booked under the Prohibition of Child Marriage Act, 2006 r/w the POCSO Act, the Gauhati High Court observed that these are not matters which require custodial interrogation.
"If marriage is taking place in violation of Law, the law will take its own course. These cases have been happening since time. We will only consider if immediate custodial interrogation is required or not. At this moment, this court thinks that these are not matters for custodial interrogation. We will ask them to appear and record their statements. These are not NDPS, smuggling, stolen property cases," the bench of Justice Suman Shyam orally observed.
Case Title: KS v. The State of Assam
Citation: 2023 LiveLaw (Gau) 32
The Gauhati High Court modified the judgement and sentence of trial court in a POCSO case in which a father was convicted for the offence of penetrative sexual assault on his 13-year-old daughter, on the ground that the offence was not proved beyond all reasonable doubt.
The division bench of Justice Michael Zothankhuma and Justice Parthivjyoti Saikia took note of the victim's statement that her father committed rape upon her. It compared it with the statement of the doctor who said that girl told him that her father had attempted to rape her but she pushed him aside and he could not proceed further.
Gauhati High Court Flays Assam Govt For Putting Child Marriage Accused In Foreigners 'Transit Camp'
Case Title: Abantee Dutta v. The Union of India & 4 Ors. W.P. (Crl.)/6/2020 and other related matters
Citation: 2023 LiveLaw (Gau) 33
The Gauhati High Court has expressed strong displeasure over Assam government's decision to convert Matia Transit Camp in Goalpara district, which houses 'foreigners', in to a prison. The move comes in light of State's crackdown on child marriages.
Finding State's decision to be strange and prima facie unacceptable, a division bench comprising Chief Justice Sandeep Mehta and Justice Sumitra Saikia remarked,
“If you want to enhance your prison capacity, do it in the place where the prisons are constructed. Why do you need to convert this detention centre in to prison?”
Case Title: D.K. Dutta v UOI linked case J. Bhutan v. UOI and others.
Citation: 2023 LiveLaw (Gau) 40
The Gauhati High Court has ordered the Union Government to pay ₹20 Lakhs compensation in the interest of justice to the families of five deceased persons who were killed in the 1994 army operation, Assam.
The High Court held that the deaths of the five men took place during the army operation, and therefore, compensation must be awarded in the interest of justice.
The bench of Justice Achintya Malla Bujor Barua and Justice Robin Phukan held that,
“ Without arriving at any conclusion as to whether the death was caused in a manner acceptable in law or in a manner unacceptable in law but however, as the materials on record clearly indicates that the death had been caused in an army operation, although the materials available on record cannot lead to a definite conclusion as to whether the death was caused in a manner acceptable in law or unacceptable in law and for the interest of justice, we order the respondents the Union of India through the army authorities to pay adequate compensation to the families of the five deceased persons.”
Case Title: Heramba Kumar Das v. Archana Das
Citation: 2023 LiveLaw (Gau) 43
The Gauhati High Court recently refused to entertain a review petition against a maintenance order filed under Order 47 Rules 1, 2 and Section 151 of CPC stating that there were no grounds mentioned in the petition on which a review can be allowed.
While dismissing the petition, the single judge bench of Justice Parthiv Jyoti Saikia observed, “In the guise of a review petition, nobody is allowed to file an appeal.”
Case Title: Sri Utpal Debnath v. The State of Assam & Anr.
Citation: 2023 LiveLaw (Gau) 59
The Gauhati High Court set aside the conviction of an accused under Section 6 of POCSO Act and Section 363 of IPC on the ground that the prosecution failed to prove the age of victim to be less than 18 years at the time of commission of alleged offence. The court also said the relationship between the accused and the victim was consensual.
The single judge bench of Justice Mridul Kumar Kalita observed that it is a settled principle now that in case of determination of age on the basis of the opinion of the radiologist, the benefit of the margin of error should always go to the accused.
"In the instant case, the doctor has opined that the age of the victim was below 18 years (16 to 17 years) and if we add 2 (two) years of margin of error to 16 (sixteen) to 17 (seventeen) years, it will come 18 (eighteen) to 19 (nineteen) years, in which case, the victim may not be regarded as a minor as under section 2(1) (d) of the POCSO Act, 2012 a child is defined as any person below the age of 18 years. Same is also the case in case of offence under section 363 of the Indian Penal Code. In view of above circumstances, this court is constrained to hold that the prosecution side has failed to prove that the age of the victim was less than 18 years when the alleged offence was committed and the benefit of the same would go to the accused," said the court.
'Benefit Of Doubt': Gauhati High Court Acquits Man Accused Of Strangulating His Minor Son In 2012
Case Title: Sri Bhadreswar Padi v. The State of Assam & Anr.
Citation: 2023 LiveLaw (Gau) 61
The Gauhati High Court set aside the murder conviction of a man accused of murdering his own newborn child, on the ground that the prosecution did not prove the place of occurrence, manner of occurrence and participation of the accused in the said crime beyond reasonable doubt.
The division bench of Justice Lanusungkum Jamir and Justice Malasri Nandi observed that the dead body of the child was not recovered during investigation and that the informant during her examination did not disclose where the dead body was kept by the accused-appellant.
“After eight months of death of her child, the informant had shown a place where the dead body of her child was alleged to be buried. But after unearthing the place, the dead body of her child was not discovered but the investigating officer of the case also stated that the informant did not disclose anything before him who had buried the dead body of the child on the place,” the court said.
Case Title: Asuruddin Khan v. The State of Assam & Anr.
Citation: 2023 LiveLaw (Gau) 70
The Gauhati High Court set aside the conviction of an accused under Section 4 of the POCSO Act on the ground that the prosecutrix gave two different versions while giving a statement under Section 164 CrPC and while testifying before the trial court.
The single judge bench of Justice Parthiv Jyoti Saikia said that in the statement under Section 164 CrPC, the prosecutrix simply stated that on the promise of marriage, the appellant - the convict, had sexual intercourse with her and after returning home, she called him over phone but he refused to recognize her.
"While testifying in the trial court, the prosecutrix has stated that though on the promise of marriage the appellant had sexual intercourse with her, he did not allow her to go out of the room. She also stated in the court that she raised hue and cry over the incident, but the appellant threatened her of dire consequences," said the court.
Case Title: B v. The State of Assam
Citation: 2023 LiveLaw (Gau) 76
The Gauhati High Court set aside the conviction in a 2014 POCSO case where a maternal uncle of the victim was accused of penetrative sexual assault. The trial court in December 2018 had sentenced the convict to imprisonment of seven years.
Justice Malasri Nandi said the mother of the victim lodged the FIR and deposed before the court, on information allegedly given by the victim girl and there was no other prosecution witness who could support the statement of the child witness.
"The medical evidence on record did not show any corroboration of sexual assault on the victim. This creates serious doubt about the veracity of the statement made by the child witness (P.W.2) regarding commission of crime by the accused/appellant,” the bench said.
Gauhati High Court Sets Aside Conviction Of Man Accused Of Murdering His Wife In 2010
Case Title: Kalyan Barman v. The State of Assam & Anr
Citation: 2023 LiveLaw (Gau) 77
The Gauhati High Court set aside the conviction of a man in a case under Section 302 and 498A of IPC and granted benefit of doubt to him. The accused was alleged to have murdered his wife.
The division bench of Justice Michael Zothankhuma and Justice Malasri Nandi passed the verdict in a case dating back to 2010. The appeal was filed by the convict in 2019.
“In the present case, the prosecution having failed to produce witnesses (doctors) and failing to exhibit documents to enable the appellant/accused to have all the opportunity available to him to prove his innocence, we are of the view that the advantage in the inherent weakness of the prosecution case should be to the advantage of the appellant,” said the court.
Case title - X vs. Y
Case citation: 2022 LiveLaw (Gau) 82
Rejecting a compromise settlement between the victim and the accused, the Gauhati High Court refused to quash criminal proceedings of a rape case wherein a man has been accused of raping his sister. The Court said that the allegation has a serious impact on society.
Terming the offence as "heinous", the bench of Justice Mitali Thakuria, in categorical terms, opined that it is not a fit case to quash the criminal proceeding as well as the FIR and the charge sheet against the accused, even if both parties entered into a settlement agreement
The Court also took into account the possible existence of compulsion on the parents of the victim to compromise the matter as both the petitioners are siblings. The Court said that the father, being the parents of both the petitioners, may be insisting the victim to compromise the matter for the sake of the reputation of the family.
Case Title: A.B. v. The State of Assam & Anr.
Citation: 2023 LiveLaw (Gau) 85
The Gauhati High Court acquitted two persons who were convicted for the offence of penetrative sexual assault on a minor under Section 4 of POCSO Act on the ground that even though father of the victim had lodged the FIR, he did not alleged any sexual offence.
The single bench comprising Justice Susmita Phukan Khaund observed,
“Why the father of the victim did not support the victim. He did not mention that the accused committed sexual assault on his daughter. Although uncorroborated evidence of prosecutrix is sufficient evidence against the perpetrators, yet when the victim’s father chose not to disclose anything about sexual assault, doubt creeps in regarding the credibility of the victim’s evidence.”
GUJARAT HIGH COURT
Case Title: Shripal Raja Rajendrakumar Shah v. State of Gujarat & Ors
Case Citation: 2023 Livelaw (Guj) 2
The Gujarat High Court observed that a husband is dutybound to provide financial support to his legally wedded wife and children and he cannot evade the responsibility to maintain them. Justice Samir J. Dave added that being a father and a husband, the man has a social and lawful duty towards providing the same standard of living to his wife and children that they enjoyed before the separation.
Case Title: Fakirmamad Hushenbhai Sumbhaniya v. State of Gujarat
Case Citation: 2023 Livelaw (Guj) 4
The Gujarat High Court has denied bail to a man accused of physically molesting his 12 year-old daughter on several occasions. The accused-father allegedly wanted to marry the victim-daughter and had even threatened to kill the entire family, should the mother of the victim reveal the incidents of molestation to anyone.
Case Title: Chaudhary Chetnaben Dilipbhai v. Chaudhary Dilipbhai Lavjibhai
Case Citation: 2023 Livelaw (Guj) 17
The Gujarat High Court reiterated that the time limit for filing an appeal challenging a judgement or order of Family Court arising out of a matrimonial dispute under Hindu Marriage Act, 1955 (the Act) is 90 days.
The order addresses the confusion created by the two provisions since whereas the appeal prescribed under Section 28 of the Hindu Marriage Act is 90 days from the date of order, Section 19 of the Family Courts Act stipulates only a period of 30 days for filing an appeal.
Case Title: Hitesh Ishwarbhai Misareeya & 1 Other v. State of Gujarat & 1 other
Case Citation: 2023 Livelaw (Guj) 27
The Gujarat High Court has held that settlement between parties in cases where an offence is committed under Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994 cannot be accepted.
The application was filed before the High Court under section Section 482 of the Code of Criminal Procedure, 1973 for quashing and setting aside the FIR related to the offences punishable under Sections 304, 313, 314, 120(B), 114 of the Indian Penal Code and under Sections 22 of the Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994 as well as the Criminal Case pending beforeAdditional Chief Metropolitan Magistrate, Ahmedabad.
Case Title: Khojema Saifudin Dodiya v. Registrar of Birth and Death/Chief Officer, Dhoraji Nagarpalika
Case Citation: 2023 Livelaw (Guj) 40
The Gujarat High Court held that a registered deed of adoption is enough to prove the validity of adoption of a child under Hindu Adoptions and Maintenance Act, 1956, and that there is no requirement to have a civil court decree asserting such deed, for change in birth records.
The court was hearing a bunch of petitions in which the question before the court was whether the competent authorities can refuse to change the birth records in the absence of a decree of a competent court.
Case Title: Ravi Hareshbhai Patni v. State of Gujarat
Case Citation: 2023 Livelaw (Guj) 45
The Gujarat High Court granted bail to a convict under POCSO Act on the ground that there was element of love affair and the prosecutorix had virtually resided with the convict as husband and wife, till they were apprehended.
The applicant-convict approached the High Court in appeal against the judgment and order dated December 12, 2022 by which he was convicted by the POCSO Court, Gandhi Nagar for offences punishable under Section 363 (Punishment for kidnapping), Section 366 (Kidnapping, abducting or inducing woman to compel her marriage, etc.), Section 376 (Punishment for rape) of IPC and under Section 4 (Punishment for penetrative sexual assault) and Section 6 (Punishment for aggravated penetrative sexual assault) of the POCSO Act, 2012.
Case Title: Pravinbhai Becharbhai Parmar (Thakor) v. State of Gujarat
Case Citation: 2023 Livelaw (Guj) 46
The Gujarat High Court dismissed with costs, a habeas corpus petition filed by a husband for the production of his wife who was allegedly kidnapped by her relatives, on the ground that the husband has concealed the fact that he has already filed an application under section 97 (Search for persons wrongfully confined) of CrPC.
The division bench of Justice N.V. Anjaria and Justice Niral R. Mehta observed: “The factum of filing of proceedings of Criminal Miscellaneous Application No. 02 of 2023 under section 97, CrPC was suppressed by the petitioner while filing this Habeas Corpus petition. The Court was not apprised of the proceedings under section 97 CrPC.”
Case Title: Maunish Dinkar Shaw & Anr. v. State of Gujarat & Anr.
Case Citation: 2023 Livelaw (Guj) 48
The Gujarat High Court reiterated that father being a natural and lawful guardian, removal by him of his son below 5 years of age from his mother is not an offence under Section 361 (Kidnapping from lawful guardianship) of IPC.
While quashing the criminal proceedings against the applicants, the single judge bench of Justice Ilesh J. Vora observed: “In order to constitute an offence under Section 361 of the Indian Penal Code, there must be a kidnapping of a person from lawful guardianship. Here the applicant is himself the lawful guardian of the minor. It cannot therefore, be said that, he committed an offence under Section 361 of the Indian Penal Code by getting the custody of his own son from his wife.”
Case Title: Bhagwan Rajabhai Chaudhari v. State of Gujarat
Case Citation: 2023 Livelaw (Guj) 55
The Gujarat High Court dismissed a habeas corpus petition with Rs. 5000/- cost on the petitioner who was seeking custody of his live-in partner alleging that she was in illegal custody of her husband.
The division bench of Justice Vipul M. Pancholi and Justice Hemant M. Prachchhak observed: “It is not in dispute that till today, the marriage of the petitioner is not solemnized with the respondent No.4 (corpus). At the same time, divorce has not taken place between respondent No.4 (corpus) and respondent no. 5 (husband). We are, therefore, of the view that custody of respondent No.4 with respondent No.5 cannot be termed as illegal custody as alleged by the petitioner and the petitioner has no locus to file the present petition on the basis of the so-called live-in-relationship agreement.”
Case Title: Rajesh Kumar Mishra v. State of Gujarat
Case Citation: 2023 Livelaw (Guj) 82
The Gujarat High Court directed the Registrar General to circulate a report issued by the Child Rights Foundation in 2017, among the Judicial Officers so that while deciding child custody cases, the concerned judge can come to a right conclusion.
The direction was issued by the division bench of the Acting Chief Justice A. J. Desai and Justice Biren Vaishnav while hearing a PIL which raised certain issues with regard to those children who are facing various types of difficulties when their parents are either residing separately in the same city or in different cities pursuant to differences in their marriage.
Court Can Allow Evidence On Affidavit In DV Act Case: Gujarat High Court
Case Title: Samirkumar Chandubhai Joshi vs. State of Gujarat & Ors
Case Citation: 2023 Livelaw (Guj) 88
The Gujarat High Court held that a court can deviate from procedure mentioned under Section 28 (1) read with Rule 6(5) of The Protection of Women from Domestic Violence Act, 2005, and devise its own procedure which would include permitting evidence by way of an affidavit.
The single judge bench comprising Justice Samir J. Dave noted: “….Court can allow evidence on affidavit in its discretion and while considering the aims and objects of the D.V. Act including the scope of Section 28(2), court can deviate from procedure mentioned under Sub Section (1) of Section 28 read with Rule 6(5) and devise its own procedure which would include permitting evidence by way of an affidavit.”
Case Title: Raj Rameshbhai Mistry v. State of Gujarat
Case Citation: 2023 Livelaw (Guj) 91
The Gujarat High Court dismissed a habeas corpus petition filed by a father who sought the custody of his children from his wife who is living separately, on the ground that the petitioner-father has not adopted alternative remedies available to him.
The division bench of Justice Umesh A. Trivedi and Justice M. K. Thakker observed: “It is only because he is facing FIR for the offences and may face other case because of marital discord, this petition under the guise of habeas corpus, for the custody of children is filed, and therefore, it cannot be entertained for the simple reason that there are several other remedies, which could have been availed earlier at the first available opportunity, which is never availed and straightway the petitioner has filed this petition in this Court, and therefore, this petition cannot be entertained.”
Case Title: Jyantilal Vadilal Shah & 1 Other(S) Versus State Of Gujarat & 1 Other(S)
Case Citation: 2023 Livelaw (Guj) 106
Observing that there is a rampant misuse of Section 498A of IPC by complainants to harass family members of the husband, the Gujarat High Court has quashed an FIR against an octogenarian woman.
Justice Sandeep N. Bhatt said the FIR will cause greater hardships to the 86-year-old and no fruitful purpose would be served if such further proceedings are allowed to be continued. The court must ensure that criminal prosecution is not used as instrument of harassment or for seeking private vendetta or with ulterior motive to pressurise accused or to settle the score, the bench added.
Case Title: Manishaben Mukeshkumar Darji Versus State Of Gujarat
Case Citation: 2023 Livelaw (Guj) 107
The Gujarat High Court dismissed a habeas corpus plea of a woman seeking custody of her adult daughter, who is said to have willingly entered into a marriage with a Muslim man. The man is also stated to have embraced Hindu religion. The division bench of Justice Umesh A. Trivedi and Justice M. K. Thakker said it is clear that the daughter of the petitioner is major and she has entered into a marriage with a person of different faith.
