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All High Courts Family Law Digest 2022
LIVELAW NEWS NETWORK
15 Feb 2023 10:20 AM GMT
LiveLaw brings to you the most awaited High Courts Digest on Family law cases from the year 2022.ALLAHABAD HIGH COURT Interim Maintenance- Extremely Difficult For Woman To Maintain Herself With ₹1500 Per Month: Allahabad High CourtCase title - Sanjeev Rai v. State of U.P. and AnotherCase citation: 2022 LiveLaw (AB) 14Emphasizing that it is the duty and responsibility of the husband to...
LiveLaw brings to you the most awaited High Courts Digest on Family law cases from the year 2022.
ALLAHABAD HIGH COURT
Case title - Sanjeev Rai v. State of U.P. and Another
Case citation: 2022 LiveLaw (AB) 14
Emphasizing that it is the duty and responsibility of the husband to maintain his wife with all dignity, the High Court recently observed that nowadays, it is extremely difficult to conceive that a woman would be in a position to maintain her with the amount of Rs. 1500/- per month.
Case title - Shradha Kannaujia (Minor) And Another v. State Of U.P. And 5 Others
Case citation: 2022 LiveLaw (AB) 28
The High Court has observed that the power of the High Court in granting a writ of Habeas Corpus in child custody matters may be invoked only in cases where the detention of a minor is by a person, who is not entitled to his/her legal custody.
In view of this, the Bench of Justice Raj Beer Singh dismissed a Habeas plea filed by the mother of a 5-year-old girl seeking minor's custody from her father (her husband) as the Court noted that the appropriate remedy in such matters would lie under the Hindu Minority and Guardianship Act, 1956 or Guardians and Wards Act, 1890.
Case title - Bablu Second Bail Application v. State of U.P.
Case citation: 2022 LiveLaw (AB) 33
The High Court denied bail to a Husband who has been accused of burning her 22-year-old wife and thereafter, burying her dead body was buried at a secret place in connection with the demand of dowry.
The Bench of Justice Vikas Kunvar Srivastav denied bail to Bablu (husband of the deceased) as the court remarked that the alleged act of husband was evident of callous greed of a heartless husband and self-centered irresponsible father of the infant child.
Case title - Ashish And 2 Others V. State Of U.P.And Another
Case citation: 2022 LiveLaw (AB) 38
The High Court has observed that conducting or not conducting preliminary enquiry is the domain of Investigating Officer and on which basis, F.I.R. cannot be quashed.
The Bench of Justice Anil Kumar Ojha observed thus while hearing a 482 CrPC plea filed by the Husband, father-in-law, and mother-in-law of the victim, Seema seeking to quash the entire criminal proceedings arising out of the FIR that had been lodged against them under Sections 498A, 323, 506 I.P.C. and Section 3/4 of D.P. Act.
Case title - Smt. Shakshi Agrawal v. Sri Ashutosh Agrawal
Case citation: 2022 LiveLaw (AB) 45
The High Court has observed that the fact that a wife is not having anyone to accompany her across a long distance is also a relevant consideration in ordering the transfer of a matrimonial case.
The Bench of Justice J. J. Munir observed thus while allowing a transfer application filed by a wife seeking transfer of a matrimonial case (filed by the husband) from the court of Principal Judge, Family Court, Gautam Budh Nagar to the court of Principal Judge, Family Court, Allahabad.
Case title - Atul Mishra v. State Of U.P. And 3 Others
Case citation: 2022 LiveLaw (AB) 51
The High Court recently granted bail to a POCSO Accused who ran away with a 14-year-old girl (victim) due to a romantic affair between them. The Court noted that both of them fled away, got married in a Temple, and remained in company with each other for almost two years during which the girl even gave birth to a baby.
The Bench of Justice Rahul Chaturvedi also remarked that it would be extremely harsh and inhuman to devoid the baby from parental love and affection on account of the fact that both the accused and minor victim loved each other and decided to get married.
The Court, in a significant clarification also said that the scheme of the POCSO Act clearly shows that it did not intend to bring within its scope or limits, the cases of the nature where the adolescents or teenagers are involved in a dense romantic affair.
Case title - Rina Kinnar And Another v. State of U.P. and Another
Case Citation: 2022 LiveLaw (AB) 55
The High Court has observed that for adopting a child, a marriage certificate is not a sina-quo-non and even a single parent can adopt a child under the Hindu Adoption and Maintenance Act, 1956.
The Bench of Justice Dr. Kaushal Jayendra Thaker and Justice Vivek Varma observed thus while dealing with a plea filed by a Transgender person and her husband who sought a direction upon the Sub Registrar, Hindu Marriage, District Varanasi to consider and decide the online application for marriage filed by them
Case Title: Tarun Pandit v. State of U.P. and Another
Citation: 2022 LiveLaw (AB) 59
The High Court recently allowed the claim for maintenance of a wife under Section 125 of CrPC, despite the grant of divorce decree by the Family Court, while noting that an appeal against the said decree was pending before the Court and the same had not attained finality.
Justice Syed Aftab Husain Rizvi discarded the husband's plea that a divorced wife cannot claim maintenance under Section 125 CrPC. It also rejected the argument that since the Family Court has awarded permanent alimony under Section 25 of the Hindu Marriage Act, no maintenance under CrPC can be awarded. It observed,
"It is clear that as O.P. No. 2 (wife) has not accepted the amount of alimony as she has challenged the divorce decree in appeal and appeal is pending and in that circumstances she can not accept the amount of alimony. So it can not be said that she has sufficient financial resources as permanent alimony has been awarded to her. At present she has no source of income and financial support to maintain her and comes in the category of destitute."
Case title - Pratiksha Singh And Another v. State Of U.P. And 3 Others
Case citation: 2022 LiveLaw (AB) 75
Stressing that it is well settled that it is the right of a major to live with anyone out of his/her own will, the High Court has held that the fact that a married boy is not above 21 years of age, would not render the marriage void.
The Bench of Justice Ashwani Kumar Mishra and Justice Shamim Ahmed further clarified that at best, this could render the person responsible, liable for punishment in terms of Section 18 of the Hindu Marriage Act, 1955.
Undertaking As Contemplated U/S 4 Of Partition Act Must Be Unconditional: Allahabad High Court
Case Title: Yogesh Kesarwani And Anr. vs Devi Shankar Shukla
Citation: 2022 LiveLaw (AB) 76
The High Court, sitting in Lucknow, recently held that a member of an undivided family being a shareholder of the family's dwelling-house is entitled to exercise his rights under Section 4 of the Partition Act only if the undertaking is unconditional. The declaration was made by Justice Jaspreet Singh.
Section 4 of the Partition Act provides that where a share of a dwelling-house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the court shall, if any member of the family being a shareholder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder, and may give all necessary and proper directions in that behalf.
Case title - Smt. Ramendri v. State of U.P. and Another
Case Citation:2022 LiveLaw (AB) 93
The High Court imposed ₹20,000 Cost on a Dowry Death Accused after noting that she misused the process of law by filing successive applications before the Court suppressing the material facts and documents and had misled the Court.
The Bench of Justice Sanjay Kumar Singh further stressed that honesty, fairness, purity of mind should be of the highest order to approach the court, failing which the litigant should be shown the exit door at the earliest point of time.
Case title - Smt. Sharma Devi v. State Of U.P. Through Its Additional Chief Secretary, Food And Civil Supply Lko And Ors
Case citation: 2022 LiveLaw (AB) 103
The High Court held that a daughter-in-law is very well entitled to allotment of a fair price shop on compassionate grounds.
The Bench of Justice Manish Mathur relied upon an earlier judgment of the High Court wherein it was held that a widowed daughter-in-law is eligible for allotment of a fair price shop on compassionate grounds.
Essentially, the Court was dealing with a writ plea filed by one Sharma Devi whose application for allotment of fair price shop on the compassionate ground had been rejected by the Government authority on the ground that she does not come within the definition of 'family' as described in paragraph IV(10) of the Government Order dated 5th August, 2019.
Case title - Mukis v. State Of U.P. And 2 Others
Case Citation: 2022 LiveLaw (AB) 117
The Allahabad High Court observed that Section 125 Cr.P.C. is enacted for social justice and especially to protect women and children and also old and infirm parents and that this provision falls within the constitutional sweep of Article 15 (3), re-enforced by Article 39 of the Constitution of India.
The Bench of Justice Shekhar Kumar Yadav observed thus as it stressed that this provision gives effect to the natural and fundamental duty of a man to maintain his wife, children, and parents so long as they are unable to maintain themselves.
Case title - Smt. Rekha Gautam v. State of U.P. and Another
Case Citation: 2022 LiveLaw (AB) 125
Referring to the Apex Court's ruling in the case of Rajnesh v. Neha and another, (2021) 2 SCC 324, the Allahabad High Court observed that the maintenance has to be awarded from the date of application and not from the date of the order.
The Bench of Justice Samit Gopal observed thus as it opined that the order of the revisional court in granting maintenance to a lady and her minor children from the date of the order was illegal.
Case title - Jeetu @ Amit Kumar Rawat And Anr. v. Sub Divisional Magistrate Sadar Lucknow And Anr.
Case citation: 2022 LiveLaw (AB) 132
In a significant assertion, the Allahabad High Court observed that as per the Maintenance and Welfare of Parents and Senior Citizens Act 2007 and the rules framed by the state government thereunder, it is mandatory for the District Magistrate to ensure that the life and property of the senior citizen are protected and they are able to live with security and dignity.
The Bench of Justice Pankaj Bhatia further observed that the Senior Citizen Act recognizes the vulnerable position of such citizens in the society and it intends to provide a mechanism to avoid their suffering and to ensure that the life and property of the senior citizen are secured and they are able to live in security and dignity.
Case title - Smt. Shalinee Dubey @ Radhika Dubey v. Abhishek Tripathi @ Gopal
Case Citation: 2022 LiveLaw (AB) 144
The Allahabad High Court observed that once an application under S. 24 of the Hindu Marriage Act, 1955 [Maintenance pendente lite and expenses of proceedings] has been allowed and uninterrupted litigation expenses are being paid to a party to a matrimonial dispute, he/she cannot move transfer application on the ground of distance and financial stress.
The Bench of Justice Neeraj Tiwari observed thus as it took into account the decision of the Supreme Court in the case of Abhilasha Gupta vs. Harimohan Gupta 2021 9 SCC 730, wherein the Apex Court had taken the view that once the application under Section 24 of Act, 1955 is allowed and the particular matrimonial dispute is at the verge of the final decision, the transfer application can't be allowed.
Case title - Abhinay Jain v. State Of U.P. And 2 Others
Case citation: 2022 LiveLaw (All) 167
Allowing a Habeas Corpus plea filed by a father seeking visitation rights to meet his son presently living with his mother, the High Court observed the father is ENTITLED to visitation rights to meet his child.
Essentially, the child is presently living with his mother pursuant to a mutual agreement made between the husband and wife in a divorce suit decided on the basis of mutual consent. In the agreement, it was agreed the corpus/child will reside with his mother. However, the man/father moved to the Court alleging that he wasn't being allowed to meet the child.
Case title - Razia v. State of U.P. [CRIMINAL REVISION DEFECTIVE No. - 475 of 2008]
Case Citation: 2022 LiveLaw (All) 179
Reiterating the law laid down in the case of Shabana Bano vs. Imran Khan, the Allahabad High Court has observed that a divorced Muslim woman shall be entitled to claim maintenance from her husband under Section 125 Cr.P.C. even after the expiry of the period of iddat as long as she does not remarry.
The Bench of Justice Karunesh Singh Pawar observed thus while allowing a revision plea filed against the judgment and order passed by the Additional Sessions Judge, Pratapgarh in May 2008, modifying the order of trial Court passed in Janury 2007.
Case title - Vipin Kumar v. State of U.P. and Another
Case Citation: 2022 LiveLaw (AB) 192
The Allahabad High Court recently observed that in the event of any failure on the part of any person to comply with a Court's order to pay maintenance allowance, the correct/appropriate course for the courts is to first issue a warrant for the levy of fine as provided u/s 421 of CrPC for the purpose of realization of the amount.
With this, the bench of Justice Ajit Singh held that in such cases of non-payment of maintenance allowance, the Magistrate has no jurisdiction to issue a warrant of arrest straightway against the person liable, without first levying the amount due as a fine as provided under Section 421 of CrPC.
Case title - Km. Sanaya Sharma (Minor) And Another v. State Of U.P. And 4 Others
Case citation: 2022 LiveLaw (AB) 193
Stressing that a mother's love must be given unconditionally to establish trust and a firm foundation of emotional intimacy in a child's life, the Allahabad High Court recently granted the custody of two children to their mother.
The bench of Justice Rahul Chaturvedi ordered thus while dealing with a habeas corpus plea moved by one Seema Sharma seeking the custody of her two kids who were in the company of their grandmother.
Case title - Smt.Kiran Singh v. State Of U.P. And Anr [CRIMINAL REVISION No. - 896 of 2019]
Case Citation: 2022 LiveLaw (AB) 209
In a significant observation, the High Court ruled that there is no bar under Section 125 Cr.P.C. to grant maintenance to a wife, even against whom, a decree for restitution of conjugal rights has been passed.
The Bench of Justice Brij Raj Singh further stressed that it would be very harsh to refuse maintenance on the ground of a decree of restitution of conjugal rights passed in favor of the husband.
Case title - Preeti Malik v. State Of U.P. And 4 Others
Case Citation: 2022 LiveLaw (AB) 243
In a significant order, the High Court directed the State Government to conduct a Physical Efficiency Test of a woman (for the post of Jail Warder), who failed to appear for the test last year on account of her pregnancy.
