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Family Law: All India Annual Digest 2023
Navya Benny
31 March 2024 8:30 AM GMT
SUPREME COURTCriminal Proceedings For Dowry Demand Cannot Be Quashed Merely Because Divorce Petition Is PendingCase Title: X vs State of Uttar PradeshCase 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: 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.
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.
Case Title: Poonam Anjur Pawar v. Ankur Ashokbhai Pawar
Citation: 2023 LiveLaw (SC) 579
The Supreme Court observed that non-participation in a proceeding of restitution of conjugal rights has civil consequences.
Case details: Nirmala Devi v. State of Himachal Pradesh
Citation: 2023 LiveLaw (SC) 585
The Supreme Court altered the conviction of a woman accused of killing her husband from Section 302 IPC(murder) to Section 304 Part 1 IPC (culpable homicide not amounting to murder).
"The possibility of the accused causing the death of the deceased while being deprived of the power of self-control, due to the provocation on account of the deceased not agreeing to pay Rs.500/- to her daughter cannot be ruled out", the bench of Justices B R Gavai and J B Pardiwala observed. The Court held that the case falls under Exception 1 to Section 300 IPC (sudden and grave provocation).
The court also observed that the weapon used in the crime is a stick which was lying in the house, and that cannot be called a deadly weapon.
Law Presumes Marriage When Man & Woman Cohabits For Long Time: Supreme Court
Case Title: Smt. Shirambai v. The Captain, Record Officer, Sena Corps Abhilekh, Gaya
Citation:2023 LiveLaw (SC) 672
In a notable judgment, the Supreme Court recently observed that when a man and a woman have continuously cohabited for a long time, there is a presumption of marriage.
A bench comprising Justices Hima Kohli and Rajesh Bindal observed: “Law infers a presumption in favour of a marriage when a man and woman have continuously cohabitated for a long spell. No doubt, the said presumption is rebuttable and can be rebutted by leading unimpeachable evidence. When there is any circumstance that weakens such a presumption, courts ought not to ignore the same. The burden lies heavily on the party who seeks to question the cohabitation and to deprive the relationship of a legal sanctity.”
Case: M Sivadasan (Dead) through LRs v. A.Soudamini (Dead) through LRs and others
Citation: 2023 LiveLaw (SC) 721
The Supreme Court has reiterated that for a Hindu female to claim rights under Section 14 of the Hindu Succession Act 1956, she has to be in possession of the property.
Section 14 states that the property of a female Hindu will be her absolute property. "Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner", Section 14(1) says.
Case title: Ilvarasan v. Superintendent of Police
Citation: 2023 LiveLaw (SC) 735
Upholding the fundamental right of a person to choose a life partner, the Supreme overruled a Madras High Court judgment which held that the marriages performed in the offices of the Advocates are not valid as per the Hindu Marriage Act 1955.
Case title: Adarsh CB v. CB Awasthy Sidharthan
Citation: 2023 LiveLaw (SC) 847
In a matrimonial dispute related to a child's custody, the Supreme Court recently modified a condition imposed by the Family Court requiring the father to meet the child in the premises of the Court.
Case Title: Sanjana Kumari v. Vijay Kumar
Citation: 2023 LiveLaw (SC) 848
The Supreme Court observed that a Hindu marriage can be dissolved through a customary divorce deed, provided the existence of such a customary right is established.
This is by virtue of Section 29(2) of the Hindu Marriage Act 1955, which states the none of the provisions of the Act will affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage.
Case Title: NS Balaji v. The Presiding Officer, Debts Recovery Tribunal and others
Citation: 2023 LiveLaw (SC) 853
The Supreme Court has observed that a Karta of a Hindu Undivided Family(HUF) has the right to sell/dispose of/alienate a Hindu Undivided Family (HUF) property, even if a minor of the family has an undivided interest.
The reason is that a HUF is capable of acting through its Karta or an adult member of the family in the management of the HUF property, explained the Court. Reference was made to the judgment in Sri Narayan Bal v. Sridhar Sutar (1996) 8 SCC 54.
Will Can't Be Presumed To Be Valid Merely Because It Is Registered: Supreme Court
Case Title: Dhani Ram (died) through LRs. & others V. Shiv Singh, Civil Appeal No. 8172 of 2009
Citation: 2023 LiveLaw (SC) 862
The Supreme Court on Friday (06.10.2023) held that mere registration would not sanctify a document by attaching to it an irrebuttable presumption of genuineness.
A bench of Justice C.T. Ravikumar and Justice Sanjay Kumar agreeing with the view of the Trial Court and affirming the order of the High Court said:
“…the Trial Court rightly opined that mere registration of the Will would not be sufficient to prove its validity, as its lawful execution necessarily had to be proved in accordance with Section 68 of the Indian Evidence Act, 1872 (for brevity, 'the Evidence Act'), and Section 63 of the Indian Succession Act, 1925 (for brevity, 'the Succession Act')
Case Title: Dr. Nirmal Singh Panesar v. Mrs. Paramjit Kaur Panesar @ Ajinder Kaur Panesar, Civil Appeal No.2045 of 2011
Citation: 2023 LiveLaw (SC) 873
The Supreme Court on Tuesday held that it can exercise its discretion under the inherent powers under Article 142 of the Constitution of India for dissolving a marriage on the ground of 'irretrievable breakdown of marriage', even when one of the spouses opposes the dissolution of marriage. However, the Court said that such discretion must be exercised with great care and caution.
The Court also clarified that since the institution of marriage is considered to be a 'pious' and 'spiritual' union in Indian society, a strait-jacket formula for the grant of relief of divorce under Article 142 on the ground of 'irretrievable breakdown of marriage' may not be desirable
Case title: X v. Union of India
Citation: 2023 LiveLaw (SC) 877
The Supreme Court on Monday (09.10.2023) in an order allowing the medical termination of pregnancy of a married woman who is 26 weeks pregnant has highlighted the importance of family planning and taking adequate precautions.
It is however, important to note that on October 11th, while hearing the recall application filed by the Union against the said order, the bench of Justice Hima Kohli and Justice BV Nagarathna has referred the matter to a larger bench. The recall application was filed by the Union citing a subsequent medical report that said that the foetus has a high chance of survival.
Case Title: Supriyo v. Union of India | Writ Petition (Civil) No. 1011 of 2022
Citation: 2023 LiveLaw (SC) 900
The Supreme Court on 17.10.2023 refused to grant legal recognition for queer marriages in India saying that it is a matter for the legislature to decide. However, all the judges on the bench agreed that the Union of India, as per its earlier statement, shall constitute a committee to examine the rights and entitlements of persons in the queer union, without legal recognition of their relationship as a "marriage".
The Court also unanimously held that queer couples have a right to cohabit without any threat of violence, coercion or interference; but refrained from passing any directions to formally recognize such relationships as marriages.
Case Title: Supriyo v. Union of India | Writ Petition (Civil) No. 1011 of 2022
Citation: 2023 LiveLaw (SC) 900
The Supreme Court today refused to grant legal recognition for queer marriages in India. The Constitution bench has pronounced four judgments– written by CJI DY Chandrachud, Justice SK Kaul, Justice Ravindra Bhat, and Justice PS Narasimha respectively, with Justice Hima Kohli concurring with the view of Justice Bhat. Along with this, the Supreme Court also declined the right of adoption to queer couples by a 3:2 majority.
Case Title: Supriyo v. Union of India | Writ Petition (Civil) No. 1011 of 2022
Citation: 2023 LiveLaw (SC) 900
While refusing to grant legal recognition for queer marriages in India, the Supreme Court today affirmed that transgender persons in heterosexual relationships have a right to marry as per the existing statutory laws or personal laws.
The Constitution bench pronounced four judgements– written by CJI DY Chandrachud, Justice SK Kaul, Justice Ravindra Bhat and Justice PS Narasimha respectively, with Justice Hima Kohli concurring with the view of Justice Bhat.
Case Title: Supriyo v. Union of India | Writ Petition (Civil) No. 1011 of 2022
Citation: 2023 LiveLaw (SC) 900
Even though the Supreme Court refrained from granting legal recognition for same-sex marriages, it did make a strong call to the State to take steps to end the discrimination faced by queer couples and to ensure protection for their right to cohabitation.
The Court observed that the discrimination faced by the queer community due to the exclusion of same-sex partners from welfare measures due to the heteronormative definitions in laws must be addressed by the State.
Case Title: Supriyo v. Union of India | Writ Petition (Civil) No. 1011 of 2022
Citation: 2023 LiveLaw (SC) 900
"There is a degree of agreement and a degree of disagreement on how far we have to go," remarked CJI DY Chandrachud as he commenced the pronouncement of the judgment denying the grant of legal recognition for queer marriages in India in open court yesterday.
With four separate judgments authored by CJI DY Chandrachud, Justice SK Kaul, Justice Ravindra Bhat, and Justice PS Narasimha, a lot seems to be clarified on these "agreements and disagreements" of the bench on crucial questions of law.
Case Title: Supriyo v. Union of India | Writ Petition (Civil) No. 1011 of 2022
Citation: 2023 LiveLaw (SC) 900
On October 17, 2023, a Supreme Court Constitution Bench unanimously held that it could not strike down or read down the provisions of the Special Marriage Act (SMA),1954 to include non-heterosexual unions within the ambit of 'marriage'. In doing so, the Supreme Court effectively denied legal recognition for queer marriages in India.
Despite the Constitution bench having pronounced four judgments– written by CJI DY Chandrachud, Justice SK Kaul, Justice Ravindra Bhat and Justice PS Narasimha respectively, with Justice Hima Kohli concurring with the view of Justice Bhat, all five judges, in one voice, agreed to not strike or read the SMA down.
The court stated that reading the provisions of the SMA to bring within its fold queer marriages would amount to a legislative exercise which fell exclusively within the domain of the Parliament.
Case Details: Manmohan Gopal V. State Of Chhattisgarh
Citation: 2023 LiveLaw (SC) 921
The Supreme Court recently directed sale of ancestral property of a man to pay arrears of maintenance of Rs. 1.25 Crores to his wife under its inherent powers under Article 142.
A bench of Justice Ravindra Bhat and Justice Aravind Kumar relied on decisions of the Apex Court in Subrata Roy Sahara V Union Of India [2014] 12 SCR 573 and Delhi Development Authority V. Skipper Construction 1996 (2) Suppl. SCR 295 to observe that the Supreme Court is not powerless, but can issue appropriate directions, and even decrees, for doing complete justice between the parties.
Case Title: ADITI ALIAS MITHI V. JITESH SHARMA
Citation: 2023 LiveLaw (SC) 963
The Supreme Court on Monday (06.11.2023) observed that the detailed guidelines issued by it in Rajnesh v. Neha and Another, (2021) 2 SCC 32 regarding the payment of maintenance in matrimonial matters is not being followed in many cases. Accordingly, the Apex Court has issued a direction for a copy of the judgment containing guidelines for expeditious disposal of cases involving grant of maintenance, to be re-circulated to judicial officers in all High Courts across the country
Case Title: Mahalakshmi v. State of Karnataka
Citation : 2023 LiveLaw(SC) 1041
Recently, the Supreme Court (on November 30) while quashing the criminal proceedings for the offense of cruelty under Section 498A of the Indian Penal Code, 1860, observed that one occurrence, unless serious, with no clear evidence of involvement in the complainant's life, is not sufficient to implicate a person under this provision.
“One instance unless portentous, in the absence of any material evidence of interference and involvement in the marital life of the complainant, may not be sufficient to implicate the person as having committed cruelty under section 498A of the IPC.,” the bench of Justices Sanjiv Khanna and S.V.N Bhatti observed.
Case Title: Kunal Choudhary v. State of Jharkhand
Citation: 2023 LiveLaw (SC) 1045
Recently, the Supreme Court observed that while granting anticipatory bail to the accused husband under Section 498A of the IPC, a condition that the husband shall take his wife to his house and maintain and honor her, cannot be imposed.
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.
Case title: Suneeta And Another vs. State Of U P And 3 Others
Case Citation: 2023 LiveLaw (AB) 204
Observing that live-in relationships cannot be at the cost of the social fabric of this Country¸ the Allahabad High Court recently dismissed a writ plea filed by a married woman and her live-in partner, seeking police protection on the grounds that her husband is endangering their peaceful lives.
However, the bench of Justice Renu Agarwal further clarified that the Court is not against live-in relationships but against illegal relations.
“…this Court does not deem it proper to permit the parties to such illegality as tomorrow petitioners may convey that we have sanctified their illicit relations. Live-in-relationship cannot be at the cost of the social fabric of this Country. Directing the police to grant protection to them may indirectly give our assent to such illicit relations.”
Case Title: Neelam Devi vs. State Of U.P.Thru Prin.Secy.Co-Operative Lko And
Case Citation: 2023 LiveLaw (AB) 219
The Allahabad High Court struck down the word 'unmarried' occurring before 'daughter' in the note appended to Regulation 104 of U.P. Cooperative Societies Employees' Service Regulations, 1975 which governs eligibility for compassionate appointment.
A bench comprising Justices Devendra Kumar Upadhyaya and Om Prakash Shukla observed that the State has recognised the right of daughters irrespective of their marital status while amending the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974. The same recognition should be granted to daughters under the 1975 Regulations.
Case Title: Jai Govind @ Ramji Yadav vs. State Of U.P.
Case Citation: 2023 LiveLaw (AB) 227
The Allahabad High Court observed that the youth of the country are spoiling their lives due to the lure of free relationships with members of the opposite sex aping Western culture, however, they end up finding no "real soulmate".
"The youth in this country, under the influence of social media, movies, TV serials and the web series being shown are not able to decide about the correct course of their life and in search of their correct soulmates, they often land up in the company of the wrong person...The social media, movies etc., show that multiple affairs and infidelity to the spouse are normal and this inflames the imagination of impressionable minds and they start experimenting with the same, but they do (not) fit in the prevailing societal norm," observed Justice Siddharth.
Case title - Bharti And Another vs. State Of U P And 3 Others
Case Citation: 2023 LiveLaw (AB) 228
The Allahabad High Court dismissed a protection plea filed by a married woman and her live-in partner while observing that since the lady has not divorced her husband, she and her live-in partner have no legal right to seek protection.
"...as the petitioner No.1 (lady) is not found to have obtained divorce from her husband i.e. respondent No.4, she still will be treated as legally weded wife of respondent No.4 and the petitioners have no legal right to seek protection on the facts of present case," the bench of Justice Ram Manohar Narayan Mishra observed.
Case Title: Garima Singh vs. Pratima Singh and Another 2023 LiveLaw (AB) 233
Case Citation: 2023 LiveLaw (AB) 233
The Allahabad High Court has upheld the right of the first wife to file an application under Section 11 (void marriages) of the Hindu Marriage Act, 1955 for declaration of her husband's second marriage as void.
On the harmonious reading of the Family Courts Act, 1984 and the Hindu Marriage Act, 1955, bench comprising of Justices Saumitra Dayal Singh and Vinod Diwakar held:
“If the first wife is deprived of seeking a remedy under Section 11 of the Hindu Marriage Act, it would defeat the very purpose and intent of the Act. The protection offered to legally wedded wives under sections 5, 11, and 12 of the Hindu Marriage Act would become insignificant in such a scenario.”
Case Title - Saloni Yadav And Another vs. State Of U.P. And 3 Others 2023 LiveLaw (AB) 238
Case Citation: 2023 LiveLaw (AB) 238
The Allahabad High Court has observed that a 'child' (a person below the age of 18 years) cannot be in a live-in relationship and this would be an act not only immoral but also illegal.
The Court also said that there are several conditions for a live-in relation to be treated as a relation in nature of marriage and in any case, a person has to be major (above the age of 18 years) although he may not be of marriageable age (21 years).
Case Title: Azad Ahmad Khan vs. Income Tax Appellate Tribunal
Case Citation: 2023 LiveLaw (AB) 239
The Allahabad High Court has held that exemptions cannot be claimed from paying estate duty under Estate Duty Act, 1953 if waqif has a reserved right to amend the waqf deed and provisions therein to derive gains from the waqf property.
The petitioner is the adopted child of one Gulam Azad Khan who allegedly created a waqf-alal-aulad under the Mussalman Waqf Validating Act, 1913. As per the Waqf deed, Rs. 100 out of the total proceeds of M/s. General Engineering Works (waqf property) was to be spent towards almighty and rest of the proceeds were to be utilised as per the wishes of the waqif Gulam Ahmad Khan during his lifetime. Gulam Ahmad Khan also reserved the right to make changes in the waqf deed and sell off the assets entrusted to the waqf including M/s. General Engineering Works.
Case Title: Prabhat Bhatnagar vs. State of U.P. and Others
Case Citation: 2023 LiveLaw (AB) 279
The Allahabad High Court set aside the dismissal of a government employee for allegedly entering into a second marriage during the subsistence of his first marriage, finding merit in the petitioner's argument that the punishment was unjust since the alleged second marriage was not sufficiently proven.
Justice Kshitij Shailendra further held that even if the second marriage was subsisting, the petitioner could not have been dismissed from service as Rule 29 of the UP Government Servants Conduct Rules only provides for minor punishment in case of a second marriage of a government servant.
Case Title: Jugal vs. State Of U.P. 2023 LiveLaw (AB) 283
Case Citation: 2023 LiveLaw (AB) 283
The Allahabad High Court set aside the sentence of the death penalty imposed on a man accused of killing his mother-in-law and brother-in-law by setting them ablaze as the Court noted that his guilt had not been established beyond reasonable doubt.
“We find in the facts of the case that the court below has not subjected the testimony of witnesses to careful scrutiny and has accepted the prosecution case on its basis. The law with regard to the evaluation of the dying declaration has also not been applied correctly in the facts of the present case,” the bench Of Justice Ashwani Kumar Mishra and Justice Syed Aftab Husain Rizvi observed as it gave a benefit of doubt to the accused.
Case Title: Pushpendra Singh vs. Smt. Seema
Case Citation: 2023 LiveLaw (AB) 296
The Allahabad High Court while adjudicating an appeal against interim maintenance awarded to the wife by the Family Court, has held that the minimum amount must be paid to the estranged wife from the date of the claim to preserve her life and liberty with dignity.
The Bench comprising Justice Saumitra Dayal Singh and Justice Rajendra Kumar-IV has upheld the interim maintenance of Rs. 7,000/- awarded to the wife and children by the Family Court while observing,
“Insofar as the award has been made from the date of the application, again, we find no good ground to interfere with the same. Minimum amounts are required to be provided from the date of the claim being made to ensure the life and liberty of the respondent/estranged wife involved in a matrimonial discord situation is preserved with minimal dignity,”
Case Title: Eti Tyagi vs. Prince Tyagi
Case Citation: 2023 LiveLaw (AB) 297
The Allahabad High Court waived off the cooling-off for a married couple as they had mutually filed for dissolution of marriage under Section 13-B of Hindu Marriage Act, after entering a Memorandum of Understanding amicably.
The court said the substantive right of the two parties that settle their conflict amicably must not be interfered with by citing procedure.
A bench comprising Justices Attau Rahman Masoodi and Om Prakash Shukla observed,
“This Court may note that legitimacy or otherwise of an MOU arrived at between the parties out of their free will is not open to judicial scrutiny except on the ground of fraud. The very idea of settlement through mediation or amicable means runs and progresses through this realm of philosophy.”
Case title: Adnan vs. State Of U.P. And 3 Others
Case Citation: 2023 LiveLaw (AB) 300
Granting bail to a man accused of raping his live-in partner, the Allahabad High Court observed that a systematic design is working to destroy the institution of marriage in India and that films and TV serials are contributing to the same.
Opining that the brutish concept of "changing partners in every season" cannot be considered to be a hallmark of a "stable and healthy" society, the Court stressed that the security and stability that the institution of marriage provides to an individual, cannot be expected from live-in-relationship.
"Live-in-relationship shall only be considered as normal after the institution of marriage becomes obsolete in this country, like in many of the so-called developed countries where it has become a big problem for them to protect the institution of marriage. We are proceedings to create a great problem for us in future...Infidelity to a partner in a married relationship and having a free live-in-relationship are being shown as signs of a progressive society. The youth gets attracted to such philosophy being advanced unaware of the long-term consequences" the bench of Justice Siddharth remarked.
Live In Relations Can't Provide Stability; Difficult For A Woman To Find Husband After Coming Out Of Such Relation: Allahabad HC
Case title: Adnan vs. State Of U.P. And 3 Others
Case Citation: 2023 LiveLaw (AB) 300
Granting bail to a man accused of raping his married live-in partner, the Allahabad High Court observed that it is very difficult for a woman to find a male partner for marriage after they come out of a live-in relationship.
Noting that such relations do not have social action of Indian people, which mainly consists of the middle class, the bench observed that such middle class doesn't look upon such separated females as normal.
"They do(nt) consider a female coming out of such a relationship as a normal being. Exception apart, no family willingly accepts such a female as their family member. There is no dearth of cases coming to the courts where the female partner of an erstwhile relationship commits suicide out of disgust caused by socially ill behaviour," the Court remarked.
Case title: Shraddha @ Jannat And Another vs. State Of U.P. And 5 Others
Case Citation: 2023 LiveLaw (AB) 304
The Allahabad High Court rejected a protection plea filed by an inter-religious couple (who happen to be distant cousins) who purportedly married each other as per the Hindu rites and rituals.
The Court noted that the Petitioner no. 1/Girl, a Muslim by birth, had not complied with Sections 8 and 9 of the UP Prohibition of Unlawful Conversion of Religion Act 2021 before converting herself to Hinduism. In this case, while petitioner no. 1 belonged to the Muslim religious community, petitioner no. 2/Boy is a Hindu.
"The version of petitioner no. 1/Girl for performing marriage with petitioner no. 2/Boy into Hindu religious cannot be given effect at this stage for want of compliance of Section 8 and 9 of the Act and the relief sought by the petitioners cannot be granted at this stage," the bench of Justice Ram Manohar Narayan Mishra observed.
Case Title: Razia and Another v. State of U.P. and Others.
LL Citation: 2023 LiveLaw (AB) 308
The Allahabad High Court has ordered Police to provide protection in case of threat to an inter-religion couple living together in live-in relationship.
A bench comprising Justice Surendra Singh-I held,
“Having regard to the facts and circumstances of the case and the law laid down by the Apex Court in its catena of judgements, this Court is of the opinion that the petitioners are at liberty to live together and no person, including their parents or anyone acting on their behalf, shall be permitted to interfere in their peaceful live-in-relationship. In case any disturbance is caused in the peaceful living of the petitioners, the petitioners shall approach the Superintendent of Police concerned, with a copy of this order, who shall provide immediate protection to the petitioners.”
Allahabad HC Orders Medical Facility, Compensation For Minor Rape Survivor Seeking Abortion As Her Father Agrees To Keep Baby Till Adoption
Case title: X vs. State Of U.P. And 4 Others
Case Citation: 2023 LiveLaw (AB) 311
The Allahabad High Court ordered adequate medical facility and compensation for a 15-year-old year rape victim seeking to terminate her 29-week pregnancy after her father agreed to look after the newborn baby till adoption.
The rape survivor had essentially moved the High Court seeking to terminate her pregnancy, however, looking at the medical report of the girl, which stated that the fetus is of 30 weeks gestational age and there is a possibility of live birth as the fetus (unborn child) has crossed the age of viability (i.e. more than 24 weeks Gestational age), her father agreed to keep and look after the baby until the adoption.
Case Title: Sachin v. Sangeeta Devi
Case citation: 2023 LiveLaw (AB) 320
The Allahabad High Court has refused to order the DNA test of a child on the plea of a man seeking to prove adultery allegations he levelled against his wife by demonstrating that the child was not his legitimate son.
The child in question was born within 9 months of the man's marriage with his wife (respondent).
A bench comprising of Justices Saumitra Dayal Singh and Rajendra Kumar-IV however observed that there were no pleadings to the effect that the parties had not known each or met each other before marriage. It held,
"Qua the allegation of adultery being levelled by the appellant, the burden to establish the same remains on the appellant. He cannot seek to lighten that burden by forcing the opposite party to lead evidence as may not only demolish the defence, if any of the opposite party but also be read as evidence that may prove the case of the appellants."
Case title: Santosh Kumar vs. Gayatri Devi 2023 LiveLaw (AB) 338
Case Citation: 2023 LiveLaw (AB) 338
The Allahabad High Court recently observed that so long as a marriage survives, it remains the duty of the earning spouse to protect the life, liberty and dignity of the other.
The bench of Justice Saumitra Dayal Singh and Justice Rajendra Kumar-IV observed thus while hearing an appeal filed by one Santosh Kumar challenging an order passed by the Family Court under Section 24 of the Hindu Marriage Act, 1955 providing for Rs. 7K per month as interim maintenance to his wife.
Case Title: Amit Jaiswal v. Dr. Pankhuri Agarwal @ Dr. Pankhuri Jaiswal
Case Citation: 2023 LiveLaw (AB) 339
The Allahabad High Court has held that the family court ought not to reject an application filed for waving of the statutory six-month cooling off period in divorce proceedings under Section 13B(2) of the Hindu Marriage Act, 1955 in a mechanical manner.
A bench comprising of Justices Saumitra Dayal Singh and Arun Kumar Singh Deshwal placed reliance on an earlier decision of the bench headed by Justice Singh in Vijay Agarwal v. Smt. Suchita Bansal, wherein the Court had held that the cooling off period under the provision is not mandatory. It is merely directory, and the discretion to waive the same rests with the Court.
Case Title : Abhishek Singh v. Shashi Singh @ Bindu Singh
Case Citation: 2023 LiveLaw (AB) 341
The Allahabad High Court has held that an amendment application may only be allowed if the party seeking amendment can show that there will be irreparable injury or justice will not be done in case the amendment sought is not allowed.
Court was hearing an appeal against the order of the Family Court rejecting application seeking amendment in written statement on the ground that it was necessary amendment. It was argued that the appellant-husband had missed raising the objection in the written statement that the respondent-wife had set up a claim contrary to Section 27 of the Hindu Marriage Act, 1955.
Case Title: Priti Yadav @ Pinki v. Ashwani Gwal
Case Citation: 2023 LiveLaw (AB) 343
The Allahabad High Court has set aside the order of the Family Court directing parties to mediation, instead of waiving the cooling off period after almost eight years of living separately. The Court held that with changing times, the Court should be mindful of the realities and depart from obsolete and conservative approach in matrimonial disputes.
The bench comprising of Justices Saumitra Dayal Singh and Arun Kumar Singh Deshwal held,
“In the context of matrimonial disputes arising in present times, the courts are required to stay tuned to the realities of life and depart from obsolete and conservative approach to such litigation. While preservation of marriage survives as a desired goal and all the courts must first examine if a troubled marriage may be made to work for the good of the parties involved, at the same time it essentially being a matter of personal choice, upon fair consensus reached by the parties to dissolve their marriage, parties may not be obstructed only to seek technical compliance of procedural safeguards.”
Case title: Smriti Singh Alias Mausami Singh And 3 Others vs. State of U.P. and Another
Case Citation: 2023 LiveLaw (AB) 361
The Allahabad High Court observed that a Hindu marriage cannot be 'solemnised' unless the 'Saptapadi' ceremony (taking of seven steps by the the bridegroom and the bride jointly before the sacred fire) and other rituals have been performed.
With this, the bench of Justice Sanjay Kumar Singh allowed a petition filed by one Smriti Singh challenging the entire proceedings of a complaint filed against her by her husband under Sections 494 (Bigamy) and 109 (Punishment of abetment) IPC.
Invoking Doctrine Of 'Parens Patriae', Allahabad HC Appoints Wife As Guardian Of Husband In Comatose
Case Title: Pooja Sharma vs. State Of U.P. And 2 Others
Case Citation: 2023 LiveLaw (AB) 365
The Allahabad High Court has invoked the doctrine of 'Parens Patriae' to appoint petitioner-wife as the guardian of her husband who is in permanent vegetative state, to meet the ends of justice.
A bench comprising of Justices Mahesh Chandra Tripathi and Prashant Kumar held
“Mental incompetency is listed as an exceptional circumstance which would justify the exercise of this jurisdiction. If the Court is satisfied that the person concerned is in a vegetative state, then surely “parens patriae” jurisdiction can be exercised.”