Case Title: DP Versus PN /First Appeal No. 4199 Of 2017
Case Citation: 2023 Livelaw (Guj) 109
Dismissing a woman's appeal against the judgment granting divorce in her husband's favour on grounds of cruelty and desertion, the Gujarat High Court ordered him to pay Rs 15 Lakh to her as permanent alimony. The court also said the money is for well being of their child, who is living with the mother. The division bench of Justice Ashutosh Shastri and Justice Divyesh A Joshi said both the parties are residing separately since last more than eight years and they have crossed the point of ‘no return’.
HIMACHAL PRADESH HIGH COURT
Case Title: Anil Kapoor Vs Dipika Chauhan
Citation: 2023 LiveLaw (HP) 23
The Himachal Pradesh High Court has held that if a couple is having access to each other, it is conclusive proof of the legitimacy of a baby and hence, the presumption under Section 112 of the Indian Evidence Act, 1872 gets attracted.
The observations to this effect was made by Justice Joytsna Rewal Dua while hearing a plea challenging the order of District Judge Shimla in terms of which it had dismissed the application of the petitioner-husband seeking DNA test of the child and the parties.
Case Title: Nain Sukh Vs Seema Devi
Citation: 2023 LiveLaw (HP) 37
Dismissing the petition of a husband against his wife alleging cruelty and desertion, the Himachal Pradesh High Court has observed no wife can be forced to live in matrimonial home with husband keeping another lady with him.
"...Respondent had justifiable ground to live separately as no wife can be forced to live in matrimonial home with husband keeping another lady with him," a bench comprising Justice Satyen Vaidya observed.
Case Title: Gurditta Ram Chauhan Vs Mrs Babita.
Citation: 2023 LiveLaw (HP) 38
Dismissing a petition for invoking contempt proceedings against the Respondent-wife for violating terms of settlement with her husband, the Himachal Pradesh High Court has ruled that parties have an indefeasible and absolute right to withdraw their consent/petition for divorce by mutual consent under Section 13-B of the Hindu Marriage Act.
Justice Satyen Vaidya, while clarifying that the Respondent's right to withdraw her consent for a mutual divorce is absolute and cannot be disputed, also emphasized that any directive issued by the Court, instructing the parties to adhere to the settlement terms, should not be interpreted as undermining or nullifying this fundamental right.
Case Title: Lajwanti & others Vs Priti Devi & others
Citation: 2023 LiveLaw (HP) 43
The Himachal Pradesh High Court has stated that under the Hindu Minority & Guardianship Act 1956, the mother assumes the role of a natural guardian of minor children upon father's death.
However, the mother's right to custody is not absolute, but contingent upon the welfare of the children and if, during appropriate proceedings, she is found to be unfit or incapable of ensuring the welfare of the children, she may lose the right to maintain custody of them, it clarified.
“Unless or until mother is incapacitated and declared incompetent or disentitled for custody of children, by the competent Court in appropriate proceedings in accordance with law, in view of Section 6 of the Guardianship Act, mother, after death of father, is entitled to have custody of her minor children”, a bench of Justice Vivek Singh Thakur observed.
JAMMU AND KASHMIR AND LADAKH HIGH COURT
Case Title: Manzoor Ahmad Mir Vs UT of J&K
Citation: 2023 LiveLaw (JKL) 3
Observing that a long period of incarceration of an accused without any hope of conclusion of trial leads to a meltdown of the the rigour of 1st Proviso to Section 437 CrPC, the Jammu & Kashmir and Ladakh High Court granted bail to a man accused of murdering his wife.
Justice Sanjay Dhar said the accused has "carved out a case for grant of bail" on account of his long incarceration for more than 12 years and on account of the fact that by the conduct of the prosecution and the police department, there is hardly any chance of conclusion of trial in near future.
Case Title: Manzoor Ahmad Mir Vs UT of J&K
Citation: 2023 LiveLaw (JKL) 3
Observing that a long period of incarceration of an accused without any hope of conclusion of trial leads to a meltdown of the the rigour of 1st Proviso to Section 437 CrPC, the Jammu & Kashmir and Ladakh High Court granted bail to a man accused of murdering his wife.
Case Title: Sham Lal vs UT of J&K
Citation: 2023 LiveLaw (JKL) 17
The Jammu and Kashmir and Ladakh High Court granted bail to a man, accused of killing his wife, to take care of their two minor daughters.
Appreciating the sensitivity of the situation Justice Rahul Bharti said that it could ignore the hard fact that the two minor daughters while on the one hand had come to suffer loss of their mother for all times to come and on the other hand are suffering the absence of their father who by virtue of his detainment, is not to be assumed to be able to attend to their welfare and well being in terms of needs of their daily life.
Case Title: Danish Chauhan Vs DGP J&K
Citation: 2023 LiveLaw (JKL) 36
The Jammu and Kashmir and Ladakh High Court ruled that merely because proceedings have been initiated by a wife against her husband under the Protection of Women from Domestic Violence Act, 2005 (DV Act), no bar can be construed against lodging a first information report (FIR) for cruelty under Section 498A of the Indian Penal Code.
Case Title: Radha Sharma Vs State of J&K & Ors.
Citation: 2023 LiveLaw (JKL) 41
Invoking the principle of absolute liability, the Jammu and Kashmir and Ladakh High Court on Wednesday granted Rs. 10 Lakh compensation to the mother of a 13 year old who died due to electrocution.
A bench comprising Justice Wasim Sadiq Nargal observed that the rule of absolute liability does not obligate the claimant to prove negligence. Rather, on account of hazardous and dangerous nature of enterprise, the liability is fastened on the defaulter even when due and necessary care has been taken.
Case Title: Syed Shahid Hamdani Vs UT of J&K.
Citation: 2023 (JKL) 45
The Jammu and Kashmir and Ladakh High Court quashed a rape FIR, observing that a proposal made by the accused to prosecutrix for live-In relationship, so as to ascertain how their relationship will work, does not tantamount to false promise to marry.
The bench comprising Justice Sanjay Dhar observed,
"He proposed to have live-in-relationship with her, meaning thereby that at the initial stage the petitioner had not indicated his intention to marry the prosecutrix but he only wanted to ascertain as to how their relationship will work out, whereafter he was to make up his mind as to whether or not he would enter into wedlock with the prosecutrix. This goes on to show that there was no promise of marriage from the petitioner at the time of initiation of their relationship".
Case Title: Sonika Sharma vs Union of India
Citation: 2023 LiveLaw (JKL) 74
The Jammu and Kashmir and Ladakh High Court ruled that a widow cannot be denied family pension after husband's death on the ground that during his lifetime, divorce proceedings were ongoing between the couple.
There is not even a single provision of law quoted in the reply/objections by the respondents as to on what basis the respondents are enabling themselves to deny the petitioner her claim for sanction and grant of family pension," the bench underscored.
Case Title: Sheikh Mohammad Amin and another Vs Yasir Farooq and others
Citation: 2023 LiveLaw (JKL) 80
The Jammu and Kashmir and Ladakh High Court ruled that the proceedings for grant of a succession certificate under the Indian Succession Act 1925 are of summary nature and do not confer any title to the amount in favour of the certificate holder.
Case Title: Afsana Kouser Vs UT of J&K
Citation: 2023 LiveLaw (JKL) 85
Highlighting Article 144 of the Constitution which mandates all government authorities to abide Supreme Court decisions, the Jammu and Kashmir High Court came to the rescue of an adult woman apprehending life threat for marrying a person of her choice.
Justice Rahul Bharti observed,
"Article 144 of the Constitution of India mandates all Authorities, Civil and Judicial, in the territory of India to act in aid of the Hon’ble Supreme Court. Bearing this constitutional sanction in perspective and the directions of the Hon’ble Supreme Court set into place, it is a matter of duty for the Police Officials as well as officials of the concerned Civil Administration, irrespective of hierarchical position, to ensure that marrying individuals who are major and have chosen to become husband and wife out of their free will and volition are not to fear anybody causing any harm to their life and limb."
Case Title: Jamal Din & Ors Vs New India Assurance.
Citation: 2023 LiveLaw (JKL) 88
The Jammu & Kashmir and Ladakh High Court ruled that even if children claiming compensation under the Motor Vehicle Act on death of parent are major and earning, they are entitled to claim compensation on the ground of 'loss of dependency'.
"It is settled law that the legal representatives of the deceased have a right to apply for compensation and it must necessarily follow that even major and earning sons of deceased being legal representatives have a right to apply for compensation and it would be bounded duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependent on deceased or not, to limit the claim towards the conventional head only," the Court said.
Case Title: Hakim Din Vs Akbar Noor & Ors.
Citation: 2023 LiveLaw (JKL) 149
Differentiating the ambit and scope of Order-1 R-10 (2) and Order-XXII R-4 CPC, the Jammu and Kashmir High Court ruled that while Order-1 R-10 (2) enables the Court to add, substitute or strike down a person impleaded as party to the suit, Order-XXII R-4 on the other hand requires the plaintiff to bring legal heirs/representatives of a deceased defendant on record.
Therefore, where a case is covered by Order-XXII R-4, the provisions of Order-1 R-10 (2) stand excluded on the well known principle “general words do not derogate special provisions”, the court clarified.
Case Title: Naseema Begum Vs UT of J&K.
Citation: 2023 LiveLaw (JKL) 160
The Jammu and Kashmir and Ladakh High Court has granted bail to a woman, accused of assisting the primary suspect in a POCSO case filed over alleged rape of her own daughter.
Presumption of guilt under Section 29 is rebuttable and if the accused can demonstrate to the court during the trial that there is material evidence contradicting the presumption of guilt, they may be granted bail, a bench of Justice Sanjay Dhar maintained.
JHARKHAND HIGH COURT
Jharkhand High Court Directs State To Grant 5 Lakh Compensation To Widow Of Custodial Death Victim
Case Title: Babita Devi and Others vs. The State of Jharkhand and Others W.P.(Cr.) No. 48 of 2017
Citation: 2023 LiveLaw (Jha) 18
The Jharkhand High Court has directed the State Government to pay a compensation of Rs. 5 lakh to the widow of Umesh Singh, who died in police custody in 2015. The court also ordered the State to take departmental action against the police officers involved in the matter.
Justice Sanjay Kumar Dwivedi said it is a "proved case" of police brutality, and questioned why the police department has not departmentally proceeded against the erring police officials, even though the CID has submitted a report exonerating them.
Case Title: Umesh Kumar and Others vs. The State of Jharkhand and Another Cr.M.P. No. 257 of 2012
Citation: 2023 LiveLaw (Jha) 22
The Jharkhand High Court said that the Supreme Court and several high courts have observed the misuse of Section 498A of the Indian Penal Code (IPC), which pertains to cruelty against woman by her husband or his relatives.
Justice Sanjay Kumar Dwivedi said the Supreme Court on numerous occasions has previously expressed concern over the misuse of Section 498-A and the increasing tendency of implicating relatives of the husband in matrimonial dispute without analyzing the long term ramifications of it.
"Section 498-A of the Indian Penal Code was inserted in the statute with the laudable object of punishing cruelty at the hands of husband or his relatives, however, nowadays, the said Sections is being misused which has been observed by several High Courts and the Hon'ble Supreme Court. When the relatives are unnecessarily made accused under the said Section, that was considered by the Hon'ble Supreme Court in Arnesh Kumar v. State of Bihar & another; [(2014) 8 SCC 273]," the bench said.
KARNATAKA HIGH COURT
Case Title: Priyanaka R Patil v. Kendriya Sainik Board
Citation: 2023 LiveLaw (Kar) 1
The Karnataka High Court has struck down a criteria in the guidelines issued by the Department of Sainik Welfare and Resettlement, by which married daughters under the age of 25-years, were held ineligible for issuance of dependent Identity cards. The identity card, if issued, makes them eligible to apply for government jobs in the reserved category for ex-servicemen.
A single judge bench of Justice M Nagaprsanna allowed the petition filed by one Priyanka R Patil, who is the daughter of deceased Subedar Ramesh Khandappa Police Patil who was killed in action and struck down guideline 5(c) holding it to be violative of Articles 14 and 15 of the Constitution of India.
Case Title: Latha Choodiah v. Sree Balaji H.
Citation: 2023 LiveLaw (Kar) 4
The Karnataka High Court has said that remarriage of the former husband cannot be a ground to question the settlement arrived between the couple after issues were settled before the court and decree of divorce was granted.
A single judge bench of Justice M Nagaprasanna dismissed a petition filed by one Lata Choodiah seeking to set aside the memorandum of settlement arrived at under Section 89 of the Civil Procedure Code read with Rules 24 and 25 of the Karnataka Civil Procedure (Mediation) Rules, 2005 – the settlement was entered into on 07-08-2015 between her and her former husband.
Case Title: Prasad Raykar v. B T Dinesh
Citation: 2022 LiveLaw (Kar) 10
The Karnataka High Court has said that a son being the legal representative is liable to discharge the liability of the deceased father under the Negotiable Instruments Act.
A single judge bench of Justice K Natarajan rejected the argument canvased by one respondent/accused B T Dinesh, that there is no legally enforceable debt against him as the loan was borrowed by his father, who expired before filing of the complaint under Section 138 of the Negotiable Instruments Act.
Marriage With Minor Girl Not Void U/S 11 Of Hindu Marriage Act: Karnataka High Court
Case Title: XXX And ABC
Citation: 2023 LiveLaw (Kar) 23
The Karnataka High Court has set aside an order passed by the family court under the Hindu Marriage Act by which it declared the marriage between a couple to be null and void, as the woman was minor at the time of marriage.
A division bench of Justice Alok Aradhe and Justice S Vishwajith Shetty observed that Section 11 of the Act, which defines 'Void marriages', does not include legal age of marriage as a pre-condition. It thus set aside the family court order dated 08.01.2005 saying “Section 11 of the Act has no application to the fact situation of the case.”
Case Title: XYZ And ABC
Citation: 2023 LiveLaw (Kar) 24
The Karnataka High Court has said that if a wife is directed to pay maintenance to an able bodied husband who does not suffer from any disability or infirmity, it would be promoting idleness.
A single judge bench of Justice M Nagaprasanna made it clear that “Merely because Section 24 of (Hindu Marriage) Act is gender neutral for grant of maintenance, it would be promoting idleness notwithstanding the fact that the husband has no impediment or handicap to earn.”
Karnataka High Court Quashes Cheating Case Against Matrimonial Website Employees
Case Title: Vijay Kumar & ANR And State of Karnataka
Citation: 2023 LiveLaw (Kar) 32
The Karnataka High Court has quashed a case registered against two employees of a matrimonial website by a woman subscriber, who was cheated by a man she had come into contact through the portal.
The woman in her complaint in 2017 said that she had created her profile on the "Kannada Matrimony" and subsequently she came into contact with a person by name of Amit Deepak through the portal. The accused on one pretext or the other demanded money from the complaint which she transferred to him. After speaking with a close friend, she realised that she was cheated by Deepak for a sum of Rs.1,70,000.
Case Title: Akshata Chougala & Others And State of Karnataka & Others.
Case No: WRIT PETITION NO. 23752 OF 2022
Citation: 2023 LiveLaw (Kar) 40
The Karnataka High Court has granted relief to hundreds of applicants to the post of Graduate Primary Teachers who were placed in the General merit category by the State government as they had submitted the caste and income certificate of parents instead of the certificates of their spouse.
A single judge bench of Justice M Nagaprasanna allowed a batch of petitions and quashed the provisional select list insofar as it relates to the petitioners being brought under the general merit category.
Case Title: ABC And XYZ
Citation: 2023 LiveLaw (Kar) 42
The Karnataka High Court recently upheld a family court order which directed the mother of a seven years old girl child to hand over the custody to child's father, after observing that she herself was more attentive towards her illicit relationship at work rather than welfare of her child.
A division bench of Justice Alok Aradhe and Justice S Vishwajith Shetty dismissed the appeal filed by the woman and observed, "If the issue regarding the relationship of the appellant with the said S (name redacted) juxtaposition the welfare of the child is considered, it appears that the appellant has given more importance to the illicit relationship of hers with the said S (name redacted) and has neglected the child...she had handed over custody of the child to her parents who were residing at Panchakul in Chandigarh while she continued to stay at Bengaluru with S (name redacted)."
Case Title: Pratibha Singh And Vineet Kumar.
Citation: 2023 LiveLaw (Kar) 50
The Karnataka High Court has issued directions to trial courts to follow a timeline, in deciding applications filed by estranged women seeking maintenance from their respective husbands under section 24 of the Hindu Marriage Act.
A single judge bench of Justice M Nagaprasanna felt the requirement to issue the directions noting that “Proviso to Section 24 directs that an application filed under Section 24 seeking maintenance should be disposed of as far as possible within 60 days. The term “as far as possible” is being interpreted that the Court can pass orders even after six months in some cases, two years, three years or even four years after filing the application.”
Case Title: PUNARVASU @ VASU And INDRANI S
Citation: 2023 LiveLaw (kar) 54
The Karnataka High Court has made it clear that an able bodied man has to take care of his wife and child even, by finding an avocation, if he has none.
A single judge bench of Justice M Nagaprasanna made this observation while rejecting a petition filed by a husband questioning the order of the family court granting his estranged wife and child maintenance amount of Rs 10,000 per month under Section 125 CrPC.
Case Title: G And State of Karnataka
Citation: 2023 LiveLaw (Kar) 56
The Karnataka High Court has quashed a criminal case where "omnibus allegations" of physical and mental harassment were made by a woman against her sister-in-law.