Quoting Maharishi Ved Vyas, the Bench of Justice Saurabh Shyam Shamshery
"नास्ति मातृसमा छाया, नास्ति मातृसमा गति:। नास्ति मातृसमं त्राणं. नास्ति मातृसमा प्रिया। (माता के समान कोई छाया नहीं है, माता के समान कोई सहारा नहीं है। माता के समान कोई रक्षक नहीं, माता के समान कोई प्रिय वस्तु नहीं है।) [There is no shade like a mother, no resort-like a mother, no security like a mother, no other ever-giving fountain of life!]"
The Court also noted that the petitioner had traveled a journey of motherhood and became a proud mother, but forced to pay heavy price for it, being denied permission by respondents to appear for physical efficiency test, after she gave birth to a baby.
Case title - Anwar Ali v. State Of U.P. And Anr
Case Citation: 2022 LiveLaw (AB) 244
The High Court denied bail to a married man who has been accused of trying to convert the prosecutrix to the Muslim religion and was pressurizing her to perform Nikah.
The bench of Justice Dinesh Kumar Singh noted that the accused only betrayed his wife and family, but also breached the trust of an innocent girl, who believed in him and got entangled in his false love.
Essentially, the Court was dealing with the bail plea of one Anwar Ali who has been booked under Sections 363, 366, 376 IPC, Section 3/5 POCSO Act. Allegedly, he introduced himself through social media to the prosecutrix as 'Raj' and got her entangled in his false love web.
Case Title - Km. Ankita Dikshit v. State Of U.P. And Anr.
Case Citation: 2022 LiveLaw (AB) 247
The High Court has observed that the father is legally bound to maintain his child according to the status and lifestyle and it doesn't matter if the mother of the child is also working and earning.
The Bench of Justice Brij Raj Singh further observed that a father can't be absolved of his responsibility to maintain a child on the ground that the child does not show compassion towards him.
Case title - Smt. Krishna Devi v. State of U.P. and Another [CRIMINAL REVISION No. - 205 of 2016]
Case Citation: 2022 LiveLaw (AB) 250
The High Court observed that a wife doesn't lose her opportunity for grant of maintenance under Section 125 CrPC on the ground that she has sufficient means to maintain herself and her children as she got money after selling the property.
With this, the Bench of Justice Brij Raj Singh set aside the judgment and order passed by the family court rejecting the plea of one Krishna Devi under Section 125 Cr.P.C. seeking direction to her husband to pay her at least Rs.10,000/- as the monthly maintenance.
Case title - Deepika Sharma v. State of U.P. and Another [WRIT - A No. - 5030 of 2022]
Case Citation: 2022 LiveLaw (AB) 254
"...majority of the parents, whose son dies untimely, blame his widow for his death and want to get rid of her by resorting to all means, fair and foul, to deprive her of the estate of her husband," the High Court observed as it ordered compassionate appointment for a widow.
The bench of Justice Siddharth observed thus while hearing a plea filed by Deepika Sharma seeking a direction to the District Basic Education Officer, Kushinagar, to grant her compassionate appointment on account of her husband's death.
Case title - Babu Khan v. State Of U.P.And Another [CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 3285 of 2022]
Case citation: 2022 LiveLaw (AB) 266
The High Court granted anticipatory bail to a man accused of raping his daughter-in-law as the Court noted that it is quite unnatural that a father-in-law shall commit rape of his own daughter-in-law along with some other person in our Indian culture.
"...considering that it is quite unnatural that a father-in-law shall commit rape of his own daughter-in-law along with some other person in our Indian culture, considering that the accusation has been made falsely with the object of injuring or humiliating his reputation in the society," the bench of Justice Ajit Singh observed as it extended the benefit of anticipatory bail to accused-Babu Khan (father-in-law of the victim).
Case title - Anamika Srivastava v. Anoop Srivastava [FIRST APPEAL No. - 30 of 2022]
Case Citation: 2022 LiveLaw (AB) 267
The High Court (Lucknow Bench) has observed that the Court is not supposed to act in a mechanical manner, and force the parties to engage in mediation where the marriage has irretrievably broken down.
The Bench of Justice Rakesh Srivastava and Justice Ajai Kumar Srivastava-I further stressed that reference of the parties to mediation is not compulsorily required where the facts and circumstances of the case showcase that no purpose would be served out of such reference.
Case title - Ramshankar v. State of U.P. [CRIMINAL MISC. BAIL APPLICATION No. - 12510 of 2019]
Case Citation: 2022 LiveLaw (AB) 274
The High Court granted bail to a POCSO Accused taking into account the welfare of the child born out of wedlock of Accused and Victim. The Court stressed that the life of a newborn child is at stake and she can't be left to face the stigma during her life.
In the instant case, the accused and the victim (both from the same village) had a love affair and out of fear of the villagers, the accused has eloped with the victim in May 2018 and had undergone marriage in a temple although the said marriage was not registered.
Case title - Ram Pravesh And 3 Other v. State of U.P. and Another [APPLICATION U/S 482 No. - 650 of 2022]
Citation: 2022 LiveLaw (AB) 282
The High Court observed that matrimonial dispute between the husband and wife should be quashed when the parties have resolved their entire dispute amongst themself through a compromise deed duly filed and verified by the Court.
The Bench of Justice Chandra Kumar Rai observed thus as it quashed criminal proceedings initiated by an FIR lodged by the wife against the husband and his family members under Sections 498-A, 323 IPC, and Section 3/4 of D.P. Act
Case title - Mohit Preet Kapoor v. Sumit Kapoor [FIRST APPEAL No. - 351 of 2020]
Case citation: 2022 LiveLaw (AB) 290
The High Court observed that the act of the wife in visiting her parents house frequently without taking consent of her husband and other family members can neither constitute the offence of desertion nor amounts to cruelty.
The Bench of Justice Sunita Agarwal and Justice Krishan Pahal observed thus as it allowed an appeal filed by the Appellant/wife challenging the judgment and order passed by the Additional Principal Judge, Family Court, Bareilly under Section 13 of the Hindu Marriage Act granting divorce decree in favor of the husband.
Case title - Mukesh Bansal v State of UP
Citation: 2022 LiveLaw (AB) 294
Allahabad High Court on Monday issued certain guidelines/safeguards to prevent the misuse of Section 498A of the Indian Penal Code (IPC).
One of the guidelines issued by the Court states that after the registration of a First Information Report (FIR) under 498A IPC, no arrest or coercive action should be taken against the accused during the cooling-off period of two months.
During this period, the Court has ordered that the issue should be referred to a Family Welfare Committee (FWC). It may be noted Section 498-A punishes a woman's husband or his relatives if they subject her to cruelty.
Case title - Mamta And Another v. State Of U.P. Thru. Prin. Secy. Home And Others
Case Citation: 2022 LiveLaw (AB) 324
The Allahabad High Court observed that a Magistrate can take cognizance of the complaint or application filed by the aggrieved person and issue notice to the respondent under Section 12 of the D.V. Act even in the absence of a Domestic Incident Report (DIR).
The bench of Justice Rajeev Singh referred to the recent ruling of the Supreme Court in the case of Prabha Tyagi vs Kamlesh Devi 2022 LiveLaw (SC) 474, wherein it was held that Section 12 of the DV Act does not make it mandatory for a Magistrate to consider a Domestic Incident Report filed by a Protection Officer or service provider before passing any order under the D.V. Act.
Case title - Suraj v. State Of U.P. Thru. Prin. Secy. Home Lko. And Others [CRIMINAL MISC. BAIL APPLICATION No. - 3511 of 2022]
Case Citation: 2022 LiveLaw (AB) 333
"The age of 15-16 years or below 18 years is not the age where any young couple should enter into the institution of marriage," the Allahabad High Court observed recently as it granted bail to a man accused of raping a minor girl taking into account the larger interest of the child born out of their consensual relationship.
The Bench of Justice Rajesh Singh Chauhan however clarified that the bail order not be cited in any other case as precedence inasmuch as the bai was granted considering the peculiar facts and circumstances of the instant case.
Case title - Sunita Devi And Another v. State Of U.P. And 2 Others [WRIT - C No. - 29138 of 2021]
Case Citation: 2022 LiveLaw (AB) 334
The Allahabad High Court dismissed a protection plea filed by a married woman and her live-in partner with a cost of Rs.5,000 as it noted that the petitioners had failed to demonstrate that they were facing any threat from the husband of the woman.
The Bench of Justice Dr. Kaushal Jayendra Thaker and Justice Ajai Tyagi further observed that the Constitution of India may permit live-in relations but the instant writ petition was filed by the petitioners (live-in partners) with the purpose of obtaining the seal of the High Court on their illegal relationship.
Allahabad High Court Grants Bail To Dowry Death Accused In View Of Poor Progress Of Trial
Case title - Kuldeep Second Bail v. State of U.P [CRIMINAL MISC. BAIL APPLICATION No. - 8561 of 2019]
Case Citation: 2022 LiveLaw (AB) 336
The Allahabad High Court granted bail to a dowry death accused (in jail for about 6 years) in view of the poor progress of the trial in the case.
The bench of Justice Shamim Ahmed was essentially dealing with the second bail application of one Kuldeep in connection with a case registered against him under Sections 498-A, 304-B, 302 I.P.C., and Section 3/4 of the Dowry Prohibition Act.
Case title - X(Minor) And Another v. State Of U.P. And 2 Others [CRIMINAL REVISION No. - 1714 of 2022]
Case Citation: 2022 LiveLaw (AB) 343
The Allahabad High Court has observed that even a minor has a right to keep her person and even the parents cannot compel the detention of a minor against her will unless there is some other reason for it.
The bench of Justice Sanjay Kumar Singh observed thus while granting the custody of minor victim (in connection with a case under Sections 363 and 366 IPC) to her mother after ascertaining the minor's wishes.
Case title - Sanjay Kumar Singh Vs. State Of U.P. And Another [WRIT - A No. - 47252 of 2003]
Case Citation: 2022 LiveLaw (AB) 377
The Allahabad High Court recently observed that an appointment on compassionate grounds cannot be claimed or offered after a significant lapse of time and after the crisis is over.
"The object of compassionate appointment is to tide over the immediate financial crisis suffered by the bereaved family due to the unexpected death of the employee concerned," the Court remarked.
The bench of Justice Saurabh Shyam Shamshery observed thus while dismissing the plea of one Sanjay Kumar Singh who sought appointment on compassionate ground on account of the death of his adoptive father, who died in harness in January 1995.
The Court also held that the claim of the petitioner for a compassionate appointment at a belated stage, after 27 years of the death of his father, cannot be sustained.
Case title - Km. Mohini v. State Of U.P. And 2 Others [WRIT - A No. - 4174 of 2022]
Case citation: 2022 LiveLaw (AB) 381
The Allahabad High Court has held that as per the UP Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974, the benefit of compassionate appointment cannot be given to a sister in the presence of a wife.
The bench of Justice Neeraj Tiwari observed that under the UP Dying in Harness Rules 1974 as amended by 2021 rules, a wife has the first right to a compassionate appointment, and in her presence, the Sister does not have the right to a compassionate appointment.
Able-Bodied Husband Can't Argue That He Isn't In Position To Maintain His Wife: Allahabad High Court
Case title - Vaibhav Singh v. Smt. Divyashika Singh [FIRST APPEAL No. - 554 of 2022]
Case Citation: 2022 LiveLaw (AB) 393
The Allahabad High Court recently observed that an able-bodied husband cannot argue that he is not in a position to maintain his wife.
The observation was made while dismissing an appeal filed by the Husband against the order passed by the family court under Section 24 of the Hindu Marriage Act [Maintenance pendente lite and expenses of proceedings] in a proceeding for divorce instituted by the husband.
Case title - Gufran Shaikh @ Gani Munawwar v. State of U.P. and Another [APPLICATION U/S 482 No. - 10258 of 2021]
Case Citation: 2022 LiveLaw (AB) 406
The Allahabad High Court quashed an FIR and criminal proceedings in a POCSO case registered against a man as it noted that the accused man and victim-wife (who was a minor at the time of the incident) were 'happily' living with each other as husband and wife.
The bench of Justice Gautam Chowdhary granted bail to one Gufran Shaikh who had been booked under Sections 363, 366, 376 I.P.C., Section 3/4 of Protection of Children from Sexual Offences Act, 2012, and Section 3(2)(v) SC/ST (Prevention of Atrocities Act), 1989.
Case title - Smt. Neelam Sharma And Another v. State Of U.P. And 5 Others [HABEAS CORPUS WRIT PETITION No. - 635 of 2022]
Case Citation: 2022 LiveLaw (AB) 416
The Allahabad High Court recently took a dim view of the way Arya Samaj organizes marriages as it observed that the 'Samaj' has misused their beliefs in organizing the marriages without even considering the genuineness of documents.
The bench of Justice Saurabh Shyam Shamshery further held that the certificate issued by Arya Samaj alone doesn't prove the legality of a marriage. With this, the Court dismissed a Habeas Corpus Plea filed by the husband to regain his wife.
Case title - Rajiv Kumar v. State Of U.P. And 2 Others [APPLICATION 482 No. - 4392 of 2016]
Case Citation: 2022 LiveLaw (AB) 442
The Allahabad High Court quashed an FIR and criminal proceedings in a POCSO case registered against a man as it noted that the accused man and victim-wife (who was a minor at the time of the incident) married the applicant/accused out of her own sweet will and is living a happy married life with him.
"To punish the offenders for a crime, involved in the present case, is in the interest of society, but, at the same time, the husband is taking care of his wife and in case, the husband is convicted and sentenced for societal interest, then, the wife will be in great trouble and their future would be ruined. It is also in the interest of society to settle and resettle the family for their welfare," the bench of Justice Manju Rani Chauhan observed as it quashed the rape-POCSO case against the accused.