Case Title:- Smt. Adity Rastogi v. Anubhav Verma [FIRST APPEAL No. - 1145 of 2023]
Citation: 2023 LiveLaw (AB) 412
The Allahabad High Court has held that though the term 'residing' appearing in Section 19 (Court to which petition shall be presented) of the Hindu Marriage Act, 1955 is not defined under the Act, a casual visit to a place will not grant jurisdiction to the Court in that area to adjudicate upon divorce proceedings.
The bench comprising of Justices Saumitra Dayal Singh and Syed Aftab Husain Rizvi while hearing an appeal of wife residing in Australia held,
“The term 'residing' though not defined under the Act, it clearly denotes more than a casual visit to a place falling within the territorial jurisdiction of the Court where a divorce proceeding may be instituted. Once it is admitted to the appellant that she is continuing to reside in Australia though under force of circumstance, it has to be maintained in law that she is not residing within the territorial jurisdiction of the Family Court, Moradabad.”
Case Title: Deepak vs. Smt. Reena
Citation: 2023 LiveLaw (AB) 450
The Allahabad High Court has held that order passed by the Family Court under Section 125 of Code Of Criminal Procedure, 1973 is not appealable before the High Court under Section 19 of the Family Courts Act, 1984.
While referring to Section 19 of the Family Courts Act, 1984, the bench comprising of Justice Saumitra Dayal Singh and Justice Shiv Shanker Prasad held
“By using the words "Save as provided in sub-section (2)", the parliament has left no doubt to be entertained as to the supremacy of sub-section (2) of Section 19 with respect to right of appeal created under Section 19(1) of the Act. Section 19(2) of the Act clearly denies right of appeal against any order that may be passed by a Family Court under Chapter IX of the Cr.P.C. Undisputedly Section 125 Cr.P.C. is an integral part of Chapter IX of the Cr.P.C.”
Case Title: Smt. Jyoti Verma vs. Prashant Kumar Verma
Citation: 2023 LiveLaw (AB) 453
The Allahabad High Court has held that even though opportunity of hearing before passing an order is non-negotiable, the same cannot be used to defeat the ends of justice. The Court held that if delay has been negligently or deliberately caused by one party, it cannot be allowed to take advantage of the delay.
The bench comprising Justice Saumitra Dayal Singh and Justice Shiv Shanker Prasad held,
“Delay largely attributed to the conduct of a party, he may never be allowed to turn around and take advantage of the same even if the costs are offered to be paid. To accept the same, it would be to make mockery of justice dispensation.”
Case Title: Rohit Chaturvedi vs. Smt Neha Chaturvedi
Citation: 2023 LiveLaw (AB) 456
In a recent judgment, the Allahabad High Court has held that allegations of illicit relationship of a spouse cannot be left to the imagination of the court. Such allegations must be clearly made.
While granting a decree of judicial separation under Section 13A of the Hindu Marriage Act, 1955, the Court held,
“To infer existence of illicit relationship, it is not to be left to the imagination of the Court what the parties may have intended to say by way of fact allegation. The allegation of one party having illicit relationship with another must be clear.”
The bench comprising Justice Saumitra Dayal Singh and Justice Shiv Shanker Prasad observed that small disputes or incidents between parties to a marriage cannot be treated as cruelty. If the Courts consider such incidents as ingredients of cruelty, many marriages would be exposed to the threat of dissolution.
“If courts were to recognize and act on small disputes or occurrences and read them as completion of ingredients of cruelty, many marriages where parties may not be enjoying best relations may stand exposed to dissolution without any real cruelty being committed.”
Case Title: Smt. Monika Yadav v. Aakash Singh And 3 Others
Case Citation: 2023 LiveLaw (AB) 465
The Allahabad High Court has held that an appeal against the order of a Civil Judge rejecting a plea for the issuance of a succession certificate would lie before the District Judge under Section 388(2) of the Indian Succession Act, 1925, and not before the High Court under Section 384 of the Act.
The Court held that the legislative intent was to provide for an appellate mechanism before a District Judge, and 'not to the High Court.'
Case citation: 2023 LiveLaw (AB) 479
While acquitting a husband of the charges under Section 377 IPC for allegedly committing an “unnatural offence” against his wife, the Allahabad High Court has observed that protection of a person from marital rape continues in cases where his wife is of 18 years of age or more than that.
In its order, the bench of Justice Ram Manohar Narayan Mishra also noted that in the proposed Bhartiya Nyay Sanhita (which is likely to replace the Indian Penal Code), there is no provision like Section 377 IPC.
Case Title: Takbeer Khan (Minor)Thru. His Mother Rehana vs. State Of U.P. Thru. Prin. Secy. Home Lucknow And 3 Others
Citation: 2023 LiveLaw (AB) 493
The Allahabad High Court has observed that according to the Mohammedan Law, a mother is entitled to custody (hizanat) of a male child until he completes the age of 7 years.
The bench of Justice Karunesh Singh Pawar observed thus while allowing a habeas corpus filed by the mother (Rehana) of the detenue-Takbeer Khan, aged about 3 years and 7 months. In her plea, she had sought custody of her child, currently residing with her husband (Intiyaj Khan/opposite party No.4).
"...considering the tender age of the detenue, in peculiar facts of this case, this Court is of the view that custody of the detenue should be given to the deponent-Rehana", the bench observed as it directed the husband to hand over the custody of the detenue to his mother/deponent.
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.
Case citation: 2023 LiveLaw (AP) 11
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 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.
Case Title: Vase Ananda Rao v. Smt. Vase Lakshmi Pragna
Citation: 2023 LiveLaw (AP) 44
The Andhra Pradesh High Court recently held that an Additional District Judge has the jurisdiction to hear and dispose of divorce petitions filed under Section 27 of the Special Marriage Act, 1954.
Justice R. Raghunandan Rao added that Section 11(2) of the A.P Civil Courts Act empowers the District Judge to transfer cases to the Additional District Judge, thus strengthening the above observation.
“Even otherwise Section 11(2) (the A.P. Civil Courts Act, 1972) empowers the District Judge to transfer any case to the Additional District Judge who would have the same power as that of the District Judge in disposing of the transfer cases. In the circumstances, it cannot be held that an Additional District Judge is barred from considering or disposing of divorce petitions filed under the Special Marriage Act.”
Case Title: Gaddam Ruth Victoria vs. State of Andhra Pradesh
Citation: 2023 LiveLaw (AP) 44
The Andhra Pradesh High Court has held that a second wife is entitled for service and terminal benefits of her deceased husband, even if she does not acquire the status of “legally wedded wife”.
"We are of the considered view that in such matters, even if it is found that the second wife does not acquire the status of wife, for the marriage having been contracted during the subsistence of the first marriage, still for the service benefits and service claims of the deceased husband, she is entitled for protection. The endeavour of the Courts has always been to balance the equities amongst two wives though the second may not be understood in the strict sense as "wife", a legally wedded." held the Division Bench of Justice Ravi Nath Tilhari and Justice K. Manmadha Rao.
Case Title: Bandarla Naveen Kumar v. Balaji Allianz General Insurance Company Ltd & Anr.
LL Citation: 2023 LiveLaw (AP) 47
In a motor accident claim case, Justice V Gopala Krishna Rao of the Andhra Pradesh High Court observed that son of the owner of offending vehicle is not a third party and cannot be compensated by insurance company under third party insurance claims.
Case Title: X v. Y
LL Citation: 2023 LiveLaw (AP) 53
In a recent civil revision petition, Justice B.S. Bhanumathi of Andhra Pradesh High Court referring to Supreme Court ruling in Sharda v. Dharmpal (1985) held that a matrimonial Court has power to order a person to undergo medical test and it cannot be contended that the relief cannot be granted merely because the marriage was denied by a party.
Married Individuals Can't Enter Live-In Relationships: Andhra Pradesh High Court
Case Title: Devi Bulli Venkanna vs. State of Andhra Pradesh
LL Citation: 2023 LiveLaw (AP) 68
The Andhra Pradesh High Court has ruled that the recognition of a couple's choice to live together without solemnising marriage does not entitle married people to live with others during the subsistence of their marriage.
The Division Bench of Justice Ravi Nath Tilhari and Justice B.V.L.N Chakravarti accordingly dismissed a habeas corpus petition filed by a married man to produce a woman whom he had been living with, who was allegedly taken away by her father.
"One's choice to live outside wedlock does not mean that the married persons are free to live in live-in relationship with others outside wedlock during subsistence of marriage. That would be transgressing valid legal framework. The right to live out of wedlock is to be understood, living without solemnizing marriage, if they are major. They are not bound to marry each other. But that does not mean living in live-in relationship with others outside wedlock, during continuance of marriage."
Case Title: Rudra Bindu Sri Naga Lakshmi v. Rudra Trinadha Adhi Prasanna Phani Kumar
The Andhra Pradesh High Court allowed the transfer of a divorce case filed by husband from a court of one district to a court in another district where there was a separate petition filed for restitution of conjugal rights between same parties to avoid conflicting decisions.
The transfer petition was filed by wife under Section 24 of Civil Procedure Code seeking transfer of divorce petition filed by husband before Senior Civil Judge Court, Razole of East Godavri District to Tadepalligudem of West Godavri District on the ground that she is residing at her parents' house Tadepalligudem which is at a distance of 75 kms from Razole town.
BOMBAY HIGH COURT
Wife's Refusal For DNA Test No Ground for Adverse Inference For Maintenance – Bombay High Court
Case Title: Namdeo s/o. Digambar Giri v. Seema
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
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.
Section 498A IPC | Mental Cruelty Possible Even If In-Laws Reside Separately: Bombay High Court
Case Title: Sunita Kumari and Ors. v. State of Maharashtra and Anr.
Citation: 2023 LiveLaw (Bom) 32
The Bombay High Court 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.
Case Title: Amit S/o. Suresh Pali v. Rita D/o. Ramavtar Pal
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
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.”
Case Title: Shaikh Shaukat S/O Majit @ Majid Patel and Ors. v. State of Maharashtra and Anr.
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.
Case Title: RMS v. MOP
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 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.
Case Title: Mayur Vaijanath Tawde & Anr. v. State of Maharashtra & Ors.
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.
Case Title: Terezinha Martins David v. Miguel Guarda Rosario Martins and Ors.
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.
Case Title: Sunil and Ors. v. Jayashri
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
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 was 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.
Case Title: Vithal Manik Khatri v. Sagar Sanjay Kamble @ Sakshi Vithal Khatri and Anr.
Citation: 2023 LiveLaw (Bom) 175
The Bombay High Court held that a transgender woman who has undergone sex re-assignment surgery can be an “aggrieved person” under the Domestic Violence Act and has the right to seek interim maintenance in a domestic violence case.
Justice Amit Borkar dismissed a man's petition challenging maintenance awarded to his wife, a trans-woman, observing that the term 'aggrieved person' under section 2(a) of the Protection of Women from Domestic Violence Act, 2005 has to be given a broad interpretation as the purpose of the Act is to protect women from domestic violence.
Case Title: X v. Y
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.
Children Not Property, Parents Don't Have Absolute Rights Over Their Destiny: Bombay High Court
Case Title: Ashu Dutt v. Aneesha Dutt
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: Bombay High Court
Case Title: Shabnamjahan & Ors. v. State of Maharashtra
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
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: Bombay High Court
Case Title: Shobha w/o Sanjay Tidke v. Kishanrao S/o. Ramrao Tidke and Anr.
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
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
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: Bombay High Court
Case Title: S v. H
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.
Case Title: XYZ v. ABC
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 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.
HAMA | Daughter Cannot Continue Mother's Maintenance Claim After Her Death: Bombay High Court
Case Title: Jayshree @ Pushpa v. Satyendra s/o Shivram Jindam
Citation: 2023 LiveLaw (Bom) 359
The Bombay High Court held that daughter cannot continue her mother's claim of maintenance from husband after her death, as the right to claim maintenance under the Hindu Adoption and Maintenance Act (HAMA) is an individual right against another person.
A division bench of Justice Ravindra V Ghuge and Justice YG Khobragade sitting at Aurangabad refused to allow married daughter of a deceased woman to continue claim for enhancement of maintenance awarded to her mother.
“right to claim maintenance under the personal laws viz., Hindu Adoption and Maintenance Act, Muslim Law, Christen Law is in the personal nature. It is an individual privilege of a person who is governed under the Personal Law…right of maintenance of wife against her husband is in personam and not in rem, therefore, the right to sue does not survive in favour of the applicant, who is married daughter of the deceased Appellant and Respondent”, the court held.
Case Title: ABC v. XYZ
Citation: 2023 LiveLaw (Bom) 370
The Bombay High Court directed its Registry to place before an appropriate bench a clutch of petitions to decide a common legal issue – whether family courts are competent to hear domestic violence cases.
“A common question involved is whether the Family Court established under the Family Courts Act, 1984 is competent to conduct the proceedings and give the relief under the Protection of Women from Domestic Violence Act, 2005 and whether the proceedings under the DV Act can be transferred to the Family Court,” the court observed.
Justice Sarang Kotwal said this question has arisen in a number of pleas pending before his bench and there are conflicting decisions of various single judges on the issue.
Case Title: ABC v. XYZ
Citation: 2023 LiveLaw (Bom) 375
Observing that paternal grandmother or paternal aunt cannot be a substitute to mother during the phase of growth of a girl child, the Bombay High Court held that custody of a girl about to attain the age of puberty is preferred with her mother over her father.
Justice Sharmila U Deshmukh upheld a Family Court's order in a divorce case granting interim custody of an 8-year-old girl to her mother, who is also a doctor, and visitation rights to the father.
“the girl child aged about 8 years would be undergoing hormonal changes and also physical changes and as such much care has to be taken during this phase of growth of the girl child and the paternal grand mother or the paternal aunt cannot be a substitute to the mother who is also a qualified doctor. During this phase of life, the girl child requires care and attention of a women who would be better equipped to understand the process of transformation which the girl child will undergo and as such, the mother at this stage is preferred against the father”, the court held.
Case Title: ABC v. XYZ
Citation: 2023 LiveLaw (Bom) 381
The Bombay High Court quashed a civil court's order directing a couple to hand over custody of a two-year-old adopted child to his biological parents and directed the civil court to decide their suit seeing a declaration that the adoption is valid, within six months.
Justice Sharmila Deshmukh held that the trial court failed to conduct a comprehensive inquiry into the actual "giving and taking" of the child in adoption. The court highlighted that evidence needed to be presented to establish the actual giving and taking of the child with the intent to transfer the child from one family to another.
Underlining the sensitivity of the matter, the court said that there will be no extension of time for the final adjudication of the suit, and until then the child, who has been with the adoptive parents since he was two days old, will continue to remain with them.
Case Title: ABC v. XYZ
Citation: 2023 LiveLaw (Bom) 416
Observing that a physically disabled person is not incapable of giving threats, the Bombay High Court refused to quash a domestic violence case against a disabled woman accused of abusing and threatening her daughter-in-law.
Justice RM Joshi of the Aurangabad bench observed that whether any domestic violence was caused is a matter of trial, but prima facie the complainant was subjected to domestic violence.
Case Title: ABC v. XYZ
Citation: 2023 LiveLaw (Bom) 417
Noting a lacuna in the law for mentally retarded persons, the Bombay High Court extended the scope of Section 7 of the Guardians and Wards Act 1980 to allow guardianship of an adult suffering from mental retardation.
Justice Riyaz Chagla observed that provisions of the Mental Health Act, both the repealed and the existing Acts, did not cover mental retardation under the definition of mental illness.
The court noted the existing Mental Healthcare Act, 2017 unlike the repealed Act doesn't have a provision for the District Court to appoint a suitable person as Guardian of a person suffering from mental illness and incapable of taking care of himself.
“Thus, in my view the only remedy available in such cases is for the Petitioner to apply under the Guardians and Wards Act, 1890 for the Petitioner to be appointed as Guardian of the person, despite he/she being a major, but suffering from mental retardation,” the bench said.
Case Title: Ashwin Bharat Khater v. Urvashi Bharat Khater
Citation: 2023 LiveLaw (Bom) 430
Observing that the denial of access to one's own house amounts to denial of basic amenities, the Bombay High Court upheld the Senior Citizens Maintenance Tribunal's order revoking two gift deeds executed by an elderly woman in favour of her son and directed the son and daughter-in-law to vacate the subject property.
Justice Sandeep V Marne held so upon finding that the son had failed to perform his duty to provide basic amenities and physical needs to his widowed mother.
“The Gifts were executed out of natural love and affection towards son, which was the only possible consideration for execution thereof. Inbuilt in such love and affection is the duty of the son to provide basic amenities and physical needs to the widowed mother. The events that have occurred post execution of gift deeds so indicate that such love and affection between the Mother and son no longer exists. Along with love and affection, the son has perhaps failed to perform the duty of providing the basic amenities and physical needs to his mother. It was never son's property. He had no right to seek gift thereof”, the court observed.
Case Title: ABC v. XYZ
Citation: 2023 LiveLaw (Bom) 431
The Bombay High Court allowed a plea by the children of a former Attorney General and declared them as guardians of one of their siblings under Section 7 of the Guardian and Wards Act, 1890. The section was originally meant for guardianship of minors.
Justice Riyaz Chagla widened the scope of Section 7 of the Act to allow guardianship of an adult suffering from a mental handicap noting a lacuna in the existing Mental Healthcare Act.
Case Title: ABC v. XYZ
Citation: 2023 LiveLaw (Bom) 436
A family's social strata would be a relevant consideration in deciding divorce cases on grounds of “cruelty”, the Bombay High Court held.
Two years of marriage and 14 years of separation later the High Court granted a businessman divorce from his wife on grounds of 'cruelty' but upheld maintenance granted to the woman.
A division bench of Justices Nitin Sambre and Sharmila Deshmukh observed,
“While considering the conduct of the Respondent in context of 'cruelty' as contemplated under the provisions of Section 13 (1)(i-a) of the Hindu Marriage Act, 1955, the strata of the society to which the Petitioner belongs will also be relevant.”
Case Title: ABC v. XYZ
Citation: 2023 LiveLaw (Bom) 438
The Bombay High Court granted the custody of a three-year-old boy, who is a US citizen by birth, to his United States-based father seeking the return of his child to the US in a habeas corpus writ petition.
A division bench of Justice Revati Mohite Dere and Justice Gauri Godse held that the mother's unilateral refusal to return the child to US without a valid or justifiable reason amounted to illegally detaining the child.
Case Title: ABC v. XYZ
Citation: 2023 LiveLaw (Bom) 457
Spouse suffering from epilepsy cannot be ground for divorce under Section 13(1)(iii) of the Hindu Marriage Act, the Bombay High Court observed and upheld a family court order refusing divorce to a man.
A division bench at Nagpur comprising Justices Vinay Joshi and Valmiki Menezes observed,
"…the condition of “epilepsy” is neither an incurable disease nor can it be considered a mental disorder or a psychopathic disorder, for making a ground under Section 13(1)(iii) of the Hindu Marriage Act."
The court further said medical evidence doesn't support the husband's stand that epilepsy would be an impediment to the spouses living together.
Case Title: ABC v. XYZ
Citation: 2023 LiveLaw (Bom) 481
The Bombay High Court appointed the paternal aunt of a four-year-old boy as his legal guardian while allowing his parents to visit him frequently and occasionally take him for outings with the condition that the child returns to his aunt's custody on the same day.
Justice RI Chagla observed that the child is extremely attached to his aunt and took note of the psychological issues faced by his mother as well as the aggressive behaviour of his father while granting custody of the child to his aunt.
Case Title: ABC v. XYZ
Citation: 2023 LiveLaw (Bom) 513
The Bombay High Court held that a father cannot be held guilty of kidnapping for taking his minor child away from the mother unless there is an order of a competent court preventing him from taking custody of the child.
A division bench of Justice Vinay Joshi and Justice Valmiki SA Menezes sitting at Nagpur quashed an FIR registered under Sections 363 of the IPC by the biological mother of the child, accusing the father of forcibly taking away their 3-year-old son.
“The father of a child will not come within the scope of section of 361 of the IPC, even if he takes away the child from the keeping of the mother, she may be a lawful guardian as against any other except the father or any other person who has been appointed as a legal guardian by virtue of an order of the Competent Court. So long there is no divestment of the rights of the guardianship of a father, he cannot be guilty of an offence under Section 361 of the IPC”, the court held.
Bombay High Court Dismisses 20-Year-Old Testamentary Suit In Favor Of Actress Pooja Bedi, Her Aunts
Case Title: Shonali Kedar Dighe v. Ashita Tham and Ors.
Citation: 2023 LiveLaw (Bom) 554
The Bombay High Court dismissed a 20-year-old testamentary suit regarding the estate of actor Pooja Bedi's uncle -Bipin Gupta - after Bedi and her aunts proved that the impugned 'Will,' bequeathing everything to a trust, was a “sham and bogus.”
Justice Milind Jadhav dismissed a petition filed by Vasant Sardal seeking to execute Gupta's alleged Will dated September 4, 2003. Sardal was one of the two executors of the Will and a co- trustee of the organisation that stood to gain from the Will.
However, the property will now be distributed amongst Gupta's legal heirs: his two sisters, Ashita Tham and Monica Uberoi & to his niece, Bedi, on behalf of her mother.
The estate includes tenancy rights in a flat in Firdaus Building, an Art Deco structure, a flat in the Neel Tarang building in Mahim, a two-acre plot in Panchgani, bank balances, investments in shares and bonds, and valuables in his possession.
Court held that the testator's treating doctor neither made an attesting witness nor did he testify to the soundness of the testator. It was an obscure bequest to a Charity controlled by complete strangers, the Court observed, Court was of the view that the Will appeared disjunctive as, despite half of page 2 being blank, the Will was only executed on page 3.
Lastly, the court said it was unnatural for Gupta to have excluded his sisters from the will.
Accordingly, the HC directed the police to transfer all movable assets to Bedi and her aunts after taking necessary undertakings from them.
Case Title: ABC v. XYZ
Citation: 2023 LiveLaw (Bom) 571
The Bombay High Court dismissed a habeas corpus petition filed by a 41-year-old UK citizen seeking custody of his 3-year-old daughter from his estranged wife, an Indian citizen.
A division bench of Justice Revati Mohite-Dere and Justice Gauri Godse, while rejecting the plea, emphasized that it would not be safe to hand over custody to the father due to his reported anger issues and past violent behaviour.
“the child is a girl of a tender age of three and half years and thus requires the care and affection of her mother. Considering the past conduct of the petitioner having anger issues, it will not be safe to hand over custody of the child to him”, the court held.
Case Title: Alka Bhausaheb Bhad v. Bhausaheb Ramrao Bhad
Citation: 2023 LiveLaw (Bom) 589
A woman who married a man under the misrepresentation that he was divorced would be treated as his 'wife' under Section 125 CrPC, and she is entitled to maintenance, the Bombay High Court held.
Justice Rajesh Patil ruled "that respondent cannot be allowed to deny the maintenance claim to the Petitioner, taking advantage of his own wrong. I am of the opinion as held in Dwarika Prasad Satpathy Vs. Bidyut Prava Dixit reported in (1999) at least for the purpose of Section 125 of CrPC, Petitioner would be treated as the 'wife' of the respondent."
Domestic Violence Case Can Be Transferred From Magistrate To Family Court: Bombay High Court
Case Title: A v. B
Citation: 2023 LiveLaw (Bom) 620
The Bombay High Court held that an application filed under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (DV Act) before a Magistrate seeking reliefs under Sections 18 to 22 can be transferred to a Family Court under Section 24 of the Code of Civil Procedure, 1908.
Section 12 under the DV Act empowers an aggrieved party or any person on their behalf to file an application to the Magistrate seeking protection orders, residence, monetary reliefs, custody and compensation under Sections 18-22 of the Act.
Justice Kamal Katha held the reliefs under the above Sections are meant to redress the breach of civil rights and even the proceedings in Family Courts are civil in nature.
"In my view, the High Court would have power to transfer the case from the Magistrate to the Family Court whether or not it has jurisdiction to try it to meet the ends of justice, to convenience the parties and more importantly to lead evidence before one Court, specially when the issues may be common, and between the same parties, to save both energy and expense, to save the precious time of Court and prevent conflicting views and multiplicity of proceedings.”
Therefore, the Family Court has the jurisdiction to entertain and decide reliefs sought under Sections 18 to 22 of the DV Act by virtue of Section 7(2) and Section 26 of the DV Act read with the provisions of the Family Courts Act, 1984, the court held.
CALCUTTA HIGH COURT
Case title - Sk. Sirajuddin vs. The State of West Bengal & Anr.
Case Citation: 2023 LiveLaw (Cal) 1
The Calcutta High Court recently rejected the prayer of a man seeking to transfer Section 125 CrPC proceedings instituted by his wife before the Family Court at Burdwan seeking compensation from him.
While doing so, the bench of Justice Shampa Dutt (Paul) observed that the prayer of the husband that the case may be transferred to any Court of law except Burdwan court demonstrated that his only intention was to harass his wife.
Case Title: Sri Uttam Kumar Bose v. State of West Bengal
Citation: 2023 LiveLaw (Cal) 11
The Calcutta High Court ruled that infertility of a woman cannot be a valid ground for seeking divorce. The Court also underscored that asking for divorce by mutual consent from one's wife who is in a traumatic situation for having developed primary infertility amounts to mental cruelty within the definition of Section 498A of the IPC.
Justice Shampa Dutt (Paul) observed,
“The reason of infertility is not a ground for divorce. There are several options to become parents. A spouse has to be understanding in these circumstances as it is the other (only) who can help one to regain her/his mental, physical and emotional strength. To be able to face the world, the society in general, bravely together.”
Case Title: Nripendra Chandra Mahanta v. Smt. Pramila Mahanta
Case Citation: 2023 LiveLaw (Cal) 35
The Calcutta High Court at Jalpaiguri directed the District Judge, Cooch Behar to re-decide the application for alimony filed by a wife under Section 24 of the Hindu Marriage Act, in compliance with the proposition laid down by the Supreme Court in Rajnesh v. Neha.
The judgement of Supreme Court in Rajnesh v. Neha mandates that the Affidavit of Disclosure of Assets and Liabilities shall be filed by both parties in all maintenance proceedings, including pending proceedings before the concerned Family Court / District Court / Magistrates Court throughout the country.
Case Title: Sri Saikat Ghosh v. The State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 54
The Calcutta High Court dismissed a Habeas Corpus writ petition filed by a father, for the production his children who are residing with their mother, on the ground that the ordinary remedy is available under the Guardians and Wards Act in child custody matters.
The division bench of Justice Tapabrata Chakraborty and Justice Partha Sarathi Chatterjee observed:
“Indisputably there is a matrimonial dispute between the petitioner and his wife. Allegations and counter-allegations have been levelled by the parties against each other which is required to be examined with reference to evidence.”
Case Title: Susma Kumari v. The State of West Bengal & Anr.
Citation: 2023 LiveLaw (Cal) 55
The Calcutta High Court has restored the rape case filed against a man who, after being in a relationship with the complainant for about six years, married another woman during the subsistence of such relationship and hid this fact from the complainant.
Justice Rai Chattopadhyay observed:
"The most relevant is the accused person to have suppressed the said facts from the defactocomplainant. These materials are sufficient to find prima facie that the accused might had a guilty mind or culpable intent to procure complainant's consent to sexual acts by misrepresentation and induced her to misconceive about his intent to sexually exploit her and not to have any serious thoughts for their relationship."
Case Title: Hasin Jahan v. State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 83
The Calcutta High Court upheld an order of the Sessions Judge, Alipore stayed the arrest warrant issued against cricketer Mohammad Shami in a cruelty and assault case filed by his wife in 2018.
The single judge bench of Justice Shampa Dutt (Paul) observed:
“In the present case the learned Session Judge passed an order of stay. The hearing of the revision is still pending. And as such in view of the Judgment of the Supreme Court in Honnaiah T.H. (Supra) the order of the learned Session Judge requires no interference.”
Case Title: In re: Piyali Mandal Majumder @ Madhumita Mandal v. State & Anr.