A single judge bench of Justice Mohammad Nawaz allowed the petition filed by a woman who was chargesheeted along with other accused under sections 498-A, 323, 504 read with Section 149 IPC. The court said, “In the statements of the mother and brothers of the complainant, there are no specific and distinct allegations made against the petitioner.”
Manual Scavenger's Dispossessed Widow Gets Land With House After Karnataka High Court's Intervention
Case Title: Nagamma And State of Karnataka
Citation: 2023 LiveLaw (Kar) 68
The Karnataka High Court has for the second time come to the aid of a widow of a manual scavenger by ensuring authorities restore possession of a plot of land with a house, which was taken away as she did not have financial means to construct house on land allotted pursuant to an earlier high court order.
A single judge bench of Justice M Nagaprasanna allowed the petition filed by one Nagamma and imposed a cost of Rs 50,000 on the respondents for driving the petitioner to unnecessary litigation, and ignoring her request/representations for re-allotment of land.
Case title: XYZ And Karnataka State Commission for the Protection of Child Rights & ANR
Citation: 2023 LiveLaw (Kar) 82
The Karnataka High Court has held that the State Commission for Protection of Child Rights cannot pass an order granting visitation rights of the child to a parent.
A single judge bench of Justice Jyoti Mulimani observed, “The Commission is an advisory body and it could frame or suggest policy decisions with respect to the child’s rights to the State Government. The Act does not empower and conferred with any power of adjudication or to decide adversarial proceedings. The commission has no power to adjudicate any lis between two parties.”
Case Title: Syed Ghouse Mohiyuddin Shah Khadri And State of Karnataka
Citation: 2023 LiveLaw (Kar) 95
The Karnataka High Court on Monday dismissed an appeal challenging a Single Judge's order which quashed State's decision to permit only a Mujawar (Muslim Priest) to perform the rituals at the Datta Peeta - a holy cave shrine in Chikmaguluru which is revered both by Hindus and Muslim communities.
The State had ordered that only a Mujawar appointed by Shah Khadri shall be permitted to enter the sanctum of the "Sri Guru Dattathreya Swamy Peeta" otherwise known as "Sree Gurudattathreya Bababudnaswamy Dargha" cave and to distribute 'teertha' to both Hindus and Muslims.
Case Title: ABC & others And XYZ
Citation: 2023 LiveLaw (Kar) 96
The Karnataka High Court recently modified an order passed by the Trial court which directed a woman be paid Rs.6,000 as monthly maintenance and a room be given to her for living in the shared house of the estranged husband.
A single judge bench of Justice V Srishananda allowed the memo filed by the estranged husband who undertook to pay maintenance amount of Rs.6,000 per month and also pay an additional amount of Rs 5,000 for alternate accommodation to the woman.
Case Title: Mallikarjun Desai Goudar And State of Karnataka & ANR
Citation: 2023 LiveLaw (Kar) 102
The Karnataka High Court has quashed charges of rape levelled against an accused who was booked on the complaint made by the victim, after the accused refused to marry her on being in a relationship with her for over five years.
A single judge bench of Justice M Nagaprasanna partly allowed the petition filed by Mallikarjun Desai Goudar and quashed charges levelled under sections 376, 376(2)(n), 354, 406 and 504 of the Indian Penal Code. The court sustained the charges against him under sections 323 and 506 r/w 34 of the IPC.
Case Title: ABC Vs XYZ
Citation: 2023 LiveLaw (Kar) 104
The Karnataka High Court has dismissed a habeas corpus petition filed by a man seeking direction to his wife to produce their minor son before the court and then direct his repatriation to Germany.
A division bench of Justice Alok Aradhe and Justice Vijaykumar A Patil dismissed the petition filed by the father, it said, “The interim custody of the son has been granted to the wife by an interim order dated 08.06.2017 passed by the family court. The aforesaid interim order is still in force. Therefore, in violation of the aforesaid interim order, which binds the parties, this court in exercise of extraordinary jurisdiction would not direct repatriation of the son to Germany.”
Case Title: ABC Vs XYZ
Citation: 2023 LiveLaw (Kar) 105
The Karnataka High Court has declared a Christian couple's marriage as null and void holding that the woman had misrepresented and concealed her real age at the time of marriage.
A division bench of Justice Alok Aradhe and Justice Vijaykumar Patil allowed the petition filed by the husband questioning the order of the family court rejecting his petition filed under Section 18 of the Indian Divorce Act. The family court had held that petitioner (husband) failed to prove the grounds to declare his marriage with the respondent as null and void.
Case Title: Khaleel Ul Rehman & Others And Sharaffunnisa Muniri @ Ashraf Unnisa
Citation: 2023 LiveLaw (Kar) 110
The Karnataka High Court has said that a stepmother, to claim maintenance amount from legal heirs of her deceased husband, has to prove before the family court by tendering evidence and submission of documents that her husband was having a lot of properties and they are having income and thus she is entitled for maintenance amount.
A single judge bench of Justice K Natarajan partly allowed a petition filed by Khaleel Ul-Rehman, setting aside and modifying the order passed by the family court granting Rs 25,000 per month maintenance to their step mother.
Case Title: Kavitha M And Raghu & Others
Citation: 2023 LiveLaw (Kar) 116
The Karnataka High Court has issued directions to be followed by magistrate courts for disposal of applications being made by an aggrieved person under the Protection of Women from Domestic Violence Act, 2005, within 60 days from the date of its filing.
A single judge bench of Justice M Nagaprasanna said “The law Courts which exist to remedy the wrong when it is brought to its notice has to act swiftly, as it is trite that, actus curiae neminem gravabit that the act of Court should prejudice no person. If an act of the Court should not prejudice any person; the Court should not permit any procrastination of the proceedings before it.”
Case Title: Basangouda And Muddangouda & Others
Citation: 2023 LiveLaw (Kar) 117
The Karnataka High Court has held that a female Hindu becomes the absolute owner of the property on acquisition of property by way of a partition deed agreed upon in the family and the property cannot be termed as acquisition by inheritance and thus would not revert to the siblings on her death.
A single judge bench of Justice C M Joshi sitting at Kalaburagi, allowed the appeal filed by Basangouda and set aside the orders of the trial and first appellate court which held that Section 15(2) of the Hindu Succession Act was attracted in respect of the suit property held by his deceased wife Eshwaramma allotted under a partition deed, and thus it would devolve back to her siblings.
Case Title: Master Arya Selvakumar Priya & ANR And Joint Secretary (PSP) and Chief Passport officer & others
Citation: 2023 LiveLaw (Kar) 119
The Karnataka High Court has come to the aid of a 15-year-old child by directing the Passport Officer, Bengaluru to issue him an Indian Passport. The court said the travel document will remain operational till he turns 18 years old, or else he would be rendered Stateless.
Justice M Nagaprasanna said that merely because the minor's father is not traceable and the mother "has been reckless" in not knowing the consequences of renouncement of citizenship, the fate of the child cannot be left in limbo.
Case Title: Rathnamma & ANR And State of Karnataka & Others
Citation: 2023 LiveLaw (Kar) 136
The Karnataka High Court has directed the prison authorities to consider the representation of a woman and release a murder convict on parole leave, for him to marry her or else she would be given in marriage to someone else.
A single judge bench of Justice M Nagaprasanna allowed the petition filed by Neetha G and Rathnamma and directed the authorities to release the convict Anand. It said “The respondents 2 and 3 are directed to consider the representations of the petitioners and release the detenue/Anand (convict Prisoner No.11699) on parole from the forenoon of 05.04.2023, till the evening of 20.04.2023.”
Case Title: Nanjappa And State of Karnataka & Others
Citation: 2023 LiveLaw (Kar) 138
The Karnataka High Court has said that a gift deed executed by a senior citizen can be declared as null and void under the Senior Citizens Act only if a stipulation is contained therein that the transferee shall maintain him or her in return.
A division bench of Justice B Veerappa and Justice K S Hemalekha, while dismissing an intra-court appeal filed by Nanjappa, said, “On careful perusal of the document executed by the appellant in favour of the 3rd respondent, who happens to be the brother of the appellant, it does not contain any stipulation that the 3rd respondent is under the obligation to maintain the present appellant. In the absence of any condition stipulated in the documents, the provisions of Subsections (1) and (2) of Section 23 of the Senior Citizens Act are not attracted.”
Case Title: ABC And XYZ
Case No: MISCELLANEOUS FIRST APPEAL NO.4290 OF 2016
Citation: 2023 LiveLaw (Kar) 148
The Karnataka High Court has dismissed an appeal filed by a woman challenging an order of the family court granting divorce on the grounds of desertion as the wife failed to counter the averments made by the husband in the petition.
A division bench of Justice Alok Aradhe and Justice Vijaykumar A Patil said “It is trite law that if a witness is not subjected to cross-examination by the other side, his testimony is deemed to have been accepted.”
Case Title: H D Naveen And State of Karnataka
Case No: CRIMINAL REVISION PETITION No.912/2014
Citation: 2023 LiveLaw (Kar) 153
The Karnataka High Court recently upheld a husband's conviction under Section 498-A (Cruelty) IPC for harassing his wife, stating that he perhaps developed inferiority complex.
A single judge bench of Justice Ramachandra D.Huddar while dismissing the revision petition filed by H D Naveen observed, “Accused No.1 is unemployed. Perhaps he must be having an inferiority complex as his wife complainant is a BA., B.Ed. graduate, working as a teacher. That must have made the accused No.1 and his family members to harass the complainant by making unlawful demands and harassed her physically and mentally.”
Case Title: H Siddaraju & ANR Union of India & others.
Citation: 2023 LiveLaw (Kar) 162
The Karnataka High Court has evolved a triple test theory to permit a couple to undertake the procedure of surrogacy, which otherwise was not permitted to them as the husband being 57-year-old has crossed the age eligibility criteria, under the Surrogacy (Regulation) Act, 2021.
A Single judge bench of Justice M Nagaprasanna allowed in part the petition filed by H Siddaraju and his wife and directed the State Surrogacy Board or prescribed authority to consider their application for grant of an eligibility certificate as is necessary in law for the petitioners to become parents by way of surrogacy, on the triple tests as indicated – genetic; physical and economical.
Case Title: ABC And XYZ
Citation: 2023 LiveLaw (Kar) 170
The Karnataka High Court has refused to interfere with the order of a family court granting visitation rights of a minor daughter to her father. The mother of the child had objected to it on the grounds that her ex-husband had remarried twice after being divorced from her.
A division bench of Justice Alok Aradhe and Justice Vijaykumar A Patil observed, “The assertion of the appellant is that the respondent has married twice after getting divorce from the appellant and his second wife has a child out of her earlier wedlock and son is in custody of the respondent, the grant of any visitation rights would affect the health, well being of the minor daughter. The apprehension of the appellant has been taken care of by the Family Court, keeping in mind that the minor child being the female child of the appellant and respondent, the permanent custody is given to the appellant-mother.”
Case Title: ABC And XYZ
Citation: 2023 LiveLaw (Kar) 179
The Karnataka High Court declined interference with a family court order refusing custody of the minor daughter to her father as he failed to create a congenial atmosphere in his house for the child to stay.
A single judge bench of Justice M Nagaprasanna rejected the petition filed by the father and said, “It is a fact that there is nobody to take care of the child when the father is not around and the child is handed over to a male stranger. The mother has narrated that on several occasions the child had expressed her anguish getting too anxious about a stranger continuously photographing and videographing the child. If these facts are noticed, it becomes unmistakably clear that the father has not created a congenial atmosphere to the girl child, who is now 9 years old, he cannot therefore be heard to contend that he has a right to claim custody of the child, despite the afore-noted glaring facts.”
Case Title: Sri Jagadguru Murugharajendra Vidhya Peetha & ANR And The Chief Secretary & others.
Citation: 2023 LiveLaw (Kar) 180
The Karnataka High Court has quashed a Government Order which appointed an Administrator to run the affairs of Sri Jagadguru Murugharajendra Bruhan Mutt at Chitradurga. The administrator was appointed as the pontiff- Shivamurthy Murugha Sharanaru was arrested in September 2022 following cases registered against him under the POCSO Act.
A single judge bench of Justice Krishna S Dixit observed that interference of the State in Religious Institutions, goes against its professed secular credentials. "In secularism, State neutrality qua religion is inherent and this requires the governance to maintain a distance from the affairs of religious institutions of all faiths, equally and further to respect their autonomy...The State and its functionaries should realise that by their very nature they can not be a can not, be panacea to all the evils in society. As of necessity, it should leave religious institutions to solve their problems on their own by appropriate measures, such as community mediation/conciliation or judicial process, of course subject to all just exceptions,” it said.
Case Title: ABC And XYZ
Citation: 2023 LiveLaw (Kar) 182
The Karnataka High Court has directed a woman to comply with the settlement arrived at with her husband in regard to guardianship, custody and visitation rights of their minor son.
A division bench of Justice Alok Aradhe and Justice Anant Ramanath Hegde disposed of a habeas corpus petition filed by the father to produce the minor son and directed the mother to handover the custody of the son to the petitioner during the summer vacation, as per their settlement.
Case Title: Gangamma & ANR And Pratibha & ANR
Citation: 2023 LiveLaw (Kar) 184
The Karnataka High Court has said that a court considering application for grant of Succession Certificate has no power to go into the substantial and intricate question of facts and law.
A single judge bench of Justice C M Joshi sitting at Kalaburagi bench, dismissed a petition filed by parents of one deceased Nagappa, challenging order of the trial court and appellate court granting succession certificate to the wife and son of the deceased. The court permitted the parents to approach the appropriate Court of law for determination of their grievance and for their share in the death benefits of the deceased.
Case Title: Sharnavva @Kasturi and Shivappa
Citation: 2023 LiveLaw (Kar) 186
The Karnataka High Court has held that courts while dealing with maintenance applications under Section 12 of the Protection of Women from Domestic Violence Act or Section 125 of Criminal Procedure Code (Cr.P.C), should not go into the validity of marriage.
A single judge bench of Justice S Rachaiah sitting at Kalaburagi bench confirmed the trial Court's order directing petitioner's husband to pay Rs 3,000, per month as maintenance.
Case Title: NG & others And State of Karnataka & ANR
Citation: 2023 LiveLaw (Kar) 190
The Karnataka High Court quashed a First Information Report (FIR) registered by a woman alleging cruelty and dowry harassment, against her in-laws and other relatives of the husband.
A single judge bench of Justice S Rachaiah, sitting at Kalaburagi bench, allowed the petition seeking quashing of the case and said: “The criminal case filed by the wife, alleging cruelty, dowry harassment against the husband and in-laws loses its significance, in case the complaint is made, after receiving the divorce notice from her husband.”
Case Title: Shivappa Bellad And Superintendent of Open Air Prison & Others
Citation: 2023 LiveLaw (Kar) 199
The Karnataka High Court has directed the Superintendent of the Open Air Prison to grant emergency parole of three weeks to a convict to meet his ailing mother.
A single judge bench of Justice Krishna S Dixit allowed the petition filed by convict Shivappa Bellad. “This Court, being conscious of the shortness of human life and the irreplaceable position and bond between mother and children, is inclined to grant a restrictive & conditional indulgence in the matter inasmuch as petitioner's mother Smt. Gangavva, aged about 75 years, an inpatient in General hospital Kushtagi, is stated to be suffering from ailments natural to old age,” said the court.
Proceedings For Guardianship, Custody Of Minor Lie Only Before Family Court: Karnataka High Court
Case Title: Nasim Banu & ANR And Shabas Khan & Others
Citation: 2023 LiveLaw (Kar) 202
The Karnataka High Court has made it clear that a proceeding in relation to the guardianship of a person or the custody of or access to any minor has to be filed before Family court and it cannot be filed before a district court or any subordinate civil court.
A single judge bench of Justice H P Sandesh said, “Section 8 of the Family Courts Act is very clear with regard to exclusion of jurisdiction and pending proceedings where a Family Court has been established for any area. The very proviso of Section 8(a) is very clear that no district court or any subordinate civil court referred to in sub-section (1) of Section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the explanation to that sub-section.”
Case Title: Diocese of Chikkamagaluru And Lancy J Narona & Others
Citation: 2023 LiveLaw (Kar) 203
The Karnataka High Court has upheld an Appellate court order holding that civil courts have jurisdiction to hear a suit filed in individual capacity by few Catholics, seeking a direction to the Religious head of the church to allow them to offer prayers/mass prayers in Konkani Language.
A single judge bench of Justice H P Sandesh dismissed the second appeal preferred by Diocese of Chikkamagaluru and said, “Admittedly, the suit is filed for the relief of worshipping in the church in a particular language. It is the contention that there are 42 Parishes of Chikkamagaluru and out of which Parishes of different places are also allowed to do the prayer in different languages and the same is disputed by the appellant herein. When such being the case, the same has to be decided only in full fledged trial and not at the initial stage of considering the averments made in the plaint.”
Case Title: Pramod R S And State of Karnataka
Citation: 2023 LiveLaw (Kar) 205
The Karnataka High Court has dismissed a petition filed by a husband seeking to quash the complaint registered by his wife under section 498-A of the Indian Penal Code, after he sent her a legal notice seeking amicable settlement for dissolution of marriage.
A single judge bench of Justice M Nagaprasanna observed, “There cannot be a declaration of law as is contended by the learned counsel for the petitioner that once the divorce notice is sent by the husband, the complaint registered by the wife thereafter loses its significance. If this contention is accepted, it would have a chilling effect on all the complaints. Therefore, this submission is noted only to be rejected, as it is fundamentally flawed.”
Hereditary Archakship Conferred Only On Paternal Line Of Succession: Karnataka High Court
Case Title: M S Ravi Dixit And State of Karnataka & Others
Citation: 2023 LiveLaw (Kar) 206
The Karnataka High Court has held that in order to claim hereditary archakship, the line of succession should be on the paternal side and not on the maternal side.