Case title - Azizurrahman v. Hamidunnisha @ Sharifunnisha [FIRST APPEAL No. - 700 of 2022]
Case Citation: 2022 LiveLaw (AB) 463
Stressing that as per the mandate of the Holy Quran, bigamy is not sanctified unless a man can do justice to orphans, the Allahabad High Court has observed that a Muslim man has to prevent himself to perform a second marriage if he is not capable of fostering his wife and children.
"The religious mandate of Sura 4 Ayat 3 (of Quran) is binding on all Muslim men which specifically mandates all Muslim men to deal justly with orphans and then they can marry women of their choice two or three or four but if a Muslim man fears that he will not be able to deal justly with them then only one. If a Muslim man is not capable of fostering his wife and children then as per the above mandate of the Holy Quran, he cannot marry the other woman," the Bench of Justice Surya Prakash Kesarwani and Justice Rajendra Kumar-IV observed.
Case title - Sandeep Kumar And Another v. State Of U.P. And 9 Others [HABEAS CORPUS WRIT PETITION No. - 536 of 2022]
Case Citation: 2022 LiveLaw (AB) 472
The Allahabad High Court has observed that the choice of a life partner, the desire for personal intimacy, and the yearning to find love and fulfillment in a human relationship between two consenting adults cannot be interfered with by any other person.
With this, the bench of Justice Sanjay Kumar Singh allowed a Habeas corpus plea filed by a husband after his wife/corpus submitted before the Court that she is willing to go with him and live her matrimonial life peacefully.
Case title - Rama Nand v. Hira Lal [SECOND APPEAL No. - 1698 of 1990]
Case Citation: 2022 LiveLaw (AB) 477
The Allahabad High Court has held that the Magistrate has the power to enforce an order of maintenance passed under Section 125 Cr.P.C. by issuing a warrant to the Collector to recover the same as arrears of land revenue.
The bench of Justice J. J. Munir clarified that if read conjointly, Section 125(3) and Section 421 give power to the Magistrate to issue a warrant to the Collector for recovering the defaulted maintenance as arrears of land revenue.
Case title - Gomti Devi v. State Of U.P. And 2 Ors. [WRIT - A No. - 17078 of 2015]
Case Citation: 2022 LiveLaw (AB) 479
The Allahabad High Court observed that the marriage of an individual is no ground to deny him/her a compassionate appointment as entering into a marital relationship doesn't raise a presumption that a person is financially stable.
With this, the bench of Justice Vikram D. Chauhan set aside an order of the DIG (Establishment) Police Head Quarter, U.P denying compassionate appointment to the younger son of a UP Police constable who died during his service tenure.
Marriage Certificate Issued By Arya Samaj Has No Statutory Force: Allahabad High Court
Case Title - Ashish Morya v. Anamika Dhiman [FIRST APPEAL No. - 830 of 2022]
Case Citation: 2022 LiveLaw (AB) 502
The Allahabad High Court held that Marriage Certificates issued by Arya Samaj have no statutory force. It was further held that in the absence of a valid marriage, the marriage certificate of Arya Samaj is not proof of a valid marriage.
The observation came from the bench of Justice Surya Prakash Kesarwani and Justice Rajendra Kumar-IV which was dealing with a first appeal filed by one Ashish Morya challenging an order of the Principal Judge, Family Court, Saharanpur dismissing his application filed under Section 9 of the Hindu Marriage Act, 1955.
ANDHRA PRADESH HIGH COURT
Case Title: Smt. Peddisetti Anitha Sree @ Yenepalli Anitha Sree v. The State of Andhra Pradesh
Citation: 2022 LiveLaw (AP) 4
Recently, Justice Ninala Jayasurya of Andhra Pradesh High Court has held that a married daughter is also entitled to compassionate appointment. Her marital status will not be a bar to claim the welfare scheme based on the facts and circumstances.
This Writ Petition was filed by the petitioner aggrieved by the proceedings in rejecting the case of the petitioner for compassionate appointment as illegal, arbitrary, unjust, to quash the same and for consequential direction to the respondents to appoint the petitioner, in any suitable post, on compassionate grounds.
Case Title: V.Manjula Versus V.Jagadish
Citation: 2022 LiveLaw (AP) 30
The Andhra Pradesh High Court recently denied the claim of wife for a charge over husband's property in lieu of maintenance as it was a self-acquired property and no material evidence was given to prove that the husband neglected to maintain the wife and children.
The court held that since the wife failed to prove the act of negligence on the part of her husband and as the properties were not purchased from joint family funds, she was neither entitled to claim maintenance nor charge over the schedule properties. The court dismissed the appeal as there were no merits.BOMBAY HIGH COURT
Case Title: Ms. Kanaka Kedar Sapre & Mrs. Sudha Mukund Shukla (Mother) vs . Kedar Narhar Sapre & others
Case No: Cri WP 2790 of 2021
Citation: 2022 LiveLaw (Bom) 4
The Bombay High Court ruled that an aggrieved person, as defined under the Protection of Women from Domestic Violence Act (DV Act), "must be alive at the time of filing of the petition", and someone cannot file an application for monetary reliefs under the act after her demise.
The court dismissed an application filed by a minor girl (through her maternal grandmother) "on behalf of her mother" seeking monetary reliefs, streedhan and compensation against her father and paternal grandparents.
Case Title: Suryakant Kisan Pawar vs Deputy Collector, Mumbai and others
Citation: 2022 LiveLaw (Bom) 9
The Bombay High Court directed a son who "deprived his mother from leading a normal life" to vacate the house "expeditiously", noting that the mother had suffered immensely since over five years.
Justice Girish Kulkarni observed that it was "astonishing" how the 48-year-old son had invented a novel way of entering the septuagenarian mother's house. He signed a rent agreement with her, with no intention of honouring the agreement as he didn't pay a single rupee to her until she did not approach the authorities against him.
Case Title: Sonia Fazal Khan & Ors Versus Union of India & Ors
Citation: 2022 LiveLaw (Bom) 103
A son doesn't have any right, title or settled and enforceable share in his parent's flats till they are alive, the Bombay High Court has observed.
A division bench of Justices Gautam Patel and Madhav Jamdar rejected the son's suggestion that he has a settled and enforceable share in either of the flats in the lifetime of the real owners, his parents, as being "laughable." "The fact that he is their son does not make either of their flats 'a shared household", the bench said.
"Asif(Son) can have no right, title or interest whatsoever in either of these flats — one in his father's name and other in his mother's name — so long as his parents are alive. The suggestion that Asif has a settled and enforceable share in either of the flats in the lifetimes of the real owners, his parents, is laughable."
Case Title : Bhagyashri v Jagdish
Citation : 2022 LiveLaw (Bom) 112
In a rare instance the Bombay High Court upheld two orders of the civil court in Nanded, directing a wife, working as a teacher, to pay Rs 3,000 maintenance to her husband by directing the school principal to deduct Rs. 5000 from her salary towards unpaid maintenance since August 2017.
The court rejected the wife's contention that since the couple's marriage had ended with a divorce decree in 2015, after nearly 23 years, the husband couldn't now seek monthly maintenance.
Relying on Section 24 and 25 of the Hindu Marriage Act, the court said, they confer a right on the needy spouse to claim interim or permanent alimony, where a decree of restitution of conjugal rights or divorce has been passed.
Dissolution Of Marriage By Mutual Consent Permissible Under Muslim Personal Law: Bombay High Court
Case Title: Shaikh Taslim Shaikh Hakim vs The State Of Maharashtra And Another
Citation: 2022 LiveLaw (Bom) 121
Observing that a family court can dissolve the marriage of a Muslim couple by mutual consent under the Muslim Personal Law, the Bombay High Court quashed criminal proceeding against the husband based on the couple's amicable settlement in the Family Court petition.
The court noted that under Section 2 of the Muslim Personal Law (Shariat) Act 1937 all property, marriage, dissolution of marriage including mubaraat, maintenance, dower, guardianship gifts, trusts and trust properties concerning Muslims is governed by the Act.
Moreover, the Family Court was empowered to adjudicate a suit regarding validity of a marriage or a person's matrimonial status under section 7 (1)(b) of the Family Courts Act, the bench said.
Non-Custodial Parent Can't Be Deprived Of Right To Spend Quality Time & Enjoy Company Of Children: Bombay High Court
Case Title: Gaurav Suresh Tingre v Priyanka Gaurav Tingre
Citation: 2022 LiveLaw (Bom) 144
The Bombay High Court observed that non-custodial parent cannot be deprived of his right to spend quality time and enjoy the company of the children. Moreover, the children also have right to love and affection of both parents as well as grandparents.
Justice Anuja Prabhudessai stated, "the children also have right to love and affection of both parents as well as grandparents. This is essential for personal development and overall well-being of the children."
The Single Judge permitted the Petitioner-father to four days' access to the children and referred the matter for mediation so that the parties may arrive at an amicable settlement.
Case Title: Namdeo and Anr. v. State of Maharashtra and Ors.
Citation: 2022 LiveLaw (Bom) 165
The Bombay High Court evicted a son from the self-acquired house of his parents and held that a son cannot claim that his parents have lost mental balance.
Justice Rohit Deo observed that, "In the conservative Indian society, a son is not expected to brand his aged father a 'swindler' or then allege that the aged parents have lost mental balance. The allegations that the aged parents have been physically assaulted, that the other son was also assaulted and that visitors are prevented from entering the residential house, are not specifically traversed."
It was further observed that the emotional and physical well-being of the aged parents cannot be ensured unless the petitioners vacate the self-acquired residential house.
Case Title: Sheetal Devang Shah versus Presiding Officer
Citation: 2022 LiveLaw (Bom) 195
The Bombay High Court observed that a daughter-in-law cannot be directed to pay maintenance to her ailing mother-in-law, especially in the absence of any proof of the woman's income.
"We have reservations about such direction to SS (daughter-in-law) to pay maintenance amount to the mother-in-law…Be that as it may, upon perusal of the original record, we do not find a single document showing the earnings of SS (daughter-in-law)," the HC observed.
It noted that Section 2(a) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 that defines 'children,' includes son, daughter, grandson and grand-daughter, but does not refer to the daughter-in-law.
Case Title: Anil Chandravadan Mistry vs The State of Maharashtra & Ors
Citation: 2022 LiveLaw (Bom) 226
The Bombay High Court refused to modify the maintenance amount payable by a father to his major daughter observing that her 'glossy' Instagram photographs weren't sufficient proof of her income.
"It is a well-known fact that it is the habit of the youth of today to project a glossy picture and post the same in the social media though its contents may not always be true,'' Justice Bharati Dangre observed.
After perusing printed copies of the daughter's Instagram profile where she claimed she earned Rs. 72–Rs 80 lakh as a model, the court upheld the family court's observation that "photographs of instagram and her instagram biography is not sufficient to hold that she has independent and sufficient income."
Case Title: Monika Narendra Sharma v. Mukeshkumar Ramnath Bhagal
Citation: 2022 LiveLaw (Bom) 245
A petition for annulment of marriage on grounds of fraud must be presented within a year of discovering such deception, the Bombay High Court said, refusing relief to a woman who claimed she was drugged and abducted to her marriage venue in December 2011.
A division bench of Justices KR Shriram and Prithviraj Chavan observed that "no sane man would believe her statement" that an educated independent woman in a city like Mumbai, would remain silent and passive after being drugged with prasad, abducted from her office, married and then brought back to office the following day.
"Mother Can't Be Asked To Choose Between Child & Career": Bombay High Court Permits Woman To Go Abroad With Daughter
Case title: Anuradha Sharma v. Anuj Sharma
Citation: 2022 LiveLaw (Bom) 250
Observing that a woman cannot be asked to choose between her career and child the Bombay High Court directed her estranged husband to give his no objection for her to travel along with her daughter to Poland.
"...the impugned order has failed to consider the important aspect of right to development, being vested in the petitioner as she cannot be asked to choose between her child and her career, the impugned order is quashed and set aside."
Case Title: Jagannath Bhagnath Bedke v. Haribhau Jagannath Bedke
Citation: 2022 LiveLaw (Bom) 262
The Aurangabad Bench of Bombay High Court while deciding a writ petition related to maintenance said that courts should not get too technical while deciding petitions under section 125 of the Cr.P.C.
"The said provision is made for the immediate support that too financial in nature of a person so that he or she can survive", the court stated.
Law Considers Women As 'Weaker Section' Of Society Requiring More Protection: Bombay High Court While Transferring Matrimonial Case
Case Title: Rahul Uttam Phadtare v. Sarika Rahul Phadtare
Citation: 2022 LiveLaw (Bom) 302
The Bombay High Court observed that law considers woman as belonging to weaker section of society and her inconvenience needs to be prioritized.
Justice S. M. Modak in his order in a matrimonial case observed, "Even though this reason may be of some importance, the fact that the Applicant in Miscellaneous Civil Application No.171 of 2022 is a lady, her inconvenience needs to be given more priority because the law considers woman as class belonging to weaker section of society and needs more protection."
S.24 HMA | Divorce Decree Granted Without Deciding Application For Maintenance Pendente Lite: Bombay HC Remands Case Back To Family Court
Case Title: Chanda v. Prakashsingh Rathod
Citation: 2022 LiveLaw (Bom) 346
The Nagpur bench of Bombay High Court has remanded a divorce case back to the family court after the family court granted divorce without deciding interim application for maintenance pendente lite filed by the wife.
"The directions are also required to be issued to the trial Court to decide the interim application preferred by the appellant for maintenance pendente lite in accordance with the provision of Hindu Marriage Act", the court said.