Citation: 2023 LiveLaw (Cal) 133
The Calcutta High Court at Jalpaiguri circuit bench has discharged a widow in an FIR under Sections 498A, 494 and 506 of IPC accusing her of marrying the husband of the complainant, on the ground that materials on record including complaint prima facie revealed that the allegations were levelled against the against the principal accused i.e. the husband of the complainant.
The single judge bench of Justice Ajoy Kumar Mukherjee observed:
“Here the materials on record including complaint prima facie reveales that allegations were leveled against principal accused, i.e., husband of defacto complainant and as such the court below ought to have held that the criminal prosecution against the present petitioner under the aforesaid section is not sustainable.”
Case Title: Sekhar Kr Roy v Lila Roy & Anr (FA 109 of 2018)
Citation: 2023 LiveLaw (Cal) 151
The Calcutta High Court has 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.
A Division bench of Justice Tapabrata Chakroborty and Justice Partha Sarthi Chatterjee observed,
"In the Indian society, if a husband supplies the consideration money for acquiring property in the name of his wife, such fact does not necessarily imply benami transaction. Source of money is, no doubt, an important factor but not a decisive one. The intention of the supplier of the consideration money is the vital fact to be proved by the party who asserts benami."
Case Title: Deepak Chatterjee @ Dipak Chatterjee & Ors. v. The State of West Bengal & Anr (CRR 261 of 2020)
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.
A single-judge bench of Justice Shampa Dutt (Paul) observed that the respondent herself in her Section 164 CrPC statement said she had left her matrimonial home on 20.01.2015, but in her memorandum of complaint she claimed that her in-laws had tried to strangle her to death on 22.01.2015.
Case: Mithu Dash @ Bhuiya v State of West Bengal & Anr.
Citation: 2023 LiveLaw (Cal) 210
The Calcutta High Court recently quashed the criminal proceedings initiated against a woman by her husband, a practising advocate, for the alleged theft of certain gold ornaments and valuables from her matrimonial home.
A single-bench of Justice Shampa (Dutt) Paul opined that the items she was accused of stealing were “worn on a regular basis by traditional Bengali married women.” It said,
“From the materials on record, it appears that the petitioner allegedly left her matrimonial home after 29 years of marriage with:- i. One piece gold Bala (bangle) (marriage ornament), worn as a sign of a married woman. ii. One Loha covered with gold (marriage ornament), also worn as a sign of a married woman. iii. Two piece (one pair) (red) pola, covered with gold (marriage ornament), also worn as a sign of a married woman. iv. One pair Sankhabadhano churi covered with gold (marriage ornament). v. Two mobile phones. vi. One Gold chain (gents), she has taken her son with her. vii. One necklace. These ornaments/accessories as described, are worn on regular basis by a traditional Bengali married woman, who chooses to wear them. The phones which might be for her own use and the ornaments as described, cannot be the basis of a criminal case between a married couple, that too, after 29 years of marriage. These allegations, clearly do not make out any case as alleged under the Indian Penal Code against the petitioner and thus, this is a fit case where the inherent powers of this court should be exercised"
Case: Hira Bittar v The State of West Bengal
Citation: 2023 LiveLaw (Cal) 214
The Calcutta High Court recently allowed the appeal preferred by a husband against trial court order convicting him for alleged offences of mental and physical cruelty allegedly inflicted upon his spouse/ complainant.
A Single-bench of Justice Shampa (Dutt) Paul held:
Though this witness has stated that she was assaulted by the appellant and his family members and suffered bleeding injuries, there are no medical papers nor any injury report on record. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, and the environment in which they live. The conduct of the concerned party should be grave and substantial and it must be much more serious than the ordinary wear and tear of daily life. Mental cruelty is a state of mind - The feeling of deep anguish, disappointment, or frustration in one spouse caused by the conduct of the other over a long period of time may lead to mental cruelty. And such feeling and intensity are felt differently by each person. Some are stronger in mind than others. In the present case there is absolutely no evidence/proof on record of any physical cruelty.
Case: Dwaipayan Das Vs. State of West Bengal & Anr. & connected application.
Citation: 2023 LiveLaw (Cal) 230
The Calcutta High Court quashed two criminal complaints filed by a wife (“opposite party no 2"), against her husband and in-laws (“petitioners”), on various counts of domestic violence, attempted murder, criminal intimidation, etc. under the IPC.
In noting that the medical evidence on record, as well as witness statements did not corroborate with the opposite party no 2's version of events, a single-bench of Justice Subhendu Samanta quashed the criminal proceedings, and held:
“The allegation of physical and mental torture in both the cases appears to be general and omnibus. The ingredients of the offence specifically the statement of available witnesses does not disclose any specific prima facie materials by which the present petitioner can be entangled for the offences u/s 498A IPC. The legislature has enacted the provision of Section 498A to strike out the dowry menace from the society. But it is observed in several cases that by misusing of said provision new legal terrorism is unleashed.”
Case: Ranjan Das v The State of West Bengal & Anr.
Citation: 2023 LiveLaw (Cal) 255
The Calcutta High Court's Circuit Bench at Jalpaiguri has recently held that cruelty contemplated u/s 498A would be different from general matrimonial disturbances faced by a couple, and that general allegations could not be made to establish a crime u/s 498A.
In upholding the appellant's conviction u/s 323 IPC for voluntarily causing hurt to his wife, while discharging him u/s 498A IPC, a single-bench of Justice Sugato Majumder held:
Cruelty contemplated in Section 498A of the Indian Penal Code is different from day to day bickering between the husband and wife. Sweeping and general allegations cannot be relied upon to conclude that offence under Section 498A of the Indian Penal Code has been perpetrated. The Trial Court committed error in coming to conclusion that the Appellant is guilty of offence under Section 498A of the Indian Penal Code. Therefore, conviction under Section 498A of the Indian Penal Code is liable to be quashed. However, conviction and sentence under Section 323 of the Indian Penal Code stands upheld, in view of oral and corroborating documentary evidence.
Case: Kalyan Panda & Ors. Vs. The State of West Bengal & Anr
Citation: 2023 LiveLaw (Cal) 264
The Calcutta High Court has quashed criminal proceedings against the petitioners, who were accused by their daughter-in-law (“opposite party no 2”) of conspiring to beat her up on several occasions.
Justice Shampa (Dutt) Paul noted that the daughter-in-law's claims were not supported by any medical evidence and that she was being treated for mental illnesses, due to which on several occasions she had been violent towards her husband.
"It is clear that even after filling the complaint, the complainant continued to WhatsApp the petitioner no. 2. There are no medical papers for the injuries sustained by opposite party no 2. Her prescriptions also advise her regarding marital therapy, anger management, etc. There are no materials on record to show that the ingredients required to constitute the offences alleged are present against any of the petitioners and permitting such a case to proceed towards trial will be an abuse of the process of law."
Case: Mrs. Nidhi Kedia Nee Chokhani v Sri Abhyudaya Kedia
Citation: 2023 LiveLaw (Cal) 267
The Calcutta High Court recently upheld a decree of divorce granted by the trial court in favour of a husband, who claimed divorce on the grounds of 'cruelty' suffered by him at the hands of his wife.
In dismissing the appeal of the wife for restoration of marital rights, a division bench of Justice Rajasekhar Mantha and Justice Supratim Bhattacharya held:
The FIR lodged by the appellant/wife is in the nature of a counterblast as because the same has been filed after the initiation of the matrimonial suit for divorce. The acts of cruelty alleged by the husband against the wife have not been condoned by the former. This Court cannot also lose sight of the fact that elderly members of the husband's family stood discharged from the criminal proceeding having regard to the frivolity of the charges brought against them. It needs no iteration either that the parties are continuing with their corrosive and divergent courses without any whisper of reconciliation.
Case Title: Nitya Gopal Pal & Anr. v The State of West Bengal
Citation: 2023 LiveLaw (Cal) 268
The Calcutta High Court recently dismissed an appeal filed by a husband (“appellant no 1”) and his brother (“appellant no 2”) who were convicted by the trial court under Section 498A and 304B of the IPC, for causing the 'dowry death' of the victim, who poisoned herself and her daughter in her matrimonial home.
In upholding the duo's conviction, a single-bench of Justice Rai Chattopadhyay held:
The entire incident of transmission of the money as above happened ten days prior to the date of death of both the victims. The proximity of time between the alleged ill-treatment and time of death is a relevant factor so far as applicability of Section 304B is concerned and to raise presumption under Section 113B of the Indian Evidence Act and is an essential and necessary evidence for proof of a case of dowry death. The law would require the accused person, to come up with adequate rebutting evidence, to prove their innocence or to set the prosecution evidence at naught. Such statutory duty is grossly unfulfilled by the appellants, in the trial. In the considered opinion of this Court, the finding of the trial Court on the point as above renders any reconsideration or setting aside of the same due to alleged illegality or impropriety, unwarranted.
Mere 4K Interim Maintenance To Wife, Two Daughters Not Reasonable: Calcutta High Court
Case: Smt. Meghna Nandi (Maiti) Vs. Sri Asit Nandi & Anr.
Citation: 2023 LiveLaw (Cal) 280
The Calcutta High Court observed that an interim maintenance of Rs 4,000 per month, awarded by the magistrate in favour of a wife and her two daughters, would simply not be enough for their sustenance.
A single-bench of Justice Shampa (Dutt) Paul was seized of a revision application against the order of a magistrate rejecting the wife/petitioners prayer for enhancement of interim maintenance u/s 127 CrPC as 'premature' due to the pendency of their application for maintenance u/s 125 CrPC.
While refusing to interfere with the magistrate's order, the Bench directed the trial court to dispose of the 125 CrPC application within a period of three months, and held:
It was in no way logical to grant such a low amount as interim maintenance for 3 persons and leave the balance for the husband. Of course at the time of final disposal of the case, all factors have to be taken into consideration by the learned Magistrate, but an amount of Rs. 4000/- for three persons is just not reasonable.
Citation: 2023 LiveLaw (CaL) 308
Case: Sampa Deb (Basu) Vs. The State of West Bengal & Anr.
The Calcutta High Court has quashed a criminal intimidation complaint lodged by a man against his wife, alleging that she drove him out of her parental home where they used to reside and also beat him up.
The woman had been residing with her visually impaired mother which happens to be in proximity with her workplace. The Court weighed in factors like she is the sole bread winner and that her in-laws are also deceased.
Citation: 2023 LiveLaw (Cal) 320
Case: Manojit Basu vs. Shyamasree Basu (nee Ghosh)
The Calcutta High Court has upheld a decree of divorce passed by the Trial court, dissolving the marriage between the appellant (husband) and respondent (wife) under Section 13 of the Hindu Marriage Act, 1955 (“HMA”).
Court further upheld the trial court's rejection of custody and dismissed an appeal by the appellant for custody of his son under Section 26 HMA due to non-payment of maintenance.
Citation: 2023 LiveLaw (Cal) 321
Case: Dipali Mitra & Ors. V Coal India Limited & Ors.
The Calcutta High Court has found that the distinction between 'married' and 'unmarried' daughters for the purpose of compassionate appointment, as per Clause 9.3.3 of the National Coal Wages Agreement-VI is ultra vires and in violation of Article 14 and 15 of the Constitution.
In dismissing the plea of the petitioners for compassionate appointment the Court noted that the most important factor for seeking the same was dependency on the deceased employee, and financial exigency.
Citation: 2023 LiveLaw (Cal) 323
Case: Surya Chandra Mishra v Mrs. Chitrangana Debnath
The Calcutta High Court has dismissed a revision application in against the orders of the trial court in a matrimonial suit, which allowed the wife/respondent adjournments and opportunities to file her written statement.
It was contended by the petitioner that the trial court could not have passed orders extending the time for filing written statements for the wife, since no formal application for the same had been made by her.
Citation: 2023 LiveLaw (Cal) 336
Case: Balbina Tandon & Ors. v The State of West Bengal & Ors.
The Calcutta High Court has dismissed a Section 482 CrPC application filed by a wife, for quashing criminal proceedings initiated against her under Section 306 IPC for abetment to suicide of her deceased husband.
The younger brother of the deceased, upon his suicidal death in 2015, approached the jurisdictional police station and filed an FIR, alleging that the victim had ended his life due to the "severe mental torture" perpetrated by the present petitioners. The police as well as the complainant relied heavily on a "suicide note" left behind by the deceased, allegedly implicating the petitioners.
In refusing to quash the proceedings upon observing that a cognizable case had been prima facie made out against the petitioners, a single bench of Justice Rai Chattopadhyay held:
A person, immediately before his death would only let his genuine perceptions to reveal to the world after his death and so he writes. Though the [deceased] mentioned no other person [is] responsible for his death, at the same time he mentions that his wife or child should not be allowed to see his dead body. All these are triggering to the only fact that a cognizable case [has] been prima facie made out against the petitioners. [Thus] not enough ground is available for quashing the criminal case.
CHHATTISGARH HIGH COURT
Maintenance Tribunal Has Power To Order Eviction Of Children From House Of Parents
Case Title: Neeraj Baghel v. The Collector, Raipur & Ors.
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.
Case Title: P. Venkat Rao v. Smt. P. Padmavati
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.
Case Title: Mohammed Husham v. State of Chhattisgarh
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: D vs. R
Citation: 2023 LiveLaw (Chh) 25
The Chhatisgarh High Court has held that when a wife alleges, in different forums, that her husband has an illicit relationship with his mother, it would certainly lead to mental cruelty.
The bench of Justice Goutam Bhaduri and Justice Sanjay S. Agrawal said that when such an allegation is made by the wife against her husband, the character of the mother of the husband is also assassinated and this further destroys the reputation and value of the husband and wife in the eyes of each other.
"...it cannot be said to be a normal wear and tear or isolated incident. When the wife affirms her statement made in the different forums wherein the sacred relation of mother & son is being attacked by such accusation certainly it would lead to mental cruelty," the bench further held said as it allowed the appeal filed by the husband and set aside the family court order refusing divorce decree.
Case Title: P vs. U
Citation: 2023 LiveLaw (Chh) 26
The Chhattisgarh High Court has observed that if the husband, instead of discharging his family obligations, indulges himself in excessive drinking habit, which deteriorates the family condition, it would naturally lead to mental cruelty to the wife and the entire family including children.
The bench of Justice Goutam Bhaduri and Justice Sanjay S. Agrawal also said that if the children are born out of wedlock, a man, being the father, cannot shirk his responsibilities especially when the wife is a non-working woman.
Case Title: Dilesh Nishad v. State of Chhattisgarh & connected matter
Citation: 2023 LiveLaw (Chh) 27
The Chhattisgarh High Court has recently rejected applications filed by two men, accused of committing gang rape on a minor girl, for conducting DNA test of the child born to the victim subsequent to the gang rape.
The Division Bench of Justice Sanjay K. Agrawal and Justice Radhakishan Agrawal held the demand for DNA test as a violation of the 'right to privacy' of the infant and observed,
“…ascertaining the paternity of the victim's child is not at all required to be determined in these criminal appeals filed by the appellants and directing for DNA test of the baby child of the victim would violate the privacy right of the infant, which is a constitutionally protected right as declared by their Lordhsips of the Supreme Court in K.S. Puttaswamy (supra).”
Case Title: Syed Irshad Ahmed Zaid v. Shazia Anjum
Citation: 2023 LiveLaw (Chh) 30
The Chhattisgarh High Court has allowed an octogenarian grandfather to meet his grand-children pending the custody battle between his son and daughter-in-law for such children.
While modifying the order of the lower Court which denied visitation rights to the aged man to meet his grandchildren, the Division Bench of Justice Goutam Bhaduri and Justice Deepak Kumar Tiwari observed,
“In the Indian society, the grandparents form an integral part for upbringing of a children and that part of affection and contribution cannot be ignored or shelved and it is the welfare of the children which we are concerned. The grand parents being ancillary part and parcel of the family would hold this way for welfare of the child.”
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.”
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: 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.
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 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.
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.
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: 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*".
Case Title: Vikram Ruhal v. Delhi Police & Ors.
Citation: 2023 LiveLaw (Del) 478
Observing that merely naming in the FIR does not lead to an inference that the employer can keep in abeyance the employment of an applicant for an indefinite period, the Delhi High Court has directed the Delhi Police to appoint a candidate to the Sub Inspector post, whose employment was kept pending till the disposal of the FIR pending against him.
Title: RS v. MB
Citation: 2023 LiveLaw (Del) 510
The Delhi High Court has observed that a revisional court, while considering the grant of stay of the interim maintenance order passed under section 125 of CrPC, cannot put a general direction of depositing the entire maintenance amount by ignoring the facts of circumstances of the case.
“While exercising the revisional scrutiny of an interim maintenance order passed in proceedings under Section 125 CrPC, the revisional court for yet another reason cannot impose as a pre-condition to grant of stay on operation of the assailed interim maintenance order, such general rider of deposit of the entire amount of awarded maintenance ignoring the overall circumstances of the case,” a vacation bench of Justice Girish Kathpalia observed.
Title: KD v. VS
Citation: 2023 LiveLaw (Del) 579
The Delhi High Court has sentenced a business tycoon's son to three months in prison for failing to pay maintenance to a woman — who previously alleged that he performed a sham marriage ceremony with her, despite a judicial order recording his undertaking to pay the same.
Maintenance Case: Delhi High Court Sets Aside Arrest Warrant Against Man With Bipolar Disorder
Case Title: X v. Y
Citation: 2023 LiveLaw (Del) 599
Ruling that the provision under Section 105 of the Mental Healthcare Act, 2017 is mandatory in nature, the Delhi High Court has set aside an arrest warrant against a man, who said he is suffering from Bipolar Disorder, Generalized Anxiety Disorder and Depression.
The warrant had been issued by the court below in an execution petition filed by the man's wife in relation to an order directing him to pay a maintenance of over Rs.1 lakh per month to her and their minor daughter under Domestic Violence Act.
Title: NJ v. AJ
Citation: 2023 LiveLaw (Del) 630
The Delhi High Court has observed that the act of an estranged wife taking recourse to law by initiating legal action and filing petitions will not amount to cruelty qua the husband.
“Merely because appellant (estranged wife) had taken recourse to law by initiating legal action before a court of law, it would not amount to cruelty. Taking recourse to law, cannot be, by any stretch of imagination, labeled as an instance of cruelty,” a division bench of Justice Sanjeev Sachdeva and Justice Manoj Jain said.
Title: RAVINDER SINGH BHASIN v. KANWALJIT KAUR & ORS.
Citation: 2023 LiveLaw (Del) 645
The Delhi High Court has said that the family court should not give an adjournment for long period while referring the parties to a matrimonial dispute to a Court Counsellor for exploring the possibility of a settlement.
While preponing a matrimonial dispute pending before a family court which was adjourned to October 18, Justice Navin Chawla said:
“Even though the order records that there are approximately 4000 matrimonial cases of various nature pending before the learned Family Court, such a long adjournment is still not warranted. The Court has to keep a watch on the petition/counseling proceedings that take place before the Court Counselor on a regular basis, and such watch cannot happen if the Court adjourns the matter for such a long date.”
Title: ANURAG GOEL v. CHHAVI AGARWAL
Citation: 2023 LiveLaw (Del) 669
The Delhi High Court has held a wife guilty of contempt of court for wilfully violating a settlement agreement with her husband and disobeying the undertaking to abide by the same given to the family court.
Justice Manmeet Pritam Singh Arora imposed a penalty of Rs. 2,000 on the wife and also sentenced her to one month of simple imprisonment, considering that she “deliberately, wilfully, intentionally and defiantly” disobeyed the undertaking despite various opportunities were granted to her, “only with an intent to enhance her financial settlement with the husband.”
False Allegations Of Illicit Relationship Are Ultimate Kind Of Cruelty: Delhi High Court
Case Title: LK v. OPM
Citation: 2023 LiveLaw (Del) 694
Upholding a family court order granting decree of divorce to a husband on the ground of mental cruelty by wife, the Delhi High Court has observed that false allegations of illicit relationship are “ultimate kind of cruelty.”
“False allegations of illicit relationship are the ultimate kind of cruelty as it reflects a complete breakdown of trust and faith amongst the spouses without which no matrimonial relationship can survive,” a division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna said.
Case Title: NARENDER BHUTANI v. ANJALI BHUTANI
Citation: 2023 LiveLaw (Del) 695
The Delhi High Court has directed its Registry to register a case of criminal contempt against a man for making scandalous allegations against a Principal Judge of a family court in the national capital.
“The Registry is directed to register a case of Criminal Contempt against the petitioner and subject to the orders of Hon'ble the Chief Justice, place the same before an appropriate Division Bench of this Court,” Justice Navin Chawla said.
Case Title: SAGAR v. THE STATE (GOVT. OF NCT)
Citation: 2023 LiveLaw (Del) 720
Observing that discovering husband's infidelity shortly after marriage can have devastating effects on the mental and emotional well-being of a woman, the Delhi High Court has denied bail to a husband accused of abetting suicide of his wife who was found dead within 13 days after marriage.
Justice Swarana Kanta Sharma observed that the emotional trauma of discovering infidelity and subsequent ill behavior of a spouse can drive a woman to take extreme steps to the extent of committing suicide.
Case Title: SMT. K.S. SUMI MOL v. SH. SURESH KUMAR E.K.
Citation: 2023 LiveLaw (Del) 728
The Delhi High Court has issued a slew of directions to the family courts in the national capital for speedy disposal of cases relating to marriage and family affairs within a time frame, in the absence of any specific Rules regarding the same.
A division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna directed that when a suit has been duly instituted, summons may be issued to the defendant to appear and answer the claim and to file the written statement of defence within 30 days.
Case Title: SJ v. S
Citation: 2023 LiveLaw (Del) 736
The Delhi High Court has held that wife's insistence to live separately from other family members of the husband without any justifiable reason can be termed as an act of 'cruelty'.
A division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna added that such acrimonious atmosphere at home cannot be a conducive environment for a married couple to forge a cordial conjugal relationship.
Case Title: KSG v. P
Citation: 2023 LiveLaw (Del) 737
The Delhi High Court has observed that a wife's conduct of making false allegations against the husband and his family members and a constant threat to them regarding being summoned to the police station are acts of cruelty which severely impact mental balance.
A division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna allowed a husband's appeal against a family court order dismissing his petition seeking divorce on the ground of cruelty and desertion by the wife.
Case Title: X v. Y
Citation: 2023 LiveLaw (Del) 747
The Delhi High Court has observed that insistence of a wife's family for her husband to abandon his parents, become a “Ghar Jamai” and live in their house amounts to cruelty.
A division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna granted divorce to a couple, who got married in 2001 and started living separately after a year, on the ground of cruelty and desertion under the Hindu Marriage Act.
Husband Has No Right To Torture Wife And Beat Her Merely Because They Are Married: Delhi High Court
Case Title: RS v. AS
Citation: 2023 LiveLaw (Del) 759
While dissolving a decade old marriage of a couple, the Delhi High Court has observed that no law has given husband the right to subject his wife to beatings and torture merely because they got married.
“ Merely because the parties got married and the respondent was her husband, no law gave him the right to subject his wife to beatings and torture,” a division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna said.
Recovery Of Drugs From Couple's Bedroom Is Attributable To Both Husband And Wife: Delhi High Court
Case Title: DIXITA GOLWALA vs NARCOTICS CONTROL BUREAU
Citation: 2023 LiveLaw (Del) 773
The Delhi High Court observed that recovery of drugs from the bedroom of a couple is attributable to both the husband and wife.
The court made the observation in a bail plea filed by the woman who was arrested in 2021 after drugs were recovered from the couple's bedroom at their residence and from the husband's office premises.
Title: ZAHIR ABDULLAH & ANR v. OMAR ABDULLAH and other connected matter
Citation: 2023 LiveLaw (Del) 774
The Delhi High Court on Thursday directed former Jammu and Kashmir Chief Minister Omar Abdullah to pay interim maintenance of Rs. 1,50,000 per month to his estranged wife Payal Abdullah.
Justice Subramonium Prasad increased the amount of interim maintenance from Rs. 75,000 which was directed by the family court in April 2018.
Case Title: A v. S
Citation: 2023 LiveLaw (Del) 780
The Delhi High Court has observed that making false allegations of dowry harassment or rape against the husband's family members is an act of extreme cruelty for which there can be no condonation.
A division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna upheld a family court order which held a husband as entitled to divorce from his wife on the ground of cruelty under Section 13(1)(ia) of the Hindu Marriage Act, 1955.
CaseTitle: RAJESH KUMARI v. DHIRAJ & ORS.
Citation: 2023 LiveLaw (Del) 789
The Delhi High Court has observed that merely because the relationship between the parents has turned acrimonious, resulting in FIRs and making serious allegations against each other, cannot be a ground to deny an attempt at re-establishing the bond between a mother and her minor child.
Case Title: Mamta v. Pradeep Kumar
Citation: 2023 LiveLaw (Del) 790
The Delhi High Court has made some striking observations with respect to the Hindu Marriage Act 1955 not recognizing incompatibility of a married couple as a ground for divorce, leaving such couples to "suffer acrimonious relationship" with no exit.
" Unless the opposite party was shown to be at fault, whether it was for 'Adultery', 'Cruelty', 'Desertion' or other grounds as specified under Section 13 of the Act, 1955, no divorce can be granted. With the passage of time, experience has shown that many a times, the marriages do not work because of incompatibility and temperamental differences, for which neither party can be blamed. However, since only Fault Theory prevails, these parties end up warring with each other for years to come only because they have no way of exiting this relationship " a division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna observed.
Case Title: PREETI v. VIKAS
Citation: 2023 LiveLaw (Del) 791
The Delhi High Court has observed that while looking at acts of 'mental cruelty', the courts must look at the married life of a couple as a whole and not merely a few isolated incidents.
A division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna also observed that mere filing of an FIR by wife is not sufficient to prove the allegations of cruelty and dowry harassment without being proved by cogent evidence.
'Mental Cruelty' Wide Enough To Include 'Financial Instability' Of Spouse: Delhi High Court
Case Title: PW v. RW
Citation: 2023 LiveLaw (Del) 798
The Delhi High Court has ruled that term “mental cruelty” is wide enough to take within its ambit the “financial instability” of a spouse.
“In the present case, it is easy to decipher the mental trauma as the appellant [wife] was working and the respondent [husband] was not working. There was a huge disparity in the financial status of the appellant and the respondent. The endeavours of the respondent to be able to sustain himself had admittedly failed. Such kind of financial instability is bound to result in mental anxiety on account of husband being not settled in any business or profession which resulted in other vices, can be termed as a constant source of mental cruelty to the appellant. The term “mental cruelty” is wide enough to take within its ambit the “financial instability”” a division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna said.
Title: X v. Y
Citation: 2023 LiveLaw (Del) 820
The Delhi High Court has said that a wife cannot be entitled to maintenance by the husband when she is highly qualified and has been earning even after her marriage, though she does not truthfully disclose her true income.
While upholding a family court order dismissing a wife's application for maintenance under Section 24 of Hindu Marriage Act, 1955, a division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna said:
“We find that in the present case it is not only that the appellant is highly qualified and has an earning capacity, but in fact she has been earning, though has not been inclined to truthfully disclose her true income. Such a person cannot be held entitled to maintenance.”
Case Title: MALINI CHAUDHRI v. RANJIT CHAUDHRI & ANR.
Citation: 2023 LiveLaw (Del) 827
The Delhi High Court has observed that a divorced daughter is not a “dependent” under the Hindu Adoptions and Maintenance Act, 1956, and that she is not entitled to claim maintenance from the estate of her deceased father.
“An unmarried or widowed daughter is recognized to have a claim in the estate of the deceased, but a “divorced daughter” does not feature in the category of dependents entitled to maintenance,” a division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna observed.
Case Title: X v. Y
Citation: 2023 LiveLaw (Del) 831
The Delhi High Court has observed that a husband living with another woman, after long years of separation from his wife with no possibility of re-union during the pendency of the divorce petition, cannot disentitle him from seeking divorce on proven grounds of cruelty by the wife.
A division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna said that the allegations of cruelty made in criminal cases by the wife should be substantiated in divorce proceedings.
Title: RD v. VD
Citation: 2023 LiveLaw (Del) 852
The Delhi High Court has ruled that constant rejection and non-acknowledgment of the husband in a marriage by his wife is a source of “great mental agony” for him.
A division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna upheld a family court order granting divorce to a husband on the ground of cruelty by his wife. The couple got married in March 2011 and started living separated just after six months.