A single judge bench of Justice N S Sanjay Gowda dismissed a petition filed by one M S Ravi Dixit and his brother M.S.Venkatesh Dixit, who sought to be appointed as Archaks, of Sri Mahabaleshwaraswamy Temple at K.R.Puram, Bangalore East Taluk.
Case Title: ABC v. XYZ
Citation: 2023 LiveLaw (Kar) 211
The Karnataka High Court directed the Police to contact the employer of a woman who failed to handover custody of her minor child to her husband despite a judicial order, and ask the employer to hold back her pay.
A division bench of Justice Alok Aradhe and Justice Anant Ramanath Hegde said the benefits payable to her be held till custody of the daughter is handed over. The bench was hearing a habeas corpus petition filed by the father. He was aggrieved by non-execution of Family Court order passed in March last year allowing his petition under Section 25 of the Guardians and Wards Act, 1890 and directing the mother to hand over their 7-yrs old girl child to him.
Case Title: Byluru Thippaiah And State of Karnataka
Citation: 2023 LiveLaw (Kar) 216
The Karnataka High Court has confirmed the death sentence handed down to an accused by the trial court for murdering his wife, sister-in-law and three children below the age of 10 years, suspecting the fidelity of his wife.
A division bench of Justice Suraj Govindaraj and Justice G Basavaraja said the case qualifies the test of rarest of rare cases requiring the award of the death penalty. “The atrocity of the crime resulting in five deaths including of 3 children below 10 years of age and the brutality with which the same has been committed, leaves us no option but to confirm the order of death sentence passed by the trial Court, which we do with a heavy heart,” it remarked.
Case Title: Mrs Divya Ganesh Nallur & ANR And NIL
Citation: 2023 LiveLaw (Kar) 220
The Karnataka High Court has held that just because an estranged couple are residing under the same roof, a court cannot reject their plea seeking dissolution of marriage by mutual consent, on this ground alone.
A single judge bench of Justice Krishna S Dixit allowed a petition filed by a couple and set aside the order of the family court dated 15-10-2022 and remitted the matter back to the family court, requesting the judge to pass a judgment & decree in terms of the Compromise Petition and the report of the Mediator at the earliest.
Non-Consummation Of Marriage Not Cruelty Under Section 498A IPC: Karnataka High Court
Case Title: ABC & Others And State of Karnataka & ANR
Citation: 2023 LiveLaw (Kar) 225
The Karnataka High Court has quashed a criminal complaint filed by a wife against her husband under section 498-A of the Indian Penal Code, alleging that he did not have physical relations after marriage on account of watching spiritual videos and thus it amounted to cruelty.
A single judge bench of Justice M Nagaprasanna allowed the petition filed by the husband and his parents and quashed the proceedings registered against them by the wife 28 days after marriage. It said,“Neither the complaint nor the summary charge sheet narrates any factum/incident that would become an ingredient of Section 498A of the IPC. The only allegation is that he is a follower of Brahmakumari, always was watching videos of one sister Shivani, a Brahmakumari; gets inspired by watching those videos, always told that love is never getting physical, it should be soul to soul. On this score, he never intended to have a physical relationship with his wife. This would undoubtedly amount to cruelty due to non-consummation of marriage under Section 12(1)(a) of the Hindu Marriage Act and not cruelty as is defined under Section 498A of the IPC.
Case Title: Sindhu Boregowda And Yashwanth Bhaskar B P
Citation: 2023 LiveLaw (Kar) 228
The Karnataka High Court has set aside an order passed by Family Court allowing application made by the wife to cross-examine her husband subject to a condition that she would bear his travel expense of Rs 1.65 lakhs, from the USA to Bangalore.
A single judge bench of Justice Krishna S Dixit allowed the petition filed by Sindhu Boregowda and said “Putting a condition of the kind would virtually amount to foreclosing petitioner’s right to cross examine/further cross-examine the respondent that too in a serious matter in which her marriage is at stake. Courts of justice cannot stipulate a condition to a party which he or she will not be in a position to comply with.”
Case Title: Prajith R And XXX & ANR
Citation: 2023 LiveLaw (Kar) 232
The Karnataka High Court quashed the FIR lodged against a man by a married woman, complaining that she was cheated by the man as he failed to keep his promise of marriage to her.
A single judge bench of Justice M Nagaprasanna allowed the man's quashing plea and said, “Cheating is alleged on the ground that the petitioner has breached the promise of marriage. The complainant admits that she is already married and has a child from the wedlock. If she is already married, there can be no question of cheating on the breach of promise of marriage. Therefore, the said offence also cannot be laid against the petitioner.”
KERALA HIGH COURT
Case Title: XXXX v. Union Of India and Connected Cases
Citation: 2023 LiveLaw (Ker) 1
The Kerala High Court observed that the imposition of age restriction under the Assisted Reproductive Technology (Regulations) Act, 2021 without a transitional provision, is irrational and arbitrary. Thereby, the Court issued the direction that the petitioners who were undergoing ART services as of the date on which the ART Act came into effect (25.01.2022) shall be permitted to continue their treatment.
The Court has also directed the National Assisted Reproductive Technology and Surrogacy Board to alert the Central Government about the need for a re-look at the upper age limit prescribed in Section 21(g) of the Act.
The Court issued the aforesaid directions while disposing of a batch of Writ Petitions filed challenging the upper age limit of 50 years for women and 55 years for men prescribed under the Assisted Reproductive Technology (Regulations) Act, 2021 which prohibits the application of ART services to persons above the prescribed age limit.
Case Title: Jayadevi v. Narayana Pilla & Ors.
Citation: 2023 LiveLaw (Ker) 6
The Kerala High Court laid down that on the death of one among the testators, either in the case of joint Will or a mutual Will, the property left out by the deceased testator included in the Will alone would stand bound by the disposition made therein and it would not operate as against the property of the other testator, who is alive, till his/her death.
Justice P. Somarajan observed that where a clause has been incorporated in the Will stating that the surviving testator will not have any right to alter any of the dispositions made under the Will, the same should not be read in substitute of requirement of a mutual Will, unless it is supported by reciprocal demise.
Case Title: Rajesh and Anr. v. The Station House Officer and Ors.
Citation: 2023 LiveLaw (Ker) 8
Observing the existence of a domestic relationship is sine qua non for seeking relief under the Protection of Women from Domestic Violence Act, the Kerala High Court has said it has become a common practice to convert some other dispute into a 'domestic violence complaint'.
The magistrates must not casually and mechanically issue summons in such cases, said the court. It directed the Registry to forward a copy of its judgment to all the Magistrates in the State.
Justice Kauser Edappagath observed that the Magistrate has to scrutinize the allegations in the application to ensure that it falls within the ambit of DV Act before issuing summons to the respondent, and to prevent the law from becoming a tool of harassment at the hands of the complainant.
Case Title: Pappu Bawariya and Anr. v. District Collector Civil Station and Ors.
Citation: 2023 LiveLaw(Ker) 10
The Kerala High Court ordered the release of two children from Delhi who were sent to a shelter home alleging that they were being forced into child labour by selling articles on the streets to the custody of their parents.
In November 2022, the two children were nabbed by the Police alleging that they were being forced into child labour by selling articles on the streets. The Children were thereafter produced before the Child Welfare Committee and sent to shelter home.
The Writ Petition was filed for the parents of the children seeking direction to release the children to their custody.
Justice V G Arun while passing the order, said that,
"I am at a loss to understand as to how the activity of the children in helping their parents in selling pens and other small articles would amount to child labour. No doubt, the children ought to be educated, rather than being allowed to loiter on the streets along with their parents...I wonder as to how the children can be provided proper education while their parents are leading a nomadic life. Even then, the police or the CWC cannot take the children into custody and keep them away from their parents. To be poor being not a crime and to quote the father of our nation, poverty is the worst form of violence."
Case Title: Aswathi & Anr. v. Rajeesh Raman & Anr. and Betty Philip v. William Chacko
Citation: 2023 LiveLaw (Ker) 20
The Kerala High Court held that even though an order of maintenance may be enforceable at the place where the person - against whom it is made - resides, the court which passed the order also retains the power to execute it outside the jurisdiction where such person is residing.
The Single Judge Bench of Justice A. Badharudeen considered the legal question as to whether a court which passed an order of maintenance under Section 125 and 127 of the Code of Criminal Procedure (CrPC) is competent to execute the order against a person, who has been residing in a place outside its jurisdiction.
"...it is necessary in the interests of justice to visualise the plight of poor wife and children or the parents, as the case may be, if a view taken to the effect that each and every execution proceedings to enforce order of maintenance obtained by the wife, children and parents at the place where the person against whom the order was made. If such a proposition is declared, a clever husband or son or daughter, as the case may be, could very well shift their residence, outside the jurisdiction of the court where the order of maintenance sought to be executed, so as to defeat the enforcement of the order. No doubt, it may be easy for them to shift their residence periodically, to defeat the enforcement of the maintenance order," the court observed.
'Consensual Relationship, Promise To Marry Was Not False': Kerala High Court Quashes Rape Case
Case Title: Emmanvel Peter v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 31
The Kerala High Court quashed rape case against a 31-year-old man, observing that he and the complainant were in a consensual relationship and his promise to marry her was not with an intention to deceive her.
Justice Kauser Edappagath reiterated that in an allegation of rape on false promise of marriage, the courts have to carefully examine whether the accused actually wanted to marry the victim or had malafide motives and had made a false promise to this effect.
The Court took note of the Apex Court decisions in Deepak Gulati v. State of Haryana (2013) and Dhruvaram Murlidhar Sonar (Dr) v. State of Maharashtra (2019) and said it has been observed that if an accused had not made the promise with the sole intention to seduce the victim to indulge in sexual acts, such an act would not amount to rape and that if the accused had any mala fide intention or clandestine motives, it would be a clear case of rape.
Case Title: RB. v. AB.
Citation: 2023 LiveLaw (Ker) 44
The Kerala High Court dismissed a woman's petition seeking transfer of a divorce case on the ground of alleged bias and favouritism by the Family Court Judge. The divorce case has been filed by her husband.
Justice C.S. Dias said the petitioner, a woman lawyer, has made a "scathing attack" on the Family Court Judge by questioning his integrity, honesty and impartiality, on the sole reason that he had passed a string of orders against her.
Case Title: Gireesh Kumar N v. Rajani K V and Anr.
Citation: 2023 LiveLaw (Ker) 46
The Kerala High Court reiterated that an unmarried daughter who attained majority cannot claim maintenance from her father under Section 125(1) CrPC, merely on the ground that she does not have means for her sustenance.
The Court observed that an unmarried daughter unable to maintain herself by reason of any physical, mental abnormality or injury is entitled to claiming maintenance under Section 125(1) CrPC, however, pleadings and evidence in this regard are mandatory.
Case Title: Dr. Drisya D.T. & Ors. v. Dr. Kiran & Ors.
Citation: 2023 LiveLaw (Ker) 48
The Kerala High Court recently held that where the parties agreed to settle a suit on the basis of an agreement entered into between themselves, without saying how the suit is to be decided or what the terms of the compromise are, no decree can be passed by the Court in such suit.
The Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar passed the above order while dismissing the judgment rendered by the Family Court which held that all the pending cases between the parties were settled in terms of the compromise. It was noted by the Division Bench that the compromise agreement in Clause 5 merely pertained to the settlement of the case relating to setting aside of a gift deed.
"On the basis of an agreement by which the parties agreed to settle a suit, without saying how is the suit to be decided and what are the terms of compromise, no decree can be passed. If the suit is to be withdrawn also, there shall be a stipulation to that effect. Clause (5) or any other clause in Annexure A1 does not enable this Court or the Family Court, Thiruvananthapuram to dispose of any of the cases mentioned above except, O.P.No.780 of 2021. Therefore, the apprehension of the appellant that Annexures A1 and A2 would be interpreted to mean that all the aforesaid pending cases have been settled is genuine. In view of that Annexure A2 judgment is wrong", it was observed.
Case Title: Bijy Paul v. The Marriage Officer and Ors.
Citation: 2023 LiveLaw (Ker) 49
A Petition has been recently moved before the Kerala High Court challenging the provision of the Special Marriage Act, to the extent that it mandates a waiting period of 30 days after submission of the notice of intended marriage.
The Writ Petition was filed seeking a declaration that the mandatory waiting period is unconstitutional or a declaration that the 30 days period after submission of a notice of intended marriage mentioned in Section 6 and all consequential provisions under the Act are only directory and cannot be insisted upon.
Justice V G Arun noting that the matter requires detailed consideration, observed that,
A lot of changes and liberalisation has taken place even in our customs and practices. Yet another aspect is that a large number of youngsters are employed abroad. Such people come back to their native place only on short vacations and instances are many where the marriage is conducted during the short holidays. The Special Marriage Act requires one of the intending spouses to have resided within the territorial limits of the jurisdictional Marriage Officer for at least 30 days before submitting the notice of intended marriage. Thereafter, the intending spouses have to wait for another 30 days to solemnise the marriage. Whether this waiting period is essential in view of the revolutionary changes in the information technology sector and changes in the social set up itself are matters that should engage the attention of the law makers.
Case Title: xxx v. yyy
Citation: 2023 LiveLaw (Ker) 60
The Kerala High Court said the law is well settled that an agreement by which a wife waives her right of maintenance under Section 125 of CrPC is an agreement against public policy and the same is ab initio void and not enforceable.
"Therefore, the claim for allowance of maintenance by the wife cannot be disputed or denied on the basis of a void agreement and the wife is entitled to get maintenance ignoring the said void agreement," said Justice A. Badharudeen.
Case Title: B v. H
Citation: 2023 LiveLaw (Ker) 70
The Kerala High Court observed that gold ornaments kept in a locker in the wife’s name cannot amount to the entrustment of the ornaments to the husband or the husband’s family and thus recovery of the same cannot be initiated along with divorce proceedings.
A division bench of Justice Anil K Narendran and Justice P.G. Ajithkumar said that in the absence of enough evidence that the gold ornaments given to the wife at the time of marriage was entrusted by her to her husband or her in-laws, it would not be possible to recover the same under the Prevention of Dowry Act, 1961.
Case Title: Hameedali K.P. v. Chief Executive Officer & Ors.
Citation: 2023 LiveLaw (Ker) 75
The Kerala High Court observed that time has come for it to stop entertaining writ petitions seeking directions relating to a wakf and to insist that the party should first approach the authorities under the Wakf Act.
The Division Bench comprising Justice A.K. Jayasankaran Nambiar and Justice Mohammed Nias C.P. dismissed a writ petition filed by a person who claimed to be the present hereditary Muthavalli of the Pannur Karandomthook Juma-Ath Palli Committee and challenged the order by which the Wakf Board had appointed a returning officer to conduct elections to the Juma-ath Committee.
It observed, "Any dispute, question, or other matters whatsoever and whatever manner which arises relating to a wakf property can be decided by the wakf Tribunal. No doubt, alternate remedy is not an absolute bar for filing of the writ petition, but at the same time, it is well settled that writ jurisdiction is a discretionary jurisdiction, and when there is an efficacious alternate remedy, ordinarily, a party must resort to that remedy first before approaching this Court. Entertaining a writ petition straight away without insisting that a party should avail alternate remedy is an over-liberal approach that is causing immense difficulties to the high court, adding to the huge arrears".
Case Title: XXX v XXX
Citation: 2023 LiveLaw (Ker) 83
The Kerala High Court observed that when a child is grown up and is capable of making rational decisions on his/her own, the court must not give too much importance to the demands of the parents' battling the custody of the child.
A division bench of comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar was hearing a challenge against the order of a family court that had denied custody to the father. The court in this case had personally interacted with the child to ascertain his desire. The child had expressed his desire to stay with his mother.
"The welfare of the child has to be given predominance. Since he is grown up and able to take rational decision in his personal matters, too much importance cannot be given to the parents' demands."
Family Court Does Not Have Jurisdiction To Entertain Claim For Defamation: Kerala High Court
Case Title: R v. R
Citation : 2023 LiveLaw (Ker) 86
The Kerala High Court held that a family court does not have the jurisdiction to entertain a claim for defamation. For a family court to assume jurisdiction, the dispute must have a proximate relationship to the marital relationship of the parties, the court observed.
A division bench of Justice Anil K.Narendran and Justice P.G. Ajithkumar was hearing an appeal filed by the wife, claiming damages for defamation against her husband and father-in-law. The cause of action was the pleadings before the Family Court and also utterances made in the presence of others, describing her as a mentally ill person. The court considered the question of whether the family court has jurisdiction to entertain a petition claiming compensation on account of defamation. The court was of the opinion that in such cases the determining factor is the nature of the dispute involved, not the identity of the parties.
“The cause of action for the appellant to claim compensation is the injury allegedly caused to her reputation on account of such libel and slander. It is an action for tort. A tort is a civil wrong and that by itself constitutes cause of action. Whether or not she is married to the 1st respondent, the alleged statements made by the respondents if defamatory, is a sufficient cause of action.”
Case Title: Kalukutty v. P.M. John & Anr.
Citation: 2023 LiveLaw (Ker) 87
The Kerala High Court held that the monetary compensation to be awarded to a housewife who had been injured due to the reckless application of brakes while traveling in a Kerala State Road Transport Corporation (KSRTC) bus, would have to be measured and weighed on the same scales, as it would, had she been a working woman.
"...the contentions of the KSRTC, that a housewife earns no income and therefore, not eligible for compensation for disability and loss of amenities, is outrageous and beyond comprehension. The role of a mother and wife at home is beyond compare, and she is a true nation builder. She invests her time for the family and ensures that the next generation is fostered with the highest levels of excellence; and her efforts can never be taken trivially or brushed aside, as being without monetary value. The lives of human beings are never tested on the scales of their monetary worth, but by their contribution and selflessness", Justice Devan Ramachandran observed while enhancing the compensation that had been awarded by the Tribunal.