Well Qualified Wife Expressing Desire To Pursue Job Not Cruelty; Reproductive Choice Insegregable To Woman's Personal Liberty: Bombay High Court
Case Title: Pundlik Yevatkar v. Sau. Ujwala @ Shubhangi Pundlik Yevatkar
Citation: 2022 LiveLaw (Bom) 374
The Bombay High Court held that a wife expressing a desire to work does not amount to cruelty under the Hindu Marriage Act. The court further said that the right of a woman to have reproductive choice is an insegregable part of her personal liberty under Article 21 of the Constitution.
Division bench of Justices Atul Chandurkar and Urmila Joshi-Phalke upheld family court's refusal to grant divorce to the husband on the ground that cruelty is not proven.
The court said that cruelty has to be distinguished from the ordinary wear and tear of the family life. The husband's allegation that the wife was harassing him by expressing that she wants to do the job is vague. Expressing desire by wife who is well qualified that she wants to do the job does not amount to cruelty. The husband has to make out a specific case that the conduct of wife was such a nature that it was difficult for him to lead the life along with her, the court said.
The husband had also accused his wife of terminating her second pregnancy without his consent and thereby subjecting him to cruelty. The bench said that even if the husband's allegations were taken at face value, the wife cannot be accused of cruelty for making a reproductive choice.
S.498-A IPC: Bombay HC Bats For Making Offence Compoundable In Maharashtra, Says Minimum 10 Quashing Petitions Are Filed Everyday
Case Title: Sandip Sarjerao Sule and Ors. v. State of Maharashtra and Anr.
Citation: 2022 LiveLaw (Bom) 380
The Bombay High Court urged the Union of India to consider Maharashtra's bill to make domestic violence cases (498A IPC) compoundable with the permission of the concerned court citing hardships caused to innumerable couples who are constrained to approach the High Court for quashing.
A division bench of Justices Revati Mohite Dere and SM Modak asked the Additional Solicitor General (ASG) to take up the issue with the concerned Ministry at the earliest.
Hazardous To Force Parties To Litigate Despite Compromise In Domestic Violence Cases U/S 498A IPC: Bombay High Court
Case Title: Yash and Ors. v. State of Maharashtra and Anr.
Citation: 2022 LiveLaw (Bom) 391
The Bombay High Court observed that it would be "hazardous" to force a couple to litigate when they want to live happily while underscoring the importance of quashing domestic violence cases once parties arrive at a settlement, even though they are categorized as non-compoundable offence.
A bench of Justices Vibha Kankanwadi and Rajesh Patil noted that refusing to quash disputes despite amicable settlements, would be a "dis-service to the society for the protection of which the courts exits."
Labelling Husband As 'Alcoholic', 'Womaniser' Without Substance Is Cruelty: Bombay High Court
Case title – Nalini Nagnath Uphalkar v. Nagnath Mahadev Uphalkar,
Citation- 2022 LiveLaw (Bom) 409
The Bombay High Court held that a wife making unsubstantiated allegations against her husband in a court labelling him as an 'alcoholic' and a 'womanizer' amounts to cruelty.
A division bench of Justice Nitin Jamdar and Justice Sharmila U Deshmukh dismissed an appeal filed by the appellant/wife challenging family court's decision to grant divorce decree to her husband observing that no evidence was produced by the wife to prove her allegations.
Married Woman Being Asked To Do Household Work Does Not Mean She Is Treated Like Maid Servant: Bombay High Court
Case Title: Sarang Diwakar Amle & Ors. v. State of Maharashtra & Anr.
Citation: 2022 LiveLaw (Bom) 415
The Bombay High Court held that a married woman being asked to do household work does not mean that she is being treated like a maid servant. The court also observed that without description of alleged acts of the husband and in-laws, it cannot be determined whether they committed cruelty towards the wife.
"Mere use of the word harassment "mentally and physically" are not sufficient to attract ingredients of Section 498-A of IPC", a division bench of Justice Vibha Kankanwadi and Justice Rajesh S. Patil of the Aurangabad bench observed while dealing with an application under section 482 of Cr.P.C. for quashing of FIR filed by a woman against her husband and his family members.
Bombay HC Upholds Order Striking Off Father's Defence For Depriving Mother Of Visitation Rights
Case Title: Shardul Shamprasad Dev v. Manjiri Shardul Dev
Citation: 2022 LiveLaw (Bom) 417
Bombay High Court upheld a district court's order striking off his defence in a matrimonial dispute. The father was violating the visitation order stating that the child did not want to meet his mother. He filed a writ petition challenging the order striking off his defence before the High Court.
Justice Sandeep V. Marne noted that even after the order striking off the defence of the petitioner, he defaulted on granting visitation rights to the mother. The court said that while the order to strike off defence is a drastic measure to be avoided by the courts, in the present case the district court has recorded that petitioner has wilfully disobeyed district court's order.
Wife Who Filed Three Criminal Cases Against Husband Fully Aware Of Legal Procedure, Cannot Claim Ignorance: Bombay HC Upholds Divorce
Case Title: Rohini Raju Khamkar v. Raju Ranba Khamkar
Citation: 2022 LiveLaw (Bom) 429
The Bombay High Court refused to set aside a divorce decree granted by the Family Court owing to the wife’s non-appearance observing that a woman who filed three criminal cases against her husband would be fully aware of the legal procedure.
A division bench of Justices Nitin Jamdar and Sharmila Deshmukh rejected the wife's claim that she was illiterate and a victim of wrong legal advice, moreover that it was the court's duty to secure her presence.
"The Appellant had knowledge of the legal procedure, having filed three criminal cases," the bench observed.
Bombay High Court Refuses To Grant Divorce To Artist Who Falsely Accused Wife Of Being HIV Positive
Case Title: Prasanna Krishnaji Musale v. Mrs. Neelam Prasanna Musale
Citation: 2022 LiveLaw (Bom) 456
Observing that a man couldn't claim irretrievable breakdown of his marriage after falsely accusing his wife being an "HIV patient" and refusing to co-habit with her, the Bombay High Court refused to grant the man divorce.
A division bench of Justices Nitin Jamdar and Sharmila Deshmukh dismissed an artist's appeal from 2011 against a Family Court order refusing divorce under Section 13 (1)(i-a) (i-b) and (v) of Hindu Marriage Act, 1955.
"Petitioner cannot be permitted to take advantage of his own wrong. In spite of the report… which shows the test result as HIV DNA "not detected", the Petitioner has refused to co-habit with the Respondent and defamed the Respondent (wife) in the society by informing relatives and friends that the Respondent (wife) has tested positive."
[S.24 Hindu Marriage Act] Posting Job Offer Letter On Social Media Insufficient Proof Of Wife's Employment: Bombay HC
Case Title: Aboil alias Yugandhara w/o Tejpal Patil v. Tejpal S/o Premchand Patil
Citation: 2022 LiveLaw (Bom) 460
The Bombay High Court granted interim maintenance to a woman in a matrimonial matter, observing that mere social media post about a job offer does not mean that she was actually employed.
While dealing with a writ petition, Justice Sandeep V. Marne of the Aurangabad bench set aside family court's order denying maintenance pendente lite to the petitioner-wife. High Court said that the respondent-husband didn't give actual proof that his wife was employed.
The court further reiterated that if the wife does not have a job, mere possession of having higher educational qualification cannot be a reason to altogether deny interim maintenance
Marrying Another Woman Without Wife's Consent Constitutes Cruelty U/S 498-A IPC: Bombay High Court Reiterates
Case Title: Atul S/o Raju Dongre and Ors. v. State of Maharashtra and Anr.
Citation: 2022 LiveLaw (Bom) 490
The Bombay High Court held that a husband marrying another woman during the existence of first marriage and without his wife's consent constitutes cruelty under section 498-A of the IPC.
If the performance of second marriage during subsistence of the first marriage is not interpreted as cruelty under Section 498-A of the IPC, it would frustrate the legislative intent to prevent the torture to a woman by her husband or by relative of her husband, the court held
Branding A Child As "Illegitimate" In Itself Amounts To Harassment: Bombay High Court
Case Title: Sudeep Suhas Kulkarni and Anr. v. Abbas Bahadur Dhanani
Citation: 2022 LiveLaw (Bom) 491
The Bombay High Court granted guardianship of a minor to her biological parents reiterating that welfare of the minor should be the paramount factor and it cannot be subordinated to the personal law of the minor.
Justice Manish Pitale observed that the parents’ plea cannot be rejected merely because Muslim law indicates that a child born outside marriage has no right to inheritance or descent.
Commenting on the usage of the term ‘illegitimate’ for such children, the court said, “for no fault of the child, it is branded illegitimate for the world at large, which in itself amounts to harassment to the child.”
[Portuguese CPC] Bombay HC Directs Cancellation Of Goan Couple's Marriage Registration Based On Foreign Decree
Case Title: Delfina Gonsalves v. Felix Gonsalves
Citation: 2022 LiveLaw (Bom) 502
The Bombay High Court at Goa relied on a divorce decree passed by the Family Court sitting at the Court and Tribunal Service Centre in England to cancel the marriage registration of a Goan couple.
Justice G. S. Kulkarni noted that the grounds on which the decree was passed in England are also grounds recognised and acceptable under the laws in India, including under the PCCP.
The court allowed their petition under Article 1101 of the Portuguese Code of Civil Procedure, 1939 and directed cancellation of their names in the marriage registration book of 2004.
CALCUTTA HIGH COURT
Case Title: Durgabala Mandal v. The State of West Bengal & Ors.
Citation: 2022 LiveLaw (Cal) 9
The Calcutta High Court observed in a case that the daughter-in-law is bound by the undertaking given while obtaining a compassionate appointment to maintain and extend medical assistance to the mother-in-law. The Court was adjudicating upon a plea moved by an 80 years old widow (appellant) whose husband had passed away a long time back. Her son Bajadulal Mandal who was working as a Primary School Teacher had also unfortunately passed away on October 14, 2014. Thereafter, the daughter-in-law (respondent no.9) had applied for a compassionate appointment in the school and had also given an undertaking dated July 25, 2016, stating that she will bear the responsibility of maintaining and providing medical assistance to the appellant in the future. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj observed, "Once the respondent no. 9 had obtained the compassionate appointment by giving an undertaking as above to maintain and extend medical assistance to the appellant, then she is bound by that."
Case Title: Radharani Saha v. The State of West Bengal and Ors
Citation: 2022 LiveLaw (Cal) 10
The Calcutta High Court granted police protection to a senior citizen against the alleged harassment perpetrated by her son and daughter-in-law. Justice Rajasekhar Mantha was adjudicating upon a plea moved by a senior citizen, one Radharani Saha seeking the Court's intervention since her complaint of harassment against her son and daughter-in-law had not been addressed by the Dumdum Police Station. Taking cognisane of the grievance raised, the Court directed, "Considering the above, the Officer-in-Charge, Dumdum Police Station shall ensure that there is absolutely no breach of peace in the area and maintain strict vigil in the said premises and address any threat of peace immediately." In the instant case, the Court was informed that the son of the petitioner does not reside with her and further it was informed that there exists a serious matrimonial discord between the petitioner's son and daughter-in-law. It was further submitted that the daughter-in-law had forcefully occupied some portions of the petitioner's residential premises.
Case Title: Union Of India and Others v. Ratna Sarkar
Case Citation: 2022 LiveLaw (Cal) 31
The Calcutta High Court observed that the benefit of family pension cannot be extended to a widowed daughter of a pensioner who was married at the time of the death of her father/mother. The Court held that a daughter who became widowed after the demise after her father/mother does not possess any fundamental or statutory right to claim family pension. The issue in consideration before a Bench comprising Justices Harish Tandon and Rabindranath Samanta was whether a daughter of a pensioner who was married, but became widowed after the death of the pensioner is entitled to family pension. Answering in the negative, the Court observed, "As the legislative intent is demonstrated, the scheme of family pension never included a daughter of a pensioner who was married at the time of the death of the pensioner..A daughter who became widowed after the demise after her father/mother does not possess any fundamental or statutory right to claim family pension. In the absence of any legislation in this regard, the benefit of family pension cannot be extended to a daughter of a family pensioner who was married at the time of the death of her father/mother. It will be unwise on the part of this Court to exercise its extraordinary or discretionary power to come to any inference contrary to the policy decision of the Government."
Case Title: Anindita Mandal v. The State of West Bengal & Ors
Case Citation: 2022 LiveLaw (Cal) 51
The Calcutta High Court dismissed a plea seeking compassionate appointment by observing that the mother of the petitioner is a teacher of a school and thus there is no immediate crisis faced by the family members. The petitioner one Anindita Mandal had sought compassionate appointment on the ground that her father had passed away when she was ten years old. The mother of the petitioner is working as a teacher in a school. Justice Abhijit Gangopadhyay observed, "The compassionate appointment is given to tie over immediate crisis faced by the family members for untimely death of the bread earner. It is not a case where the family is facing crisis to arrange even two square meals as the mother of the petitioner is working". The Court ruled that the instant case would not come within the the policy of the State for compassionate appointment. Accordingly, the petition was disposed of.
Case Title: Budhin Soren v. State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 65
The Calcutta High Court observed that poverty even if acute cannot be a justification for a husband to perpetrate torture upon his wife thus compelling her to commit suicide. A Bench comprising Justice Bivas Pattanayak and Justice Joymalya Bagchi upheld the conviction of the husband for abetment of suicide by observing that the deceased wife named Bimali had been subjected to torture at her matrimonial home which had compelled her to commit suicide within six years of marriage. "Evidence on record shows a pitiable condition in the matrimonial home of Bimali where she was tortured for non-availability of food. Poverty, though acute, cannot be a justification for the husband to perpetrate torture upon his wife and compelling her to commit suicide", the Court underscored. Opining that the prosecution evidence in this regard is further strengthened by the statutory presumption under Section 113A of the Evidence Act, the Court remarked further, "It is, therefore, crystal clear that life of Bimali at her matrimonial home was a bed of thorns. Her husband, Shyamal inflicted inhumane torture upon her. Unable to bear such torture, she decided to take her own life. I am convinced the live link between torture meted out by Shyamal upon his wife and her ultimate act of self-extermination is clearly established. Ample evidence has come on record that the housewife was subjected to torture and was compelled to commit suicide within six years of marriage. Prosecution evidence in this regard is also fortified by the statutory presumption under Section 113A of the Evidence Act."