Title: ABC v. XYZ
Citation: 2023 LiveLaw (Del) 854
Observing that a child is the worst victim where there is acrimonious relationship between the parents, the Delhi High Court has said that a minor's age and the surrounding circumstances of the period of separation from a parent are relevant while considering his or her 'intelligent preference'.
A division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna made the observation while referring to Section 17(3) of the Guardians and Wards Act, 1890, which states that while appointing a guardian, court may consider preference of a minor in case he or she is old enough to form an “intelligent preference”
Title: D v. AK
Citation: 2023 LiveLaw (Del) 855
The Delhi High Court has ruled that irretrievable breakdown of marriage is not a ground for seeking divorce and that Family Courts must strictly restrict their considerations to the statutory provisions like those under the Hindu Marriage Act, 1955.
While discussing the theory of breakdown of marriage, a division bench of Justice Sanjeev Sachdeva and Justice Vikas Mahajan said that irretrievable breakdown of marriage is not a ground for grant of divorce under the enactment.
Case Title: J v. ND
Citation: 2023 LiveLaw (Del) 866
The Delhi High Court has observed that a wife's misrepresentation about having 'sufficient means' to set up business cannot be said to be of the nature as would amount to 'fraud or concealment' of material fact entitling the husband to seek annulment of marriage under the Hindu Marriage Act, 1955.
A division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna made the observations while dismissing a husband's appeal challenging a family court order dismissing his petition for annulment of marriage on the ground of fraud by the wife under Section 12(1)(c) of the Hindu Marriage Act, 1955.
Case Title: KOMAL GUPTA v. AMRENDRA KUMAR GUPTA
Citation: 2023 LiveLaw (Del) 875
The Delhi High Court has observed that family courts have to be a little liberal in family disputes and that the stringent test, as may be applicable to commercial disputes, cannot be applied in such cases.
Dealing with a case where a family court closed a wife's right to file her written statement in the divorce proceedings, Justice Navin Chawla said:
“It is to be remembered that closing of the right to file written statement would result in grave personal consequences to the party concerned. The approach of the learned Family Court, therefore, has to be guided by the object of the Family Court, rather than the technicality of law.”
Family Courts Can't Compel Parties To Take Divorce If Not Mutually Acceptable: Delhi High Court
Title: ABC v. XYZ
Citation: 2023 LiveLaw (Del) 877
The Delhi High Court has said that family courts cannot compel the parties to take divorce if not mutually acceptable and that their approach must be reconciliatory.
A division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna made the observation while dismissing a husband's appeal against a family court order rejecting his contempt petition against the wife for not having abided by the MoU whereby they had agreed to take divorce by mutual consent.
Case Title: X v. Y
Citation: 2023 LiveLaw (Del) 895
The Delhi High Court has observed that making friends at workplace or otherwise when both husband and wife have been living separately due to work exigencies cannot be termed as cruelty.
A division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna observed that a person who is living alone may find solace by having friends, and merely because such individual used to talk to friends can neither be held to be an act of ignoring the spouse nor a cruel act.
Title: AS v. NN
Citation: 2023 LiveLaw (Del) 897
The Delhi High Court has observed that if a wife starts working to supplement daily expenditure for herself and the child due to financial crunch, it is not a ground to reduce maintenance payable to her by her husband.
A division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna dismissed a husband's appeal challenging a family court order refusing to modify monthly maintenance of Rs. 8,000 to the wife and Rs. 3,000 for the minor child.
Case Title: X v. Y
Citation:2023 LiveLaw (Del) 932
The Delhi High Court has observed that for a married couple to be deprived of the conjugal relationship and of each other's company is an act of extreme cruelty.
A division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna upheld a family court order granting divorce to a husband under Section 13 (1)(ia) of the Hindu Marriage Act, 1956, on the ground of cruelty by wife.
Wife's Claim For Separate Residence Under 'Justified Circumstances' Not Cruelty: Delhi High Court
Title: X v. Y
Citation: 2023 LiveLaw (Del) 948
The Delhi High Court has observed that a wife's claim for separate residence under “justified circumstances” cannot be term as an act of cruelty to the husband.
“There may be myriad situations such as differences with the in-laws, her own work commitments or difference of opinion which may make her demand for separate accommodation justified for survival of the marriage. Where there exist certain justifiable reasons, claim for a separate residence per se cannot be termed as an act of cruelty,” a division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna said.
Title: MASTER ADITYA VIKRAM KANSAGRA & ANR. v. PERRY KANSAGARA
Citation: 2023 LiveLaw (Del) 957
The Delhi High Court has held that the maintenance proceedings under Section 18 and 20 of the Hindu Adoptions and Maintenance Act, 1956, are not suits and the “ad valorem” court fee is not liable to be paid in such cases.
A division bench of Justice Sanjeev Sachdeva and Justice Vikas Mahajan observed that imposition of a condition on a wife or a child who have been neglected and do not have sufficient means to maintain themselves to pay the ad valorem court fees calculated on ten times the amount claimed for one year would be “discriminatory, unreasonable and onerous.”
Title: X v. Y
Citation: 2023 LiveLaw (Del) 971
The Delhi High Court has observed that where both the spouses are equally qualified and earning equally, interim maintenance cannot be granted to the wife under Section 24 of the Hindu Marriage Act.
A division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna said that the object of Section 24 is to ensure that during the matrimonial proceedings under the enactment, either party should not be handicapped and suffer any financial disability to litigate only because of paucity of source of income.
Title: X v. Y
Citation: 2023 LiveLaw (Del) 986
The Delhi High Court has ruled that once there is a legal bar on the performance of second marriage when either spouse of the parties are living, the consent of such parties cannot confer validity to the second marriage.
Noting that both the parties should not have a living spouse according to Section 5(i) of the Hindu Marriage Act, 1955, a division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna said:
“In case, there is a violation of this condition, the marriage is void in terms of Section 11 of HMA, 1955. Once there is a legal bar to the performance of the second marriage, the consent of the parties cannot confer the validity to a marriage held in violation of the condition specified in Section 5(i) of HMA, 1955.”
Title: X v. Y
Citation: 2023 LiveLaw (Del) 1022
The Delhi High Court has said that merely because the wife is holding a graduation degree, it cannot be presumed that she is intentionally not working solely with an intent to claim interim maintenance from the husband, particularly when she was never employed in the past.
While refusing to reduce interim maintenance granted to a wife, a division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna said:
“ There is no denial that the wife is a graduate having a degree, but she has never been gainfully employed. No inference can be drawn that merely because the wife is holding a degree of graduation, she must be compelled to work. It can also not be presumed that she is intentionally not working solely with an intent to claim interim maintenance from the husband.”
Trivial Irritations, Loss Of Trust Between Married Couple Not Mental Cruelty: Delhi High Court
Title: X v. Y
Citation: 2023 LiveLaw (Del) 1036
The Delhi High Court has said that trivial irritations and loss of trust between a married couple cannot be confused with mental cruelty.
A division bench of Justice Sanjeev Sachdeva and Justice Manoj Jain also observed that denial of sex can be considered a form of mental cruelty where it is found to be persistent, intentional and for a considerable period of time.
Title: SATPAL SINGH v. STATE
Citation: 2023 LiveLaw (Del) 1048
The judicial system cannot stand by and allow the economic circumstances of a girl's parents to become death warrants and sentences for their daughters in their matrimonial homes, the Delhi High Court has observed while dealing with a dowry death case.
Justice Swarana Kanta Sharma observed that to subject a woman to a life akin to a slave merely because of her marital status is an egregious injustice.
Title: X v. Y
Citation: 2023 LiveLaw (Del) 1068
The Delhi High Court has said that the wife making serious and unsubstantiated allegations against the husband and waging a legal war against him by implicating him and his family members amounts to extreme cruelty towards spouse.
A division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna set aside a family court order and granted divorce to a husband on the ground of cruelty by the wife under Section 13(1)(ia) of the Hindu Marriage Act, 1955.
Maintenance Provision Under Hindu Marriage Act Is Gender Neutral: Delhi High Court
Title: X v. Y
Citation: 2023 LiveLaw (Del) 1151
The Delhi High Court has said that the provision for grant of maintenance pendente lite and litigation expenses to a spouse under the Hindu Marriage Act is gender neutral.
A division bench of Justice V Kameswar Rao and Justice Anoop Kumar Mendiratta said that the spouse having a reasonable capacity of earning but who chooses to remain unemployed and idle without any sufficient explanation or indicating sincere efforts to gain employment should not be permitted to saddle the other party with one sided responsibility of meeting out the expenses.
Title: X v. Y
Citation: 2023 LiveLaw (Del) 1219
The Delhi High Court has said that merely because the wife is earning does not automatically operate as an absolute bar for awarding maintenance by the husband.
A division bench of Justice V Kameswar Rao and Justice Anoop Kumar Mendiratta also observed that the obligation of the husband to provide maintenance is on a higher pedestal than the wife, since the provision for grant of maintenance or interim maintenance for women and children in various statutes is keeping in perspective the underlying principle under Article 15(3) of the Constitution of India.
Title: ANISH PRAMOD PATEL v. KIRAN JYOT MAINI
Citation: 2023 LiveLaw (Del) 1220
The Delhi High Court has ruled that a person cannot be summoned under Section 31 of the Protection of Women from Domestic Violence Act, 2005, for non-compliance of an order for payment of maintenance.
Justice Swarana Kanta Sharma observed that the focus of the enactment is on providing immediate and effective relief to victims of domestic violence by way of maintenance or interim maintenance orders, and that the idea is ot to immediately initiate criminal proceedings against the aggressor for non-payment of maintenance and to send such person to prison.
Title: MANU GUPTA v. SUJATA SHARMA & ORS.
Citation: 2023 LiveLaw (Del) 1247
The Delhi High Court has ruled that neither the legislature nor the traditional Hindu Law, in any way, limits the right of a woman to be a Karta of an Hindu Undivided Family (HUF).
A division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna observed that “societal perceptions” cannot be a reason to deny the rights expressly conferred by the Legislature.
Delhi High Court Refuses To Grant Divorce To Omar Abdullah From Estranged Wife Payal Abdullah
Title: Omar Abdullah v. Payal Abdullah
Citation: 2023 LiveLaw (Del) 1276
The Delhi High Court has dismissed the plea moved by former Jammu and Kashmir Chief Minister Omar Abdullah seeking divorce from his estranged wife Payal Abdullah.
A division bench of Justice Sanjeev Sachdeva and Justice Vikas Mahajan rejected the petition moved by Omar Abdullah challenging a family court order passed on August 30, 2016, dismissing his plea for divorce.
Title: ABC v. XYZ
Citation: 2023 LiveLaw (Del) 1285
The Delhi High Court has recently said that there is an overlapping of jurisdiction to grant interim maintenance under various enactments which leads to conflicting judgments or orders at different stages between the parties.
“Such conflicting Orders, in the similar facts and without any change in circumstances, under overlapping jurisdiction of different Acts, creates a sense of judicial impropriety and forum shopping, which may not be conducive to the majesty of the Courts,” a division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna observed.
Title: X v. Y
Citation: 2023 LiveLaw (Del) 1289
The Delhi High Court has ordered that the children room in all District Courts in the national capital must be kept open on every Sundays and second Saturdays between 10 AM to 5 PM, so that visitation with children can also be directed on those days.
A division bench of Justice V Kameswar Rao and Justice Anoop Kumar Mendiratta said that it is a matter of record that District Courts in Delhi are closed on Sundays and Second Saturday and no order for visitation can be passed on those days.
Title: X v. Y
Citation: 2023 LiveLaw (Del) 1315
The Delhi High Court had said that the time period of filing written statement, being in the realm of procedural law, can be extended under the Family Courts Act, 1984, if the applicant spells out exceptional circumstances or disability faced by him or her in filing the same.
A division bench of Justice V Kameswar Rao and Justice Anoop Kumar Mendiratta however underscored that ordinarily, the time schedule for filing the written statement needs to be followed to deal with family disputes in an expeditious manner.
Title: X v. Y
Citation: 2023 LiveLaw (Del) 1323
While dealing with a divorce case, the Delhi High Court has ruled that having different religious beliefs and not performing certain religious duties per se would not amount to cruelty or would not be sufficient to severe a marital tie.
A division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna said that fasting or not fasting on “Karwachauth” may be an individual choice and if dispassionately considered, may not be termed as an act of cruelty.
Delhi High Court Order Deputing One Clinical Child Psychologist In Each Family Court Complex
Title: X v. Y
Citation: 2023 LiveLaw (Del) 1331
The Delhi High Court directed its Registrar General to take necessary steps for deputing at least one Clinical Child Psychologist in each Family Court Complex, who would be in a better position to provide counselling sessions to minor children as and when required or as directed in respective cases.
A division bench of Justice V Kameswar Rao and Justice Anoop Kumar Mendiratta said that the report submitted by the Clinical Child Psychologist on evaluation or counselling can be shared with the concerned Family Court in a sealed cover, which would enable such court to form an appropriate opinion for custody or visitation rights in custody cases.
Title: X v. Y
Citation: 2023 LiveLaw (Del) 1337
The Delhi High Court recently upheld divorce granted to a married couple on the ground of cruelty by the wife, observing that her act of harassing and humiliating the husband publicly and portraying him as a “womanizer” in his office is an act of extreme cruelty to him.
A division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna observed that reckless, defamatory, humiliating and unsubstantiated allegations by one spouse, which has the impact of publicly tarnishing the image of the other, is nothing but acts of extreme cruelty.
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.”
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 recently 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
GUJARAT HIGH COURT
Case Title: Shripal Raja Rajendrakumar Shah v. State of Gujarat & Ors
Citation: 2023 Livelaw (Guj) 2
The Gujarat High Court recently 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
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
Citation: 2023 Livelaw (Guj) 17
The Gujarat High Court recently 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: Khojema Saifudin Dodiya v. Registrar of Birth and Death/Chief Officer, Dhoraji Nagarpalika
Citation: 2023 Livelaw (Guj) 40
The Gujarat High Court on Friday 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
Citation: 2023 Livelaw (Guj) 45
The Gujarat High Court recently 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
Citation: 2023 Livelaw (Guj) 46
The Gujarat High Court recently 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.
Citation: 2023 Livelaw (Guj) 48
The Gujarat High Court recently 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: Rajesh Kumar Mishra v. State of Gujarat
Citation: 2023 Livelaw (Guj) 82
The Gujarat High Court on Thursday 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.
Case Title: Raj Rameshbhai Mistry v. State of Gujarat
Citation: 2023 Livelaw (Guj) 91
The Gujarat High Court recently 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)
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
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'.
Case Title: Rameshbhai Danjibhai Solanki & 7 Other(S) Versus State Of Gujarat & 1 Other(S)
Citation: 2023 Livelaw (Guj) 136
The Gujarat High Court has ruled that accusations related to the offence under Section 498A of the Indian Penal Code (IPC) can be pursued by a woman, provided she claims instances of harassment and cruelty that occurred while her marriage was still in effect.
Justice Jitendra Doshi held, “... allegations of the offence u/s 498A of the IPC even can be maintained at the instance of the divorcee wife, provided that she alleges the incident of harassment and cruelty which could have been meted out while marriage was subsisting.”
Case Title: Umaben Jayantbhai Shah D/O Late Ramanlal N. Shah vs NA
Citation: 2023 Livelaw (Guj) 149
The Gujarat High Court has made it clear that even though Section 371 of the Indian Succession Act stipulates two modes of determining territorial jurisdiction of courts for grant of succession certificate, the second mode is only an alternative which can be invoked if the petitioner demonstrates that the deceased had no permanent place of residence.
Section 371 prescribes that the District Judge within whose jurisdiction the deceased ordinarily resided at the time of his death, or, at that time had no fixed place of residence, the District Judge within whose jurisdiction any part of the property of the deceased may be found, may grant a certificate.
Case Title: Rajan Ankleshwaria v. Vinni Ankleshwaria
Citation: 2023 LiveLaw (Guj) 155
The Gujarat High Court recently held that in a dispute over the custody of a minor child, an order that does not finalise the question of custody qualifies as an interlocutory order and not an interim order, and clarified that an appeal against an interlocutory order is not permissible as per Section 19 of the Family Courts Act.
The division bench of Justices Ashutosh Shastri and Divyesh A. Joshi highlighted that an interlocutory order does not terminate the proceedings or finally decide the rights of the parties and concluded that the rights regarding the return of the child's custody were not finally decided by the impugned order.
Citation: 2023 LiveLaw (Guj) 200
While a series of petitions seeking to criminalise marital rape is presently pending before the Supreme Court, the Gujarat High Court, in an important observation, recently said that rape is a rape, be it performed by a man the 'husband' against his own 'wife'.
Disagreeing with the marital rape exception as provided under Section 375 of IPC (Exception 2), which exempts a husband from punishment if he commits sexual acts against the consent of his wife (being 18 or above in age), the Court noted that marital rape is illegal in 50 American States, 3 Australian States and many other countries.
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.
Case Title: Sanjeev Kumar & ors Vs Sushma Devi
Citation: 2023 LiveLaw (HP) 48
While reiterating that petitions under Section 482 CrPC are not maintainable for challenging the proceedings under Section 12 of the Domestic Violence Act, the Himachal Pradesh High Court has issued directions to the lower courts to ensure their compliance in handling cases related to the Domestic Violence Act.
A bench of Justice Jyotsna Rewal Dua noted that these days diverse recourses are being adopted to challenge the proceedings under the Domestic Violence Act in the form of petitions under Section 482 of the Code or Section 397 read with section 401 of the Code and sometimes under Article 227 of the Constitution.
Case Title: Sanjeev Kumar & ors Vs Sushma Devi
Citation: 2023 LiveLaw (HP) 48
While dealing with a case pertaining to the Domestic Violence Act, the Himachal Pradesh High Court has held that framing of issues, for the first time, only in the judgment, placing burden of proving such issues on respective parties, deciding the case on the basis of such issues about which parties have not even been made aware of, is a procedure alien to well established legal and procedural conventions.
A single bench of Justice Jyostna Rewal Dua observed that parties need to be made aware of the issues or the points they needed to prove in the case before directing them to lead evidence.
In this case, the bench noted, “Not only the points/issues were framed by the learned Trial Court in its judgment but the onus to prove such issues was also fastened upon respective parties, who were not even aware of formulation of the issues leave aside the onus to prove them". This approach it held was wholly erroneous.
Court said,
"It was imperative for the learned Trial Court to have framed issues/points for determination before directing the parties to lead evidence. The order passed by the learned Trial Court determining the points/issues and fixing the onus of proving those issues/points at the time of deciding the case was not in consonance with law."
Case Title: Dilbag Singh vs. Vipan Kumar & other
Citation: 2023 LiveLaw (HP) 66
The Himachal Pradesh High Court has held that though gratuitous services rendered by women in managing households and families cannot be equated with money, such services should be properly considered while deciding a claim for compensation under the Motor Vehicles Act.
Justice Virender Singh added that women perform various activities in the household and that their untimely death due to a motor vehicle accident entitles their families to compensation.
“Women are doing multifarious activities in the household. The gratuitous services rendered by women cannot be equated with money.”
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
Case Title: Mst Haleema & Ors Vs Mst Dilshada & Ors.
Citation: 2023 LiveLaw (JKL) 10
The Jammu and Kashmir and Ladakh High Court observed that where a husband makes a gift to the wife, either of the matrimonial home occupied by both of them or any other property belonging to him, there is no need for actual physical departure by the donor to execute the Gift.
"The reason is that the relationship of husband and wife is different from any other relationship. Joint residence is an integral aspect of this relationship and the fact that the husband manages and looks after the property of the wife is backed by an implied presumption that he does it on behalf of his wife", Justice Sanjay Dhar recorded.
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: 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: 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: State of J&K Vs Tariq Hussain.
Citation: 2023 LiveLaw (JKL) 174
Mere harassment of a wife by her husband or in-laws due to matrimonial discord or sarcastic remarks per se does not attract the offence of abetment of suicide, the Jammu & Kashmir and Ladakh High Court held.
While upholding the acquittal of a man from charges under Section 306 of the Ranbir Penal Code (RPC) after his wife set herself ablaze and died, a single bench of Justice Rajesh Sekhri observed,
"There may be various instances of matrimonial discord between husband and wife and at times wife being constantly taunted and subjected to sarcastic remarks in the house of her in-laws may be driven to commit suicide. However, such instances are normal wear and tear of a matrimonial life. In my opinion mere harassment of a wife by her husband or in-laws due to matrimonial discord or sarcastic remarks perse does not attract Section 306 of RPC (abetment of suicide)."
J&K Hindu Succession Act | Will Can Be Executed In Favour Of Unrelated Person: High Court
Case Title: Chand Devi Vs Sonam Choudhary
Citation: 2023 LiveLaw (JKL) 177
The Jammu and Kashmir High Court made it clear that a Will under Section 27 of the Jammu and Kashmir Hindu Succession Act can be executed in favour of a person who is not even related to the executant.
A single bench of Justice Vinod Chaterjee Koul said Will is statutorily recognized mode of "alteration of natural line of succession" delineated by Hindu Succession Act without any prohibition, curbs, rider etc.
Case Title: Khalid Amin Kohli Vs UT of J&K
Citation: 2023 LiveLaw (JKL) 194
The Jammu & Kashmir High Court held that Section 482 of the Code of Criminal Procedure (CrPC) cannot be used to challenge the proceedings initiated under Section 12 of the Jammu and Kashmir Protection of Women From Domestic Violence Act, 2010 or the orders passed thereunder.
Case Title: Aamir Javid Waza and ors. Vs Gousia Jan and Ors.
Citation: 2023 LiveLaw (JKL) 216
Clarifying the interpretation of the term "temporary residence" under the Protection of Women from Domestic Violence Act, 2005, the Jammu and Kashmir and Ladakh High Court emphasized that a "temporary residence" encompasses situations where an individual is compelled to find refuge due to domestic violence, or where they have been forced out of their matrimonial home.
Case Title: Mrs. Syed Asma Balki Vs. Mudasir Shibzada
Citation: 2023 LiveLaw (JKL) 281
The Jammu and Kashmir and Ladakh High Court clarified that orders passed under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (DV Act) cannot be directly challenged under Section 482 of the Criminal Procedure Code (CrPC) unless the remedy of statutory appeal is availed.
Dismissing a petition under Section 482 assailing the orders passed by the Judicial Magistrate under Sec 12 of the DV Act, Justice Sanjay Dhar observed,
“Without going into the question, whether or not the proceedings under the D.V.Act are of civil in nature, one thing is clear that the remedy of appeal is available to the petitioner against the impugned order. Without availing the said remedy the petitioner could not have rushed to this Court to file proceedings under Section 482 Cr.P.C or by invoking revisional powers of this Court”.
Case Title: ZAHOOR AHMAD DAR Vs JAMEELA BANO & ANOTHER
Citation: 2023 LiveLaw (JKL) 282
The Jammu and Kashmir High Court ordered a Muslim man to maintain his wife till the factum of divorce, as had been claimed by him, is established.
The bench reasoned that denying maintenance would defeat the purpose of Section 488 of the Criminal Procedure Code (Pari Materia with sec 125 CrPC), which aims to provide temporary financial support to women during marital disputes.
Case Title: Mahroz Akhter Vs Dr Azmat Gouhar
Citation: 2023 LiveLaw (JKL) 310
The Jammu and Kashmir and Ladakh High Court has observed that concrete evidence regarding the salary amount of the husband must be made known to the trial court so that it can pass a direction for a specific amount of maintenance payable by the husband under the Domestic Violence Act.
Emphasising the need for concrete evidence of the husband's salary before quantifying maintenance, Justice Puneet Gupta observed,
"The court cannot pass in air the direction that the wife shall be entitled to 25% of the gross salary without knowing the actual salary of the husband. The trial court is required to have the income of the husband of the applicant-wife and then pass the order of maintenance as deemed fit in the light of the salary or other income of the husband”.
J&K High Court Quashes FIR For Offence of Triple Talaq Owing To Compromise Between Parties
Case Title: Jamsheed Haroon and Another
Citation: 2023 LiveLaw (JKL) 316
Upholding the power of compromise in matrimonial disputes, the Jammu & Kashmir High Court has quashed an FIR filed under the Muslim Women (Protection of Rights on Marriage) Act, 2019, for the offence of triple talaq. Justice Sindhu Sharma, in a nuanced order, recognised the settlement reached between the couple and the potential for further injustice if the criminal proceedings continued.
“In view of the fact that the parties have mutually settled the dispute and to discharge/ release the parties from this dilemma, there is no reason to keep the FIR pending between the parties”, Justice Sharma recorded.
JHARKHAND HIGH COURT
Case Title: Umesh Kumar and Others vs. The State of Jharkhand and Another
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.
Case Title: Abhishek Kumar Paul vs. The State of Jharkhand and Another
Citation: 2023 Livelaw (Jha) 43
The Jharkhand High Court has dismissed a rape case filed by a woman who was a married adult, noting that she was fully aware of the potential consequences of engaging in a physical relationship with another person.
The court ruled that the accused could not be deemed to have obtained her consent under false pretense, thus quashing the charges based on an alleged promise of marriage. Justice Subhash Chand observed, “...the victim was major since the very time when she came in contact with the accused and while during the love affairs of the victim with the accused Abhishek Kumar Pal at college time, the victim was major, while the accused was minor at that time being 2 years younger to the victim.”
Case Title: RM vs. The State of Jharkhand
Citation: 2023 LiveLaw (Jha) 44
The Jharkhand High Court has granted relief to a man accused of raping his widowed sister-in-law under pretext of false to marry her, asserting that prosecutrix was a married woman of legal age, was well aware of the consequences of her relationship with her brother-in-law.
Justice Subhash Chand observed that the evidence presented did not establish the victim's consent was obtained through fraud. “Admittedly, the victim was major and a married lady, she was very much aware in regard to sexual relations being established with her brother-in-law. The consent cannot be said to be obtained under misconception in view of Section 90 of the Indian Penal Code reason being that she had been continuously in establishing sexual relation with the petitioner for six years. Being a major and married lady, she was very much aware the consequences to establish sexual relation without getting married. From the allegations made in the FIR on their face do not indicate that the consent was obtained by playing fraud upon the victim.”
Jharkhand High Court has directed the state police to file a First Information Report (FIR) against its personnel accused of assaulting the relatives of Kamaldev Giri, a prominent Bajrang Dal leader who was tragically murdered in Chakradharpur last year.
Justice Sanjay Kumar Dwivedi held that, “This is not a single case. There are many cases of such nature, which have been examined by this Court in several writ petitions and appropriate directions have also been issued. This is unfortunate that a citizen has been compelled to move before this Court under Article 226 of the Constitution of India for registration of the FIR and such a direction is already there in view of the judgment passed in Lalita Kumari (supra).”
Case Title: Niraj Kathuria vs The State of Jharkhand and Anr
Citation: 2023 LiveLaw (Jha) 64
While revising the maintenance amount awarded to a woman in a matrimonial dispute, the Jharkhand High Court has opined that while it is the husband's moral obligation to provide maintenance to his wife, ensuring she can maintain a lifestyle similar to that of their matrimonial home, this does not justify burdening the husband to the extent that the marriage becomes a punishment for him.
Justice Subhash Chand observed, “Certainly, it is moral duty of the husband to pay maintenance to her wife so that she may also reside in the same status as would have been in matrimonial house; but it does not mean to squeeze milk from the husband that the marriage becomes felony for the husband.”
Section 498-A IPC Being Misused As A Weapon By Disgruntled Wives: Jharkhand High Court
Case title - Rakesh Rajput and another vs. The State of Jharkhand and another
Citation: 2023 LiveLaw (Jha) 78
Expressing its concern against misuse of Section 498A IPC, the Jharkhand High Court recently said that this provision of law is being misused as a weapon, rather than a shield, by 'disgruntled wives'.
The bench of Justice Sanjay Kumar Dwivedi observed that such cases are being filed by the wife in the heat of the moment over trivial issues without proper deliberations.
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.
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.”
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.”
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: 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: ABC And XYZ
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
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 an 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: 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 recently 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: 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 recently 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.”
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: 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 Mahabaleshwara Swamy Temple at K.R.Puram, Bangalore East Taluk.