Case Title: Lalithambika & Ors. v. Grievance Redressal Committee & Ors.
Citation: 2023 LiveLaw (Ker) 103
The Kerala High Court held that a joint owner of a locker is entitled, as of right, to operate the locker, independent of the other owner, and thus, would not have to secure any letters of administration or probate under Section 29 of the Administrators-General Act, 1963, pursuant to the death of the other owner.
Perusing Section 218 of the Indian Succession Act, 1925, that stipulates as 'to whom administration may be granted, where the deceased is a Hindu, Muhammadan, Budhist, Sikh, Jain or exempted person’, the Single Judge Bench of Justice Shaji P. Chaly observed:
"In my considered opinion, Section 218 of the Indian Succession Act, 1925 stipulates the manner in which administration of estate is to be granted by a court of law, in cases where a person has died intestate. This is a case where the first petitioner, who is the joint owner of a locker hired from the Bank, was prevented by the Bank from operating the locker. To put it otherwise, in my considered view, Section 218 of the Act, 1925 has no application, since the petitioner is the joint owner, who is entitled, as of right, to operate the same, even according to the Bank, independent of the other joint hirer of the locker. There is also no requirement to secure any letters of administration under Section 29 of the Administrators-General Act, 1963. There is also no case for the respondent Bank that there is any litigation instituted by anyone in the matter of assets left by the deceased Sasidharan Pillai".
Case Title: Bijumon & Ors v. The New India Assurance Co.
Citation: 2023 LiveLaw (Ker) 123
The Kerala High Court enhanced the compensation awarded by a Motor Accident Tribunal under the head of 'Loss of Dependancy' to the parents and sibling of a deceased child, who had been a victim of a motor accident.
Justice Devan Ramachandran, relying on various precedents, adopted Rs.30,000/- as the notional income of the deceased child in the present case, and thereby partly allowed the appeal, and enhanced the compensation under the aforementioned head of 'Loss of Dependancy'.
Case Title: XXXXXX V State of Kerala
Citation: 2023 LiveLaw (Ker) 124
The Kerala High Court held that while considering bail applications related to offences under the POCSO Act that involve allegations of child abuse by a parent, courts should approach the matter with great care, especially when there is litigation between parents over the custody of the child.
A single bench of Justice Ziyad Rahman while allowing a bail application filed by a father who was accused of sexually assaulting his 10 year old son cautioned that :
“In such cases, when the materials placed before the court evoke a reasonable suspicion as to the veracity of the allegations, the courts should not hesitate to invoke the powers under section 438 of the Cr.P.C. What is at stake is someone’s personal liberty, integrity, dignity and sometimes, the life itself. The power under section 438 is an important tool for the court to protect the personal liberty of the persons, which is one of the fundamental rights guaranteed under the Constitution of India”
Case Title: New India Assurance Co. Ltd. v. Gopinathan K.K. & Ors. and Gopinathan & Ors. v. Lijo V.J. & Ors.
Citation: 2023 LiveLaw (Ker) 140
The Kerala High Court considered the issue as to whether the children of a nonagenarian road accident victim, who are themselves senior citizens, would be entitled to compensation for 'Loss of Parental Consortium'.
Noting that the Tribunal had awarded an amount of Rs. 40,000/- under the head 'Loss of Love and Affection', which was challenged by the counsels for the Insurance Company on the ground that no amount could have been granted under that head since the claimants of the deceased were all senior citizens themselves, the Single Judge Bench of Justice Devan Ramachandran observed,
"I am afraid that this argument is too farfetched to be even countenanced because, whatever be the age of the father or the children, their relationship continues till the end; and for every father, his offsprings are always children".
Kerala High Court Grants Parole To 'Ripper Jayanandan' For Attending Daughter's Wedding
Case Title: Indira v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 142
The Kerala High Court granted parole for a period of fifteen days to 'Ripper Jayanandan', an infamous killer accused of seven murders committed during thirty-five robberies, for partaking in the wedding of his daughter. In the petition filed by the wife of the convict, their daughter, Advocate Keerthi Jayanandan had appeared as the counsel.
Justice Bechu Kurian Thomas, while allowing the petition, observed,
"... this Court cannot be oblivious to the glorious right to liberty enshrined in Article 21 of the Constitution of India. The liberty of every individual and the right to life guaranteed under the aforesaid constitutional provision has been interpreted to include the right to live with human dignity. Though a convict, petitioner’s husband also enjoys the facets of right to life and liberty within the limits of law. Normally the opportunity to participate in the wedding of a daughter has to be treated as part of that liberty. When the statute permits the grant of emergency parole, there is no reason why such a facet of his liberty ought to be denied to him despite him being a convict".
xxx v. State of Kerala
Citation: 2023 LiveLaw (Ker) 145
The Kerala High Court recently refused to quash the criminal proceedings that had been initiated against a person for allegedly raping a woman under the false promise of marriage, on the ground that the facts prima facie established that he had never intended to marry her.
Justice K. Babu perused Section 90 of the Indian Penal Code which refers to the expression 'consent', and noted that for the purposes of Section 375, consent requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent.
Case Title: D. Kumar v. A. Raja
Citation: 2023 LiveLaw (Ker) 146
The Kerala High Court declared CPM candidate A. Raja's 2021 election from the Devikulam Assembly constituency as void.
Justice P. Somarajan said Raja is not a member of 'Hindu Parayan' within the State of Kerala and thus not qualified to be chosen to fill the Devikulam Assembly constituency that had been reserved for Scheduled Caste among Hindus.
Case Title: Varghese Abraham & Ors. v. Shinu P. & Anr. and other connected matters
Citation: 2023 LiveLaw (Ker) 165
The Kerala High Court refused to quash the complaint against the elected members of the governing committee of the Parish of St.Johns Salem Orthodox Church, Ayroor, for the alleged defamatory statement against other members of the Parish in the representation submitted to the Metropolitan Bishop.
Justice K. Babu observed that the facts of the present case do not fall within the ambit of those circumstances wherein it could exercise the power to quash the criminal proceeding that had been initiated. It observed that the petitioners had not taken reasonable care in including the alleged defamatory statements against the other Parish members in the representation before the Metropolitan Bishop.
Case Title: XXX v. YYY
Citation: 2023 LiveLaw (Ker) 179
The Kerala High Court held that granting permission to an Indian citizen to take his/her child abroad would not foreclose the right of the other spouse to get custody of the child.
The Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar compared the situation to that of procuring custody of a child who is habituated resident in a foreign Country. It observed that while enforcing custody orders relating to a habitual resident child in a foreign country may be difficult, that is not the case when an Indian parent is permitted to take his/her child abroad- since Indian courts will be able to enforce their orders on such parent as long as he/she continues to be an Indian citizen.
It observed, "If the petitioner takes the child abroad as permitted by a court, there would not be any difficulty for enforcing the directions regarding custody of the child. The Family Court and this Court would be able to enforce such orders as long as the petitioner continues to be an Indian citizen. The enforcement of any such order is not similar to enforcement of custody orders relating to a habitual resident child in a foreign country".
Case Title: XXX v XXX
Citation: 2023 LiveLaw (Ker) 181
The Kerala High Court held that when an application is filed seeking time bound disposal of a matter, the family court cannot dispose such an application passing an order that the case “will be disposed of at the earliest”.
A division bench of Justice Anil K. Narendran and Justice P.G. Ajithkumar observed
“… if the applicant has stated any justifiable or valid reason for early hearing or time bound disposal, the Family Court has to pass an order in that interlocutory application ordering early hearing or time-bound disposal of that case or cases, specifying the time limit in that order."
Case Title: XXX & Anr. v. YYY
Citation: 2023 LiveLaw (Ker) 195
The Kerala High Court considered the question as to whether there is a provision entitling a Christian daughter to realize marriage expenses from the immovable property of her father or the profits therefrom, and answered the same in the affirmative.
The Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar perused the provisions of the Hindu Adoptions and Maintenance Act, 1956, as well as the Muslim position on the aspect as revealed in Ismayil v. Fathima & Anr. (2011), and observed that,
"The right of an unmarried daughter to get reasonable expenses concerning her marriage from her father cannot have a religious shade. It is a right of every unmarried daughter irrespective of her religion. There cannot be a discriminatory exclusion from claiming such a right based on one’s religion".
Case Title: XXX V State of Kerala
Citation: 2023 LiveLaw (Ker) 201
The Kerala High Court held that if a claim for maintenance under Section 125 of the CrPC made by an unmarried muslim daughter, who has attained majority, is not valid, the same claim can be made under Muslim Personal Law and the Family Court can consider it to prevent multiplicity of proceedings.
A division bench of Justice Alexander Thomas and Justice Ziyad Rahman observed that:
“We would hold that, for a major unmarried Muslim daughter, who is not suffering from any physical or mental abnormality or injury, as envisaged in clause (c) of sub-section 1 of Sec.125 of the Cr.P.C., a claim made before the Family Court under Sec.125 of the Cr.P.C., will not be maintainable. However, in case the claimant appears to be otherwise eligible for maintenance, in terms of Muslim Personal Law, then the Family Court need not drive the litigant to file a fresh claim and with the wholesome objective of avoidance of multiplicity of proceedings in maintenance claims, the Family Court can entertain the maintenance plea, under Muslim Personal Law.”
Case Title: Dhisha v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 204
The Kerala High Court asked the State to examine whether there was any need to continue granting separate licenses for burial or burning grounds for different communities, and whether such an action would violate Articles 14 and 21 of the Indian Constitution.
The Division Bench comprising Chief Justice S. Manikumar and Justice Murali Purushothaman was considering a petition alleging denial of access to cremation in a public graveyard to members of the Chakkiliyan Community of Puthur Grama Panchayat of Palakkad District.
The Bench perused various provisions of the Kerala Panchayat Raj (Burial and Burning Grounds) Rules, 1998, dealing with providing burial and burning grounds by Panchayat, and observed that the State Government could permit burial grounds on the basis of communities apart from the public burial or burning grounds, and issue license.
"Without going deeper into the provisions, which permits that licenses can be given to communities, to have separate burial or burning grounds, when the State of Kerala is stated to be God’s own Country, this Court can only observe as to whether, what is enshrined in the Constitution of India and the decisions cited supra, are being followed in letter and spirit or not. Let the Legislature and the Executive, maintain right to dignity and fair treatment under Article 21 of the Constitution of India, not only to a living person, but also to the mortal remains of a person," it was observed.
Case Title: St. Mary's Orthodox Church & Anr. v. State of Kerala & Ors. and other connected matters
Citation: 2023 LiveLaw (Ker) 212
The Kerala High Court has ordered adequate protection for vicars and parishioners of the Orthodox faction in a batch of petitions filed by them over hindrance caused by the Jacobite faction and their agents in the various kurisupallies under the respective Churches in performing the religious rites.
The Court was considering petitions filed by the Vicar and Parishioners of different Orthodox Churches - namely, the St. Thomas Orthodox Syrian Church, Mazhuvanoor; the St.Mary's Orthodox Syrian Church, Odakkali; the St. Mary's Orthodox Syrian Church, Poothrikka; the St. John’s Besphage Orthodox Church, Pulinthanam; St. Thomas Bethel Orthodox Church, Karikode; and the St. Mary's Orthodox Syrian Church, Attinkunnu, Kakkoor. It has passed separate orders in all the petitions.
Case Title: Dhanya Martin v. State of Kerala & Anr. and other connected cases
Citation: 2023 LiveLaw (Ker) 221
The Kerala High Court held that the registering authority under the Special Marriage Act, 1954 cannot refuse solemnization of marriage online.
The Division Bench comprising Justice A. Muhamed Mustaque and Justice Sophy Thomas made its interim order dated September 9, 2021 in this regard absolute, and directed the State Government to follow the directions therein until the Government prescribes any other mode for compliance.
Case Title: Jayaraj R. v. Kavya G. Nair
Citation: 2023 LiveLaw (Ker) 223
The Kerala High Court has held that in order to seek divorce by mutual consent under Section 13B(2) of the Hindu Marriage Act, 1955, there ought to be mutual consent of the parties when they move the court with a request to pass a decree of divorce, as well as at the time when the court is called upon to make an enquiry, if the petition is not withdrawn, to pass the final decree.
Relying on the Apex Court decision in Smruti Pahariya v. Sanjay Pahariya (2009), the Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar observed:
"...it is only on the continued mutual consent of the parties that a decree for divorce under Section 13B of the said Act can be passed by the court. If the petition for divorce is not formally withdrawn and is kept pending then on the date when the court grants the decree, the court has a statutory obligation to hear the parties to ascertain their consent. From the absence of one of the parties for two to three days, the court cannot presume his/her consent."
Case Title: T.K.Natarajan V T.K.Raman Achari
Citation: 2023 LiveLaw (Ker) 233
The Kerala High Court held that unless there is a notification by the State Government as mandated under Section 264(2) of the Indian Succession Act, 1925 no court in the State will have the jurisdiction to issue probate or letters of administration.
A single bench of Justice P Somarajan observed that for the State of Kerala no such notification has been issued under the Act thus far.
“So far no notification has been issued by the State Government under Section 264(2) of the Act. In the Rules framed by the High Court (Indian Succession Rules (Kerala) 1968), though provisions were made regarding issuance of probate and letters of administration, nothing was incorporated to the effect of notification as mandated under Section 264(2) of the Act. In fact, a notification under Section 264(2) of the Act has to be issued by the Government and in the absence of such notification, no jurisdiction can be exercised by the Courts within the State of Kerala for issuance of either probate or letters of administration.”
Case Title: Raveendran P.T. v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 237
The Kerala High Court observed that all unhealthy, unscientific and deleterious practices are to be prevented, even if the same has been done in the name of religion. The Court made the observation while ordering probe against the ritualistic sacrifice of birds and animals at a private residence.
Justice V.G. Arun further directed that if it is found that a place of worship for conducting rituals had been constructed, with members of the public participating in it, immediate action ought to be taken to stop the same.
The court added that if it is found that slaughter of animals and birds is taking place in the precincts of the building, appropriate action under the Kerala Animals and Birds Sacrifices Prohibition Act also ought to be taken.
Case Title: Arumughom Achari Ranganathan Achari & Ors v. Rajamma Sarojam & Ors.
Citation: 2023 LiveLaw (Ker) 256
The Kerala High Court held that married daughters belonging to the Hindu Malayala Kammala caste would also be entitled to a share in the self-acquired property of their parent.
The Court in this case was dealing with a case in which it was contended that the females would not be entitled to a share in the property, since as per the custom of the community, they were given in marriage in the customary Kudivaippu form, after giving streedhanam.
It held that any custom governing intestate succession in respect of the self acquired property of a Hindu that was inconsistent with the provisions of the Hindu Succession Act, 1956 (hereinafter, 'Act, 1956'), would be abrogated immediately on coming into force of the statute, by virtue of Section 4.
Case Title: X v. NIL
Citation: 2023 LiveLaw (Ker) 266
The Kerala High Court held that the law does not recognise a live in relationship as marriage and hence such a relationship cannot be recognised for the purpose of divorce either.
The law only allows parties to divorce if they are married under a recognised form of marriage as per personal law or secular law, the Court observed. So far, marriages entered into between parties through a contract does not have any recognition under law for the purpose of divorce, the Court noted.
A division bench comprising of Justice Muhamed Mustaque and Justice Sophy Thomas observed:
“Marriage as a social institution, as affirmed and recognised in legislation, reflects the social and moral ideals followed in the larger society. The Law is yet to recognise the live-in relationship as marriage. The Law accords recognition only if the marriage is solemnised in accordance with the personal law or in accordance with secular law like the Special Marriage Act.”
Case Title: Dheera N.G. & Anr. v. Simesh S. and Simesh S. v. Dheeran N.G. & Anr.
Citation: 2023 LiveLaw (Ker) 267
The Kerala High Court enhanced the monthly maintenance allowance of the paralyzed estranged wife and son of a headload worker, on taking note of the latter's neglect and refusal to maintain his wife and child.
The Single Judge Bench of Justice V.G. Arun observed that in such cases, Court ought to be aware of the dominant purpose behind Section 125 Cr.P.C. that stipulates for maintenance, which is that of ensuring that the neglected wife, child and parents are not left in a 'helpless state of distress, destitution and starvation'.
"The court should also be convinced about the existence of the following factors; i) that the respondent has neglected or refused to maintain the claimant. (ii) the claimant do not have the means to maintain herself/himself. (iii) the respondent has sufficient means for maintaining the claimant," it added.
Case Title: Thankam v. Remani & Anr.
Citation: 2023 LiveLaw (Ker) 274
The Kerala High Court held that an objection cannot be filed after the sale of attached property has been confirmed, as per the bar under proviso (a) to Order 21 Rule 58(1). It thereby cautioned Family Court judges to be more careful, vigilant, and sensitive, while dealing with cases before them.
The Division Bench comprising Justice A. Muhamed Mustaque and Justice Sophy Thomas passed the Order while finding the Family Court had erroneously entertained and passed its decision on a claim petition that was hit by proviso (a) to Order 21 Rule 58(1).
Order 21 Rule 58(1) stipulates that "Where any claims preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the provisions herein contained". Proviso (a) goes on to state in this regard that, "no such claim or objection shall be entertained where before the claim is preferred or objection is made, the property attached has already been sold".
Case Title: Sumayya Sherin v. Director General of Police & Ors.
Citation: 2023 LiveLaw (Ker) 276
The Kerala High Court closed the habeas corpus petition filed by a 21 year old woman seeking the release of her lesbian partner from the custody of her family.