Case Title: Piyali Tewari Dey v. Baidyanath Dey & Ors
Case Citation: 2022 LiveLaw (Cal) 74
The Calcutta High Court directed a daughter to allow her aged parents to reside with her in a residential flat which had been gifted to her by her parents and further restrained her from alienating the disputed flat during the life time of both her parents. She was also ordered to pay a monthly maintenance of Rs 10,000 to meet the basic needs and medical expenses of her aged parents. Justice Kesang Doma Bhutia observed at the outset that the instant case represents how dynamic human relationship can be in the present socio economic condition. She further observed while directing the daughter, "The petitioner is hereby directed to provide shelter to her parents in the flat where they are residing with her but in different mess during their lifetime and to see they live peacefully their remaining days in the house which originally belonged to them. She is further restrained from alienating the disputed flat during the life time of her both parents. She is further directed to pay Rupees Ten Thousand per month towards their maintenance to meet their basic needs and medical expenses." Pertinently, the Court observed that once a gift deed in respect of the transfer of any immovable property has been executed in favour of a child, such a gift deed cannot be cancelled or declared void under Section 23 in the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (Maintenance Act) unless the deed in question is conditional in nature.
Case Title: Tushar Kanti Das v. Kajal Saha
Case Citation: 2022 LiveLaw (Cal) 77
The Calcutta High Court overruled its prior decision in a case by granting the custody of a four and a half years old girl child to her biological father instead of a family friend of her deceased mother. The Court issued the direction by relying upon the report of a clinical psychologist who had personally interacted with the child. The Court had earlier refused to grant custody of the minor girl to her biological father and had instead permitted the child to be in the care and protection of the family friend of her deceased mother. The biological father had however been granted visitation rights. Overruling the Court's prior direction, a Bench comprising Justice Ajoy Kumar Mukherjee and Justice Soumen Sen opined that the family friend, Julie Roy, is incapable of taking care of the minor child in question and further remarked, "we were of the view that Julie Roy was unfit for the custody of the child. Her conduct does not make her fit to become a guardian of the child. She is neither financially capable of rearing of the child nor can provide the child with education. She has her own family along with grown up son. On the contrary, the biological father is an engineer and is financially sound. He also had an attachment towards his child, and over a period of time as the report would suggest a bonding has developed between the father and the child."
Case Title: Malancha Mohinta v. Dipak Mohinta
Case Citation: 2022 LiveLaw (Cal) 91
The Calcutta High Court has observed that writing a letter to the husband's superior at work in good faith intimating him about a criminal case lodged against the husband for inflicting torture would not amount to criminal defamation under Section 499 of the IPC. In the instant case, the wife (petitioner) had written a letter dated May 24, 1997 to the Manager, Indian Overseas Bank intimating him that her husband who was the Assistant Manager of Overseas Bank had tortured her and driven her out of the matrimonial home and that a criminal case under Section 498A CrPC (cruelty) had been initiated against him following which he had been arrested and subsequently released on bail. The petitioner had enclosed a certified copy of the order and had requested the Manager to take such action as may be deemed fit under the facts and circumstances. Justice Ananda Kumar Mukherjee noted that the petitioner in her letter had made representation of facts which were consistent with the incidents relating to filling of cases for alleged torture. He further opined that there had been no 'embellishment of facts' and that no coercive action had been sought by the petitioner against her husband vide the letter. "There remains little to be said that the letter in question was a statement of fact instead of any imputation to harm the reputation of the opposite party", the Court observed. Opining further that the the ingredients of offence of defamation are not attracted by the contents of the letter as they are covered by the Eighth Exception laid down under Section 499 IPC, the Court underscored, "..preferring an accusation against any person to any of the persons who have lawful authority over that person, would not amount to defamation. In the instant case the petitioner wife made accusation against the opposite party before his superior in office in good faith and consistent to her accusation made in the petition of complaint. Therefore, the same would not amount to any defamation as the same is excepted in the 8th exception."
Case Title: The Chairperson, West Bengal Commission for Protection of Child Rights v. Election Commission of India & Others.
Case Citation: 2022 LiveLaw (Cal) 203
The Calcutta High Court dismissed a Public Interest Litigation (PIL) petition filed by the Chairperson of the West Bengal Commission for Protection of Child Rights (WBCPCR) seeking a direction upon the Election Commission of India (ECI) to compensate each of the families of the children who have lost their lives due to Covid-19 following the announcement of the general elections in the State on February 26, 2021. A Division Bench comprising Justice Harish Tandon and Justice Soumen Sen dismissed the petition for being 'premature' after noting that the State Commission had not utilised its powers under Section 15 of the Protection of Child Rights Act, 2005 (Act) to conduct an enquiry and ascertain if the cause of death is due to any negligent conduct of the election commission. "In the instant case admittedly, there is no inquiry initiated by the State Commission in terms of Section 15 of the said Act. We could not find any plausible explanation from the writ petitioner for not exercising the said power. When a State Commission is empowered to carry on such investigation and inquiry and ascertain the cause of death it is expected that such enquiry should be conducted first before approaching a constitutional court with such findings and implementations of its recommendations if Government concerned failed to implement such recommendations. Death of any person including a child is unfortunate and undesirable whatever the reasons may be for the cause of such death. A child is a precious asset. It is only expected that if there is any violation of a child's right the Commission would without delay invoke the provisions of the Act and take such measures and steps as they are expected to take under the said Act", the Court underscored.
Case Title: Raju Mitra & Ors v. State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 213
The Calcutta High Court upheld the conviction of a husband for the commission of the offence of dowry death under Section 304B of the IPC after opining that it is impossible for witnesses such as neighbours to state whether the victim housewife was tortured within the four corners of the matrimonial home or not. A Bench comprising Justice Bivas Pattanayak and Justice Joymalya Bagchi noted from the evidence on record that marks of injury had been found on the body off the deceased and that in addition to the ligature mark, investigating officers had found swelling on the back of the head and bruise marks on the left palm of the deceased. Acknowledging that it is very unlikely that the deceased would confide in witnesses such as neighbours about the torture that was meted out to her, the Court underscored, "These injuries show victim housewife had been subjected to physical assault immediately prior to her death probabilising the saga of torture as narrated by her relations. When a housewife is tortured within four corners of the matrimonial home, persons to whom she would ordinarily confide are her parents and close relations. It is highly unlikely she would narrate her misfortune to outsiders including neighbours. Analysing the evidence on record from this perspective, I am of the opinion evidence of parents and other relations of the victim girl with regard to torture meted out to her over further demand of money are wholly reliable. Evidence of the defence witnesses appear to be tutored. None of the witnesses were privy to the household affairs of the appellants." Thus, the Court opined that the defence witnesses are untrustworthy and that it is impossible for them to state whether victim housewife was tortured within the four corners of the matrimonial home or not.
Case Title: Md. Safique Mallick v. The State of West Bengal & Anr
Case Citation: 2022 LiveLaw (Cal) 256
The Calcutta High Court observed that denial of economic support to the wife and the minor son constitutes 'domestic violence' under Section 3 of the Protection of Women from Domestic Violence Act, 2005 (DV Act, 2005) and that it is immaterial whether the parties are still residing in a shared household or not. Justice Ajoy Kumar Mukherjee was adjudicating upon a plea seeking quashing of criminal proceedings against the petitioner under Section 12 of the DV Act pending before the concerned Judicial Magistrate. Opining that denial of economic support would constitute domestic violence, the Court underscored, "Denial of economic support to petitioner as well as their minor son, who has been brought up by the opposite party no. 2 may amount to "economic abuse" as per definition of "domestic violence" under the Act and for that purpose it is not material whether parties are still residing jointly in a shared household or not. In such case, even if opposite party No.2, might have been a working lady, even then whether her earning is adequate, fair and consistent with the living up bringing of their son to which the parties are accustomed is also to be looked into to decide the issue of economic abuse." Accordingly, the Court refused to quash the criminal proceedings against the petitioner by observing, "Having considered the facts and circumstances of the case and that prayer for the cancellation of Talak is still sub-judice and not yet finalised and also considering the fact that under Section 3 of DV Act, 2005, "domestic violence" includes emotional abuse as well as economic abuse, it can hardly be said at this stage that even though both the parties are residing separately the opposite party no. 2 cannot be categorised as "aggrieved person".
Case title - SUNIL DEBSHARMA v. THE STATE OF WEST BENGAL AND OTHERS
Case Citation: 2022 LiveLaw (Cal) 298
The Calcutta High Court has observed that when a stepfather fulfills the same responsibilities as the biological father, a stepson cannot deny his obligation to maintain him. Similarly, the Court held that a biological mother, who has contracted the second marriage, has always a right to claim maintenance from her son. The bench of Justice Kausik Chanda held thus as it stressed that the legal liability to pay maintenance to parents under Section 125 of the Code of Criminal Procedure, 1973, arises out of the moral obligation of children. "It is in recognition of reciprocal obligation of the children towards their parents, who have made immense sacrifices for their betterment and raised them with unconditional love and affection," the Court further remarked.
DELHI HIGH COURT
Case Title: COMMODORE PAVAN CHAUHAN v. ANUSHA CHAUHAN
Citation: 2022 LiveLaw (Del) 38
The Delhi High Court has observed that the Family Courts are expected to function so as to bring about a settlement between the parties if possible, adding that the endeavour of the Court cannot simply be to dispose of the matters, one way or another at the cost of sacrificing the cause of justice.
A Bench of Justice Vipin Sanghi and Justice Jasmeet Singh set aside an order passed by a Family Court which had dismissed the divorce petition filed by the appellant husband under sec. 13(1)(ia) of the Hindu Marriage Act.
The Family Court had dismissed the said application after observing that the appellant had failed to lead evidence, closing the right to the appellant to lead evidence.
Case Title: MOHD SHAKEEL @ SHAKEEL AHMED v. MST SABIA BEGUM & ORS
Citation: 2022 LiveLaw (Del) 54
The Delhi High Court has observed that while the task of deciding the marital status of the parties has been conferred with Civil Courts, the Court under maintenance proceedings under sec. 125 of the Cr.P.C. may not usurp the jurisdiction of the Civil Courts.
Justice Chandra Dhari Singh added that in order to preserve the social intent of sec. 125 of the Cr.P.C., the Magistrate can render the prima facie finding about the factum of marriage, which will not be a conclusive finding for any other purpose apart from the order on maintenance.
"Thus, the litmus test for determining the marital status of the parties in maintenance proceedings is prima facie satisfaction of the concerned Magistrate and nothing more. It is also pertinent to note that the abovementioned decisions bring out the fact that the proceedings under Section 125 of the Cr.P.C. are designed to reduce the vagaries of the neglected wife and children," the Court said.
Case Title: VANDANA SINGH v. SATISH KUMAR
Citation: 2022 LiveLaw (Del) 4
The Delhi High Court this week dissolved marriage between a couple on the ground of cruelty, observing that the husband treated the wife as his 'overseas wife', only to use her as a temporary companion and that their marital bond was beyond repair.
Observing that continuation of such a matrimonial bond is sufficient to cause immense mental cruelty to the wife, Justice Vipin Sanghi and Justice Jasmeet Singh said that there was no reason to keep the moribund marriage alive.
"The objective of the institution of marriage is to bring two souls together, who embark on the adventurous journey called life. They share experiences, smiles, sorrows, achievements and struggles. They uplift and support each other in all situations with their emotional, mental and physical presence. On this journey of life, they create personal, social and spiritual bonds, everlasting memories, future plans, through which they co-exist in the society," the Court said.
"An essential aspect of marriage is being present in each other's life, physically and emotionally. It is not to say that every marriage, where the couple stays apart from each other for work or other obligations consensually, is a broken one. However, a marriage where there is neither sharing of emotions, nor of dreams, joys, sorrows, memories (happy or sad), is merely a legal bond," it added.
Case Title: POONAM SETHI v. SANJAY SETHI
Citation: 2022 LiveLaw (Del) 13
The Delhi High Court has observed that a father cannot abdicate his responsibility of looking after his unmarried daughters and that he has a duty and obligation to maintain them, including taking care of their expenses towards education and marriage.
A Bench of Justices Vipin Sanghi and Jasmeet Singh added that 'Kanya Daan' is a solemn and pious obligation of a Hindu Father, from which he cannot renege.
The Court thus directed the father to pay a sum of Rs. 35 Lakhs and 50 Lakhs towards the expense of marriages of his two daughters.
It allowed an appeal filed by the wife challenging a Family Court order, though granting her divorce on the ground of cruelty, however, denying maintenance for herself and the two major daughters.
Title: FATEH SAHARAN v. ROHIT SAHARAN
Citation: 2022 LiveLaw (Del) 102
The Delhi High Court has observed that a minor child is entitled to claim maintenance for his upbringing by the father and that such a child is not bound by the divorce settlement regarding maintenance between his parents.
Justice Vipin Sanghi and Justice Jasmeet Singh was dealing with an appeal filed by a minor child being aggrieved by the grant of interim maintenance by the Family Court at Rs. 15,000 per month.
The High Court had vide order dated April 22, 2021 enhanced the said maintenance amount and directed the father to pay Rs. 25,000 per month to the minor, considering that his school fee itself was in that range.