Case Title: ABC v. XYZ
Citation: 2023 LiveLaw (Kar) 211
The Karnataka High Court on Wednesday directed the Police to contact the employer of a woman who failed to hand over 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: 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: ABC And XYZ
Citation: 2023 LiveLaw (Kar) 249
The Karnataka High Court has allowed a petition filed by a woman seeking divorce on grounds of cruelty, after the husband failed to challenge the petition or the evidence led by the wife.
A division bench of Justice Alok Aradhe and Justice Anant Ramanath Hegde set aside the family court order rejecting the divorce petition. It said, “When there is no challenge to the petition as well as to the evidence led by the wife, this Court is of the view that the Family Court erred in rejecting the petition.”
Case Title: XYZ & ANR And Gurumanjunatha A S & Others
Citation: 2023 LiveLaw (Kar) 252
The Karnataka High Court has rejected a petition filed by a woman challenging the order of the Appellate court reducing the maintenance and compensation amount granted to her by the Magistrate court on filing of an application under section 12 of Protection of Women from Domestic Violence Act, 2005.
A single judge bench of Justice Rajendra Badamikar observed that the petitioner-wife was working prior to her marriage and there is no explanation as to why she is incapable of working now. It added, “She is not supposed to sit idle and seek entire maintenance from her husband and she is also legally bound to make some efforts to meet her livelihood and she can seek only supportive maintenance from her husband.”
Case Title: PRADNYA W/O. ABHIJIT WAINGANKAR And ABHIJIT S/O. MANOHAR WAINGANKAR
Citation: 2023 LiveLaw (Kar) 254
The Karnataka High Court has allowed an appeal filed by a woman and set aside the order of the family court rejecting her plea for dissolving marriage, stating that despite the court allowing the application moved by the husband for restitution of conjugal rights, she had not returned to the matrimonial home.
A division bench of Justice S G Pandit and Justice Vijaykumar A Patil, said “The family Court has committed an error in recording the finding that despite the judgment in M.C.No.280/2019, the appellant has failed to join matrimonial home. The family Court has not considered the case of the appellant on its merits for dissolution of marriage on the ground of cruelty.”
If An Able Bodied Person Is Bound To Maintain His Wife, Why Not Dependent Mother? Karnataka High Court
Case Title: Gopal & ANR And The Deputy Commissioner & Others
Citation: 2023 LiveLaw (Kar) 265
The Karnataka High Court has dismissed a petition filed by the sons of an aged woman against an order of the Deputy Commissioner that directed them to pay her maintenance amount of Rs 10,000, under the Maintenance and Welfare of Parents and Senior Citizens Act.
A Single judge bench of Justice Krishan S Dixit dismissed the petition filed by Gopal and others who questioned the order directing them to pay Rs 10,000 to their 84-year-old mother who is residing with their sister. “If an able bodied person is bound to maintain his dependent wife, there is no reason why such a rule should not apply when it comes to the case of a dependent mother. An argument to the contra falls foul of law & religion, to which the Petitioners belong.”
Case Title: N L Manjunatha & ANR AND B L Ananda
Citation: 2023 LiveLaw (Kar) 271
The Karnataka High Court has said that an adoption deed or registered document is not a must to prove the adoption of a child. If conditions of valid adoptions as required under the Hindu Adoption and Maintenance Act, 1956 are established, it is sufficient to prove the adoption.
A Single judge bench of Justice Shivashankar Amarannavar dismissed an appeal filed by one N.L. Manjunatha who had challenged the order of the trial court and the first appellate court decreeing the suit for partition of ancestral property, in favour of the B.L. Ananda (respondent herein), who is the brother of the appellant.
Second Wife Can't Maintain Complaint Against Husband And In-Laws U/S 498A IPC: Karnataka High Court
Case Title: Kantharaju And State of Karnataka
Citation: 2023 LiveLaw (Kar) 276
The Karnataka High Court has said that a complaint under Section 498-A (cruelty) of the Indian Penal Code, filed by the second wife against the husband and her in-laws is not maintainable.
A single judge bench of Justice S Rachaiah allowed the petition filed by one Kantharaju and set aside the conviction order passed by the trial court and the revision court convicting him for section 498-A on the complaint filed by his second wife.
Divorce Cases Should Be Decided By Family Courts Within One Year: Karnataka High Court
Case Title: N Rajeev AND C Deepa
Citation: 2023 LiveLaw (Kar) 284
The Karnataka High Court has said courts (trial courts) should make all efforts to try and dispose off matrimonial cases, which involve prayer for the dissolution/nullity of marriage, within an outer limit of one year.
A single judge bench of Justice Krishna S Dixit said “Matrimonial causes should be tried & disposed off on a war footing, at least as a concession to the shortness of human life.” Pointing out the importance of early disposal the bench said “So that in the event of granting such a decree, the parties may restructure their lives.”
Case Title: Mohammed Amjad Pasha And Naseema Banu & Others
Citation: 2023 LiveLaw (Kar) 287
The Karnataka High Court has dismissed the petition filed by a Muslim man challenging an order granting maintenance in favour of his wife and children.
A single judge bench of Justice Krishna S Dixit rejected the petition filed by one Mohammed Amjad Pasha who claimed that he does not have sufficient means to pay a collective maintenance of Rs 25,000 to his wife and minor children. The bench said, “Holy Quran and Hadith say that it is the duty of a husband to look after his wife & children especially when they are in disablement. No material is produced to show that the Respondent-wife is gainfully employed or that she has any source of income. Even otherwise the principal duty lies on the shoulders of the petitioner.”
Case Title: Nabisab s/o. Huchchesab Agnnamani AND Hatelsab s/o Huchchedab Sannamani
Citation: 2023 LiveLaw (Kar) 293
The Karnataka High Court has said that a son, born in 'Batil' marriage (void-ab-initio) under Mohammadan Law, is illegitimate and does not possess any right of succession under the law.
A single judge bench of Justice V Srishananda allowed the appeal filed by one Nabisab Agnnamani (original plaintiff) and set aside the order of the first appellate court which granted half share of ancestral property to Hatelsab Sannamani (original defendant), holding him to be a legitimate son born to Fakiramma through Huchchesab who is the father of the plaintiff.
Case Title: ABC And XYZ
Citation: 2023 LiveLaw (Kar) 299
The Karnataka High Court has held that a wife insulting the husband on the premise that he is 'dark', moving away from his company for the same reason and levelling false allegations of illicit relationships as a cover up, would constitute cruelty.
A division bench of Justice Alok Aradhe and Anant Ramanath Hegde thus allowed the appeal filed by the husband and set aside the family court order refusing divorce decree. It said, “The wife used to insult the husband on the premise that he is dark. And for the same reason has moved away from the company of the husband without any cause. And to cover up this aspect, has levelled false allegations of illicit relationships against the husband. These facts certainly will constitute cruelty.”
Case Title: Smt. Renuka & Ors. v Sri Venkatesh
Citation: 2023 LiveLaw (Kar) 304
The Karnataka High Court, Dharwad Bench, has held that maintenance proceedings under Section 125 of the Criminal Procedure Code, 1973 (“Cr.P.C”) do not require proof regarding sufficient cause for living separately.
“It is clear from a clean reading of Section 125 of Cr.P.C, that the proceedings are summary in nature and it is sufficient if negligence or refusal on the part of the husband in providing maintenance to the wife is demonstrated. The proceedings do not contemplate the proof regarding sufficient cause for living separately”, the Court held.
Case Title: Ananth Kumar K G And Yogita S @ Yogitha Ananth Kumar
Citation: 2023 LiveLaw (Kar) 315
The Karnataka High Court has dismissed the petition filed by one Ananth Kumar KG questioning the order of family court directing him to pay Rs 10,000 as monthly maintenance to his estranged wife.
A single judge bench of Justice Krishna S Dixit rejected the contention of the petitioner that he has been suffering from diabetes and related ailments, thus he is not able to pay monthly maintenance amount for the upkeep of his minor child for the last three years. The bench said, “A large section of people all over the world suffer from such ailments and with the advancement of medical science, all that is manageable. It is not the case of the petitioner that the same are not manageable with proper medical care.”
Case Title: XYZ And ABC
Citation: 2023 LiveLaw (Kar) 342
The Karnataka High Court has clarified that under the Protection of Women from Domestic Violence Act, 2005, a father is to pay maintenance amount to his daughters only till they attain majority and maintenance cannot be ordered to be paid till their marriage.
Justice Rajendra Badamikar added that upon attaining majority if the daughters are not able to maintain themselves, they can seek maintenance under provisions of the Hindu Adoption Act. “In the instant case, admittedly, the major daughters are not parties and they have not sought any maintenance independently. They have got remedy under the provisions of Hindu Adoption Act to seek the maintenance on attaining majority in case they are unable to maintain themselves. Hence, under the provisions of Domestic Violence Act, question of awarding maintenance till marriage of the daughters does not arise at all and the maintenance can be granted till the attainment of age of majority by the child.”
Case Title: XYZ & ANR AND NIL
Citation: 2023 LiveLaw (Kar) 346
The Karnataka High Court has allowed a petition filed by an estranged couple and waived off the statutory cooling period of one year before deciding on the petition for divorce by mutual consent, under the Special Marriage Act.
A division bench of Justice G Narendar and Justice Vijaykumar A Patil allowed the petition filed by the couple and set aside the order of the family court which dismissed their application under Section 28(2) of the Act. The bench said, “The parties to the proceedings are between the age group of 32 to 37 years and they have specifically averred that they intend to concentrate on their career and decided to move on in their respective life. The said decision of the appellants is a conscious decision and the parties are quite mature about the consequences of the said decision. In the facts and circumstances narrated above, this Court is of the considered view that the possibilities of reconciliation between the appellants are bleak.”
Case Title: ABC And XYZ
Citation: 2023 LiveLaw (Kar) 351
The Karnataka High Court has dismissed the appeal preferred by a man challenging a family court order which allowed the divorce petition filed by his wife on grounds of cruelty, since he made her face criminal proceedings initiated by creditors from whom he borrowed money by issuing cheques in her name, for meeting his lifestyle and addictions.
A Division bench of Justice G Narendar and Justice Vijaykumar A Patil said, “The appellant-husband in his written statement and evidence has only denied the allegations of cruelty however, he has not taken any stand with regard to using of signed cheques of the respondent-wife, which clearly goes to show that the appellant-husband has made the respondent-wife a scapegoat and made her to face criminal proceedings initiated by his creditors.”
It added “These acts of the appellant-husband have caused humiliation and mental cruelty, which have been properly pleaded and proved by respondent-wife before the Family Court.”
Sister Cannot Seek Compassionate Appointment Upon Death Of Married Brother: Karnataka High Court
Case Title: Pallavi G M And Managing Director & Others
Citation: LiveLaw (Kar) 352
The Karnataka High Court has held that a sister cannot be appointed on compassionate grounds upon the death of her married brother, who was working as Junior Line Men with Bangalore Electricity Supply Company (Bescom).
A Division bench of Chief Justice Prasanna B Varale and Justice Krishna S Dixit referred to Rule 2(1)(b) of Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996, which stipulates that "family" for the purpose of these rules,- (i) in the case of the deceased male married Government Servant, his widow, son and daughter (unmarried/married/divorced/widowed) who were dependent upon him and were living with him."
Case Title: Mrs. Eulalia Sequeira Nee Menezes and Cyril Anthony Menezes & Others.
Citation: LiveLaw (Kar) 353
The Karnataka High Court has ruled that the burden is on the beneficiary of the will to substantiate the contention of no proper service of notice of probate proceedings on the persons who should have been apprised.
Justice H P Sandesh thus allowed the appeal challenging the order of the trial court which dismissed her petition filed under Section 263 of the Indian Succession Act, seeking to revoke the probate granted in favour of the respondents.
“The burden is on the respondents to substantiate the contention of proper service, since the person who asserts the same has to be proved.”
Case Title: ABC AND XYZ
Citation No: 2023 LiveLaw (Kar) 357
The Karnataka High Court recently granted relief to the daughter of a former High Court judge, enhancing monthly maintenance payable to her by her husband to Rs. 1.5 lakh.
Relying on Apex court judgments, Single bench of Justice M Nagaprasanna observed that when the husband is or has been in the realm of luxury lifestyle, the wife and their son cannot be left in the lurch.
The Court rejected the appeal preferred by the husband challenging the family court order directing him to pay Rs 75,000 per month to his wife. Further, it partly allowed the wife's plea seeking enhancement of maintenance. It observed, “The husband is undoubtedly doing well for himself with five Companies in his kitty, and documents are produced which would demonstrate that the Companies are doing well and the loan that is projected is taken only after initiation of proceedings for grant of maintenance by the wife. If the facts in the case at hand are considered, the wife would become entitled to enhancement of maintenance not to the extent of enhancement sought at 2,00,000, per month, but is entitled to enhancement by 75,000, over and above what is granted by the concerned Court.”
Case Title: Vivekananda Kemali And State of Karnataka & ANR
Citation: 2023 LiveLaw (Kar) 360
The Karnataka High Court has quashed a complaint registered against a man by his wife under Section 498-A of the Indian Penal Code after he refused to give money to her to buy necessities for the performance of a pooja.
The Court found that the wife's allegations in the complaint did not meet the essential ingredients required to invoke Section 498A (cruelty) against the husband. “The complaint is so vague as it would fetter vagueness itself. The investigation has led to filing of the charge sheet, without rhyme or reason, fortunately leaving out the parents, in the charge sheet. It is filed only against the husband and against the husband what is found is as afore-quoted. Therefore, the offence punishable under Section 498A is recklessly and loosely laid against the petitioner.”
Case Title: ABC & State of Karnataka & Others
Citation No: 2023 LiveLaw (Kar) 376
The Karnataka High Court has refused to accept an ex-parte order passed by a court in Germany, granting custody of a 9 year old child to his mother who resides there.
A division bench of Justice P S Dinesh Kumar and Justice T G Shivashankare Gowda dismissed a petition filed by a woman seeking custody of her child who is presently residing with his father.
The woman had argued that a German Court where she resides now has transferred the right to decide the place of residence and school in her favour. However, the court rejected this contention saying “It is an ex parte order passed by the German Court whilst the child was in India.”
Case Title: High Court of Karnataka And Dr Ekta Singh
Citation: 2023 LiveLaw (Kar) 378
The Karnataka High Court recently dropped the contempt proceedings initiated against a doctor after she tendered her unconditional apology and offered to engage herself a day of every calendar month in Community Services for six months in any Government Hospital of Bengaluru City.
A division bench of Chief Justice Prasanna B Varale and Justice Krishna S Dixit accepted the statement made by the woman and said “We accept the unconditional apology tendered by the Respondent /Accused treating her assurance as an undertaking given to this Court. We further make it clear that as per the said assurance/undertaking, if the Respondent/Accused approaches any of the Government Hospitals, they will permit her to render community services one full day in a month, for a period of six months from today.”
No Compassionate Appointment To Married Daughter Residing With Husband: Karnataka High Court
Case Title: Megha J And Life Insurance Corporation of India
Citation No: 2023 LiveLaw (Kar) 381
The Karnataka High Court has dismissed the appeal preferred by the married daughter of a deceased LIC employee seeking compassionate appointment.
A division bench of Chief Justice Prasanna B Varale and Justice Krishna S Dixit observed that the appellant was married long before her father's death and was in any case residing with her husband.
“Our scriptures injunct "bharta rakshati yavvane…" literally meaning that it is the duty of husband to provide maintenance to his dependent wife. That is how our legislations too are structured e.g., Section 125 of the Code of Criminal Procedure, 1973 (applicable to all regardless of religions), Sections 24 & 25 of the Hindu Marriage Act, 1955 (applicable to Hindus, in a broad sense of the term), Section 37 of the Divorce Act, 1869 (applicable to Christians), Section 40 of the Parsi Marriage and Divorce Act, 1936 (applicable to Parsis), Section 20 of the Protection of Women from Domestic Violence Act, 2005 (applicable to all persons regardless of religion and marital status), Sections 36 & 37 of the Special Marriage Act, 1954, The Muslim Women (Protection of Rights on Marriage) Act, 2019 (applicable to Muslims wives), etc., have been structured,” it observed.
Case Title: ABC & XYZ
Citation: 2023 LiveLaw (Kar) 384
The Karnataka High Court has held that a wife cannot claim maintenance from her husband under section 12 of the Domestic Violence Act, when she is in an adulterous relationship with another person.
A single judge bench of Justice Rajendra Badamikar rejected the revision petition filed by the wife seeking to set aside the order of the Sessions court which in turn had set aside the order of maintenance granted in favour of the wife by the Magistrate court on her making an application.
The bench said, “The oral and documentary evidence produced clearly establishes that the petitioner is not honest towards her husband and she has got extramarital affairs with the neighbour and all along, she asserted that she used to stay with him. When the petitioner is staying in adultery, the question of she claiming maintenance does not arise at all.”
Jamakhandi Residents Can Adopt Major Person, It's A Legally Recognized Custom: Karnataka High Court
Case Title: Sharada Hanamanth Walagad & ANR AND NIL
Citation: 2023 LiveLaw (Kar) 386
The Karnataka High Court has directed the trial court to reconsider the petition filed under Section 8 and 9 of the Hindu Adoption and Maintenance Act, 1956, by a member of the Scheduled Caste community residing at Jamakhandi, seeking to adopt a 19 year old.
A single judge bench of Justice Sachin Shankar Magadum said adopting a major child was a legally recognised custom in Jamakhandi governed by the Bombay School of Hindu Law. “If petitioners are permanent residents of Jamakhandi, then I am of the view that since there is no dispute that Jamakhandi which was erstwhile princely State and part of Bombay province, the custom of adopting a major child is judicially recognized and therefore, I am of the view that the proof of the said custom is not necessary.”
Case Title: T N Susheelamma & ANR AND Chirag Raghavendra & Others
Citation: 2023 LiveLaw (Kar) 399
The Karnataka High Court has held that a mother of a pre-deceased son becomes a Class-I heir in the son's share in the ancestral and joint family properties, even if her husband is alive and can claim a share in the property under the Hindu Succession Act.
Justice H P Sandesh allowed the appeal filed by TN Susheelamma who expired during the pendency of the proceedings and reversed the first appellate court order which held that the mother of the pre-deceased son—Santhosh, is not entitled to any share. “Once impleaded as party and she is also a Class-I heir of the deceased Santhosh, ought not to have answered the same as negative and she is also a necessary party to the said suit, since the deceased passed away leaving behind the mother, wife and son and they are the Class-I heirs of the deceased Hindu male member of the joint family and the original appellant herein is also entitled for a share in the property left by the deceased Santhosh as Class-I heir and the very approach of the First Appellate Court is erroneous.”
Case Title: XYZ And ABC
Citation: 2023 LiveLaw (Kar) 404
The Karnataka High Court has dissolved the marriage between a couple, as the wife did not join the company of the husband even after the trial court passed an order for restitution of conjugal on an application filed by the husband.
A division bench of Justice S R Krishna Kumar and Justice G Basavaraja allowed the appeal filed by the husband and set aside the order of the trial court rejecting his petition seeking divorce on grounds of desertion.
Case Title: Ramesh B S And Navaneetha
Citation: 2023 LiveLaw (Kar) 415
The Karnataka High Court has held that compensation under section 22 of the Protection of Women from Domestic Violence Act, 2005 can be awarded only when Domestic Violence is established.
It set aside the order of Sessions Court partly allowing the appeal filed by the wife by awarding compensation in a sum of Rs.4,00,000 to her on ground that she is unable to maintain herself.
The bench said, “Under Section 22 Protection of Women from Domestic Violence Act, 2005, compensation can be awarded only if Domestic Violence is proved and in fact, in the instant case, after getting converted into Christianity the revision petitioner/wife has lost all the rights vested in her. Under these circumstances, the Appellate Court has committed an error in awarding compensation and the compensation awarded that tune of Rs.4,00,000/- which has resulted in miscarriage of justice.”
Wife Cannot Seek Withdrawal Of Resignation Tendered By Husband To Employer: Karnataka High Court
Case Title: D Venkatesh AND The Registrar of Cooperative Societies & Others
Citation No: 2023 LiveLaw (Kar) 418
The Karnataka High Court has said that a wife cannot seek withdrawal of resignation submitted by her husband to his employer.
A division bench of Chief Justice Prasanna B Varale and Justice Krishna S Dixit thus dismissed the appeal calling in question a Single Judge's order whereby the resolution passed by the employer, permitting the husband to withdraw his resignation, was set at naught.
The bench said, “Admittedly, it is the spouse of the employee who had sought for the withdrawal of resignation of the employee and that too after it was duly accepted by passing the Resolution on 30.11.2021. No Rule or Ruling is brought to our notice which recognizes such a right in the spouse of an employee. Such an idea is alien to Service Law.”
Case Title: Srinivas Sagar B & Others And State of Karnataka & ANR
Citation: 2023 LiveLaw (Kar) 419
The Karnataka High Court has held that an offence under Sections 494, 495 and 496 of the IPC, which pertain to a spouse marrying again during the lifetime of husband or wife can be pursued against the erring spouse. However, other members of the family or members of the extended family of the erring spouse, cannot be prosecuted for the offence.
Justice R Nataraj said, “A perusal of Sections 494, 495 and 496 of IPC makes it clear that those offences can be pursued by a spouse against an erring spouse and the other members of the family or members of the extended family cannot be prosecuted for the offences punishable under Sections 494, 495 or 496 of IPC. Therefore, pursuing the case against the other accused for the offences punishable under Sections 494, 495 and 496 of IPC is unwarranted.”
Case Title: Kavitha R & ANR AND The Assistant Commissioner.
Citation No: 2023 LiveLaw (Kar) 425
The Karnataka High Court on Wednesday dismissed an appeal filed by the daughter of an aged couple seeking to reverse the order of the single judge which had in turn upheld the order of the Assistant Commissioner, Tumkur, cancelling the gift deed executed by her father in her favour.
"Which father and mother will come and say? Unless it is unbearable for them...." a division bench of Chief Justice Prasanna B Varale and Justice Krishna S Dixit remarked based on statements made before it that the parents were subjected to physical assault.
It added, “On the contrary in our society and our culture the tendency is to forgive the children in spite of their misdeeds. Sometimes this forgiving may cost them (parents) at various levels but still it is done. Only when it is unbearable...which father and mother will come and say unless there is some element of truth.”
Case Title: ABC And XYZ
Citation: 2023 LiveLaw (Kar) 428
The Karnataka High Court has rejected the petition filed by a husband challenging the interim maintenance granted to his estranged wife on the ground that he lost his job.
A single judge bench of Justice M Nagaprasanna said, “The submission of the learned counsel that the husband has lost his job and cannot be directed to pay maintenance is noted only to be rejected, as the husband being an able bodied man is expected to work and take care of the wife. Any interference of the order that is impugned would run foul of the judgment of the Apex Court in the case of Apex Court in the case of Anju Garg And Another vs. Deepak Kumar Garg, 2022 SCC Online SC 1314.”
Family Pension Not Payable To Second-Wife When First Marriage Subsists: Karnataka High Court
Case Title: Mahalakshmamma And The Secretary, Department of Rural Development and Panchayatraj.
Citation No: 2023 LiveLaw (Kar) 449
The Karnataka High Court has dismissed an appeal filed by the second wife of a deceased State employee, seeking family pension upon the death of her husband.
In dismissing her appeal upon noting that the deceased employee's first marriage was still subsisting when he married her, a division bench of Chief Justice Prasanna B Varale and Justice Krishna S Dixit said, “Family Pension is payable to the “wife”, and not to those whose marriage is 'no marriage' in the eye of law, the limited status of legitimacy of children begotten therefrom, by virtue of Sec.16 1955 Act, notwithstanding.”
Case Title: The Deputy Director General & FAA Central Public Information Officer & Another AND P Lavanya & Another.
Citation No: 2023 LiveLaw (Kar) 451
The Karnataka High Court has set aside an order of a single bench which directed the UIDAI to issue notice of hearing to an Aadhar card holder whose wife had filed an RTI application seeking personal Aadhar information, such as his address of service in order to enforce an order of maintenance.
The single bench had directed the Assistant Director General, Central Public Information Officer, UIDAI, to hold a hearing/inquiry and decide whether the husband's Aadhar details could be divulged to his wife.
Case Title: Ganesh V v. State of Karnataka,
Citation: 2023 LiveLaw (Kar) 453
The Karnataka High Court has quashed the criminal case initiated against a man (petitioner) for offences punishable u/s 9, 10 and 11 of the Prohibition of Child Marriage Act, 2006, taking note of the survivor's plea that she and her child depended on him and the prosecution would not be in the interest of justice.
The survivor had appeared before the court and pleaded that the petitioner was the sole breadwinner of the family. She claimed that if the criminal proceedings were allowed to be continued and the petitioner incarcerated, she and her child would be put to more agony and misery rather than securing the ends of justice.
Case Title: Srishti Daiv & ANR AND NIL
Citation No: 2023 LiveLaw (Kar) 461
The Karnataka High Court has held that under Section 13B (2) of the Hindu Marriage Act, a couple seeking divorce had 18 months to report a settlement between them after filing the petition for divorce by mutual consent.
It further clarified that the trial court cannot on its own dismiss the petition without the request of the parties for such disposal. A division bench of Justice K S Mudagal and Justice K V Arvind allowed an appeal and set aside the order of the trial court dismissing the petition, and directed the parties to appear before the Bengaluru Mediation Centre.
Case Title: Mohammed Yasin Naikwadi AND Aneesa Mohammed Yasin Naikwadi & ANR
Citation No: 2023 LiveLaw (Kar) 485
The Karnataka High Court has held that a husband's non-payment of arrears to his wife and children would not invite prosecution under Section 31 of the Protection of Women from Domestic Violence Act, 2005.
A single judge bench of Justice Shivashankar Amarannavar quashed the proceedings initiated against Mohammed Yaseen Naikwadi and said “The approach of learned Magistrate in taking cognizance of the offence punishable under Section 31 of the D.V. Act is a glaring legal error and hence, the same will have to be set aside.”
Case Title: Anupam Singh Tomar AND State By Kothanur Police & Another
Citation No: 2023 LiveLaw (Kar) 497
The Karnataka High Court has quashed a case of criminal intimidation and trespass initiated by a woman against her former husband who visited her house to meet their daughter as per the visitation rights granted to him by the competent court.
A single judge bench of Justice M Nagaprasanna allowed a plea under Section 482 of the CrPC by the petitioner who was charged under sections 504, 506 and 448 of the Indian Penal Code.
KERALA HIGH COURT
[Joint Will] Property Of Only Deceased Testator Bound By Disposition; Does Not Operate Against Property Of Surviving Testator Till Death: Kerala HC
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: 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.
Case Title: RB. v. AB.
Citation: 2023 LiveLaw (Ker) 44
The Kerala High Court recently 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: 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: 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: 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 recently 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".
Case Title: XXX v. YYY
Citation: 2023 LiveLaw (Ker) 179
The Kerala High Court recently 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 on Monday 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 recently 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 recently 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: Dhanya Martin v. State of Kerala & Anr. and other connected cases
Citation: 2023 LiveLaw (Ker) 221
The Kerala High Court recently 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 recently 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: Arumughom Achari Ranganathan Achari & Ors v. Rajamma Sarojam & Ors.
Citation: 2023 LiveLaw (Ker) 256
The Kerala High Court recently 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 recently 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 recently 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: XXX v. XXX
Citation: 2023 LiveLaw (Ker) 277
The Kerala High Court recently 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 recently 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: Govindarajan @ Govind v. Vidya & Anr.
Citation: 2023 LiveLaw (Ker) 304
The Kerala High Court recently reiterated that an application for amendment can be permitted by a Family Court despite the absence of provisions for amendment in the Code of Criminal Procedure (Cr.P.C.). The Single Judge Bench of Justice V.G. Arun relied upon various precedents and proceeded to observe that technicalities would not have any place in maintenance cases under Section 125 of Cr.P.C.
Case Title: XXX v. YYY & Anr.
Citation: 2023 LiveLaw (Ker) 316
The Kerala High Court held that where there is prima facie evidence indicating long cohabitation between a man and a woman, a plea seeking direction to the man to subject himself to DNA Test for determining their alleged child's paternity cannot be brushed aside.