The Division Bench comprising Justice P.B. Sureshkumar and Justice Shoba Annamma Eapen closed the petition on taking note of the petitioner's partner's/ the alleged detenu's statement that she wished to go with her parents.
The petitioner had averred in her plea that both herself and her partner, who belong to Muslim families had been friends since early school days, and had fallen in love with each other by Class 12. It was submitted that they had been residing together for a while. She stated that a lower court had permitted the two women to live together, and added that the parents and brother of the detenu had, on May 30, 2023, forcefully taken her away.
Case Title: XXX v. XXX
Citation: 2023 LiveLaw (Ker) 277
The Kerala High Court held that in matters of child custody, the welfare of the child alone is to be considered. A mother may be ‘morally bad in the societal sense’, but that does not mean the mother is bad for the welfare of the child, the Court observed.
A division bench comprising Justice Muhamed Mustaque and Justice Sophy Thomas observed,
“In a matter related to the child's custody, the welfare aspect alone has to be considered first. A man or woman may be bad for someone in a contextual relationship, that does not necessarily mean that the person is bad for his/her child. A mother may be morally bad in the societal sense, but that mother may be good for the child as far as the welfare of the child is concerned. The so called morality is created by society based on their own ethos and norms and should not necessarily reflect in a contextual relationship between a parent and child.”
Case Title: The Chairman and Managing Director, BSNL & Ors. v. C.R. Valsalakumari & Anr.
Citation: 2023 LiveLaw (Ker) 283
The Kerala High Court upheld the Administrative Tribunal order which stated that Child Care Leave (CCL) facility cannot be said to be restricted to the two 'eldest' surviving children alone, particularly when such facility had not been availed in respect of the first two children.
Interpreting Section 43-C of the Central Civil Service (Leave) Rules 1972, the Division Bench comprising Justice Alexander Thomas and Justice C. Jayachandran said,
"CCL benefit is available for 'two children', no matter whether they are 'eldest' or not. The only stipulation is that the Rule is available 'upto two children'."
Case Title: Kripesh Krishnan v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 290
The Kerala High Court quashed criminal proceedings against a married man, who was alleged to have committed rape on a married woman.
Justice K. Babu observed that in the present case, the prosecutrix (2nd respondent herein) was a married woman with children, and aware that the petitioner accused was also married. The Court noted that despite the same, she maintained sexual relations with the petitioner on many occasions.
"It is difficult to conclude that the prosecutrix had not given consent for the sexual relationship with the petitioner under any misconception of facts so as to hold that the petitioner is guilty of having committed rape within the meaning of Section 375 of IPC," the Court thus noted.
Case Title: Rajam Babu V Babu K.K
Citation: 2023 LiveLaw (Ker) 294
The Kerala High Court held that when a wife seeks transfer of a matrimonial case to a court of her convenience, it should ordinarily be allowed by the court.
A division bench of Justice Anil K Narendran and Justice P G Ajithkumar passed the order relying on a catena of Apex Court decisions that held that the convenience of the wife has to be prioritised in a petition for transfer of a matrimonial dispute.
Case Title: Suo Motu v. Union of India & Ors.
Citation: 2023 LiveLaw (Ker) 295
The Kerala High Court disposed of the suo moto case initiated in the matter relating to the alleged trespass by some persons into the sacred 'Kalthara' of Ponnambalamedu, a protected forest area near the Sabarimala Temple.
Certain persons had allegedly trespassed and performed pooja in the protected area. The issue came to light after a video of the same surfaced online. The Court in this light initiated a suo motu case and took action on the report of Sabarimala special commissioner.
MADHYA PRADESH HIGH COURT
Case Title: Kalyani Saraswat v. Gajendra & Ors.
Case Citation: 2023 LiveLaw (MP) 18
The Madhya Pradesh High Court, Indore Bench reiterated that the term “ordinarily resides” under Section 9 of the Guardians and Wards Act has to be determined based on the intent of the person concerned residing at a particular place upon reaching there. Justice Subodh Abhyankar observed that the word 'ordinarily resides' has nothing to do with the time spent by a persons at a particular place but his intention to reside at a particular place after reaching there is to be seen.
Case Title: RK v. RB
Case Citation: 2023 LiveLaw (MP) 20
The Madhya Pradesh High Court at Jabalpur held that a criminal revision under Section 19(4) of the Family Courts Act can be preferred against an order for interim maintenance granted under Section 125 of CrPC. Justice Rajendra Kumar (Verma) observed that an order of maintenance affects the rights of a person drastically and substantially and therefore, it cannot be treated as an interlocutory order.
Case Title: Geeta Paliwal & Ors Vs. Sitaram & Ors. Writ Petition No. 2578 of 2022
Case Citation: 2023 LiveLaw (MP) 39
The Madhya Pradesh High Court reiterated that revenue authorities like the Tahsildar cannot put justice to travesty whilst chasing a higher number of disposals. It noted that they cannot delve into complex issues of mutation of property on the basis of will, such as questioning the authenticity or genuineness of wills. Justice Anand Pathak noted that casualness of Revenue Authorities deserve caution and they are expected to be more cautious in future in such types of proceedings. The court appraised the authorities about the prevailing conditions in respect of mutation proceedings undertaken by revenue authorities on the strength of a Will which are disputed and even fabricated. It thus directed the revenue authorities to desist from entering into the arena, which is otherwise earmarked for Civil Courts.
Case title - Santosh Meena vs. Siddharth B.S. Meena [FIRST APPEAL No. 1797 of 2019]
Case Citation: 2023 LiveLaw (MP) 40
While upholding the dissolution of a couple’s marriage on the ground of cruelty, the Madhya Pradesh High Court has observed that the wife not being respectful towards the Husband, or his family member would construe as cruelty towards the husband. Justice Sheel Nagu and Justice Virender Singh upheld the Family Court's order granting a decree of divorce in favor of the husband on the ground of cruelty to be reasonable.
Case Title: Umang Singh Shingar v. The State of Madhya Pradesh
Case Citation: 2023 LiveLaw (MP) 42
The Madhya Pradesh High Court at Jabalpur recently granted anticipatory bail to Congress MLA Umang Singh Shingar in a rape case. Justice Sanjay Dwivedi observed that the matter prima facie does not appear to be a case of any forceful compulsion, the Court noted "Considering the present scenario in which tendency has been developed to make allegation of rape and also of unnatural sex with certain motives against the husband or a person with whom girl has been in love affair, this Court is not expressing any opinion about character of any of the parties i.e applicant and prosecutrix". It granted anticipatory bail to the applicant without commenting upon the merits of the case.
Case Title: Mayank Tiwari v. The State of Madhya Pradesh and Anr.
Case Citation: 2023 LiveLaw (MP) 44
The Madhya Pradesh High Court at Gwalior quashing a rape case observed that a mere breach of promise to marry cannot be said to be a false promise to marry. Justice Deepak Kumar Agarwal observed that only a false promise to marry made with the intention to deceive a woman would vitiate the woman's consent being obtained under the misconception of fact. It stated, “On going through the law laid down by the Hon'ble Apex Court it is evident that there is a distinction between "mere breach of promise'' and ''giving a false promise to marry''. Only a false promise to marry made with an intention to deceive a woman would vitiate the woman's consent being obtained under misconception of fact, but mere breach of promise cannot be said to be a false promise.”
Case Title: Smt. Batasiya Maravi vs. The State Of Madhya Pradesh WP 6948/2023
Case Citation: 2023 LiveLaw (MP) 48
The Madhya Pradesh High Court has held that the second wife of a government employee is not entitled to family pension if the second marriage was done without obtaining a divorce from the first wife and without obtaining prior permission from the State Government as is mandated under the Madhya Pradesh Civil Services (Conduct) Rules 1965. Justice Vivek Agrawal agreed that irrespective of the personal laws, no government servant is entitled to remarry without first obtaining the official permission. "It is a speaking order giving reasons for denial of family pension to the petitioner, who claims to be second wife," Court stated.
Case Title: Vipash & Anr. v. State of M.P. & Anr.
Case Citation: 2023 LiveLaw (MP) 52
The Madhya Pradesh High Court, Indore Bench reiterated the difficulties faced by interfaith couples in India and the societal challenges faced by them to get their marriage solemnised. Justice Vivek Rusia observed that legal framework governing inter-religion marriage is complex and requires the couples to navigate several legal hurdles. It noted that societal opposition to inter-religion marriage often makes it difficult for couples to exercise their legal rights.
Case Title: Manoj Kumar & Ors. v. H.D.F.C. Insurance & Ors.(M.A.-155/2019)
Case Citation: 2023 LiveLaw (MP) 54
The Madhya Pradesh High Court held that the mother of a bachelor Hindu man would have first claim over the compensation awarded under Section 166 of Motor Vehicles Act, 1988 on account of her son’s death. Justice G.S. Ahluwalia observed that by virtue of Section 8 of the Hindu Succession Act, the mother of a deceased bachelor Hindu man is the sole Class-I heir and would thus have the first claim over the compensation awarded under the MV Act. The Court, however, clarified that the compensation on account of death of a person cannot be held to be a property of a male Hindu dying intestate.
Case Title: B Vs. PS Criminal Revision No. 1440 Of 2022
Case Citation: 2023 LiveLaw (MP) 68
The Madhya Pradesh High Court has set aside an order of a family court asking a woman’s second husband to pay her a monthly maintenance allowance after it was revealed that she had not divorced her first husband and as such she was not a legally wedded wife of the second man. Justice Rajendra Kumar Verma found that during her second marriage, the woman was already married to her first husband and that he was still alive. It does denied the woman’s maintenance claim under Section 125 CrPC and the Court pointed out that the term "wife'' under Section 125 CrPC does not envisage a situation wherein both the parties in the alleged marriage have living spouses.
Case Title: S & Ors v. State of MP & Ors
Case Citation: 2023 LiveLaw (MP) 81
The Madhya Pradesh High Court has refused to quash an FIR filed by a woman against her husband and in-laws observing that no newly married wife would like to ruin her matrimonial home unless she is harassed. Justice Dinesh Kumar Paliwal stated, “It is pertinent to mention that FIR has been lodged only within 08 months of marriage and no newly married wife would like to ruin her matrimonial home until and unless she is harassed or subjected to cruelty in connection with demand of dowry”.
MADRAS HIGH COURT
Case Title: P Geetha v. V. Kirubaharan
Case Citation: 2023 LiveLaw (Mad) 2
While allowing a petition filed by a woman for transfer of a divorce petition from Poonamalle to Tiruchirappalli, the Madras High Court said parents are duty bound to maintain their minor children and in absence of a formal application, the courts also are bound to consider grant of interim maintenance to protect the interests of minor children. Justice SM Subramaniam said though order of interim maintenance is conditional on the circumstances that the wife or husband, who makes the claim has no independent income sufficient for her or his support, it is no answer to a claim of maintenance that the wife is educated and could support herself.
Case Title: M Mahalakshmi v. M Vijayakumar
Case Citation: 2023 LiveLaw (Mad) 17
While hearing a petition to transfer a matrimonial dispute from Pudukottai to Ponneri in Tamil Nadu, the Madras High Court noted that the father, who was working as a Village Administration Officer was not paying interim maintenance to his 10 year old daughter. While directing him to make such payment irrespective of visitation rights, Justice SM Subramaniam also directed the District Collector to take strict action against the officer under service rules if he failed to pay such interim maintenance.
Madras High Court Allows Brother To Be Appointed As Legal Guardian Of Woman With Mental Disability
Case Title: G. Babu v. The District Collector and Ors.
Case Citation: 2023 LiveLaw (Mad) 30
The Madurai Bench of Madras High Court on Tuesday while permitting the brother of a schizophrenic patient to be appointed as her legal guardian, observed that “person suffering from multiple disability” in Section 2 (j) of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 must be understood to mean “a person with benchmark disability” as defined in Section 2(r) of the 2016 Act. The Court observed that this would enable the Local Level Committee constituted under Central 44 of 1999 to deal with cases of appointment of guardian for persons suffering from any kind of disability. Justice G. R. Swaminathan observed that the Local Level Committee constituted under Central 44 of 1999 should not confine themselves to cases of congenital conditions such as autism, cerebral palsy and mental retardation alone and that they should also deal with other disabilities as it would enable easier and quicker access to justice.
Case Title: Mohammed Rafi v. State of Tamil Nadu and Others
Case Citation: 2023 LiveLaw (Mad) 34
The Madras High Court has said that the Shariat Councils are neither courts nor arbitrators and thus they cannot pronounce or certify dissolution of marriage by Khula. Justice C Saravanan quashed a Khula certificate issued by the Shariat Council and directed a woman and her husband to approach the Tamil Nadu Legal Services Authority or a Family Court to resolve their disputes. The bench noted that even previously, the High Court in Bader Sayeed Vs. Union of India had restrained bodies such as Kazis from issuing certificates dissolving marriages by Khula.
Case Title: P Amutha v Gunasekaran
Case Citation: 2023 LiveLaw (Mad) 36
The Madras High Court has held that the maintenance allowance that is granted to the wife would not come within the purview of debt and thus, the pension of the husband is not exempt from attachment towards payment of arrears of maintenance.
Highlighting that maintenance is a social justice to prevent destitution and vagrancy, Justice V Sivagnanam observed, "Lawful claim due to a woman in distress should not be denied heartlessly and lawlessly. The conscience of social justice, the cornerstone of our constitution will be protected. Therefore, I hold that the maintenance allowance granted to wife cannot be considered as a debt and she is not a creditor. Hence, exemption under Section 11 of the Pension Act 1871 as well as the exemption provided in Section 60(1)(g) of Civil Procedure Code, cannot be granted to husband."
Case Title: KC v. UK and others
Case Citation: 2023 LiveLaw (Mad) 39
While holding that the courts should always look into the best interest of the child in matters relating to custody, the Madras High Court has directed a mother to return her twin boys to their father in the US. The division bench of Justice PN Prakash (since retired) and Justice Anand Venkatesh said the children are now living in an environment which is alien to them since for nearly 13 years, they were in the US. The court followed the decision of the Supreme Court in Rohit Thammana Gowda v. State of Karnataka and Others wherein the Apex Court observed that the question of 'what is the wish/desire' of the child is different and distinct from the question 'what would be the best interest of the child'. The court had to thus look into the welfare of the child.
Case Title: KC v. UK
Case Citation: 2023 LiveLaw (Mad) 40
The Madras High Court recently held that the law in India does not prohibit a person holding an Overseas Citizenship of India (OCI) card or person temporarily residing here from seeking relief under the Domestic Violence Act in the Indian courts. Justice SM Subramaniam said upon Section 27 of the Protection of Women from Domestic Violence (DV) Act, "unambiguously stipulates that aggrieved person temporarily residing or carrying out business or employed is also falling within the ambit of the Domestic Violence Act, 2005. Therefore, a person, who is temporarily residing in India or Overseas Citizen of India, if abused economically by the spouse, who is residing in other country, is entitled to seek relief under the Act. The cause of action arouses in India, since the aggrieved person is residing in India."
Case Title: S v. V
Case Citation: 2023 LiveLaw (Mad) 42
The Madras High Court recently said that as far as grounds for dissolution of marriage are concerned, they are of continuing nature. Justice GK Ilanthiraiyan held that when the cause of action is of continuing and recurring nature, the subsequent petition for divorce will not be hit by res judicata. The court noted that as long as the cause of action remains different and the relief is founded on new facts, there is no bar on raising the same grounds again.
Hindu Succession Act Will Not Come In Way Of Inheritance By Tribal Women
Case Title: Saravanan and another v. Semmayee and others
Case Citation: 2023 LiveLaw (Mad) 80
The Madras High Court has recently come to the support of tribal women in their struggle for equal succession rights. The court has noted that the Hindu Succession Law does not to exclude tribal women from its operation but only intends to positively include the customs. Clause (2) of Section 2 of the Hindu Succession Act states that the Act shall not apply to the members of the Scheduled Tribe unless the Central Government by notification in the official gazette otherwise directs. Justice SM Subramaniam highlighted that the exclusion under Section 2(2) of the Hindu Succession Act should not come in the way of inheritance by tribal women in areas where Hinduism and Buddhism were being followed.
Case Title: SR v. MCR
Case Citation: 2023 LiveLaw (Mad) 81
The Madras High Court has recently set aside an order of the Family Court directing the wife to pay twenty thousand rupees as interim maintenance to her husband during the pendency of their divorce petition. Justice R Subramanian and Justice K Govindarajan Thilakavadi noted that the Family Court judge had "magnified" a small procedure and had misplaced sympathy. The family judge had noted that the husband had undergone angioplasty and had a stent fixed which made him incapable to work.
Case Title: Kowsalya v. State
Case Citation: 2023 LiveLaw (Mad) 85
The Madras High Court has permitted Kowsalya, wife of Sankar who was hacked to death for marrying from a different caste, to conduct a meeting in memory of Sankar. Kowsalya had approached the court after State denied permission for the meeting citing law and order problems. Justice G Chandrasekharan noted that the offense of Honour killing was increasing every day and that honour killing was not eradicated in Tamil Nadu. In such a situation, the court noted that the scope of starting the Sankar Social Justice Trust and organising a meeting to disseminate information against honour killing and promoting inter caste marriage was laudable. The court added that such object should not be prevented and prohibited by the court.
Case Title: S Nithya v. The District Collector and others
Case Citation: 2023 LiveLaw (Mad) 90
The Madras High Court recently imposed ten thousand rupees cost on a Revenue Divisional Officer/Sub Divisional Magistrate who had rejected the community certificate for two kids belonging to the Kattunayakan community. The cost was imposed on a plea by the kid’s mother seeking to quash the rejection order and to direct the authorities to issue the community certificate. In the present case, the mother of the kids belonged to the Kattunayakan Community (a Scheduled Tribe community) while their father belonged to the Pallar Community (a Scheduled Caste community).