Observing that when the mother of the minor child obtained divorce by mutual consent, the maintenance was fixed in respect of the child at Rs. 5,000 per month, the Court said:
"It goes without saying that the appellant being a minor, is not bound by that settlement, and he is entitled to claim maintenance for himself for his upbringing from the respondent i.e., his father."
Case Title: LUV SHARMA & ORS v. STATE & ANR
Citation: 2022 LiveLaw (Del) 114
The Delhi High Court has said that it is pained to note the increasing tendency of filing rape complaints in matrimonial cases against male members of the husband's family, just to exert pressure.
Justice Subramonium Prasad said:
"This Court is pained to note that in matrimonial cases, there is an increasing tendency of filing such complaints for an offence under Section 376 IPC against the father-in-law, brother-in-law or any other male member of the family of the husband just to exert pressure on the family of the husband."
Case Title: VINAY KHURANA v. SHWETA KHURANA
Citation: 2022 LiveLaw (Del) 134
The Delhi High Court has explained the scope of Judicial Separation and Divorce under the Hindu Marriage Act, 1955.
A division bench comprising of Justice Vipin Sanghi and Justice Jasmeet Singh observed that the scope of the two concepts is qualitatively different and that Judicial separation is a completely different relief that the aggrieved spouse may seek against the other, under sec. 10 of the Act.
"Thus, the aggrieved spouse may, instead of seeking the relief of divorce, seek a decree of judicial separation on the same grounds on which he/she may seek divorce. The law gives an option to the aggrieved spouse/petitioner to seek either of the two reliefs," the Court said.
Case Title: RAVNEET KAUR v. PRITHPAL SINGH DHINGRA
Citation: 2022 LiveLaw (Del) 151
The Delhi High Court has observed that the right of residence under Section 19 of the Domestic Violence Act is not an indefeasible right of residence in shared household, especially, when the daughter-in-law is pitted against aged father-in-law and mother-in-law.
"Thus, where the residence is a shared household, it does not create any embargo upon the owner to claim eviction against his daughter-in-law. A strained frictional relationship between the parties would be relevant to decide whether the grounds of eviction exist," Justice Yogesh Khanna added.
Case Title: X v. Y
Citation: 2022 LiveLaw (Del) 192
The Delhi High Court has dissolved marriage between a couple living separately for 12 years taking note of the fact that the wife had filed an unsubstantiated criminal complaint against the husband and his family members which caused them immense mental cruelty and agony.
Justice Vipin Sanghi and Justice Jasmeet Singh dissolved the marriage by decree of divorce under Sections 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act, 1955.
The Bench was of the view that there was no chance of reconciliation between the parties and that the marriage was irretrievably broken down. It also noted that no useful purpose would be served by maintaining the matrimonial bond and the insistence to continue the relationship would only be inflicting further cruelty upon both the parties.
Case Title: OM PRAKASH GUPTA & ANR v. ANJANI GUPTA & ANR
Citation: 2022 LiveLaw (Del) 224
The Delhi High Court has observed that the right of residence under the Domestic Violence Act, 2008 is exclusive to and isolated from any right that may arise under Section 9 of the Hindu Marriage Act, 1955, which pertains to restitution of conjugal rights.
Justice Chandra Dhari Singh was dealing with a plea filed by a couple, challenging the order of the Additional Sessions Judge confirming the residence Orders in favour of their son's wife, Respondent No.1.
The relationship between the Respondent wife and her in-laws was cordial in the beginning, however, it started to deteriorate with time. The Respondent left her matrimonial home on 16th September, 2011. Consequently, more than 60 cases, both civil and criminal, were filed by the parties against each other. One of these cases were initiated by the Respondent-wife under the Protection of Women from Domestic Violence Act, 2005 and during the proceedings the Respondent claimed right to residence in the property in question.
Case Title: x v. Y
Citation: 2022 LiveLaw (Del) 227
Upholding a Family Court order granting decree of divorce in favour of the husband, the Delhi High Court has dismissed wife's appeal noting that accusations of unchastity or extra marital relationship is a grave assault on the character as well as health of the spouse against whom such allegations are made.
A division bench comprising of Acting Chief Justice Vipin Sanghi and Justice Dinesh Kumar Sharma also added that while such allegations of extra marital affairs causes mental pain, agony suffering and tantamount to cruelty, the tendency of making false allegations must be deprecated by the Courts.
The Court was of the view that the Family Court had correctly appreciated the evidence and had rightly found that the appellant wife, by making unfounded allegations amounting to character assassination against the respondent husband and his father, had inflicted mental cruelty upon the the husband.
Case Title: x v. Y
Citation: 2022 LiveLaw (Del) 229
Passing a decree of divorce by mutual consent, the Delhi High Court has waived off the six months cooling off period as stipulated under Hindu Marriage Act after observing that keeping the couple tied to a legal bond would only mean snatching away from them the opportunity to lead a fulfilling life.
A division bench comprising of Acting Chief Justice Vipin Sanghi and Justice Dinesh Kumar Sharma set aside an order passed by the Family Court wherein the second motion petition moved by the parties jointly under sec. 13B (2) of the Act was rejected on the ground that the statutory period of six months from the date when the first motion was moved, and period of 18 months from the date of separation, had not expired.
The High Court took note of the fact that both the parties were well educated and independent individuals who had mutually decided the fate of their marriage.
Case Title: SH PRADEEP KUMAR SHARMA v. SMT DEEPIKA SHARMA
Citation: 2022 LiveLaw (Del) 324
The Delhi High Court has reiterated that only continuous and repeated acts of adultery or cohabitation in adultery would attract the rigours of the provision under Section 125 (4) of the Code of Criminal Procedure.
Sec. 125(4) of the CrPC states that no Wife shall be entitled to receive an allowance from her husband 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.
Justice Chandra Dhari Singh also observed that law on maintenance is a welfare law that exists to ensure that the wife, children and parents of an able and capable man are not left to become destitute in cases when they themselves are not capable of maintaining themselves.
Case Title: RISHU AGGARWAL v. MOHIT GOYAL
Citation: 2022 LiveLaw (Del) 334
The Delhi High Court has held that though denial of conjugal relationship is a ground for divorce and tantamounts to cruelty, the same cannot be said to amount to "exceptional hardship" under Section 14 of the Hindu Marriage Act 1955.
Section 14 prescribes a mandatory 1 year waiting period from the date of marriage, before filing for divorce. A proviso to this Section states that the 1 year period may be waived off on the ground that the case is one of "exceptional hardship" to the petitioner or of "exceptional depravity" on the part of the respondent.
A bench comprising of Acting Chief Justice Vipin Sanghi and Justice Jasmeet Singh observed that the denial of sex by one spouse to the other, or by both of them to each other may certainly constitute "hardship", but it cannot be said to be "exceptional hardship".
Case Title: KINRI DHIR v. VEER SINGH
Citation: 2022 LiveLaw (Del) 339
The Delhi High Court has enumerated various principles highlighting the special role that a Family Judge is obligated to discharge as distinct from the general role of an adjudicator.
In the 54-page judgment, Justice Yashwant Varma also touched upon the essential qualities of a judge or adjudicator and the tests as propounded by the Indian judiciary in relation to an apprehension of bias.
While the Court noted that the family jurisprudence has progressed over time, it said that the Family Judge is no longer viewed as one who is to act in the capacity of a mere "fault finder".
Case Title: RAJA BERWA & ORS v. STATE & ANR
Citation: 2022 LiveLaw (Del) 340
The Delhi High Court has observed that FIR or complaints can be quashed even in respect of non-compoundable offences pertaining to matrimonial disputes if the Court is satisfied that the parties have settled their disputes amicably, without any pressure.
Justice Chandra Dhari Singh observed thus:
"Even in non- compoundable offences pertaining to the matrimonial disputes, if Court is satisfied that parties have settled the disputes amicably and without any pressure, then for the purpose of securing ends of justice, FIRs or complaints or subsequent criminal proceedings in respect of offences can be quashed."
The Court quashed an FIR registered under sec. 498A, 406 and 34 of the Indian Penal Code, 1860. The petitioner no.1 (husband) and respondent no.2 (wife) got married to each other on 20th April, 2003 but due to some temperamental differences between them, they started living separately since May, 2005. There was a girl child born out of their wedlock, who was now major.
Case Title: X v. Y
Citation: 2022 LiveLaw (Del) 345
The Delhi High Court has observed that a father cannot deny his responsibility to maintain his wife and daughter even if he has to take care of his parents. It thus upheld a Family Court order directing him to give maintenance to the wife and daughter.
A Bench of Justice Mukta Gupta and Justice Neena Bansal Krishna added that merely because the daughter is living with her maternal grandparents, it cannot be said that the father stands absolved of his responsibility towards his child.
The Court was dealing with a plea filed by a husband challenging the order passed by a Family Court dated 21st February, 2022 directing him to pay maintenance in the sum of Rs. 20,000 per month to the wife and daughter under sec. 24 of Hindu Marriage Act, 1955.
Case Title: SHILPA SINGH v. VIKAS KHANNA
Citation: 2022 LiveLaw (Del) 349
The Delhi High Court has observed that the ambit and extent of Protection of Women from Domestic Violence Act, 2005 and Family Courts Act, 1984, being two competing statutes, must be harmoniously construed so as to avoid a situation of repugnancy and conflict.
Justice Yashwant Varma relied on a 2017 judgment of the Supreme Court in Amit Kumar and another v. Charu Makin wherein it was observed that "The Act of 1984 was specially meant for establishment of special Courts so that matters referred in explanation to Section 7 of the Act can be dealt by the special Courts established for that purpose whereas the object of enactment of the Act of 2005 was to protect the woman from being victim of the domestic violence and to prevent the occurrence of domestic violence in the society."
The Court was dealing with a plea filed by a wife challenging an order dated 2nd April 2022 passed by the Family Judge granting visitation rights albeit supervised and in the concerned Court complex.
Case Title: JITENDRA KUMAR GARG v. MANJU GARG
Citation: 2022 LiveLaw (Del) 374
The Delhi High Court has observed that Section 125 of Code of Criminal Procedure entails that if the husband has sufficient means, he is obligated to maintain his wife and children, and not shirk away from his moral and familial responsibilities.
Justice Subramonium Prasad also said that the provision was enacted to ensure that women and children are provided maintenance by the husband so as to protect them from a life of potential vagrancy and destitution.
"The Supreme Court has consistently upheld that the conceptualisation of Section 125 was meant to ameliorate the financial suffering of a woman who had left her matrimonial home; it is a means to secure the woman's sustenance, along with that of the children, if any. The statutory provision entails that if the husband has sufficient means, he is obligated to maintain his wife and children, and not shirk away from his moral and familial responsibilities," the Court observed.
Case Title: BHARTI ANAND v. SUSHANT ANAND AND ORS
Citation: 2022 LiveLaw (Del) 382
The Delhi High Court has observed that the visits of sundry family members to the matrimonial home, without permanency or the intention to treat the premises as shared household, would not render them as members of the "shared household" under Domestic Violence Act.
Justice Prateek Jalan observed thus:
"Just as the woman living fleetingly or casually at different places, would not convert those places into a "shared household", the visits of sundry family members to the matrimonial home, without permanency or the intention to treat the premises as shared household, would not render them as members of the "shared household"."
The Court was dealing with a plea filed by a wife challenging an order of the Metropolitan Magistrate, Mahila Court to the extent that summons in her complaint under the Protection of Women from Domestic Violence Act, 2005 were not issued to the respondent Nos. 3 and 4.
Case Title: DR. SANJIV GUPTA & ANR. v. SH. S.S. VERMA
Citation: 2022 LiveLaw (Del) 390
The Delhi High Court has observed that registration is not necessary where family arrangement is oral and that the same is necessary only if the terms of the arrangement are reduced into writing.-
"It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable" Justice Najmi Waziri reiterated.
Case Title: x v. Y
Citation: 2022 LiveLaw (Del) 395
The Delhi High Court has upheld an order passed by the Family Court granting divorce in favour of the wife under sec. 13(1)(ia) of the Hindu Marriage Act, 1955 observing that the wife had well established the ground of mental cruelty by the husband.
The Family Court had granted divorce to the respondent wife under sec. 13(1)(ia) of the HMA solely relying on ground of mental cruelty.
While upholding the same, a division bench comprising of Acting Chief Justice Vipin Sanghi and Justice Jasmeet Singh observed thus:
"Husband and wife are two pillars of the family. Together they can deal with any situation, balancing the family in all circumstances. If one pillar gets weak or breaks, the whole house crashes down. The pillars can withstand all the abuses together, the moment one pillar gets weak or deteriorates, it becomes difficult to hold the house together. When one pillar gives up, and puts all the burden on the other pillar, then it cannot be expected that one pillar will single handedly hold the house together."
Title: LAXMI & ANR v. SHYAM PRATAP & ANR
Citation: 2022 LiveLaw (Del) 432
The Delhi High Court has observed that the daughter-in-law can claim maintenance from her father-in-law provided she has inherited some estate of her husband.
A division bench comprising of Justice Mukta Gupta and Justice Neena Bansal Krishna dismissed a plea filed by a widowed daughter-in-law and grand-daughter under sec. 19 of the Family Court Act, 1984 against the order dated 3rd May, 2019 deferring their claim for interim maintenance in a petition under sec. 19 of the Hindu Adoption and Maintenance Act, 1956.
Title: x v. Y
Citation: 2022 LiveLaw (Del) 441
The Delhi High Court has observed that the overall development of the children should ideally involve both the parents and that the settlement agreement should reflect the same.
Justice Subramonium Prasad was dealing with a contempt plea filed by a wife for the alleged non-compliance of the order passed by the Family Court.