"If an order of the nature is declined that would have the impact of bastardizing the minor girl child among the public. Undoubtedly that would caste a social stigma upon the child as well as the mother respectively as 'bastard' and 'immoral'," the Single Judge Bench of Justice Mary Joseph observed.
Case Title: Arun A. v. Marriage Officer
Citation: 2023 LiveLaw (Ker) 321
The Kerala High Court reiterated that foreign judgments can be accepted as conclusive in India where the parties voluntarily and effectively submit to the jurisdiction of the foreign court and consent to the grant of the relief, although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.
Justice P.V Kunhikrishnan observed that in such circumstances, it was allowed to stray from the general rule that foreign matrimonial judgment can be recognized in India only if the jurisdiction assumed by the foreign court and the grounds on which the relief is granted are in accordance with the matrimonial law under which the parties are married.
Case Title: Santha Kumari v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 348
No one else can give to the ward all that a mother can give to her, said the Kerala High Court while uniting a differently abled child with her mother.
The Division Bench comprising Justice P.B. Suresh Kumar and Justice C.S. Sudha invoked parens patriae jurisdiction to ensure that the child is not left "at the mercy of others".
Case title: Abdul Mujeeb v Suja
Citation: 2023 LiveLaw (Ker) 392
The Kerala High Court considered whether educational expenses paid to the children which were later reimbursed by the father's employer shall be reckoned as payment towards maintenance allowance under Section 125 CrPC.
The provision stipulates payment of compensation to wife, children and parents.
Justice VG Arun stated that educational expenses paid to children which were later reimbursed cannot be treated as maintenance allowance and held thus:
“It is not in dispute that the petitioner had not paid any amount to the first respondent/wife and payments to the other respondents (children) were towards tuition fees and other educational expenses. The object of Section 125 being to prevent destitution and vagrancy by ensuring reasonable allowance towards maintenance, payment of educational expense, which was later reimbursed, cannot be treated as the maintenance allowance contemplated under Section 125.”
Case Title: Vineet Ganesh v. Priyanka Vasan
Citation: 2023 LiveLaw (Ker) 395
The Kerala High Court laid down that proceedings initiated under the Protection of Women from Domestic Violence Act, 2005 (D.V. Act) before a Judicial Magistrate of the First Class (JFCM) cannot be transferred to a Family Court.
The Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar reasoned that the Legislature had been fully conscious in enacting the D.V. Act much after the Family Courts Act, 1984, and thereby confining the jurisdiction to entertain an application under Section 12 of the D.V. Act ('Application to Magistrates') to the Judicial Magistrates.
"As long as the Family Court or, for that matter, other civil courts cannot have original jurisdiction to entertain an application under Section 12 of the D.V. Act, no application under Section 12 pending before a Magistrate can be transferred to a Family Court," the Bench observed.
Case Title: Prameela L. v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 408
The Kerala High Court recently upheld a Single Judge's finding that a Legal Heirship Certificate cannot be issued in favour of a person in the absence of a valid legal adoption and documents evidencing the adoption, so as to enable them to claim compassionate appointment upon the death of the alleged adoptive parent.
A Division Bench of Justice Alexander Thomas and Justice C. Jayachandran added that the lack of any evidence supporting the adoption on record justifies denying the requested relief, upholding the Single Judge's order.
"In the absence of a valid and legal adoption, and in any case, in the absence of documents evidencing the factum of adoption, albeit not in terms of law, we cannot find fault with the respondent authorities in not issuing a Legal Heirship Certificate in favour of the petitioner. More than the absence of a legal document evidencing a legal adoption, what weigh with us to refuse the relief sought for is the complete dearth of evidence suggesting an inference as to the factum of adoption from the materials on record."
Case title: Chandhini T.K. V State of Kerala
Citation: 2023 LiveLaw (Ker) 427
The Kerala High Court recently held that the term 'relative' appearing in Section 498A of IPC would not include husband's girlfriend, or a woman with whom a man has sexual relationship outside of marriage.
Section 498A, IPC defines and provides punishment for cruelty committed by the husband or relative of the husband of a woman.
Justice K. Babu added that Section 498-A being a penal provision, has to be construed strictly. The Court held thus:
"The specific language of the Section and the Explanation thereof lead to the conclusion that the word 'relative' would not include a woman with whom a man has had sexual relations outside of the marriage. By no stretch of imagination, a girlfriend or even a woman who maintains sexual relations with a man outside of marriage in an etymological sense would be a 'relative'. The word 'relative' brings within its purview a status. Such status must be conferred either by blood or marriage, or adoption. If no marriage has taken place, the question of one being relative of another would not arise. S.498A, IPC being a penal provision, would deserve strict construction, and unless a contextual meaning is required to be given to the statute, the said statute has to be construed strictly.”
Case Title: X v. Y
Citation: 2023 LiveLaw (Ker) 429
In an unprecedented move, the Kerala High Court directed the appointment of an independent counsel for rendering pro bono legal services to represent a child in a custody battle between its parents.
While passing the order, the Division Bench of Justice A. Muhamed Mustaque and Justice Sophy Thomas noted that often, the best interests of children are not properly represented in the 'wrangle' between the mother and father.
Case Title: Greik Xavier V Sub Inspector Of Police
Citation: 2023 LiveLaw (Ker) 433
The Kerala High Court quashed a 12 years old cruelty case against husband, observing that the parties have settled their disputes and the victim does not want to prosecute the matter further.
Justice K Babu added that no useful purpose is likely to be served by allowing criminal prosecution based on a FIR, the investigation of which commenced twelve years back but reached nowhere.
“Speedy investigations and trial are mandated by the letter and spirit of the provisions of the Code and the constitutional protection enshrined in Article 21 of the Constitution,” the bench observed.
Case title: Chandi Samuval V Saimon Samuval
Citation: 2023 LiveLaw (Ker) 438
The Kerala High Court held that a positive law is no sine qua non for granting past and future maintenance and that the right of the elder to such maintenance is recognised irrespective of their religion.
Justice A. Muhamed Mustaque and Justice Sophy Thomas observed thus:
“Even without any positive aid of law the court could have recognized the right of the elder irrespective of the religion to claim the past maintenance and future maintenance. Merely for the reason that the legislation had only provided measures for the award of prospective maintenance, that cannot result in denial of the claim for past maintenance.”
Case Title: Lalamma John V Jijo Varghese
Citation: 2023 LiveLaw (Ker) 442
The Kerala High Court refused to interfere with an order passed by a competent Family Court in the UK directing a minor child to be brought back from India to England, where her parents reside.
The child was residing with her maternal grandmother in India following a dispute between her parents. She was brought to India by her mother and the UK Court is seized with a plea moved by her father and grandfather, seeking her custody. The mother had given an undertaking that she would produce the child before the UK Court.
A division bench of Justice A. Muhamed Mustaque and Justice Sophy Thomas observed that before honouring a competent foreign court's order in child custody matters, it has to ensure that the welfare of the child will be protected.
In the present case, it observed that the UK court had noted the measures to protect the welfare of the child. Thus it said,
“Parental custody is always preferred as the parents are competent to protect the welfare of the child. We are not persuaded to accept the arguments of the learned counsel for the petitioner, as the UK court had noted the measures to protect the welfare of the children. When the competent court of jurisdiction in UK has already taken measures, the comity of courts demands to respect that order unless such order is passed without any jurisdiction.”
Case name: V V Jaya v. M P Rajeswaran Nair
Citation: 2023 LiveLaw (Ker) 452
The Kerala High Court recently held that divorced wife cannot 'cling on' to the matrimonial home claiming it to be shared household, superseding the order of eviction passed by a competent Civil Court.
Justice A. Muhamed Mustaque and Justice Sophy Thomas held thus:
“By the impugned judgment, the Family Court ordered eviction of the appellant from the petition schedule building in accordance with the procedure established by law, and her claim for residence in that building, as a shared household cannot supersede the decree for eviction granted by a competent civil court. In any view of the matter, the appellant has no right to reside in the petition schedule building and so, she is bound to vacate that building forthwith.”
Case title: N.Sarojini Nambramcheri V Union of India
Citation: 2023 LiveLaw (Ker) 471
The Kerala High Court recently held that there was no impediment for the Indian Army in granting family pension to the second wife of a deceased serviceman even if the first marriage was not dissolved legally, as long as the first wife was not interested in the pension.
Justice Devan Ramachandran observed that the Indian Army could consider the claim of the second wife since their marriage was recognised by the Indian Postal Department. It observed thus:
“Even if it is taken that the divorce as reflected in Ext.P2 is not legally valid, it would cause no prejudice to the Indian Army, as long as Smt.K.T.Chandralekha does not stake a claim to the family pension. This is more so because, the marriage of late K.V.Venugopalan and the petitioner appears to have been accepted by the Indian Postal Department, which is evident from Exts.P7 and P8, and hence it would only be in furtherance of such that the Indian Army also considers their marriage to be valid.”
Case Title: Theresa Davis v. State of Kerala
Citation: 2023 LiveLaw (Ker) 476
The Kerala High Court has directed the State Government to inform all registering authorities that marriages can be registered by securing the presence of the parties by video conferencing.
Justice Devan Ramachandran directed the State Government to comply with the direction within two weeks so that parties would not have to approach the Court each time with the same request.
“I also deem it necessary to direct the State of Kerala to make sure, through its competent Authority, that all Registering Authorities are informed of the afore precedent through appropriate means, so that parties will not have to approach this Court every time they require the benefits as granted therein. This shall be done in full compliance; and a report to that effect produced before this Court within a period of two weeks from the date of receipt of a copy of this judgment.”
Case title: Sujith Kumar S V Vinaya V S
Citation: 2023 LiveLaw (Ker) 494
The Kerala High Court, upholding an order passed by the Family Court, stated that DNA test cannot be conducted merely because the parties have a dispute or suspicion regarding paternity.
Justice A. Badharudeen observed that DNA test or other scientific tests can only be resorted to when there was a specific denial of paternity of the child.
“It has to be held further that when DNA test cannot be resorted to clear a suspicion regarding the paternity of the child, in the absence of specific denial of paternity of the child. In view of the above legal position, the dismissal of the application put in by the petitioner to conduct DNA test with a view to clear his suspicion/doubt regarding the paternity of the child, can only be justified.”
Case Title: Ramanadhan v. Raji
Citation: 2023 LiveLaw (Ker) 498
The Kerala High Court reiterated that retaining a marriage that has irretrievably broken down would amount to cruelty to both parties, and no meaningful purpose would be served by the same.
The Division Bench comprising Justice A. Muhamed Mustaque and Justice Sophy Thomas, took note of a recent Apex Court decision which laid down that keeping parties together despite irretrievable breakdown of marriage amounts to cruelty on both sides [2023 LiveLaw (SC) 727].
Case Title: Jisha Mohan v. Vishal V.M.
Citation: 2023 LiveLaw (Ker) 502
The Kerala High Court has held that a mother cannot be denied sole guardianship and custody of a minor child merely on the ground that she is relocating to another country for better job opportunities and fortune.
The Division Bench comprising Justice A. Muhamed Mustaque and Justice Sophy Thomas noted that merely because there is a parental battle for custody of the child, the same did not mean that the parties would have to remain locally without relocating elsewhere, in order to retain the custody of the child.
“If the relocation of the appellant is for better fortune, that cannot hold against her from claiming custody, provided, that the child's welfare is also protected. The child should recognise his biological parents and have every right to grow under their care and protection. If the biological parents are willing to protect the best interest of the child, denying the child to grow in a natural and familial atmosphere itself is against the best interest of the child,” the Court observed.
Withholding Mutual Consent For Divorce In A Failed Marriage Is Cruelty: Kerala High Court
Case title: Sreedharan v. Ahsa
Citation: 2023 LiveLaw (Ker) 503
The Kerala High Court has said that withholding mutual consent to dissolve a failed marriage amounts to cruelty.
A Division Bench comprising Justice A.Muhamed Mustaque and Justice Sophy Thomas relied on the concept of "no fault divorce" to state people are starting to realise that there is a "sensible way" of parting on mutually agreed terms.
Case title: Neena T V State of Kerala
Citation: 2023 LiveLaw (Ker) 504
The Kerala High Court recently held that the benefit of the Kerala Freedom Fighter's Continuous Pension (KFFCP) cannot be denied to the divorced daughter of a deceased freedom fighter solely on the ground that her brothers were earning and financially settled.
Justice Devan Ramachandran remarked that the reason cited for the rejection of pension, that that the petitioner would be taken care of by her brothers, was based on outdated patriarchal notions:
“I am afraid that the submissions of the learned Government Pleader smack archaic patriarchal notions. Merely because the petitioner has two brothers, an automatic assumption drawn that she would be taken care of by them for her life, can only be seen to be one solely on account of the afore notions and nothing else.”
Case Title: Antony Joseph v. The Sub-Registrar
Citation: 2023 LiveLaw (Ker) 525
The Kerala High Court has held that the registering authority did not have to look into the nature of divorce obtained by the parties while considering their marriage applications under Section 8 of the Special Marriage Act.
The bench observed that the Registering Authority only has to be satisfied that neither party who intends to marry has a living spouse at the time of registration of marriage.
“Going by the mandate of Section 8 of the 'Act', it only requires the parties to satisfy the Registering Authority that they have no living spouses at the time when the application is made and the marriage is registered. Therefore, the only aspect to be decided by the respondent is this and nothing more.”
Case Title: Sangeetha R. v. The Secretary & Ors.
Citation: 2023 LiveLaw (Ker) 527
In an interesting development, the Kerala High Court invoked its parens patriae jurisdiction to select the name of a child, caught in a dispute between her estranged parents with respect to what her name should be.
Justice Bechu Kurian Thomas reasoned that attempting to resolve the dispute between the parents will cause inevitable delay and in the meanwhile, the absence of a name would not be conducive to the welfare or the best interests of the child.
"In the exercise of such a jurisdiction, the paramount consideration being the welfare of the child and not the rights of the parents, the Court has to perform the task of selecting a name for the child. While choosing a name, factors like the welfare of the child, cultural considerations, interests of parents and societal norms can be reckoned by the court. The ultimate objective being the well-being of the child, the court has to adopt a name, taking into consideration the overall circumstances. Thus, this Court is compelled to exercise its parens patriae jurisdiction to select a name for the child of the petitioner," the Court observed.
Kerala High Court Comes To Aid Of Interfaith Couple, Both Employed With Govt
Case Title: Arjun Rajasekhar v. Director General of Police (Law & Order) & Ors.
Citation: 2023 LiveLaw (Ker) 536
The Kerala High Court came to the aid of a Lance Naik in the Indian Army and an employee of the Indian Railways, seeking to marry each other. Their interfaith relationship was being opposed by the woman's family.
The Division Bench comprising Justice Anu Sivaraman and Justice Viju Abraham ordered that the woman could not be detained against her will, and thereby directed her release. The man's family said it would take necessary steps for ensuring the safety of the detenue.
Case Title: Abhaya V. Venu v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 539
The Kerala High Court has granted leave to a life convict undergoing incarceration at Central Prison & Correctional Home, Viyyur for undergoing IVF/ICSI treatment.
The convict's wife had approached the Court seeking parole for her husband who had been undergoing imprisonment for the past 7 years, so that he could complete the treatment procedure to have a child, via IVF/ICSI (In Vitro Fertilization / Intracytoplasmic Sperm Injection) Procedure.
Wondering how the Court could turn a blind eye to such genuine requests merely on technicalities, the Single Judge Bench of Justice P.V. Kunhikrishnan observed,
"...when a wife comes before this Court with a request that she wants a child in the relationship with her husband who is undergoing imprisonment in Central Jail, this Court cannot ignore the same on technicalities. Conviction and sentence in criminal cases is mainly to reform and rehabilitate the offenders. The state and society want to see the convict coming out of jail after rejuvenation as a reformed man/woman who will be part of our society. A person who has undergone a sentence in a criminal case need not be treated as a different person when he comes out. He has every right to lead a decent life just like any other citizen".
Case Title: Fousiya v Shamsudheen Pokkadan
Citation: 2023 LiveLaw (Ker) 542
The Kerala High Court has ordered the return of patrimony amount given by a woman's family to her husband at the time of their marriage, irrespective of the fact that there was no documentary evidence to prove the source of money or the handing over of money.
Justice Anil K Narendran and Justice Sophy Thomas observed that in matrimonial cases, documentary evidence cannot be insisted upon to prove every transaction taken place during a marriage. The Court relied upon the oral testimony given by the wife's father and brother regarding the patrimony amount. It held thus:“It is true that no documentary evidence is there to prove the source of money or to prove the handing over of money at the time of marriage. But the oral testimony of PWs 1 and 2 is clear and cogent enough to come to a conclusion that Rs.1,50,000/- was handed over to the respondent at the time of marriage as patrimony of the appellant.”
Case Title: Noushad Flourish v. Akhila Noushad & Anr.
Citation: 2023 LiveLaw (Ker) 550
The Kerala High Court has held that a Muslim wife who effected her divorce by pronouncement of 'Khula' cannot claim maintenance from her husband under Section 125 CrPC, after effecting Khula.
Divorce by 'Khula' is a divorce at the instance of, and with the consent of the wife, by which she gives or agrees to give a consideration to the husband for her release from the marriage tie. Perusing Section 125 (4) of Cr.P.C., Justice A. Badharudeen noted that no wife shall be entitled to receive an allowance for the maintenance or interim maintenance, if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband or if they are living separately by mutual consent.
"When the wife effects divorce by Khula for getting her released from the husband, the same, in fact, is akin to refusal of the wife to live with her husband, as provided under Section 125(4) of Cr.P.C. If so, the wife, who effected divorce by Khula at her volition and thereby refuses to live with her husband voluntarily, is not entitled to get maintenance from the date of Khula in view of the restriction provided under Section 125(4) of Cr.P.C.," the Bench observed.
Case title: XXX v State of Kerala
Citation: 2023 LiveLaw (Ker) 551
The Kerala High Court dismissed the anticipatory bail application of the mother of a minor daughter for facilitating the stepfather to commit rape and sexual assault on the minor child.
Justice Gopinath P. observed that the allegations against the mother, if proved true, were an insult to the motherhood. The Court also noted that since biological mother was arrayed as an accused, she might be in a position to influence or intimidate the minor child to give evidence in favor of the accused persons.
“I am of the view that the petitioner is clearly not entitled to anticipatory bail. The allegation against the petitioner are very serious and if true they are an insult to motherhood. The apprehension expressed by the learned Public Prosecutor appears to be real. The petitioner being the biological mother of the minor victim may be in a position to influence or intimidate the victim if she is granted bail. The statement of the victim that she was subject to rape even in the presence of the petitioner / 2nd accused is another reason which compels me to hold that the petitioner is not entitled to bail.”
Case Title: Kakkovil Muliyarakkal Krishnan Children V Kakkovil Muliyarakkal Vilasini(Died)
Citation: 2023 LiveLaw (Ker) 565
The Kerala High Court has held that a mother can validly execute a document on behalf of her minor children as their natural guardian even during the lifetime of the father, if he is not involved in the lives of the minors and was deemed as absent.
Justice A. Badharudeen relied upon Section 6 (a) of the Hindu Minority and Guardianship Act (HMG) and the decision of the Apex Court in Gita Hariharan (Ms) and Another Vs. Reserve Bank of Indian and Another (1999) and observed that the mother can act as the natural guardian of the minor and all her actions would be valid even during the lifetime of the father, in the absence of father, as per Section 6(a) of the HMG Act and Section 19(b) of the Guardians and Wards Act, 1890.
“Thus, it appears that as per the ratio in Githa Hariharan's case (Supra), affirmed in Akella Lalitha's case (Supra), the legal position is that Section 6(a) does not give an impression that the mother can be considered to be the natural guardian of the minor only after the lifetime of the father. When the mother acts as the guardian of the minor during the lifetime of the father without the matter going to the court, and the validity of such an action is questioned on the ground that the mother is not the legal guardian of the minor, in view of Section 6(a) of the HMG Act, the mother could function as guardian only after the lifetime of the father and not during his lifetime. Such an interpretation would violate gender equality, one of the basic principles of our Constitution. “
Case title: Narayanan v State of Kerala
Citation: 2023 LiveLaw (Ker) 569
The Kerala High Court has acquitted a man and his family who were convicted under Section 498A IPC for cruelty against a deceased woman on the finding that the parties were living together as husband and wife, based on a marriage agreement and their marriage was not solemnized.
Justice Sophy Thomas observed thus: “In the case on hand, since the marriage between the 1st revision petitioner and deceased Chandrika was not solemnised, and they started living together on the basis of a marriage agreement, which has no legal sanctity in the eye of law, they have to be treated as persons in live-in-relation, and they were not husband and wife, in order to attract an offence punishable under Section 498A of IPC. So, the trial court as well as the appellate court went wrong in finding the revision petitioners guilty under Section 498A of IPC and sentencing them for that offence.”
Dowry Demand Without Ingredient Of Cruelty Not An Offence U/S 498A IPC: Kerala High Court
Case Title: Niyas v. State of Kerala
Citation: 2023 LiveLaw (Ker) 571
The Kerala High Court held a mere demand for dowry or any property or valuable security without the ingredient of 'cruelty' would not attract the offence under Section 498A IPC. It held that when both elements of demand and cruelty are combined, then liability would be fastened on an accused.
Justice P. Somarajan observed: "A mere skirmish in the ordinary life between the spouses or intermittent quarrel or even a frequent quarrel, unless constitutes the ingredient of 'harassment' for meeting an unlawful demand for property or valuable security or on account of failure to meet such unlawful demand, would not constitute or attract the criminal liability that can be fastened for the offence under Section 498 A IPC. Likewise, a demand for dowry or any property or valuable security without the ingredient of “cruelty” as explained under clause (a) or (b) will not attract the said offence, but a combined effect of both these would bring home the liability under Section 498 A IPC."
Case name: PKV v AKA
Citation: 2023 LiveLaw (Ker) 574
The Kerala High Court has held that wife seeking the help of her husband's employer for patching up their broken marital relationship and to bring him back to normal life after finding out his issues, or her not knowing cooking cannot be grounds sufficient to constitute 'cruelty'.
Relying upon the decision in Uthara v. Sivapriyan (2022), the Court observed, "...legally, one party cannot unilaterally decide to walk out of a marriage, when sufficient grounds are not there justifying a divorce, under the law which governs them, saying that due to non-co-habitation for a considerable long period, their marriage is dead practically and emotionally. No one can be permitted to take an incentive out of his own faulty actions or inactions".
Case title: Siju K Bhanu v The District Collector & Maintenance Appellate Tribunal & Connected Case
Citation: 2023 LiveLaw (Ker) 575
The Kerala High Court came to the rescue of an ailing nonagenarian senior citizen who was suffering from dementia and was kept away from his wife by their son.
Justice Devan Ramachandran observed that the wife of a senior citizen has absolute and inviolable right to have the custody and company of her husband during the winter years of their lives. It held that the son has no right to keep his parents away from each other. Court stated: “Even being dementia afflicted and his memories fading, the senior citizen clearly finds solace with his wife – as the Social Justice Officer puts it in his report, “they shared good moments”. He must never be denied this, whatever Sri.Siju K.Bhanu may say in justification. The right of Smt.Kameela – the wife of the senior citizen – for his custody and consortium is inviolable and absolute. Her son, Sri.Siju K.Bhanu can never deny this.”
Case Title: S v. D & connected matter
Citation: 2023 LiveLaw (Ker) 581
The Kerala High Court held that if the grounds for divorce under Section 13 of the Hindu Marriage Act are not proven, the same grounds cannot be used for granting judicial separation as an alternate relief under Section 13-A.
Relying on the decision in Snigdha Chaya Devi v. Akhil Chandra Sarma (1992), the Division Bench comprising Justice Anil K. Narendran and Justice Sophy Thomas observed: "When the grounds for judicial separation under Section 13-A of the Hindu Marriage Act are the same as that for divorce, under Section 13 (founded on grounds other than excluded) and when the grounds for divorce under Section 13 of the Hindu Marriage Act are not made out, there cannot be a decree for judicial separation as an alternate relief. If the grounds, on which the petition for divorce was founded, were not made out, then the alternate relief of judicial separation also cannot be granted."
Case Title: Mohamed v. Kunhalankutty & Ors.
Citation: 2023 LiveLaw (Ker) 613
The Kerala High Court recently pondered upon the question as to how far a Muslim could dispose of their properties by Will. Interpreting Paragraphs 117 and 118 of the Mulla's Principles of Mahomedan Law, which provides for 'Bequests to Heirs' and 'Limit of Testamentary Power' respectively, the Single Judge Bench of Justice A. Badharudeen explained that,
"...the power of a Mahomedan to dispose of his property by Will is limited in two ways. Firstly, as regards the persons to whom the property may be bequeathed, and, secondly, as regards the extent to which the property may be bequeathed. The only case in which a testamentary disposition is binding upon the heirs is where the bequest does not exceed the legal third and it is made to a person who is not an heir. But a bequest in excess of the legal third may be validated by the consent of the heirs; similarly, a bequest to an heir may be rendered valid by the consent of the other heirs. The reason is that the limits of testamentary power exist solely for the benefit of the heirs, and the heirs may, if they like to forgo the benefit by giving their consent. For the same reason, if the testator has no heirs, he may bequeath the whole of his property to a stranger: (see Baillie, 625)"
Case Title: George Varghese v. Treesa Sebastian & Ors. and connected matter
Citation: 2023 LiveLaw (Ker) 623
The Kerala High Court has laid down that the Family Court has the jurisdiction to entertain a petition seeking reliefs under the Protection of Women from Domestic Violence Act, 2005.
"What is discerned from the provisions of Section 12 is that an aggrieved person is free to elect any of the reliefs. The legislature in the wisdom has framed the Act by taking into consideration the doctrine of election. The parties are free to elect either a remedy under Section 12 or reserve the right to claim other reliefs as provided under Sections 18, 19, 20 and 21 in the manner and mode as has been done. The plain and simple reading of the provisions of Section 26 left the question clear and unambiguous that a party seeking a claim under any provisions of the civil or criminal court much less a family court can always claim relief in addition as provided under Sections 18, 19, 20, 21 and 22 of the Act," the Division Bench comprising Justice Amit Rawal and Justice C.S. Sudha explained
Maintenance Application Under Chapter IX CrPC Cannot Be Dismissed For Default: Kerala High Court
Case title: Elon Christ Stephen v Steaphen Antony Venasious
Citation: 2023 LiveLaw (Ker) 624
The Kerala High Court considered whether an application filed for maintenance allowance under Chapter IX of CrPC can be dismissed for default (non-appearance of party seeking maintenance). Chapter IX, Section 125-128 of CrPC contemplates Order for Maintenance of Wives, Children and Parents.
Justice C.S. Dias observed that Magistrate has no implicit power to dismiss an application filed under Chapter IX CrPC for default summarily. In the facts of the case, the application was dismissed for non-representation of the petitioner-minor son who was appearing through his mother for claiming maintenance from the respondent-father.
Case Title: Saheer v. State of Kerala & Connected matter
Citation: 2023 LiveLaw (Ker) 666
Interpreting the law on triple talaq, the Kerala High Court recently quashed criminal proceedings against a Muslim husband on finding that he pronounced talaq-e-hasan which was legal and valid under Muslim Personal Law.
“The copies of the talaq kuries would show that several mediations took place. It is further revealed that respondent No.3 did not co-operate for a Court Centred Mediation also...The materials placed before the Court would reveal that a series of mediations to reconcile the disputes between the parties failed. There are no indications that the talaq pronounced by the petitioner was instantaneous or irrevocable. The resultant conclusion is that the talaq pronounced by the petitioner is not talaq-e-biddat prohibited under Section 4 of the Act.”
Relying upon the landmark decision of the Apex Court in Shayara Bano v. Union of India (2017), Justice K. Babu observed that talaq-e-biddat or other similar forms of instant talaq were void and unconstitutional and not talaq-e-hasan or talaq-e-ahsan.
Case Title: Rijas M T v, Hafseena M
Citation: 2023 LiveLaw (Ker) 680
The Kerala High Court has expressed concern over the arduous procedure to obtain a maintenance order and has suggested the Parliament to bring about apposite changes in the law to ameliorate the situation.