The bench of Acting Chief Justice T Raja and Justice Bharatha Chakravarthy took note of two Government Orders passed by the State in 1975 and 2021 which clarifies that when a child is born out of marriage between parents of two different caste, the children would be considered to belong to either of the caste based on the declaration by parents.
Case Title: Neyatitus v. The Regional Passport Officer
Case Citation: 2023 LiveLaw (Mad) 113
The Madras High Court recently directed the Regional Passport authority to consider the representation of a man who had applied for an Indian Passport. Since his birth certificate showed him as a Srilankan refugee, he was called upon by the passport authorities to give an explanation. Justice GR Swaminathan of the Madurai bench noted that though the petitioner's father was also a Srilankan refugee, the fact that his mother was an Indian citizen was not disputed. The court noted that we were still stuck in patriarchal notions as the authorities automatically assumed the petitioner will partake his father's nationality while his mother remained an Indian citizen making him eligible for an Indian passport. The court was thus convinced that the petitioner had made out a case for grant of relief and directed the authorities to process his application within a period of three weeks.
Case Title: Susila and others v. S Thirumalai and others
Case Citation: 2023 LiveLaw (Mad) 125
While upholding the compensation awarded to the second wife of a man who died in a road accident, the Madras High Court recently observed that for the purpose of claiming compensation under Section 166(1) of the Motor Vehicles Act, the establishment of loss of dependency was sufficient. Justice R Vijayakumar pointed out that under the Act, the basis for entitlement of compensation was dependency. Thus, even a legal heir who was not dependent upon the deceased would not be entitled to receive compensation. The court added that the Act was a benevolent legislation and thus it should be interpreted in a liberal manner to provide monetary relief to the victims and thus serve its real purpose.
Mother Entitled To Arrears Of Maintenance Accrued To Deceased Daughter
Case Title: Annadurai v Jaya
Case Citation: 2023 LiveLaw (Mad) 131
The Madras High Court recently held that a mother is entitled to claim the arrears of maintenance that accrued to her deceased daughter before her death. The court noted that arrears of maintenance was the property of the deceased daughter and after her death, her mother, being a legal guardian, is entitled to this property. Justice V Sivagnanam thus dismissed the criminal revision petition filed by the ex-husband of the deceased daughter challenging the order of the Judicial Magistrate wherein the court allowed the mother to be impleaded to collect the arrears of maintenance.
Case Title: Ilavarsan v The Superintendent of Police and Others
Case Citation: 2023 LiveLaw (Mad) 137
The Madras High Court has directed the Bar Council of Tamil Nadu to initiate disciplinary action against lawyers who are conducting marriage ceremonies in their offices and issuing fake marriage certificates. Noting that marriages performed by Advocates in their office are not valid marriages, the bench of Justice M Dhandapani and Justice R Vijayakumar held that the same have to be registered under the Tamil Nadu Registration of Marriages Act, 2009 and the parties have to physically appear before the Registrar.
Case Title: Kannaian Naidu and others v Kamsala Ammal and others
Case Citation: 2023 LiveLaw (Mad) 172
In a significant verdict, the Madras High Court held that a wife, who contributed to the acquisition of family assets by performing the household chores, would be entitled to an equal share in the properties, as she had indirectly contributed to its purchase.
Justice Krishnan Ramasamy observed that though there was no legislation at present that recognized the contribution made by the wife, the court could very well recognize the same. The Court added that the law does not prevent a Judge from recognizing the contributions. The court agreed with the wife’s submission that she had contributed to the family by taking care of the household and the children. The court noted that the wife, though did not make direct financial contributions, had played a vital role in managing the household chores by looking after the children, cooking, cleaning and managing day-to-day affairs of the family without giving any inconvenience to the plaintiff abroad and moreover, she sacrificed her dreams and spent her entire life towards the family and children.
MANIPUR HIGH COURT
Case Title: J.S Chauhan VS Union Of India
Case Citation: 2023 LiveLaw (Man) 1
The Manipur High Court observed that the drawing of additional HRA by a Central Government employee is permissible if the employee keeps their family in the previous station on their own or rented house after vacating the Government quarters due to transfer to the North East region. Justice M.V. Muralidaran clarified that only rider would be that such family members of the employee must be residing with the employee at the previous place of transfer before being sent to NE region. It thus directed immediate release of HRA for ensuring that employees join difficult stations, “That is the reason why posting to these places is called difficult posting, as it is not normally feasible to keep the families along while working at such stations. In order to ensure that such employees join these difficult stations, the benefit of HRA is extended to their families as well, who are allowed to remain at the last station of posting”.
MEGHALAYA HIGH COURT
Consensual Relationship Leading To Child Birth: Meghalaya High Court Quashes POCSO Case
Case Title: Shri Seiborlang Syiem & 2 Ors.v. State of Meghalaya & Anr.
Case Citation: 2023 LiveLaw (Meg) 4
The Meghalaya High Court has quashed proceedings under the POCSO Act on the ground that the victim was in an intimate and consensual relationship with the accused and both have agreed to stay together as husband and wife. Justice W. Diengdoh observed thus, “this is one such case where a young couple about to cross their years of adolescence have got themselves involved in a romantic relationship and invariably, the relationship turned physical to the extent that through the process of sexual intercourse, pregnancy and eventual birth of a child has occurred.”
Case Title: Shri Abhishek Agarwala & Anr. Vs. Smti Komal Poddar
Case Citation: 2023 LiveLaw (Meg) 11
The Meghalaya High Court recently ruled that an application under Section 12 of the Domestic Violence Act is not a complaint and the procedure and proceedings under Sections 200(Examination of complainant), 202(postponement of issue of process) and 204 (Issue of Process) CrPC cannot be pursued by the parties or by the Magistrate. Justice W. Diengdoh observed that, “An application under Section 12 not being a complaint as defined under Section 2(d) of the Cr.P.C, the procedure for cognizance set out under Section 190(1)(a) of the Code followed by the procedure set out in Chapter XV of the Code for taking cognizance will have no application to a proceeding under the D.V. Act”.
Meghalaya High Court Refuses To Quash POCSO Case Against 'Husband' Of Rape Victim
Case Title: ABM & Anr v. State of Meghalaya & Anr.
Case Citation: 2023 LiveLaw (Meg) 17
The Meghalaya High Court refused to quash a case of aggravated penetrative sexual assault under Section 506 IPC r/w Section 5(j)(ii)(l)/6 of the POCSO Act against a man despite a compromise between the parties, who also claimed to be married to the victim. She was 13 years old when the rape took place and they were living as husband and wife based on the local customs. Justice W. Diengdoh dismissed the petition on the finding that the victim's statement does not in any way show that the sexual relationship or the sexual act between the two was consensual.
ORISSA HIGH COURT
Law That Sex On False Promise To Marriage Amounts To Rape Appears To Be Erroneous, Deserves A Relook
Case Title: Santosh Kumar Nayak v. State of Odisha
Case Citation: 2023 LiveLaw (Ori) 5
The Orissa High Court doubted the law holding that sex on false promise of marriage amounts to rape. The Single Judge Bench of Dr. Justice Sanjeeb Kumar Panigrahi questioned the rationality of 'automatic extension' of Section 90 of the Indian Penal Code (IPC) to determine the validity of consent for sex on false promise of marriage and called for a ‘serious relook’ of the same. “Nonetheless, it radiates from the above discussion that the law is well settled that consent obtained on a false promise to marry is not a valid consent. Hence, the automatic extension of provisions of Section 90 of I.P.C. to determine the effect of a consent under Section 375 of I.P.C. deserves a serious relook. The law holding that false promise to marriage amounts to rape appears to be erroneous.”, the Court stated.
Case Title: Girish Prasad Mishra & Anr. v. Smt. Lopamudra Kar
Case Citation: 2023 LiveLaw (Ori) 6
The Orissa High Court clarified that a complainant need not mention the detailed particulars of every single act of domestic violence in the complaint itself. Thus, even a prima facie disclosure of acts of violence would be sufficient to maintain a complaint under the Domestic Violence Act. While rejecting a revision petition praying to drop the proceedings, the Single Judge Bench of Justice Sashikanta Mishra observed, “After perusing the complaint petition, this Court is of the considered view that some allegations have been made undoubtedly in general terms but then it is not expected of the complainant to cite the detailed particulars of every single such act that may be treated as an act of domestic violence.”
Case Title: Smt. Geeta Tiwari & Anr. v. State of Orissa & Anr.
Case Citation: 2023 LiveLaw (Ori) 15
The Orissa High Court reiterated that a case under Section 498A of the Indian Penal Code can be filed at a place where a woman resides after leaving or being driven out of matrimonial home on account of cruelty. While terming the aforesaid charge as a ‘continuing offence’, the Single Judge Bench of Justice Gourishankar Satapathy observed, “…the physical acts of cruelty have definite consequence on mental faculty of the victim of torture. Hence, the physical cruelty meted to the wife at her matrimonial home would have an adverse impact and effects on the mental health of the wife at her parental home, especially when the offence U/S. 498-A of IPC is a continuing offence and torture as meted to wife at different place would also torture the wife mentally for a longer period.”
Case Title: Rabindra Kumar Mishra & Anr. v. State of Odisha & Anr.
Case Citation: 2023 LiveLaw (Ori) 49
The Orissa High Court observed that an illicit/extra-marital partner of husband cannot be prosecuted under the Domestic Violence Act by wife merely because she lived in the house of the couple. Justice Sashikanta Mishra said, both the women (wife and extra-marital partner) do not share ‘domestic relationship’ as per Section 2(f) of the Act, which is a pre-condition to invoke the provisions of the statute, merely because they stayed under the same roof.
The Orissa High Court has recently imposed costs of Rs. 25,000/- on a wife for suppressing the timeline fixed by the Supreme Court, while allowing transfer of the case, for disposal of the marital dispute by the Family Court. Justice Krushna Ram Mohapatra noted that the petitioner filed an application seeking personal appearance of the opposite party for reconciliation which was rejected and the matter was posted for virtual conciliation. Thereafter, on two consecutive dates none of the parties appeared through virtual mode for reconciliation.
Case Title: Mrs. X v. Mr. Y
Case Citation: 2023 LiveLaw (Ori) 61
Case Title: Nesar Ahmed Khan v. State of Orissa & Ors.
Case Citation: WPCRL No. 160 of 2021
The Orissa High Court has clarified that Muslims cannot seek adoption of minor children under their personal laws and they must strictly follow the prescriptions laid down under the Juvenile Justice (Care and Protection of Children) Act (‘JJ Act’) to undertake any such adoption. The Division Bench of Justice Subhasis Talapatra and Justice Savitri Ratho observed that unlike Hindu Law, there is no practice in Mohammedan Law warranting adoption of child, which was duly admitted by the parties. The Court stated, “True it is that a Muslim can adopt a surrendered child but they have to follow the stringent procedure as laid down under the JJ Act and the Rules made thereunder, but not at their whim. So generally in the Islamic countries instead of adoption the guardianship is provided to a minor who needs care and protection. As such, we hold that the claim of adoption is unsustainable in law.”
PATNA HIGH COURT
Daughter-In-Law Can’t Claim Maintenance From Father-In-Law U/S 125 CrPC
Case Title: Kalyan Sah v. Mosmat Rashmi Priya
Case Citation: 2023 LiveLaw (Pat) 2
The Patna High Court has clarified that a daughter-in-law is not entitled to claim maintenance from her father-in-law under Section 125 of the Code of the Criminal Procedure. The Single Judge Bench of Justice Sunil Dutta Mishra further held that a Family Court cannot invoke Section 125 CrPC to grant interim maintenance while deciding an application for maintenance under Section 19 of the Hindu Adoption and Maintenance Act (the HAMA). The Court said: “Section 125 of Cr.P.C. deals with an order for maintenance of wife, children and parents. The daughter-in-law cannot claim maintenance under Section 125 Cr.P.C. but she can claim the same under Section 19 of the Hindu Adoption and Maintenance Act. The provision of Section 125 Cr.P.C. in petition under Section 19 of the Hindu Adoption and Maintenance Act, 1956 cannot be applied.”
Case Title: JK vs. RS and Anr.
Case Citation: 2023 LiveLaw (Pat) 25
The Patna High Court has said that if a girl child expresses discomfort with staying with her mother, even if it is a temporary circumstance, it is a very necessary ground to be factored in for the Family Court to opine and direct that the girl shall stay with her father. The Division Bench of Justice Harish Kumar and Justice Ashutosh Kumar observed: “The Court exercising parens patriae jurisdiction has to look at the child’s comfort, contentment, health, education, intellectual development, favourable surroundings etc. He has thus to tread the delicate path very cautiously while deciding whether the father’s claim in respect of custody and upbringing is superior or the mother’s.”
Case Title: Amit Kumar and Ors vs. The State of Bihar and Ors
Case Citation: 2023 LiveLaw (Pat) 29
The Patna High Court recently said that Section 468 of CrPC (bar to taking cognizance after lapse of the period of limitation) has applicability in the matter of domestic violence only at the stage of Section 32 of Domestic Violence Act (cognizance and proof for breach of protection order) where question of taking cognizance is involved. Justice Dr. Anshuman said Section 468 of CrPC does not apply in Domestic Violence Act prior to Section 32 of Domestic Violence Act.
Case Title: AM @ AK vs. PD
Case Citation: 2023 LiveLaw (Pat) 32
The Patna High Court has dismissed a criminal revision petition filed by a husband against an order passed by the Additional Principal Judge, Family Court, Katihar, directing him to pay maintenance of Rs.4000/- per month to his wife and minor son. The petitioner had argued that grant of maintenance to the wife is barred under section 125(4) of the Criminal Procedure Code (CrPC) as she refused to live with him without any reasonable cause. While rejecting the contention, Justice Dr. Anshuman observed, “Upon going through the findings recorded by the trial court on the basis of the materials available on record, it transpires to me that ingredient of section 125(4) of Cr.P.C. is not available to the petitioner as not living with the husband is not without cause.”
Case Title: BS vs. SK and Anr
Case Citation: 2023 LiveLaw (Pat) 43
The Patna High Court recently said that the refusal for a DNA test after an allegation of adultery cannot be used to draw an inference to such an extent that the person against whom the accusation has been made "is in adulterous relation with someone because conclusive prove of D.N.A. test is not present." Justice Dr. Anshuman said that adverse inference ought to be drawn but "but this adverse inference shall be drawn only up to that extent that no benefit should be granted to opposite party No.1 but inference cannot be drawn up to that extent that opposite party No.1 is in adulterous relation with someone because conclusive prove of D.N.A. test is not present."
Child Custody Orders Not Rigid And Final, Capable Of Being Altered Keeping In Mind Needs Of Child
Case Title: Ranjan Kumar Gupta vs. Puja Devi
Case Citation: 2023 LiveLaw (Pat) 48
The Patna High Court has said that the orders passed in cases of child custody cannot be made rigid and final and are capable of being altered, keeping in mind the needs of the child. The court said custody orders are always considered interlocutory orders. Justice Sunil Dutta Misra observed that in the custody battles between the parents, the major sufferers are their children. “Under Section 26 of the Hindu Marriage Act, 1956, the Court has been empowered to pass any order or make any arrangement in respect of custody, maintenance and education of children during the pendency of the proceedings or after any decree is passed under the Act. The orders made under this section can be varied, suspended or revoked from time to time. The object of this section is to make just and proper provision for the welfare of minor child.”
PUNJAB AND HARYANA HIGH COURT
Case Title: Rahul v. Shalini
Case Citation: 2023 LiveLaw (PH) 5
Upholding the grant of interim custody of a minor son to his mother, the Punjab and Haryana High Court recently observed that extended family members of the child can never take place of either the father or the mother, when it comes to taking care of the minor. The court was commenting on the father's argument that his parents and other family members are there to look after the minor child. Justice Archana Puri further said that since he is stated to be working in a private sector, he steps out of the house to follow his avocation and as such, may not be having ample time to look after the minor child.
Case Title: Hari Ram Hans Vs Smt Deepali & Ors.
Case Citation: 2023 LiveLaw (PH) 6
Punjab and Haryana High Court has held that the word "Widow" under the Section 19 of the Hindu Adoptions and Maintenance Act, 1956 includes minor grand children staying with her, for the purpose of maintenance from father-in-law. Justice Anil Kshetarpal thus refused interference in a revision petition against a Family Court order which granted maintenance pendente lite of Rs 2000/- to the each of the three grandchildren of the Petitioner (father-in-law). The challenge was premised on the ground that Section 19 of the Hindu Adoptions and Maintenance Act, 1956 entitles the widow daughter-in-law to file an application for maintenance, however, no provision exists to pay the maintenance to the grandchildren.
Case Title: Sunil Sachdeva v. Rashmi and Another
Case Citation: 2023 LiveLaw (PH) 7
The Punjab and Haryana High Court has observed that a wife can file a plea for maintenance under Section 125 of the CrPC, notwithstanding the fact that she already received a lump sum payment by way of alimony from her husband. The case involved a couple who got married in 1983. After a matrimonial dispute between the two, they started living separately in 1993. By way of a written compromise made in 1993, the husband deposited Rs.3 lac in favour of his wife and two children as full and final alimony settlement regarding their past, present and future claims of maintenance. Justice Amarjot Bhatti observed, “It cannot be disputed that it was not possible for a lady and her two children to survive in a meagre amount of Rs. 3 lacs … it is not possible to survive in a meagre salary of Rs.17,000 and to bear the responsibility of her two children who were going in professional colleges. She was to look-after their daily expenditure, food, clothing, transportation, medical expenditure as and when required and other social obligations. Therefore, she was justified in filing the petition under Section 125 CrPC.”