It was stated by the counsel appearing for the Petitioner wife that the Respondent husband had violated the order dated which was based on a settlement agreement inasmuch as the husband was neither coming forward for second motion nor was he fulfilling his obligations with regard to the monetary settlement of the child.
Case Title: SH JAGMOHAN KASHYAP v. GOVT. OF NCT OF DELHI & ANR.
Citation: 2022 LiveLaw (Del) 513
The Delhi High Court has observed that the right to claim maintenance under the Domestic Violence Act, 2005 and under Section 125 of Code of Criminal Procedure are not mutually exclusive.
Justice Asha Menon was of the view that the aggrieved person can seek interim maintenance before the Magistrate while also seeking a permanent maintenance under Section 125 CrPC.
"The only caveat is that maintenance granted by one court will be factored in by the other court before granting or refusing maintenance," the Court said.
Case Title: SARITA BAKSHI v. STATE & ANR.
Citation: 2022 LiveLaw (Del) 540
The Delhi High Court has observed that in India, a brother does not abandon his divorced sister and accordingly, the expenditure borne by him in supporting his sister must be taken into account while passing an order of maintenance in favour of his wife.
“There is no skepticism about the fact that the sister receives maintenance from her husband, but the brother cannot be a mute spectator to her misery if and when she needs his help. Some provision needs to be made in his list of expenditure to support her sibling...though while apportioning the income of the respondent, one portion of income of the respondent cannot be apportioned to the sister, some amount as expenditure on yearly basis has to be kept aside for the divorced sister as moral obligation of the respondent," Justice Swarana Kanta Sharma observed.
Case Title: JYOTI @ GAYATRI v. ROHIT SHARMA @ SANTOSH SHARMA
Citation: 2022 LiveLaw (Del) 561
The Delhi High Court has observed that the determination of maintenance in matrimonial disputes depends on the financial status of the husband and the standard of living that the wife was accustomed to in her matrimonial home.
Justice Chandra Dhari Singh added that the financial capacity of the husband, his actual income with reasonable expenses for his own maintenance, and dependant family members whom he is obliged to maintain under the law including the liabilities, would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid.
The Court was of the view that the phrase "change of circumstances" referred to in Section 127(1) of CrPC is a comprehensive phrase which also includes change of circumstances of husband.
Case Title: DAMINI MANCHANDA v. AVINASH BHAMBHANI
Citation: 2022 LiveLaw (Del) 636
The Delhi High Court has taken a serious view of a case wherein the Husband deliberately avoided service in the divorce proceedings filed by his wife in India, refused to appear before the Court here and filed a separate divorce case in Canadian Court.
Justice Amit Bansal passed an interim injunction against the husband restraining him from proceeding with the divorce suit filed by him before the Canadian Court.
Case Title: ANIL KUMAR TALAN v. STATE (GOVERNMENT NCT OF DELHI)
Citation: 2022 LiveLaw (Del) 641
The Delhi High Court has observed that allowing fabricated allegations against the entire family in matrimonial disputes may lead to further misuse of process of law.
"If false implication by fabricated omnibus allegations against entire family in the course of matrimonial disputes and differences, is allowed, it may lead to further misuse of the process of law and assume serious proportions," Justice Anoop Kumar Mendiratta observed.
The Court made the observation while denying anticipatory bail to father of a married woman in an FIR registered under sec. 182, 192, 195, 203, 389, 420, 469, 470, 471, 500, 120B and 34 of IPC.
Case Title: Avneet Kaur v. Sadhu Singh & Anr.
Citation: 2022 LiveLaw (Del) 646
The Delhi High Court has held that the words "circumstances arising out of marital relationship" used in reference to filing of suit for injunction under Clause (d) of the explanation to Section 7 (1) of the Family Courts Act, 1984 would include not only the husband and wife but may also include the parents-in-law.
A single bench of Justice C. Hari Shankar made it clear that what is to be seen is not the relationship between the parties but whether the circumstances in which the suit is filed arose out of a matrimonial relationship.
If the answer to the aforesaid is in the affirmative, then the provision would apply and the Family Courts would have exclusive jurisdiction to deal with such applications for injunction.
Case Title: PRADEEP KUMAR v. SMT BHAWANA & ANR.
Citation: 2022 LiveLaw (Del) 672
"To deny maintenance to an estranged wife and child is the worst offence, even from a humanitarian perspective," the Delhi High Court has observed.
Justice Asha Menon made the observation while dismissing with a cost of Rs. 20,000 a petition filed by a husband challenging Trial Court order directing him to pay a sum of Rs.20,000 as a consolidated amount towards interim maintenance to the wife and child till the disposal of the matrimonial matter.
"The malafide intentions of an estranged husband is to depress his income as much as possible, for sadistic pleasure, of seeing the agony of someone, who has no choice, but to be dependent on him, may be dictated by egoistic propensity to also possibly teach his wife a lesson for not falling in line with whatever be his dictates. Matrimonial relationships can come to an end for a variety of reasons including ego clashes. It is time that there is a change in the attitude when litigation is filed by one spouse against the other," the Court observed.
Case Title: SANDEEP WALIA v. MONIKA UPPAL
Citation:2022 LiveLaw (Del) 677
The Delhi High Court has observed that in matrimonial disputes, it is seen that parties often don't disclose their actual income to the court, purportedly to avoid the liability of maintenance. Thus, it is open for the Court to determine maintenance based on their status and lifestyle.
Justice Purushaindra Kumar Kaurav observed,
"Even experience shows that actual income is normally not disclosed by the parties. Under such circumstances, it is always safe to come to a realistic conclusion considering the status of the parties and their lifestyle etc."
The observation was made wherein the husband had challenged an order of the Family Court West, partly allowing his wife's application under Section 125 CrPC and granting Rs.10,000 per month as maintenance.
Case Title: VISHESH TANEJA v. REETA
Citation:2022 LiveLaw (Del) 679
The Delhi High Court has observed that the provision of Section 125 of Code of Criminal Procedure which provides for maintenance, is intended to fulfil a social purpose and that its object is to compel a man to perform the moral obligation which he owes to the society in respect of his wife and children.
Justice Purushaindra Kumar Kaurav was dealing with a plea filed by a husband against a Family Court order whereby an application under sec. 125(3) of Cr.P.C. filed by the respondent wife, was partly allowed.
The facts of the case are that the petitioner and respondent were husband and wife. After their marriage, matrimonial disputes crept up and they started living separately.
Case Title: SOUMITRA KUMAR NAHAR v. PARUL NAHAR
Citation: 2022 LiveLaw (Del) 731
The Delhi High Court has observed that the pendency of a divorce petition and rejection of an application for maintenance in such petition, would not disentitle the wife to seek maintenance under Section 125 of CrPC.
Justice Yogesh Khanna was dealing with a plea filed by a husband challenging the order and the maintenance petition under Sec. 125 Cr.P.C. pending adjudication before the Family Court.
It was the husband's case that the impugned order and the maintenance petition were in direct violation of the consent order duly clarified and reiterated by a Division Bench of High Court and the judgment passed by the Supreme Court. It was submitted that the Family Court, without appreciating the orders passed on the issue, in a mechanical manner had dismissed the application filed by the husband for dismissal of the maintenance petition filed by the respondent wife.
Case Title: V v. State
Citation: 2022 LiveLaw (Del) 757
The Delhi High Court observed that the Courts have to be sensitive to the situation where allegations have been lodged by mother of a minor victim against her own husband of having sexual contact with the daughter, that too in her presence in the house.
Justice Anoop Kumar Mendiratta made the observation while denying anticipatory bail to a husband, whose wife had alleged that he had sexually assaulted her five year old daughter.
The FIR was registered against the petitioner under sec. 377 of Indian Penal Code as well as sec. 6 of POCSO Act. Later, sec. 376AB (punishment for rape of minor under 12 years of age) of the Code was also invoked against him.
Case Title: SUNITA & ANR. v. VIJAY PAL @ MOHD. SABIR & ANR.
Citation: 2022 LiveLaw (Del) 788
The Delhi High Court has observed that whenever a party claims a change in circumstance after an order granting maintenance has been passed under Section 125 CrPC, the appropriate recourse would be seeking relief under Section 127 of the Code, not filing a fresh petition under Section 125 of the Code.
Laying emphasis on the doctrine of res judicata, Justice Swarana Kanta Sharma observed that the said principle has been evolved to prevent multiplicity of litigation regarding the same issues and puts an end to a finally adjudicated issue ensuring finality in litigation.
"This Court notes that a petition under Section 125 Cr.P.C. will be covered by the principle of res judicata due to its universal applicability, as proceedings under Section 125 Cr.P.C. are Quasi- Criminal in nature. Once the petition has been adjudicated under Section 125 Cr.P.C. favourably by a Court of competent jurisdiction on merits, a subsequent petition cannot be preferred which arises from the same dispute having similar situations, circumstances and grounds as the previously adjudicated issues in the earlier petition filed under Section 125 Cr.P.C."
Case Title: ANEESH GUPTA & ORS. v. STATE OF NCT OF DELHI & ANR.
Citation: 2022 LiveLaw (Del) 869
The Delhi High Court has observed that in matrimonial cases where settlement has taken place, offence under sec. 377 of Indian Penal Code can be compromised and FIR can be quashed as parties have to move ahead in life.
Justice Talwant Singh thus concurred with the decision of a coordinate bench in Rifakat Ali & Ors v. State & Anr. decided on February 26, 2021 wherein the Court had quashed an FIR under sec. 377 of IPC on the ground that the parties had compromised the matter with each other only because it arose out of a matrimonial dispute.
"So, the view of the co-ordinate bench is that in matrimonial cases, where settlement has taken place, even the offence under Section 377 IPC can be compromised and FIR can be quashed as parties have to move ahead in life. I concur with the said view," the Court observed in a ruling dated September 6.
Title: X v. Y
Citation: 2022 LiveLaw (Del) 900
The Delhi High Court has ruled that mere presence of a decree of restitution of conjugal rights against the wife does not disentitle her from claiming maintenance from her husband - when it is due to his own conduct she is not able to stay with him.
Emphasising that every case seeking compensation in matrimonial dispute has to be dealt with according to its facts and circumstances, Justice Swarana Kanta Sharma said that every judgment, though filed under the same provision, cannot be painted and penned with the same stroke of a brush.
"Before parting with this case, this Court wants to observe that the Judges dealing with such cases should keep in mind the objective behind Section 125 Cr.P.C ... and the need to give a dignified existence to people ... who need to be maintained lawfully by the persons bound by law ... to maintain them expeditiously and with sensitivity," the Court added.
Case Title: SMT. SARITA JOSHI v. RAVINDRA BHUSHAN JOSHI
Citation: 2022 LiveLaw (Del) 1014
The Delhi High Court has observed that the convenience of the wife has to be seen more while transferring a petition to a different court in matrimonial disputes.
Justice Dinesh Kumar Sharma added that the transfer jurisdiction has to be exercised in such a manner that there should not be any inconvenience caused to either of the parties.
The court was dealing with a plea moved by 68 year old wife seeking transfer of the matrimonial case pending before Family Court's Principal Judge of Dwarka Courts (South West District) to Family Court's Principal Judge of Karkardooma Court (East District).
In Matrimonial Dispute Case, Delhi High Court Directs Wife To Return Audi Q7 To Husband's Company
Title: RADICAL ARC VENTURES PVT LTD versus STATE NCT OF DELHI
Citation: 2022 LiveLaw (Del) 1020
In a case connected to a matrimonial dispute, the Delhi High Court directed a woman to return an Audi Car to a private company, while ruling that the corporate veil cannot be permitted to be lifted to hold that even though the vehicle belongs to the company, it is owned by her husband.
The woman had been permitted by a Mahila Court to retain the car last year after she initiated proceedings under Protection of Women from Domestic Violence Act against her husband, who was a 75 percent shareholder in the company and had been given the vehicle for official use.
Setting aside the Mahila Court order permitting her to retain the car, Justice Jasmeet Singh in the judgment clarified, "However, this order is only for the return of the Audi car and in no way determines the right of respondent No. 2 [wife] to seek maintenance, right of residence commensurate with her stature and her living lifestyle, from respondent No. 3 [husband]. She shall be at liberty to initiate any/all such proceedings for getting a car/maintenance for herself and her children which if already filed or which may be filed in future, shall be determined in accordance with law".
GAUHATI HIGH COURT
Case Name: Tarun Chandra Das v. Bhanjana Kalita
Citation: 2022 LiveLaw (Gau) 17
Gauhati High Court held that a man cannot escape his liability under Section 125, Cr.P.C. to provide maintenance to his second wife when he had suppressed the subsistence of his first marriage to her.
While dismissing the application made by the husband (petitioner herein) to quash the order of maintenance passed by the lower Court, a Single Judge Bench of Justice Robin Phukan observed,
"Section 125 Cr.P.C. is a measure of social justice, enacted to protect the vulnerable section of the society like women, children and infirm parents and it is within the scope of Articles 15(3) and 39 of the Constitution of India. The object of this section is not to punish for the past, but to prevent the vulnerable section of the society, who are unable to maintain themselves, so that they are not left beggared and destitute on the scrap heap of the society, and thereby driven to a life of vagrancy, immorality and crime for their sustenance, by compelling those who are capable to support to perform their moral obligation."
Case Name : Ms Olivia Laldinmawii Khiangte & 2 Ors. v. K. Vanlaltluanga & 3 Ors.
Citation: 2022 LiveLaw (Gau) 18
Gauhati High Court has held that there is no claim on property of a deceased person by his children if the said property was not inherited by the deceased person during his lifetime. Mere living in the property does not imply that the property stood transferred to those who were the occupant of the said property.