"Destitute women and children are made to loiter in the corridors of the Courts to receive their monthly maintenance, which adds to their woes...this Court is of the firm view that the time is ripe for the Parliament to ponder in bringing corresponding changes in Chapter IX of the Code [Order for Maintenance of Wives, Children and Parents] to make it consonance with the law declared in Rajnesh or even think of a comprehensive maintenance law," Justice CS Dias observed.
Case Title: Pinchu Chandran v Arya J
Citation: 2023 LiveLaw (Ker) 710
The Kerala High Court recently held that the Family Court can strike off the defence of the opposite party, only as a last resort on failure to pay interim maintenance under Section 125 CrPC during the pendency of maintenance proceedings.
In terms of the proviso to Section 125 CrPC, the Court can issue an order for payment of interim maintenance during the pendency of maintenance proceedings and such orders shall be disposed of within sixty days from the date of service of notice on the opposite side. Section 128 CrPC pertains to the procedure for enforcement of maintenance orders including orders for interim maintenance.
In allowing the plea, by granting the husband a last opportunity to pay maintenance, Justice C.S. Dias relied upon the Apex Court decisions in Kaushalya v. Mukesh Jain (2020), Rajnesh v. Neha (2020) and held thus:
“Perhaps, it is keeping in mind the bottlenecks in the procedure and to uphold the majesty of the Court, the Honourable Supreme Court in the afore-cited precedents has held the defence of the erring husband/father/son can be struck off in a proceeding under Section 125, as a last resort, on his failure to pay interim maintenance.”
Case Title: Jagadesh Ramachandran v The Maintenance Tribunal, Thiruvananthapuram
Citation: 2023 LiveLaw (Ker) 717
The Kerala High Court recently observed that senior citizens cannot be denied the company and presence of siblings and close relatives, as long as they desire it.
The petitioner's son was aggrieved by the order of the Maintenance Tribunal that directed the senior citizen mother to be relocated to his aunt's (mother's sister) house.
Justice Devan Ramachandran noted that both the son as well as the sister of the senior citizen were expressing their concern and wanted to ensure her well-being. It thus noted that more inquiries were required to be conducted by the Maintenance Tribunal since the son submitted before the Court that he was providing all facilities to his mother.
Case Title: XXX v. Union of India & Ors. and connected matters
Citation: 2023 LiveLaw (Ker) 740
The Kerala High Court recently laid down that Indian Courts are vested with the jurisdiction to protect the best interest or welfare of a child or an incapable adult, if so warranted, in circumstances where the Court forms an opinion that the party who approached it has no legal remedy before the Court beyond Indian territory.
The Division Bench comprising Justice A. Muhamed Mustaque and Justice Sophy Thomas observed that the Court, on invoking its writ jurisdiction, would have the power to adjudicate and that the parens patriae and nationality rules would also apply to protect the best interest of the child, or the welfare of the incapable adult.
It however cautioned that the Court ought to be circumspect to exercise its jurisdiction when it finds that the law of the foreign country can be invoked to protect the welfare or best interest of the child or incapable adult.
"There may be different circumstances related to the cases. If parties are ordinarily residing in a foreign country and can avail legal remedy in that foreign country, the courts in India shall not invoke such jurisdiction to regulate the affairs of its citizens living beyond territorial jurisdiction of the country. The Court steps into the shoes of a parent invoking parens patriae jurisdiction, only in those circumstances where the Court forms an opinion that jurisdiction of the foreign country cannot be availed by the party concerned, due to lack of laws or incapability of having legal remedy, or if one party is deprived of availing legal remedy due to issues of domicile or residentiary rights. When an efficacious alternate remedy is available, the Court shall refrain from invoking its jurisdiction over the affairs of its citizens who are living outside its territorial jurisdiction," the Bench observed.
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”.
Case title: Amar Singh Rajput vs. State of Madhya Pradesh
LL Citation: 2023 LiveLaw (MP) 89
The Madhya Pradesh High Court (Gwalior bench) has quashed an FIR as well as criminal proceedings against a man who was accused of raping a woman on the pretext of marriage, observing that more than one year time is sufficient time for a "prudent woman" to realize as to whether the promise of marriage made by the accused is "false from its very inception or there is a possibility of breach of promise".
The bench of Justice Deepak Kumar Agarwal observed that the prosecutrix, a mother of three children, was in a physical relationship with the accused "for a long period" and she herself went with him to a thousand therefore, it cannot be said that her consent was obtained by "misconception of fact" and at the most, it can be said to be "a breach of promise to marry".
"When the petitioner was not acceding to her request for marriage, then why she continued with a relationship with him till lodging of the FIR. Thus, it is clear that at the most, it can be said that it is a case of breach of promise and, therefore, it cannot be said that the promise made by the petitioner was obtained under fear or misconception of fact," the Court added as it allowed the quashing plea of the 56 year old accused.
Case title: SANGEETA RATHORE vs. NARESH RATHORE
LL Citation: 2023 LiveLaw (MP) 95
Observing that maintenance under section 125 CrPC can only be granted in favour of a legally wedded wife, the Madhya Pradesh High Court has said that a woman, who has not divorced her first husband, is not entitled to get maintenance from her second husband.
"A woman, having solemnized second marriage to another person is only entitled to get maintenance from that person, when the first marriage has been declared either null and void or she has obtained a divorce decree from her first husband," the bench of Justice Prem Narayan Singh remarked.
Case Title: Rajan v. The State Of Madhya Pradesh
LL Citation: 2023 LiveLaw (MP) 97
The Madhya Pradesh High Court while taking a noteworthy stance on the misuse of Section 498-A of the Indian Penal Code (IPC) observed that this section is increasingly being misused to settle matrimonial disputes, often resulting in the registration of a "package of five cases" against the husband and his family members.
Justice Vivek Rusia observed, “Nowadays the very purpose of the insertion of Section 498-A in the Penal Code, 1860 with the object to punish the husband or his relatives, has been defined. In most of the cases, this section is being misused as observed by several High Courts and the Hon'ble Supreme Court. The Hon'ble Supreme Court in Arnesh Kumar v. State of Bihar : [(2014) 8 SCC 273] has observed that the relatives are unnecessarily being made accused under section 498-A of the I.P.C.”
“The cases are lodged under Section 498-A of the Penal Code, 1860 only to settle the matrimonial dispute. Some times the wife lodges the FIR immediately after receipt of the summons from the Family courts. Nowadays there is a package of 5 cases against the husband and family members in family court and the criminal court under I.P.C., the Hindu Marriage Act and the Protection of Women from Domestic Violence Act, 2005,” Justice Rusia added.
LL Citation: 2023 LiveLaw (MP) 101
In a significant observation liable to add to the ongoing debate regarding the criminalisation of marital rape, the Madhya PradeshHigh Court has observed that after the 2013 amendment to the definition of Section 375 IPC (Rape), there is no place for any unnatural offence (as per Section 377 IPC) to take place between a husband and wife.
The Court made this observation while quashing an FIR lodged against a sitting Member of the MP State Legislative Assembly by his wife alleging, inter alia, a commission of unnatural offence as per Section 377 of IPC.
LL Citation: 2023 LiveLaw (MP) 101
Holding that a husband cannot be prosecuted under Section 377 IPC (Unnatural Offence) in view of Section 375 IPC (Rape) which exempts marital sex and also covers all possible penile penetration, the Madhya Pradesh High Court has observed that if anything is done between them apart from the deemed natural sexual intercourse, the same cannot be defined as 'unnatural'.
The bench of Justice Sanjay Dwivedi made this observation while quashing an FIR lodged against a sitting Member of the MP State Legislative Assembly by his wife alleging, inter alia, a commission of unnatural offence as per Section 377 of IPC.
Case Title: MN vs. T
LL Citation: 2023 LiveLaw (MP) 105
The Madhya Pradesh High Court last week observed that if a wife has a degree of higher education, it cannot be the basis of disentitling her to maintenance.
A bench of Justice Prem Narayan Singh held so while upholding an order of the Family Court awarding maintenance of Rs.10,000/- per month to a wife.
In its order, the Court pointed out that Section 125 of CrPC is a piece of socialistic legislation which aims to improve the status of a needy lady in society.
“Inherent and immanent idea behind Section 125 of CrPC is to ameliorate the agony, anguish and financial suffering of a woman, who left her matrimonial home,” the Court said.
LL Citation: 2023 LiveLaw (MP) 116
The Madhya Pradesh High Court upheld an order of a Family Court rejecting a plea filed by a 'wife' for calling a medical expert in the maintenance proceedings u/s 125 CrPC to verify the physical status of her 'husband', who is claiming himself to be a transgender man.
Agreeing with the family court's order, the bench of Justice Milind Ramesh Phadke observed that the plea filed by the alleged wife in maintenance proceedings is of no consequence as in such proceedings, only the factum of the parties being husband and wife has to be established.
Case Title: Sandeep Kumrawat v. Smt Antima Kumrawat
LL Citation: 2023 LiveLaw (MP) 119
While dismissing a criminal revision application filed by the petitioner-husband, the Madhya Pradesh High Court has underscored that a destitute wife claiming maintenance cannot be victimised solely based on faults in her pleadings. The husband had challenged a Family Court order that rejected his application under Section 127 CrPC to reduce the maintenance amount.
After referring to the Supreme Court's decision in Sunita Kachwaha & Ors. v. Anil Kachwaha, (2015), the single judge bench of Justice Prem Narayan Singh opined that a 'hypertechnical attitude' cannot be adopted in maintenance cases.
“…the destitute wife who is unable to maintain herself cannot be victimised only on the basis of her fault. The hyper technical attitude cannot be adopted in such type of maintenance cases. As such the petitioner cannot escape the liability of maintenance of the child and wife on excuse that she has done some fault in her pleadings and proceedings of the case…”, the court noted in the order.
Case Title: Pankaj Mehta & Ors v. State Of Madhya Pradesh & Anr.
LL Citation: 2023 LiveLaw (MP) 127
Madhya Pradesh High Court has recently quashed a criminal case pending against a husband by following the reasoning that a compromise has already been reached between the concerned spouses, and that the court can avail its power under Section 482 CrPC to quash criminal proceedings based on the compromise arrived upon by both parties.
“If compromise between husband and wife is effectuated by the attempts of their family members, it will not only be good for society but also beneficial for their remaining life. The object of compromise is to settle down. The object of compromise is to settle in life and live peacefully”, the court noted while disposing of the matter.
The single-judge bench of Justice Prem Narayan Singh also observed that law must also be considered as a means to 'maintain peace, tranquility and harmony in the respective society' and not just 'to punish the offenders'. The court also opined that compromise in matrimonial disputes should be encouraged to avoid the loss of time that the parties might incur due to prolonged proceedings in a court of law, 'where it takes years and years to conclude a dispute'.
Case title: SANDEEP KUMRAWAT vs. ANTIMA KUMRAWAT
LL Citation: 2023 LiveLaw (MP) 129
The Madhya Pradesh High Court has observed that it is well settled that if the husband is capable of earning, he would be liable for maintenance for his wife and children, even if he has left the job.
A bench of Justice Prem Narayan Singh also held that even if a wife has an M.Phil degree, she cannot be declined maintenance.
Case Title: Raghvendra Kumar v. State of Madhya Pradesh & Ors. And Gokul Chand Meena v. State of Madhya Pradesh & Anr.
LL Citation: 2023 LiveLaw (MP) 131
While quashing a criminal case filed by the wife against the husband nearly seven years after the alleged crime of cheating and forgery occurred, the Madhya Pradesh High Court has recently taken the firm stand that no litigant can be allowed to misuse the process of court
The single-judge bench of Justice Subodh Abhayankar also observed that it was hardly imaginable that the wife, who was a senior bank manager, would wait for over seven years before she raised allegations of cheating by the husband in a transaction that involved the Bank where both of them were working at the relevant time.
“This court is of the considered opinion that the process of the court cannot be used to settle the personal scores of the private parties. The present case is apparently an offshoot of a matrimonial dispute, and the complainant wife cannot be allowed to keep the alleged offence in hibernation, for years together, only to be used it as a leverage over her husband and the other accused person, who are clearly at a disadvantage in contesting the case due to lapse of time”, the court noted while simultaneously adding that courts can only welcome serious litigants trying to get redressal for their genuine concerns.
Case Title: Bhupendra Singh Rajawat & Ors. v. Ranjeeta Rajawat
LL Citation: 2023 LiveLaw (MP) 132
Madhya Pradesh High Court has recently laid down in unequivocal terms that the findings of a family court made in a maintenance application under Section 125 CrPC would have no binding effect on a court considering a case under the Prevention of Women From Domestic Violence Act, 2005.
Additionally, the single-judge bench of Justice Prem Narayan Singh also reiterated that the maintenance application decided under one statute would not foreclose the claim for maintenance under a different statute.
“…if, in proceeding under Section 125 of Cr.P.C., the application of wife seeking maintenance is rejected by the Family Court, such wife would not be precluded from claiming maintenance or other monetary remedy under the 12 provisions of the D.V. Act. The reasons assigned by the learned Family Court in rejecting the application under Section 125 of Cr.P.C. have no relevancy to the cases pending before the Courts dealing with the D.V. Act”, the bench sitting at Indore noted while dismissing the revision petition filed by the husband and his family against the interim maintenance of Rs 5,000/- awarded under a Section 23 application made under Domestic Violence Act.
Case Title: Lakhan Ahirwar v. State of Madhya Pradesh & Ors.
LL Citation: 2023 LiveLaw (MP) 136
Madhya Pradesh High Court recently criticised a Sessions Court for passing the judgment in a rape case in a 'most casual and cursory manner', without even properly analyzing the definition of rape as given under Section 375 of IPC.
While pointing out how the trial court has erred in acquitting a police constable primarily accused of offences under Sections 375 and 201 of IPC, the High Court has also delved deep into the invalidity of a marriage agreement executed in front of a notary.
“Unfortunately, while deciding the offence punishable under Section 376 of IPC, Trial Court has not considered the definition of "rape" as defined under Section 375 of IPC and has not considered the pros & cons of executing a marriage agreement to falsely give an impression in the mind of prosecutrix that she is a lawfully married woman…”, the single judge bench of Justice Gurpal Singh Ahluwalia at Jabalpur noted while admonishing the trial court.
Case title: Devraj Dangi vs. State of Madhya Pradesh
LL Citation: 2023 LiveLaw (MP) 163
The Madhya Pradesh High Court (Indore Bench) recently denied bail to a man accused of raping his 12-year-old daughter.
"Trust and faith that a young girl would repose in her father and the sanctity of the very relationships were destroyed by debauched and devastating acts. It is a very unfortunate that in the instant case prosecutrix is a minor and innocent girl of 12 years of age and she was raped by her own father, which is a very heinous, inhumane and shameful act," a bench of Justice Anil Verma observed while refusing bail to the accused.
MADRAS HIGH COURT
Case Title: P Geetha v. V. Kirubaharan
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
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.
Case Title: Mohammed Rafi v. State of Tamil Nadu and Others
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
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
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
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.
Case Title: SR v. MCR
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.
Mother Entitled To Arrears Of Maintenance Accrued To Deceased Daughter: Madras High Court
Case Title: Annadurai v Jaya
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: Kannaian Naidu and others v Kamsala Ammal and others
Citation: 2023 LiveLaw (Mad) 172
In a significant verdict, the Madras High Court recently 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.
Case Title: Amalraj v State and Another
Citation: 2023 LiveLaw (Mad) 191
The Madras High Court has ruled that non-payment of maintenance amount is a breach of protection order under Section 18 of the Act and registration of an FIR on that ground is lawful.
Justice KK Ramakrishnan of the Madurai bench observed that Section 31 of the Protection of Women Against Domestic Violence Act was enacted to ensure social justice and to regulate the violator of a protection order. The court called the provision a life-saving medicine by treating failure of remittance of maintenance as an offence and crime.
The court also disagreed with a reasoning of the Kerala High Court that such wide interpretation of Section 31 would lead to over-flooding of courts, and opined that flooding of courts would only signify that the people have faith in the judiciary which is a good sign for the judiciary.
Case Title: Loyola Selva Kumar v Sharon Nisha
Citation: 2023 LiveLaw (Mad) 192
The Madras High Court recently held that even if a marriage was not legal due to the existence of a first marriage, the second wife and the children born out of the second marriage will be entitled to maintenance under Section 125 of the Code of Criminal Procedure.
Justice K Murali Shankar of the Madurai bench was dealing with a revision petition seeking review of an order passed by Family Court, Tirunelveli directing a man to pay a monthly maintenance of ten thousand rupees to his "wife" and their son and to pay the entire arrears of maintenance amount within a month.
Case Title: C v S
Citation: 2023 LiveLaw (Mad) 199
While setting aside a divorce decree, the Madras High Court said that when a wife initiates proceedings for vindication of her rights, it can never be termed as mental cruelty.
Justice R Vijayakumar of the Madurai Bench said:
“This Court is of the considered opinion that the divorce petition lacks pleadings with regard to the mental cruelty, desertion and the deposition of the husband relating to the said allegation do not support the case of the husband. The litigation initiated by the wife is only to protect her property rights and her custody of her son. When the initiation of such proceedings is for the vindication of her rights, the said proceedings can never be considered to be a ground for mental cruelty”.
Case Title: SV v. MR
Citation: 2023 LiveLaw (Mad) 273
While refusing to interfere with an order of maintenance made by the Family Court, the Madras High Court has observed that a husband is liable to pay maintenance to his wife and child even if he is on an academic break to pursue a Ph.D.
“The amount awarded in our opinion would be just about sufficient for sustainance of one human being at the cost of living today. Merely because the petitioner has taken a study holiday or an Academic break, his duty to maintain his wife and child cannot take the back seat,” the court observed.
Case Title: Mrs. Pista Kanwar v The Inspector of Police and Others
Citation: 2023 LiveLaw (Mad) 287
While setting aside the acquittal of a man in a case involving death of his wife by self-immolation, the Madras High Court has observed that the husband's illicit relation with his elder brother's wife would amount to cruelty on the wife within the meaning of Section 498A of IPC.
The High Court disagreed with the view taken by the trial court that such relation was only immoral and did not amount to cruelty. The court added that when such illicit relationship was happening inside the house under the pretext of “motherly affection” and which was witnessed by the victim herself, the trial court had erred in rendering such a find.
Case Title: PK Mukmuthu Sha v PS Mohammed Afrin Banu
Citation: 2023 LiveLaw (Mad) 410
The Madras High Court recently observed that although Islamic Law allowed a husband to have polygamous marriages, he was obligated to treat all the wives equally.
The bench of Justice RMT Teekaa Raman and Justice PB Balaji thus confirmed a family court order allowing dissolution of marriage finding that the husband had treated the wife with cruelty by not treating her on par and equally with the second wife.
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.
Case Title: Mrs. X v. Mr. Y
Case Citation: 2023 LiveLaw (Ori) 61
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: Nesar Ahmed Khan v. State of Orissa & Ors.
Citation: 2023 LiveLaw (Ori) 63
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.”
Notaries Cannot Register Marriage Or Issue Marriage Certificates
Case title: Partha Sarathi Das v. State of Orissa & Ors.
Citation: 2023 LiveLaw (Ori) 98
The Orissa High Court has reiterated that 'notaries' cannot register marriage as they are not authorised to do so under the Notaries Act, 1952. The Court was hearing a habeas corpus petition filed by a man who alleged that his wife has been illegally detained by her parents and they are not allowing her to live with him. At this juncture, Court found that a marriage declaration document was prepared on which both the petitioner and the girl had put their signatures and it was sworn before a notary. The Division Bench of Justice Sangam Kumar Sahoo and Justice Sibo Sankar Mishra, while asking them to abstain from issuing marriage certificates, observed: “Due to such extra-legal and subterfuge arrangements by the Notaries, parties are made to believe that they are legally married when in fact their marriage do not have even the slightest of legal sanctity.”
Case Title: Saroj Sahoo v. State of Odisha
Citation: 2023 LiveLaw (Ori) 84
The Orissa High Court has quashed a criminal case pending against a man who was accused of raping a woman on false promise of marriage. Justice Sashikanta Mishra was of the view that the victim tried to foist a false case upon the accused to pressurize him and observed, “…if the facts of the case and the materials on record are viewed objectively it would reveal an apparent attempt by the victim to entangle the accused in a criminal case apparently to coerce him into a marital relationship.” It found the statements of victim obtained u/s 164 CrPC doubtful and it was of the view that the version of the victim does not inspire confidence at all so as to be accepted. The Court dismissed the criminal case.
Case Title: Santanu Kaudi v. State of Odisha
Citation: 2023 LiveLaw (Ori) 82
The Orissa High Court has set aside the order of conviction passed against a rape accused observing that the victim of the offence used to accompany him regularly to a jungle and was keeping sexual relation with him despite knowing fully well that he is married. Justice Sangam Kumar Sahoo disagreed with the reasoning of the trial Court that the consent of the victim cannot be construed as a valid consent as she used to give it under the misconception of fact. It held that the victim was fully conscious of the fact that the appellant was a married person, having four children and her marriage with him was not possible. The Court set aside the order of conviction passed against the appellant holding that the victim had consented to the sexual intercourse knowing fully well the consequences.
Case Title: Sanu Munda v. State of Odisha
Citation: 2023 LiveLaw (Ori) 83
The Orissa High Court recently acquitted a man accused of committing rape on his sister-in-law observing that she being a grown-up lady, having experience of sexual intercourse, failed to offer resistance to the alleged forceful act. Justice Sangam Kumar Sahoo concluded that the alleged sexual intercourse happened with the consent of the victim and only because the said act was witnessed by her husband, she put the blame on the appellant to “save her own skin”. The husband of the lady found her with the appellant in a jungle in a compromising position and on seeing the husband, the lady kicked him. The trial Court held the appellant guilty of the offence under section 376(2)(f) of the IPC. Court allowed the appeal and set aside the conviction.
Denial Of Maternity Leave An Assault On Dignity Of Woman Employee, Offends Article 21
Case Title: Swornalata Dash v. State of Odisha & Ors.
Citation: 2023 LiveLaw (Ori) 77
The Orissa High Court has observed that denial of maternity leave is against the fundamental right to life with dignity of women as provided under Article 21 of the Constitution. While providing relief to a teacher of government-aided school Justice Sashikanta Mishra held, “If a woman employee is denied this basic human right it would be an assault on her dignity as an individual and thereby offend her fundamental right to life guaranteed under Article-21 of the Constitution, which has been interpreted to mean life with dignity.”
Case Title: Yagnaseni Patel v. The General Manager, Mahanadi Coalfields Ltd. & Ors.
Citation: 2023 LiveLaw (Ori) 76
The Orissa High Court has reiterated daughters' entitlement to inherit ancestral property in view of their equal coparcenary rights, as were conferred on them by the Hindu Succession (Amendment) Act, 2005, irrespective of date of death of their fathers. Following the conclusion reached by the Supreme Court in its landmark decision in Vineeta Sharma v. Rakesh Sharma & Ors., the Division Bench of Justice Bidyut Ranjan Sarangi and Justice Murahari Sri Raman held that a woman will have an equal share in undivided family property as she becomes a coparcener by virtue of her birth.
Case Title: Sukumar Gouda V State of Odisha (JCRLA No.33 of 2020)
Citation: 2023 LiveLaw (Ori) 94
The Orissa High Court has upheld the conviction of a brother for repeatedly committing rape on his 14-year-old minor sister which resulted in her pregnancy. Justice Sangam Kumar Sahoo pronounced the verdict on 'Raksha Bandhan', in open court and termed the incident to be unfortunate and expressed shock that a brother, who is naturally entrusted with the duty to protect his sister, has not only committed sexual assault on her but also impregnated her at such an early age. The Court upheld the conviction and the sentence of 20 years rigorous imprisonment handed down on him under Section 6 of the POCSO Act and 2 year rigorous imprisonment under Section 506, IPC.
Case Title: TB v. State of Odisha
Citation: 2023 LiveLaw (Ori) 85
The Orissa High Court upheld the conviction and sentence imposed on a man for raping and sexually assaulting his minor daughter. Justice Sangam Kumar Sahoo termed the offence to be 'bestial' and 'sheer betrayal of trust and faith' of the little daughter. “This degrading act of the appellant stupefies the judicial conscience of this Court as it is unthinkable to even comprehend that in a country where women are traditionally viewed as an incarnation of the God and daughters are worshipped as 'Devi', such heinous acts are being committed by a father. A daughter needs a father to be the standard against which she will judge all men. When the father who is the creator of the girl child and supposed to act as her protector, takes the role of the predator, it would be sheer betrayal of someone's trust and faith and has got serious impact on humanity”, the Court stated.
Case Title: Debendra Singh v. State of Odisha
Citation: 2023 LiveLaw (Ori) 109
The Orissa High Court confirmed the term of life imprisonment imposed upon a man for taking multiple nude photos of his niece, subsequently killing her and burning her face to conceal identity.
Denying any relief to the accused-appellant for the ghastly crime, the Division Bench of Justice Sangam Kumar Sahoo and Justice Sibo Sankar Mishra observed,
“Who can forget the beautiful lines from Hindi song, 'Chanda Mama Se Pyara Mera Mama...Meri Ankhon Ka Tara Mera Mama.' The appellant lacked the qualities of an uncle, made pious relationship ugly, spoiled the life of the deceased niece, tortured her and ultimately committed her gruesome murder.”
Case Title: Bhanu Charan Pradhan v. State of Odisha
Citation: 2023 LiveLaw (Ori) 114
The Orissa High Court has held that a request for a sum of money by the husband to his in-laws for arranging a job for himself, which he assured to repay, will not amount to demand of 'dowry' as per Section 2 of the Dowry Prohibition Act.
The Single Bench of Justice Sangam Kumar Sahoo was hearing an appeal filed a person accused of committing murder of his wife in connection with demand of dowry and accordingly, he was charged under Sections 302/498A/304B of the IPC and Section 4 of the Dowry Prohibition Act.
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.”
Case Title: Shobha Singh vs. The State of Bihar and Ors.
Citation: 2023 LiveLaw (Pat) 79
The Patna High Court has said that a person cannot be held responsible for any dues owed by their family members while seeking the renewal of a permanent stage carriage permit.
Justice A Abhishek Reddy said, "it is made clear that the renewal of the permit of the petitioner cannot be rejected on the sole ground that any of the family members are due some amount."
Case Title: SK vs. RD
Citation: 2023 LiveLaw (Pat) 85
While dismissing a man's revision plea against the Family Court's rejection of his matrimonial case for divorce under Section 13 of the Hindu Marriage Act, the Patna High Court said the inability to bear a child is not a valid ground for dissolving a marriage.
The court noted that it appears since the wife is having a cyst in her uterus and is unable to bear child, the husband wants to divorce her to get remarried with another woman so that he can have a child. The division bench of Justice Jitendra Kumar and Justice P. B. Bajanthri said that developing any disease during the continuation of marriage is not within the control of any spouse.
"In such a situation, the other spouse has a marital duty to co-operate and bear with it and help the other spouse. It is also worth mentioning that inability to bear a child is neither impotence nor any ground for dissolving the marriage. Such possibility of inability to bear a child may be part of marital life of anybody and parties to a marriage may resort to other means for having a child, such as, adoption. Divorce is not provided as per the Hindu Marriage Act in such circumstances," the bench said.
Case Title: Nisha Gupta vs. Uday Chand Gupta
Citation: 2023 LiveLaw (Pat) 97
The Patna High Court set aside a judgment of the family court granting a divorce decree in favour of the Husband as it noted that he had failed to prove the ground of cruelty purportedly committed by his wife against him.
The Court added that in fact, cruelty had been committed against the wife as the husband had left his house and started residing in the office of RSS.
In its 47-page judgment, the bench of Justice PB Bajanthri and Justice Jitendra Kumar found that no cruelty had been committed by the Wife towards the Husband. The Court also opined that it appeared that the husband did not have any concern for his wife.