Case Title: Ajay Mehra v. Gauri
Case Citation: 2023 LiveLaw (PH) 9
The Punjab and Haryana High Court recently allowed a man's divorce plea, observing that when a spouse has an incurable mental ailment, leading to "irresponsible and violent behavior, it certainly makes the life of the victim spouse, a living hell". Setting aside the findings of the trial court that had dismissed the man's plea for divorce, the division bench of Justice Ritu Bahri and Justice Deepak Gupta said that the trial court failed to appreciate the medical evidence on his wife's mental health.
Case Title: Sukhjeet Kaur v. Union of India and Others
Case Citation: 2023 LiveLaw (PH) 14
The Punjab and Haryana High Court recently directed the Centre to restore pension to a woman, whose husband - an employee of the Indian Air Force, had died in service in 1975. Her family pension was stopped in April 1982 when the authorities came to know that she had remarried the younger brother of her deceased husband. The division bench of Justice M.S. Ramachandra Rao and Justice Sukhvinder Kaur ordered the authorities to restore the pension to her from 29.04.2011 with interest @ 6% from the said date till the date of payment.
Case Title: State of Punjab and Another v. Amarjit Kaur
Case Citation: 2023 LiveLaw (PH) 20
The Punjab and Haryana High Court has held that the policy excluding married daughters from the benefit of compassionate appointment upon the death of their fathers is unconstitutional on account of being violative of Articles 14 and 15 of the Constitution of India. The division bench of Justice G.S. Sandhawalia and Justice Harpreet Kaur Jeewan observed, “We are of the considered opinion that the exclusion at the outset in the case of a married daughter is apparently arbitrary. The rejection at the threshold only on the ground of gender would be violative of Articlesn 14 and 15 of the Constitution of India since in contrast similarly situated sibling like the son who may be married and living separately would come within the zone of consideration since in his case, under Clause (b) of Note-I, it is not that his consideration is excluded being the married son.”
Case Title - Rupinder Singh vs. Kiran and anr [TA No.326 of 2020(O&M)]
Case Citation: 2023 LiveLaw (PH) 24
Granting relief to the husband in a matrimonial dispute case, the Punjab And Haryana High Court observed that it isn't the case that transfer of a case is always allowed in favor of the wife. With this, the bench of Justice Nidhi Gupta allowed the transfer plea filed by a husband (suffering from brain cancer) and ordered to transfer of case filed by the wife in Gurdaspur to the Ludhiana court.
Case Title: ABC v. State of Haryana and Another
Case Citation: 2023 LiveLaw (PH) 28
The Punjab and Haryana High Court, while upholding an order of acquittal passed by trial court in a rape case, said that the allegation of commission of rape on the pretext of marriage loses significance if the woman continues to be in a sexual relationship with the man even after his marriage with some other woman. Justice Sureshwar Thakur and Justice Kuldeep Tiwari, observed that the sexual relationship was consensual on perusing the FIR and other statements.
Case Title - Varinder Kumar @ Vicky vs. State of Punjab and another
Case Citation: 2023 LiveLaw (PH) 37
The Punjab and Haryana High Court last week quashed an FIR registered against a man on the allegations of committing gang rape against the alleged victim as it observed that at the time of the commission of the alleged offence, the accused was out of the Country. Noting that as per the Investigating Officer, the accused was in London at the time when the offence of rape has been alleged to have taken place, the bench of Justice Jagmohan Bansal termed it to be a case of blackmailing as well as misuse of the process of law.
Man Able To Repay Hefty Loan Amount Can't Deflect From Responsibility Towards Wife, Kids
Case Title - Sandeep Malik vs. Renu and others
Case Citation: 2023 LiveLaw (PH) 40
The Punjab and Haryana High Court has observed that a person who is able to pay a hefty loan amount can not deflect from his responsibility towards his legally wedded wife as well children. The observation was made by the bench of Justice Jagmohan Bansal while upholding a family court order directing one Sandeep Malik, a Lieutenant Colonel, working with the Indian Army to pay a total of Rs. 55,000/- to his wife and minor daughters as maintenance.
Case Title: Bhanu Kiran v. Rahul Khosla and Ors.
Case Citation: 2023 LiveLaw (PH) 41
The Punjab & Haryana High Court held that an appeal under Section 29 (Appeal) of the Protection of Women from Domestic Violence Act, 2005 (the DV Act) is maintainable against interim order passed by Magistrate under Section 23 (Power to grant interim and ex parte orders) of the DV Act and the appellate court has power to pass interim order under section 29 of the DV Act. Justice Jagmohan Bansal observed that an appeal against interim order passed under Section 23 of DV Act is maintainable before Sessions Court under Section 29 of the DV Act.
Case Title - Harvinder Kaur vs. State of Haryana and others
Case Citation: 2023 LiveLaw (PH) 42
In a significant observation, the Punjab and Haryana High Court recently said that despite an increase in educational qualifications and understanding of human relationships, still women in this country are subjected to domestic violence irrespective of age, caste, or religion. Justice Alok Jain held that a complaint filed by a woman under the Protection of Women from Domestic Violence Act 2005 is maintainable against her mother-in-law as well in a shared household.
Case Title: HN Vs State of Punjab & others
Case Citation: 2023 LiveLaw (PH) 49
Ruling that if the custody of either of the parents does not promote the child's welfare, it can be handed over to a third person, the Punjab and Haryana High Court has refused to hand over a 9-year-old girl to her mother, while allowing the maternal grandmother to retain her custody. Justice Manjari Nehru Kaul observed that no doubt the child's mother is her natural guardian, but she cannot merely seek the custody of her daughter on the strength of her legal right.
Case Title – XXXX vs. YYYY
Case Citation: 2023 LiveLaw (PH) 50
The Punjab and Haryana High Court has observed that a husband has got a moral and legal liability to maintain his wife unable to maintain herself, even if he is a professional beggar. The bench of Justice HS Madaan asserted thus while dismissing a plea filed by the husband challenging an order passed by the subordinate court awarding Rs 5K as monthly maintenance to the wife during the pendency of the divorce matter.
Case Title - XXX and another vs. State of UT Chandigarh & others
Case Citation: 2023 LiveLaw (PH) 56
Stressing that State Government cannot shirk its duty to ensure the safety of its citizens, Punjab and Haryana High Court recently directed the Senior Superintendent of Police, UT Chandigarh to examine the alleged threat perception of a same-sex couple and provide them security if needed. The bench of Justice Gurvinder Singh Gill passed this order on the plea of two women (21 and 24 years old) who had moved the Court seeking protection against the private respondents, who are opposed to the live-in relationship of the petitioners and do not approve of their intentions to solemnize ‘same-sex marriage’.
Case Title: Sarbjit Singh v. State of Punjab & Ors.
Case Citation: 2023 LiveLaw (PH) 58
The Punjab and Haryana High Court directed the Punjab Government to pay a compensation of Rs. 5 lakhs for making procrastinated delay in allotment of land to the family members of the deceased Indian Army Soldier who was martyred during the Indo-Pakistan war in 1971. Justice Sureshwar Thakur and Justice Kuldeep Tiwari observed, “Be that as it may, the prolonged gross insensitivity, and, apathy evidently shown by the respondents concerned, to the family members of the deceased soldier, who laid down his life, fighting for the nation during the Indo-Pakistan war in 1971, is but required to be deprecated in the strongest terms.”
Case Title: Chandan Paswan v. State of Punjab and Another
Case Citation: 2023 LiveLaw (PH) 68
Quashing a rape case on the basis of compromise between the accused and complainant, the Punjab and Haryana High Court said their married life cannot be disturbed for the sake of trial in the FIR. Justice Amarjot Bhatti said the offence under Section 376(2)(n), 506 of IPC is a serious offence and is non-compoundable under Section 320 of CrPC but to do a complete justice and to protect the future of the couple, the compromise arrived at between them cannot be ignored.
Mere Pregnancy Of Wife Not Reason Enough For Grant Of Interim Bail
Case Title: Imtiyaz Ahmed v. State of Punjab
Case Citation: 2023 LiveLaw (PH) 71
The Punjab & Haryana High Court has held that mere pregnancy of the wife is not a reason enough for the grant of interim bail to the person accused under Sections 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) registered at Police Station City Khanna, District Ludhiana in October 2022. Justice Jagjit Singh Bedi observed “…mere pregnancy is not a reason enough for the grant of interim bail to the petitioner as the said condition is not a medical condition for which hopsitalization is needed for a significant length of time.”
Case Title: Kaushalya Devi alias Kushaliya Devi vs State of Punjab and others
Case Citation: 2023 LiveLaw (PH) 74
The Punjab And Haryana High Court has allowed a petition filed by a widow challenging the order withholding the family pension and pensionary benefits of her deceased husband who was convicted in a criminal case during his service as a Junior Scale Stenographer in Punjab. Justice Jasgurpreet Singh Puri observed, “No justification has come forth as to under what authority of law, the pension and other benefits of the husband of the petitioner and family pension of the petitioner have been withheld or denied. Therefore, the Constitutional, Statutory and Human Right of the petitioner has been violated by the State.”
Case Title: Manisha Maheshwari vs State of Haryana and Ors.
Case Citation: 2023 LiveLaw (PH) 81
While denying interim custody of a minor child to his biological mother, the Punjab and Haryana High Court has observed that biological parents are disentitled to grant of custody if they abandon their minor child and deprive child from love and affection.
A bench of Justice Sureshwar Thakur was dealing with a petition moved by the biological mother of the minor child, seeking grant of custody.
Case Title: Balwant Kaur v. State of Punjab & Ors.
Case Citation: 2023 LiveLaw (PH) 82
The Punjab and Haryana High Court on Thursday directed Punjab government to provide a compensation of Rs. 5 lakhs to a widow of a deceased soldier for not assigning any revenue rasta with promptitude for the land allotted to her in honour of the service of her deceased husband.
Case Title: X v. State of Punjab
Case Citation: 2023 LiveLaw (PH) 91
Observing that it is not the prosecution's case that the sexually explicit video and photos were "circulated amongst the general public”, the Punjab and Haryana High Court granted anticipatory bail to a man and his extra-marital partner in a case accusing the former of sharing the content in question with the latter.
Case Title: X v. State
Case Citation: 2023 LiveLaw (PH) 92
Observing that a person who does not do equity even with the life companion cannot approach the court to seek approval of his relation under the umbrella of Article 21, the Punjab and Haryana High Court has refused to issue directions for police protection of a Muslim man and his second wife.
Case Title: Rani Devi and another v. State of Punjab and others
Case Citation: 2023 LiveLaw (PH) 104
The Punjab and Haryana High Court has directed the Punjab Irrigation department to release the pensionary benefits to a widow, whose husband has been missing for nearly three decades, within three weeks or there will be a stay on disbursal of the salaries of all the IAS officers posted in the department.
Case Title: X v. Y
Case Citation: 2023 LiveLaw (PH) 110
Observing that a DNA test cannot be ordered in a manner that leads to a roving inquiry, the Punjab and Haryana High Court has set aside the order of a Family Court where in it had allowed a 26-year-old woman's application for DNA test to prove that her mother's former live-in partner is her actual father.
Case Title: State of Haryana v. Darshan Lal and another
Case Citation: 2023 LiveLaw (PH) 117
Observing that a woman's suicide in matrimonial home in itself does not make her in-laws and husband liable for harassment and abetment to commit suicide, the Punjab & Haryana High Court has upheld the acquittal of accused in a 2002 abetment to suicide case. The deceased died by suicide in 2002 in her matrimonial home allegedly due to harassment made on account of a dowry demand. The accused, who were booked on the complaint made by the woman's father, were acquitted by trial court in 2006.
RAJASTHAN HIGH COURT
Widowed Daughter-In-Law Who Is A Dependent Is Eligible For Compassionate Appointment
Case Title: Sushila Devi v. State Of Rajasthan
Case Citation: 2023 LiveLaw (Raj) 1
The Rajasthan High Court relied on Division Bench decision in Smt. Pinki v. The State of Rajasthan & Ors. (2012) to hold that widowed daughter-in-law are also eligible to compassionate appointment as a dependent under Rajasthan Compassionate Appointment of Dependents of Deceased Government Rules, 1996. Justice Sameer Jain observed, “The Rules of 1996 are a beneficial piece of legislation and therefore, we must interpret them harmoniously to read a ‘widowed-daughter-in-law’ as a part and parcel of ‘widowed daughter'”.
Rajasthan High Court Directs State To Ensure Married Couple's Safety
Case Title: Suman Kumari and Anr. v. The State of Rajasthan & 11 Ors.
Case Citation: 2023 LiveLaw (Raj) 7
The Rajasthan High Court directed the State to ensure protection of life and liberty of a married couple. The parties approached the Court for protection of life and liberty, stating that their relatives are not approving and recognising their marriage. Justice Birendra Kumar observed, “The law is well settled that privacy and liberty of individuals cannot be infringed by taking the law in one’s hands. If there is allegation of violation of law, the aggrieved person may take legal recourse and no other step can be at the whim of anyone.”
Case Title: Sunil Kumar v. Smt. Bhawna & Ors
Case Citation: 2023 LiveLaw (Raj) 14
The Rajasthan High Court upheld a maintenance order passed under section 125 CrPC which was challenged on the ground that the wife was allegedly living in adultery. Justice Ashok Kumar Jain observed there was no substantial evidence to prove adultery. It observed that the petitioner was living in Mumbai which is a metro city and maintenance of Rs.4,000/- per month to respondents is not a huge amount looking to the fact that petitioner was running a business.
Govt Employee Has School Going Children, Old Parents Not Ground To Challenge Transfer Order
Case Title: Hemesh Bhavsar v. State of Rajasthan & Ors.
Case Citation: 2023 LiveLaw (Raj) 22
The Rajasthan High Court refused to interfere in the transfer order of a government servant by opining that no malafide has been alleged in the transfer order and that the party has school going children and old parents cannot be a ground for the Court to interfere in the transfer order. Justice Vinit Kumar Mathur observed, “Since the petitioner is a government servant, he is liable to be transferred in the administrative exigency from one place to another. The grounds raised in the petition does not warrant any interference in the transfer order issued by the respondent-Department.”
Case Title: X versus Y
Case Citation: 2023 LiveLaw (Raj) 51
While rejecting a man’s petition to bring on record his alleged son’s paternity test results in the divorce case pending before the Family Court, the Rajasthan High Court has observed that the child cannot be used as a weapon to get divorce on grounds of adultery. Justice Dr. Pushpendra Singh Bhati observed that the court has to keep into paramount consideration the mental and physical health of a child and the aspects adversely affecting it. The Court held, “While choosing between the sanctity of marriage and sanctity of the childhood, the Court has no option but to tilt towards the sanctity of the life, i.e. tilting towards the sanctity of the childhood. The parties may or may not lose the marriage, but the spirit of justice cannot afford to lose the child/childhood, as no Court can shut its eyes, so as only to achieve the goal of justice in matrimonial redressals, while losing the battle of parenthood, being detrimental to the childhood.”
Case Title: SJ vs. The State Of Rajasthan and Ors
Case Citation: 2023 LiveLaw (Raj) 52
The Rajasthan High Court has held that in cases where parties have agreed to allow the custody of the child with one of the parents, it should remain with that party alone, unless it is demonstrated that the same is no longer in the child’s welfare. Justice Vinod Kumar Bharwani and Justice Manindra Mohan Shrivastava observed, “In cases where parties have agreed to allow the custody of the child to remain with one of them, ordinarily, the custody of the child should be allowed to remain with that party alone unless, it could be demonstrated in appropriate proceedings that continuance of such custody is no longer in the welfare of the child.”
Case Title: MK vs. The State Of Rajasthan D.B. Habeas Corpus Petition No. 118/2023
Case Citation: 2023 LiveLaw (Raj) 54
The Rajasthan High Court has directed "adoptive parents" of a child to hand over the custody of the nine-month-old to her biological mother, after finding that the child was illegally taken away by the woman's father and handed over to someone else. Justice Arun Bhansali and Justice Rajendra Prakash Soni directed the government to take appropriate action against the CWC Member for facilitating illegal adoption.
TELANGANA HIGH COURT
Case Title: Kanukuntla Shekar v. State of Telangana
Case Citation: 2023 LiveLaw (Tel) 13
Setting aside the conviction in a rape case dating back to 2015, the Telangana High Court said that the complaint was filed against the accused after he refused to marry the victim girl. Justice G. Anupama Chakravarthy said the complaint was preferred after a lapse of two years, and noted the specific allegation of the victim girl was that she stayed with the accused in a rented house at two places and the accused, made false promise of marrying her and forcibly committed sexual intercourse with her.
UTTARAKHAND HIGH COURT
Caste Status Of Married Woman Is Determined By Birth And Not By Marriage
Case Title: Smt. Poonam v. State of Uttarakhand & Ors.
Case Citation: 2023 LiveLaw (Utt) 2
The Uttarakhand High Court has clarified that caste status of a person is determined by birth and not by her marriage. A Single Judge Bench of Justice Manoj Kumar Tiwari further held that as long as there is no statute or rule that a married woman must obtain a fresh caste certificate upon her marriage, she cannot be denied the benefit of her caste as she was enjoying before the marriage. It observed, “Caste status is acquired by birth and not by marriage. Thus, a girl, who does not belong to Other Backward Classes, will not get benefit of reservation available to Other Backward Classes merely by her marriage to a person belonging to O.B.C.”
Case Citation: 2023 LiveLaw (Utt) 10
The Uttarakhand High Court, while declining to issue the writ of habeas corpus in favour of a husband, has allowed his wife to stay with her friend with whom she is residing on her own free will. Justice Manoj Kumar Tiwari and Justice Pankaj Purohit expressed its inability to grant any relief to the petitioner-husband and said,
“Be that as it may, since the lady has categorically stated that she is living with respondent no. 9 with her own free will, therefore, no further order can be passed.”