"We further find that as per evidence of both the parties that the Appellant-Defendant-wife is still living in her matrimonial house along with her children and it is the husband, who left his house and is living in the office of RSS. We also find that the wife has never refused cohabitation, it is the husband who had stopped taking interest in her and he is not making efforts for cohabitation, because he has been living separately from her...As such, in the totality of the evidence on record, we find that no instance has been proved by the RespondentPlaintiff-husband, which may be construed as cruelty in the strict sense of the term as provided under Section 13 of the Patna High Court MA No.5 of 2018 dt. 25-08-2023 50/51 Hindu Marriage Act," the Court further remarked.
Entering Into Second Marriage Even With Wife's Consent May Constitute Cruelty: Patna High Court
Case Title: Arun Kumar Singh Alias Arun Singh vs. Nirmala Devi
Case Citation: 2023 LiveLaw (Pat) 102
The Patna High Court has held that entering into a second marriage, even with the consent of the first wife, may constitute cruelty to the first wife, thereby giving her reason to live separately and giving cause of action to file complaint cases under Section 498A of the IPC.
The division bench of Justices Jitendra Kumar and PB Bajanthri observed, “As such, even lodging of criminal cases under Section 498A of the IPC by the Respondent-wife cannot be construed as cruelty to the Appellant-husband. After perusal of the averment made in the petition, we further find that as per averment of the Appellant-husband, he has entered into second marriage, though allegedly with the consent of the Respondent- wife."
"However, as a common knowledge, such second marriage is not tolerated by any wife and that is why entering into second marriage itself amounts to cruelty to the first wife giving her reason to live separately and giving cause of action to file complaint cases under Section 498A of the IPC and as such, the submission of Ld. counsel for the Appellant-husband that he has proved the ground of cruelty for dissolution of marriage has no substance,” the bench added.
Case Title: Rohitash Kumar Vs The State of Bihar
Citation: 2023 LiveLaw (Pat) 118
In a recent ruling, the Patna High Court granted anticipatory bail to a Border Security Force (BSF) Jawan accused of cheating and raping a woman under the false pretext of marriage. The accused, known to the informant for six years, was alleged to have engaged in a consensual physical relationship. The Court found no evidence suggesting the promise of marriage was false from the beginning.
The ruling came in an application filed under Section 438 of the Code of Criminal Procedure, 1973, for anticipatory bail in connection with a 2022 case registered for offenses punishable under Sections 493 and 506 of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act. Subsequently, after further investigation, the case was converted into Sections 420/376 of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act.
Case Title: Ravi Kant vs. Bandana Kumari
LL Citation: 2023 LiveLaw (Pat) 138
In a significant judgement, the Patna High Court has ruled that the mere application of sindoor (vermilion) on a woman's forehead under coercion does not constitute a valid marriage under Hindu law. The Court emphasized that a Hindu marriage must be consensual and involve the customary 'saptapadi,' where the bride and groom complete seven rounds around a sacred fire for the union to be deemed binding.
The division bench, comprising Justices P B Bajanthri and Arun Kumar Jha, observed, "From bare perusal of the aforesaid provision, it is obvious that when such rites and ceremonies including Saptapadi the marriage becomes complete and binding, when seventh step is taken. Conversely, if 'saptapadi' has not been completed, the marriage would not be considered to be complete and binding."
Case Title: Smt. Rudra Maya Sinh vs. The Registrar General and Ors
LL Citation: 2023 LiveLaw (Pat) 153
In a recent ruling, the Patna High Court dismissed a petition filed by a 96-year-old widow, seeking a family pension for her late husband, a retired Judicial Officer, citing a gross delay of more than 30 years in the claim, coupled with a lack of substantiating material to establish her marital status and her husband's service history.
The division bench of Chief Justice K. Vinod Chandran and Justice Rajiv Roy observed, "The claim made now after more than 30 years is grossly delayed. The petitioner herein also does not have any substantiating material to indicate that she was married to the Judicial Officer."
Case Title: Alok Bharti, vs. Jyoti Raj
LL Citation: 2023 LiveLaw (Pat) 154
In a noteworthy judgment, the Patna High Court has declared that making baseless accusations of adultery, fornication, and coerced prostitution by a woman against her husband not only constitutes harassment and character assassination but also tarnishes the individual's public reputation in society.
The division bench of Justice P B Bajathri and Justice Ramesh Chand Malviya observed, “The leveling of false allegation by one spouse to the other having alleged illicit relations with different persons outside the wedlock amounted to mental cruelty. In the present case, respondent – wife alleged allegations before the employer of appellant and in the domestic violence allegations of soliciting prostitution by appellant and his mother and appellant involved in adultery and fornication etc. Respondent admitted those allegations are at the instigation of her advocate and they are not true.”
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.
Case title - Pooja and another vs. State of Punjab and others [CRWP No.8041 of 2023]
Case Citation: 2023 LiveLaw (PH) 144
Observing that Article 21 of the Constitution of India does not cease to apply when people of the same gender decide to live together, the Punjab and Haryana High Court today granted police protection to a same-sex live-in couple.
The bench of Justice Anoop Chitkara passed this order while dealing with a protection plea filed by a major lesbian couple who have been staying together in a live-in relationship for the last four years.
Case Title: X v. State of Haryana
Citation: 2023 LiveLaw (PH) 147
The Punjab & Haryana High Court recently imposed a cost of Rs.10,000 on a live-in couple for filing a plea for protection without any perceived threat against them.
Justice Alok Jain clarified that previously informed the petitioners on the very first hearing that a cost of Rs.50,00 will be imposed if no threat perception was found.
"It was made clear on the very first date that, in case, it is found that there is no threat perception to the petitioners, the petitioners will be burdened with the cost of at least Rs. 50,000/-. However, today learned counsel for the petitioners prays for withdrawal of the present petition and also for reduction of cost. Accordingly, the present petition stands dismissed, subject to payment of cost of Rs.10,000/- to be deposited by the petitioners jointly within one month from today.”
Case Title: Daya @ Dayawanti vs. Arjun and others
Observing that the contribution of a homemaker to the intricate fabric of daily life is "immeasurable and deserves profound acknowledgement", the Punjab and Haryana High Court last week allowed an appeal filed by a woman seeking enhancement of the amount of compensation received by her on account of the death of her husband.
"A homemaker shoulders a myriad of responsibilities that encompass a diverse range of tasks. From managing household chores to nurturing relationships and maintaining a harmonious living environment, their role is ceaseless and demanding. Operating tirelessly around the clock, a homemaker's dedication is undeniable," the bench of Justice Sanjay Vashishth observed.
Case Title: Dr. Honey Chahal and another v. State of Punjab and others
Citation: 2023 LiveLaw (PH) 165
Observing that child should not be made to feel as if he is being forcibly taken from one to the other, just to enforce decree of the court, the Punjab & Haryana High Court granted visitation rights to biological parents of a child who is in custody of alleged adoptive mother.
The bench of Justice Arun Monga said,
"As of now, the interim arrangement (visitation rights), as above, is being directed keeping in mind the paramount consideration of welfare of the child and, to obviate a situation in future where the child should not be made to feel as if he is being forcibly taken from one to the other, leaving him wailing and crying just to enforce decree of the court. It is thus imperative that the child develops an emotional bond and a bonhomie with both sets of families by forging a genuine camaraderie, for which all the parties shall render mutual co-operation."
Case Title: Binder Kaur and and. v. State of Punjab & Ors.
Citation: 2023 LiveLaw (PH) 173
The Punjab & Haryana High Court recently imposed a fine of Rs. 2,500 on already married individuals entering into a live-in relationship who had approached the court seeking police protection.
Justice Alok Jain called it a 'classic case of an illicit relationship' while reiterating that married individuals cannot enter live-in relationships with others during the subsistence of their marriage.
"One's choice to live outside wedlock does not mean that married persons are free to live in live-in-relationship with others during subsistence of marriage, as it would amount to transgressing the valid legal framework. Filing of this writ petition appears to be a device adopted to have a seal and signature of this Court on the illegal act of the petitioners violating the norms of pious institution of marriage."
Case Title: Pinky v. State of Punjab
Case Citation: 2023 LiveLaw (PH) 176
The Punjab & Haryana High Court recently granted bail to a woman accused of allegedly killing her 9-year-old daughter in pursuit of her life insurance policy observing that it is highly improbable that a mother would kill her own daughter for Rs. 90,000.
Justice Sandeep Moudgil also reiterated that apart from the right to life enshrined under Article 21, it has to be borne in mind that 'bail is a rule and jail is an exception.'
"The story put forth by the prosecution is not sufficient enough to inspire confidence of this Court at least for the purpose of considering the instant petition for regular bail...it is highly improbable that merely for Rs.90,000/-, a biological mother would kill her own daughter and over and above had to use 2 'chunnis' to strangulate a minor girl."
Case Title: Vikram Kumar & Ors. v. State of U.T. Chandigarh and others
Citation: 2023 LiveLaw (PH) 185
The Punjab and Haryana High Court has granted relief to a live-in couple, the girl being a minor, seeking protection from alleged threats of the girl's family. Court said it wouldn't comment upon the legality of the relationship but,
"Mere fact that the petitioners are not of marriageable age or that petitioner No.2 is still a minor, would not deprive the petitioners of their fundamental rights as envisaged in the Constitution, being citizens of India."
Case Title: X v. State of Punjab and Ors.
Citation: 2023 LiveLaw (PH) 186
The Punjab and Haryana High Court recently expressed reservations over a married man living with a divorced woman, stating that the brunt of their "illicit relationship" had befallen on the man's wife and children.
It dismissed the couple's protection plea against the man's wife stating that it's a mere "cover up" and directed them to pay cost of Rs. 25,000 to the wife.
Case Title: Gurnam Singh v. State of Punjab and others
Citation: 2023 LiveLaw (PH) 187
In a peculiar case where a deceased government employee's son continued to occupy his father's government accommodation for a period of 17 years on the strength of an interim order passed by the Punjab and Haryana High Court back in 2006, the son has now been asked to compensate the State government in lieu of penal rent.
The son was though appointed as a clerk on compassionate basis and was entitled to government accommodation himself, the same would be of a different category than the house he was occupying.
Court said this fact was not brought to its notice when the case was initiated.
"Keeping in view the principle of “Actus Curiae Neminem Gravabit” i.e no one should be made to suffer on account of the orders of the Court has to be taken into consideration and while this Court finds that the petitioner was not required to pay penal rent in terms of the interim order passed by the Court which had been made absolute, the Chandigarh Administration Authorities cannot be denied completely their right to claim legal dues from the petitioner otherwise unauthorizedly occupying the premises," bench of Justice Sanjeev Prakash Sharma observed while directing him to pay Rs. 5 lakh to the State.
Title: X v. State of Haryana & Ors.
Citation: 2023 LiveLaw (PH) 197
The Punjab & Haryana High Court has made it clear that married individuals entering into live-in relationship cannot be denied protection, irrespective of the Police's view about morality of such relationships.
Justice Arun Monga observed that right to human life is to be treated on highest pedestal and cannot be taken away, except in accordance with law, irrespective of the nature of the relationship.
Case Title: X v. State of Punjab
Citation: 2023 LiveLaw (PH) 203
The Punjab and Haryana High Court has upheld the conviction of a man for committing aggravated penetrative sexual assault on his own 6-year old nephew in 2017. It also upheld sentence of cumulative 10 years imprisonment under Section 6 of POCSO Act and Section 377 of IPC.
While noting that the offence was committed in 2017, prior to enhancement of punishment under POCSO Act, Justice Deepak Gupta said, "Having regard to the increasing number of crimes of this nature and also having regard to the close relationship between victim and the accused, the sentence of 10 years rigorous imprisonment imposed by the ld. trial Court, cannot be considered to be excessive in any manner whatsoever. Being mama (maternal uncle) of the victim child, the accused was required to protect him like double 'ma' being a mama (maternal uncle). Instead of doing so, the accused proved to be demon for him. No leniency is called for such a person."
Case Title: X v. State of Punjab & Ors.
Citation: 2023 LiveLaw (PH) 206
The Punjab and Haryana High Court as an “abundant caution” has directed thorough investigation of any complaint or FIR that the wife in “illicit relationship” files against her husband, so that he is not dragged into frivolous litigation.
Observing that the protection petition filed by the wife and her partner is without any merit and “abuse of process of law”, Justice Alok Jain said,
“The petitioner No.1 being a woman has ample rights in the matrimonial home but apparently, in the present case, it seems that the petitioners have been caught in their illicit relationship and dismissal of this petition may lead to lodging of various litigations against the husband by petitioner No.1, who is apparently not even aware of the deeds of the wife.”
Title: X v. State of Punjab & Ors.
Citation: 2023 LiveLaw (PH) 215
The Punjab & Haryana High Court has made it clear that being below marriageable age would not deprive the live-in couple from fundamental right to protection, guaranteed under Article 21 of the Constitution.
Justice Arun Monga said, "It is the bounden duty of the State, as per the Constitutional obligations casted upon it, to protect the life and liberty of every citizen. Right to human life is to be treated on much higher pedestal, regardless of a citizen being minor or a major. Mere fact that petitioners are not of marriageable age in the present case would not deprive them of their fundamental right, as envisaged in Constitution of India, being citizens of India."
Case Title: Reena Devi & And. v. State of Punjab & Ors
Citation: 2023 LiveLaw (PH) 234
The Punjab & Haryana High Court has said that living together with another woman, without dissolving the marriage from earlier spouse may amount to offence of bigamy under Sections 494, 495 of the IPC.
Justice Kuldeep Tiwari said, "...without obtaining any valid decree of divorce from his earlier spouse and during subsistence of his earlier marriage, the petitioner No.2 is living a lustful and adulterous life with the petitioner No.1, which may constitute an offence punishable under Sections 494/495 of the IPC, as such a relationship does not fall within the phrase of 'live-in relationship' or 'relationship' in the nature of marriage."
Case Title: Reliance General Insurance Co. Ltd. v. Rajni and others And Shakuntla and another v. Manjeet and others
Citation: 2023 LiveLaw (PH) 240
Observing that "re-marriage of widow is a personal choice" and nobody can have a say in it, the Punjab & Haryana High Court has made it clear that re-marriage of a widow would not disentitle her from compensation upon death of her husband under Motor Vehicle Act.
Justice Archana Puri said,
"it is to be noticed that simply because Rajni, widow of the deceased, got re-married, it could not be a reason to deprive of her rightly claim. Re-marriage of widow has nothing to do with her right, which accrued to her to seek compensation, on account of loss, which has accrued to her, as a result of unnatural demise of her husband. Her decision to re-marry is entirely her personal choice and nobody can have say in the same."
Case Title: Shalu Arora v. Tanu Bathla, CRM M-21768-2022
Citation: 2023 LiveLaw (PH) 249
The Punjab & Haryana High Court has ruled that a spouse will not be liable for dishonor of a cheque signed by the other spouse, merely because it was drawn on the couple's joint account.
The observation came in response to the petitioner/wife's plea for quashing of a complaint under Section 138 of Negotiable Instruments Act ("NI Act"), stating that she was accused of cheque dishonor merely because the dishonored cheque, signed by her husband, was drawn on their joint account.
Noting that the cheque was not signed by the petitioner, Justice N.S. Shekhawat said, “The petitioner was admittedly not the drawer. The mere fact that the petitioner happens to be the spouse of the co-accused is hardly sufficient to condemn her as co-accused with him. Even, from the scheme of the Act, it is apparent that there is no provision in the Act regarding taking cognizance against a person, other than the “drawer” of the cheque.”
Case Title: Zakir Hussain and Another v. State of Haryana and Others
Citation: 2023 LiveLaw (PH) 273
The Punjab & Haryana High Court refused to grant custody of a minor Muslim daughter to her father, who married against her parents' wishes as it noted that her marriage was valid as per Mohammedan Personal Law.
Justice Deepak Gupta observed that, “Since the marriage of the petitioners was valid as per the Mohammedan Personal Law, petitioner No.2 (daughter) being above the age of 15 years i.e., age of puberty and petitioner No.1 (husband of daughter) also being of marriageable age, and they having performed Nikaah as per their wish, so the custody of petitioner No.2 is directed to be handed over to petitioner No.1. Respondent No.4- father of petitioner No.2 cannot claim the custody of petitioner No.2 and his wishes in this regard would be inconsequential.”
Case Titile: X v. Y
Citation: 2023 LiveLaw (PH) 274
The Punjab & Haryana High Court has upheld the visitation rights granted to the father of a 10-year-old daughter who was allegedly dependent on substances, observing that "a man or a woman may be bad for someone in a contextual relationship; however, the same does not necessarily mean that the person is bad for his/her child."
While noting that the trial court had observed that the father is "dependent on chemicals" and as per records his treatment has not been completed yet, the Court said, "these observations so made ipso facto, do not make the father to be a bad man and no conclusive opinion can be made about his being dependent upon chemicals. A man or a woman may be bad for someone in a contextual relationship, the same does not necessarily mean that the person is bad for his/her child."
Justice Archana Puri said, "a mother or father, may be morally bad in the societal sense, but that parent may be good for the child. 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 the parent and child."
Case Title: State of Punjab v. Palwinder Singh
Citation: 2023 LiveLaw (PH) 287
Pointing out several discrepancies in the circumstantial evidence on which the Trial Court relied to convict and sentence the accused (Palwinder Singh) to death for murdering his entire family (including his wife and two children) and a farm worker, the Punjab & Haryana High Court set aside the conviction and acquitted him of the murder charges.
The court acquitted both the accused, including Karamjit Kaur, who was sentenced to Life Imprisonment. The allegations against them suggested a conspiracy between the two to murder Singh's family and Kaur's husband, a farm worker, due to their suspected extramarital relationship. Both convicts tied the knot nine months after the demise of the victims.
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.
Case Title: Smt. Nirjara Singhvi v. The State of Rajasthan & Ors
Citation: 2023 LiveLaw (Raj) 75
Granting relief to a woman who lost her mother-in-law — a senior government teacher, husband and father-in-law in quick succession, the Rajasthan High Court said that such exceptional situation requires the liberal construction of “dependent” under Rule 2 (c) of Rajasthan Compassionate Appointment of Dependent of Deceased Government Servant Rules, 1996, to include the “daughter in law”.
The court set aside the government's decision to reject the application of the daughter-in-law for compassionate appointment on the ground that she is not a 'dependent' as per the said Rules of 1996. Justice Vinit Kumar Mathur observed that the purpose of extending the benefit of compassionate appointment to dependents of a deceased Government servant is to relieve the family from distress and destitution on account of the death of sole bread earner of the family.
"This Court is firmly of the view that intention and purpose of the legislature will be gainfully achieved if the benefit of compassionate appointment is extended in such a situation as mentioned above to the petitioner. This Court is of the view that Almighty was quite harsh with the petitioner in comparison to respondent No. 5, who is reasonably settled after marriage in her matrimonial home. The endeavour of the lawmakers and the Court is to give relief to a person who is facing such a situation as has been faced by the petitioner in the present case,” the bench said, while rejecting the claim of the daughter of the deceased teacher.
Case Title: Gayatri v. Maharaja Ganga Singh University & Ors
LL Citation: 2023 LiveLaw (Raj) 98
In a significant order, the Rajasthan High Court has clarified that a natural biological mother, and a mother who has begotten a child through surrogacy cannot be differentiated for the purpose of granting maternity leave.
The single-judge bench of Justice Anoop Kumar Dhand also opined that babies newly born through the process of surrogacy cannot be left at the mercy of others, and they require 'love, care, protection and attention of mother' during infancy.
“…The right to life contained under Article 21 of the Constitution of India includes the right of motherhood and the right of the child to get love, bond of affection and full care and attention. …Making a difference between natural biological mother and surrogate/commissioning mother would amount to insult of motherhood. A mother cannot be discriminated, as far as maternity leave is concerned, only because she begot the child through the process of surrogacy”, the bench sitting at Jaipur noted while holding that the state government's order, denying maternity leave of 180 days to the petitioner for taking care of her twins begotten through surrogacy, must be quashed.
Case Title: Kailashi @ Lali & Ors. v. Ramkripa
The Rajasthan High Court has recently taken judicial notice of the 'fashion' of arraying all relatives of a husband as respondents in domestic violence cases, irrespective of their involvement in the same.
In allowing a revision petition by the petitioners, who were distant relatives of the complainant's husband, a single-judge bench of Justice Ashok Kumar Jain dismissed the complaint filed against them under Section 12 of the Domestic Violence Act, as well as set aside the issuance of process against them by the Magistrate.
Case Title: Smt. Ashwani Sharad Pendese & Anr. v. Registrar of Hindu Marriage & Anr.
Rajasthan High Court has recently underscored that the denial of registration of a marriage under the Hindu Marriage Act solely on the ground that one or both of them are foreign nationals is not justified. Such an act of the respondent registrar of marriages amounts to a violation of the right to equality afforded to 'citizens' and 'non-citizens' alike as enunciated in various apex court judgments, the court added.
“…The respondents cannot refuse to register the marriage of the petitioners only because the petitioner No.2 [Husband] is a foreigner and is not a citizen of India…If the petitioners submit valid proof about their marriage, in terms of the provisions contained under the Act of 1954, the respondents are supposed to register their marriage with immediate effect without any further delay…”, the court noted while directing the Registrar to issue marriage certificate upon satisfaction that a valid marriage has been solemnized between the petitioners.
The single-judge bench of Justice Anoop Kumar Dhand also directed the respondent authorities as well as the Chief Secretary of Rajasthan to amend the guidelines and application format for registration of marriage.
“…The above officials of the State and respondents are further directed to take steps for editing the requirement on the e-portal under the Hindu Marriage Act, 1955 as well as the Special Marriage Act, 1954 to ensure that the requirement of the parties being citizens of India is not insisted upon, if the parties concerned submit a valid proof of their marriage strictly in accordance with law...”, the court has also directed the authorities to comply with the above directions preferably within three months.
TELANGANA HIGH COURT
Case Title: Anumolu Nageswara Rao v. A.V.R.L.Narasimha Rao
Citation: 2023 LiveLaw (Tel) 20
A Full Bench of the Telangana High has ruled that a child upon adoption ceases to be a coparcener of his or her birth family and consequently gives up any right or interest in the family ancestral property.
The bench of Justice P. Naveen Rao , Justice B. Vijaysen Reddy and Justice Nagesh Bheemapaka in the judgment dated June 27 said only if a partition has taken place before the adoption and property is allotted to the adopted person, he or share can carry that property to the adoptive family.
"Only if a partition has taken place before the adoption and property is allotted to his share or self acquired, obtained by will, inherited from his natural father or other ancestor or collateral which is not coparcenary property held along with other coparceners and property held by him as sole surviving coparcener, he carries that property with him to the adoptive family with corresponding obligations," said the court.
Custody Matters Of Minor Children Not To Be Settled By Elders In The House: Telangana High Court
Case Title: X v. State of Telangana & Ors.
Citation: 2023 LiveLaw (Tel) 68
The Telangana High Court held that custody disputes of children cannot be settled by elders of the house while reiterating that the welfare of the minor children is of paramount importance in such matters.
A division bench of Justice K. Lakshman and Justice K. Sujana was hearing a habeas corpus petition filed by the mother of a 7-year-old daughter, alleging that her husband had illegally abducted and detained their daughter in his custody.
“Elders cannot decide that the minor boy should be with the mother and girl child should be with the father. In the custody matters, welfare of the minor child is the paramount consideration.”
Case Title: Kumbam Ramana Prathap Reddy vs. Kumbam Jaihind Reddy
Citation: 2023 LiveLaw (Tel) 70
On September 1, the Supreme Court in Revanasiddappa vs. Mallikarjun recognized the rights of children born out of invalid marriages in their parents' share in Hindu joint family property. It held that children born out of void/voidable marriages are entitled to inherit a share in the property of their deceased parents which would have been allotted to them on a notional partition of the Hindu coparcenary property. However, such children are not entitled to the properties of any coparcener other than their parents.
The Telangana High Court on August 28 had held that a child born out of a second marriage, a void marriage under the Hindu Marriage Act, cannot claim share in the ancestral property. Claim can only be made regarding the self-acquired property of parents.
“A plain reading of Section 16 of the Act would make it abundantly clear that the right conferred upon the illegitimate children is, only as regards the property left by their parents and nothing more. Section 16 of the Act, while engrafting a rule of fiction in ordaining the children, through illegitimate, to be treated as legitimate, notwithstanding that the marriage was void or voidable, chose also to confine its application, so far as succession or inheritance by such children is concerned, to the properties of the parents only”.
Case Title: T Vijaya vs. Turkapalli Mahhiah
Citation: 2023 LiveLaw (Tel) 77
The Telangana High Court has held that a mother cannot legally relinquish the property rights on behalf of her minor children in light of the amendments to the Hindu Succession Act, 2005 which granted daughters equal rights to sons in ancestral property, strengthening their claim to a share in such properties.
Justice P. Sree Sudha held that the mother's purported relinquishment of her daughters' rights in the ancestral property could not be legally recognized, particularly without proper documentation.
“Even if it is presumed that P.W.2 received Rs.30,000/- and purchased the properties under Exs.B1 and B2, it cannot be said that she received the said amount towards shares of plaintiffs and relinquished their right of partition. She cannot relinquish the right of minors without their consent knowledge.”
Case no.: CrlP 1489 of 2023
The Telangana High Court has reiterated that for deciding a maintenance claim both parties are required to file an affidavit disclosing their respective assets and liabilities, and any order passed in the absence of such affidavit is liable to be set aside.
"As per the directions of the Hon'ble Apex Court, while granting maintenance, the trial Court shall receive the affidavits containing assets and liabilities of both the parties and basing on the same, the trial Court shall decide whether maintenance should be awarded or not. In the present case, the trial Court did not follow the guidelines of the Hon'ble Apex Court. Therefore, the impugned order dated 11.08.2022 is liable to be set aside."
Justice G. Anupama Chakravarty, who has since been transferred to the Patna High Court was hearing a Quash petition filed to set aside the order of interim maintenance for a quantum of INR50,000/- passed by the trial court.
Case No.: WA 1195 of 2023
The Telangana High Court held that Rule 4 of the Quartermaster Rules only entitles a married army officer to an accommodation. It does not confer any statutory right on the officer's spouse to retain the allotted accommodation.
The Division Bench of Chief Justice Alok Aradhe and Justice Anil Kumar Jukanti passed the order in a writ appeal filed by an army colonel's estranged wife, challenging the eviction notice issued to her by Station Commander, Secunderabad in respect of the accommodation earlier allotted to her husband (respondent No.3), in which she continued to reside.
TRIPURA HIGH COURT
Case Title: Smti. Niyati Das Vs Smti. Milan Debnath (Gupta) wife of late Dhruba Kanti Gupta
Citation: 2023 LiveLaw (Tri) 10
The Tripura High Court has recently ruled that the responsibility of proving the execution of a Will, as well as addressing any doubts surrounding its validity, rests entirely on the person presenting the Will. The propounder must demonstrate the proper execution of the Will and convincingly dispel any doubts or suspicions surrounding its creation, it emphasised.
“The burden of proof of execution of a Will as also the suspicious circumstances attached to execution of such Will always lies on the propounder of the Will who has to prove the due execution of Will and remove the suspicious circumstances from the mind of the court by cogent and satisfactory evidence”, Justice T. Amarnath Goud observed.
These expositions were made by the court while presiding over an appeal filed under Section-299 of the Indian Succession Act, 1925 assailing a judgment passed by the District Judge of North Tripura, Dharmanagar on April 6, 2022.
Case Title: RCS vs. PDS
Citation: 2023 LiveLaw (Tri) 11
“This Court strongly believes that a parent cannot be a guest in their child's life. If visitation rights only are granted for limited hours, it may not be sufficient for the child to have a comfortable time with the father or mother, whoever may be the case,” the Tripura High Court observed recently as it stressed that overnight custody must be encouraged in custody matters.
The Court further opined that that a wider gap between the parents and the child weakens their bond and the child is left confused, and hence, such acts of any parent in separating a child from the other parent should be “nipped in the bud” otherwise, the Court added, the separated parent ends up becoming a “guest” in the life of the child.
The observations were made by a bench of Justice T. Amarnath Goud in a Section 482 CrPC plea filed by the father (Rakesh Chandra Saha) of a 6-year-old girl and her paternal grandparents challenging an order of the Additional Sessions Judge, Gomati Judicial District, Udaipur granting interim custody of the girl, under the power of the DV Act, in favour of her mother (wife of Saha/Petitioner no. 1).
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.”