Justice Nelson Sailo observed,
"Shri. K. Vanlalmalsawma during his lifetime did not inherit the land and property...If such is the case, there cannot be any basis for the petitioners to make a claim for the said property on the strength of being the daughters of late Shri. K. Vanlalmalsawma."
Case Title : NILAKANTA MALAKAR @ SANTO AND 4 ORS. V THE STATE OF ASSAM AND ANR.
Citation: 2022 LiveLaw (Gau) 28
Gauhati High Court has recently observed that Domestic Inquiry Report is not compulsory for initiating proceeding under Section 12 of Protection of Women from Domestic Violence Act 2005.
Justice Rumi Kumari Phukan observed that whether such domestic violence was inflicted upon the respondent no.2/wife, is not a subject matter of trial and such matter cannot be decided in such petition:
"DIR is not compulsory and the court has the ample power to pass an ex parte order to provide such monetary relief and the present case is squarely covered by the observation/ conclusion that has been reached by this Court."
Case title - Pratima Deka vs The State Of Assam And 5 Ors
Citation: 2022 LiveLaw (Gau) 41
The Gauhati High Court has observed that in the Hindu religion, there is no concept of Bigamy and therefore, a second wife is not entitled to a family pension in the existence of the first wife.
The bench of Justice Sanjay Kumar Medhi observed thus in a case wherein Petitioner had moved the Court seeking family pension claiming herself to be the wife of one Biren Deka.
GUJARAT HIGH COURT
Case Title - Jagdeepbhai Chandulal Patel vs Reshma RuchinPatel
Citation: 2022 LiveLaw (Guj) 2
The Gujarat High Court has observed that the right of a woman to secure a residence order in respect of a shared household cannot be defeated by the simple expedient of securing an order of eviction by adopting the summary procedure under the Senior Citizens Act 2007.
The Bench of Dr. Justice Ashokkumar C. Joshi referred to the Supreme Court's ruling in the case of SV anitha vs. Deputy Commissioner, Bengaluru Urban District, wherein it was held that the right of a woman to secure a residence order in respect of a shared household cannot be defeated by the simple expedient of securing an order of eviction by adopting the summary procedure under the Senior Citizens Act.
Case Title - SUJAL JAYANTIBHAI MAYATRA Versus NA
Citation: 2022 LiveLaw (Guj) 4
The Gujarat High Court recently upheld an order of the family court refusing to waive off the statutory6 months cooling period in a plea by a couple seeking a mutual divorce who lived with each other for a period of 12 days only.
The Bench of Justice A. C. Joshi observed that the family court rightly passed the order refusing to waive off the cooling period therefore, there was no requirement to interfere in the impugned order of the Court.
Case Title - HAMIM HABIBBHAI KHAMBHATI v. STATE OFGUJARAT
Citation: 2022 LiveLaw (Guj) 8
The Gujarat High Court recently granted relief to an interfaith married couple, and sternly asked the parents of the girl, who are opposed to the inter faith marriage and their relationship, not to misbehave.
The Bench of Justice Sonia Gokani and Justice Mauna M. Bhatt was hearing the Habeas Corpus plea by one Hamim Habibbhai Khambhati who filed a writ of habeas corpus for production of his wife with whom he got married under the Special Marriage Act.
Case Title: SAPNA GEHLOT W/O DEVENDRA SINGH GEHLOT THRUPOA KULDEEP SINGH CHAUHAN Versus STATE OF GUJARAT
Citation: 2022 LiveLaw (Guj) 34
Emphasising the significance of a mother's guardianship in the upbringing of her children, the Gujarat High Court has directed that the Respondent-Husband to hand over the custody of the three young children to the Petitioner-Mother situated in New Zealand. Coming down heavily on the Respondent-Husband, the Bench comprising Justice Sonia Gokani and Justice Nirzar S Desai remarked tersely:
"Here is the husband who had with predesigned tact had taken the children away from natural guardian mother and the mother's passport also was taken away by him ensuring that she could not travel and could not follow him up. He also simultaneously initiated the legal proceedings for custody and divorce knowing fully well that the wife's passport was with him and she was unable to come to India."
Gujarat High Court Grants Protection To Young Couple Wishing To Marry
Case Title: HITESHKUMAR NILESHBHAI PRAJAPATI Versus STATEOF GUJARAT
Citation: 2022 LiveLaw (Guj) 37
The Bench comprising Justice Sonia Gokani and Justice Mauna Bhatt while granting protection to a young couple wishing to marry each other, admitted the writ of habeas corpus seeking the release of Jayaben Shrimali fromthe care of the District Legal Service Authority, Banaskantha.
The Court had, on an earlier occasion, granted protection to the corpus who was interested in marrying the Petitioner Hiteshkumar Prajapatibut was pressurised to state that he was below the age of 21 years. She was accordingly granted accommodation at a Women Protection Home until the Petitioner turned 21 year of age on 07.02.2022. She was granted security and basic amenities by the DLSA Full Time Secretary and the Administrator.
Case Title: Sunilkumar Rajeshwarprasad Sinha v.State Of Gujarat
Citation: 2022 LiveLaw (Guj) 75
"It is settled law that, in order to bring a case within provisions of Section 306 of the IPC, there must be a case of suicide and in commission of the offence, person who is said to have abetted the alleged suicide, must have played an active role by an act of instigating or by doing a certain act to facilitate commission of suicide", the High Court held.
The Bench of Justice Ilesh Vora was hearing an application under Section 438 of CrPC praying for anticipatory bail in connection with an FIR for offences under Sections 306, 498-A and 114 of IPC and Sections 3 and 7 of the Dowry Prohibition Act.
Probate Shall Be Granted Only To An Executor Appointed By The Will: Gujarat High Court
Case Title: Mahendra Harilal Parekh vs Meenaben Hirenbhai Parekh
Citation: 2022 LiveLaw (Guj) 94
The Bench comprising Justice Ashokkumar Joshi of the Gujarat High Court has been hearing an Article 227 petition challenging the order of the Trial Judge pertaining to an application under Order 6 Rule 17 of CPC.
The brief facts of the case were that the deceased mother of the Petitioners/Appellants was the owner of certain movable and immovable properties and had executed a will in 2013 in favour of the Petitioners/Appellants. Subsequent to the death of the mother, the Petitioners became owners of the properties and preferred an application seeking the probate of the will while the Trial Judge invited objections against the application.
The Respondent therein filed an objection against the issuance of probate in favour of the Petitioners. The Petitioners therefore preferred the application in question in 2016 seeking amendment of probate application praying for the replacement of the word Probate by Letter of Administration. This application was rejected and hence the petition was filed.
Case Title: Sultana Jahangirbhai Mirza vs StateOf Gujarat
Citation: 2022 LiveLaw (Guj) 118
The High Court yet again came to the rescue of an inter-faith couple, by directing the State Police to protect the couple from their families who are opposed to their relationship.
The Bench comprising Justice Sonia Gokani and Justice Mauna M. Bhatt ordered that initially, the protection be provided for four months. Whichever place they attempt to settle, the SP/ACP of the concerned Zone shall look into the matter. Thereafter, if the couple continues to be at Ahmedabad, Commissioner of Police, Ahmedabad City shall take a call after four months whether to continue such protection or not.
Case Title: Richa W/O Kushal Mistry And D/O Hemantkumar Adhvaryu Versus State Of Gujarat
Citation: 2022 LiveLaw (Guj) 127
The High Court has allowed a writ seeking a direction upon the Registrar of Marriages to consider the petitioners' application for issuance of a fresh marriage certificate, mentioning the date on which a pompous wedding was held with 'saptapadi', rather than a former date on which the couple had exchanged varmala in presence of a small gathering.
Due to pandemic of COVID-19 and the restrictions imposed by the Government on public gathering, the writ applicants entered into marriage with a very small number of relatives attending the marriage. The marriage invitation was not prepared and the couple only performed the ceremonies of exchanging garlands, tying mangalsutra and applying sindhoor. However, the ceremony of "datta homa" and "Saptapadi" (i.e. taking seven steps around the sacred fire) were not performed.
Case Title: Swaminathan Kunchu Acharya vs State Of Gujarat
Citation: 2022 LiveLaw (Guj) 144
The High Court granted custody of a 5 years old child, whose parents had passed away during Covid-19 pandemic, to his maternal aunt, over the claim made by his paternal grandparents.
The Bench comprising Justice Sonia Gokani and JusticeMauna Bhatt observed,
"The court while deciding the child custody cases is not bound by the mere legal right of the parent or guardian. Though the provisions of the special statues govern the rights of the parents or guardians, but the welfare of the minor is the supreme consideration in cases concerning custody of the minor child. The paramount consideration for the court ought to be child interest and welfare of the child."
Case title - Parekh Jaisalkumar Vinodbhai Versus State OfGujarat
Case Citation: 2022 LiveLaw (Guj) 157
The High Court dire cted a woman who deserted her husband under the influen of her family on the ground that he belongs to a different sub caste, to pay Rs. 10,000/- to her husband.
"We find it extremely unfortunate that the educated couple needs to end the relationship in such a fashion just because there is a strong resistance on the part of the parents and taken in exert this kind of influence," the Bench of Justice Sonia Gokani and Justice Mauna Bhatt remarked.
Case Title: Panchal Zalakben Hardikbhai D/OSanjaybhai Bhagubhai Panchal Versus State Of Gujarat
Citation: 2022 LiveLaw (Guj) 164
Considering the well settled principle of paramount welfare of child, the Gujarat High Court recently exercised its extraordinary powers under Section 226 of the Constitution and granted custody of the corpus, a 4old year boy, to his mother (Petitioner herein).
The child was said to be taken away from the mother by the child's father, following a matrimonial dispute. After the judgment was pronounced in Petitioner's favour, the Bench comprising Justices Sonia Gokani and Mauna M Bhatt noted the father's attempt to create an unruly atmosphere in the Court. Thus, it suspended his visitation rights for a period of six months.
"We allow this petition giving the custody of child to the mother. Let the same be handed-over peacefully to the mother...the father would have visitation right...After the judgement was pronounced, respondent-father of the child tried to create unruly atmosphere in the Court premise leading to unmanageable situation for Campus Administration. His intimidating behaviour make us suspend the visitation rights for six months from today," the order stated.
Case Title: Vivek kumar Kamalniranjan Kushwaha V/S StateOf Gujarat
Citation: 2022 LiveLaw (Guj) 176
The Gujarat High Court has recently granted bail to a man accused under Sections 306, 498A and 506(2) of the Indian Penal Code and under Sections3 and 4 of the Prohibition of Dowry Act for abetting the suicide of his wife by demanding dowry.
A Bench comprising Justice Gita Gopi observed that given the fragile mental state of the deceased person and the fact that the trial would take a long time to conclude, it was a fit case for exercising discretion in favour of the Applicant.
Case Title: Tejal Pareshbhai Pathak W/O Chirag Prabhashankar Trivedi V/S State Of Gujarat
Citation: 2022 LiveLaw (Guj) 193
While emphasizing on the paramount welfare of children in custody matters and observing that young children need love and warmth of both the parents, the Gujarat High Court recently directed the District Legal Service Authority to attempt conciliation between an estranged couple.
"We would also request the Chairperson, Rajkot District Legal Service Authority to also attempt to bring about the permanent solution between the parties, as according to us, such solution will be quite beneficial. After once the Chairperson undertakes this exercise and if he finds the need for continuity of the process, he will be at liberty to relegate the parties to professional counselors or anyone he deems appropriate," a bench comprising Justice Sonia Gokani and Justice Mauna Bhatt ordered.
Case Title : Sabirbhai Gafarbhai Multani Versus State Of Gujarat
Citation: 2022 LiveLaw (Guj) 210
A division bench of the Gujarat High Court comprising Justices Vipul M. Pancholi and Rajendra M. Sareen has held that custody of a minor with his maternal grandparents could not be considered illegal custody or illegal confinement, given that the husband/ the father of the minor had remarried during subsistence of his marriage with his first wife, who was the mother of the said minor.
This petition was filed under Article 226 of the Constitution of India praying to direct the police authority to produce the corpus (Samir, a minor aged 9 years) and handover his custody to the petitioner(the father). The respondent in this case are maternal grandparents of the corpus.
Case Title : Chhayaben @ Hetalben Atulbhai Asodariya Versus The Registrar Of Birth And Death/Chief Officer
Citation: 2022 LiveLaw (Guj) 224
The Gujarat High Court recently allowed a writ seeking direction upon the Registrar of Birth and Death/Chief Officer, to delete the name of a minor's biological father's name from his birth certificate and replace it with his adoptive father's name.
For this, Justice A.S. Supehia opined that neither is the consent of the biological father required to be obtained by the registrar nor is he required to be arraigned as a party to the writ petition, as the adoption deed was not in question.
Case Title: Pratapdan Shamaldan Gadhv V/S State Of Gujarat
Citation: 2022 LiveLaw (Guj) 231
The Gujarat High Court granted anticipatory bail to a public servant employed in the Police force and his wife, in a case of dowry harassment initiated at the instance of their daughter in law.
Justice Nikhil S Kariel observed that merely because the accused father-in-law is in Police is no ground to deny him anticipatory bail and adequate conditions can be imposed to prevent tampering of evidence. In fact, the bench was of the view that the father-in-law being a public servant, there could not be any apprehension that he would flee from trial.
Case Title : Ramilaben Vijaykumar Patel VersusNa
Citation: 2022 LiveLaw (Guj) 233
The Gujarat High Court has held that even if a mother seeks to sell off the property of her minor child, despite her being a natural guardian, she can be looked at with suspicion and be denied permission to sell off such property if relevant material details are not provided.
Case Title: Kajalben Rakeshbhai Bhadiyadra V/SThe Registrar, Registration Of Birth And Death
Citation: 2022 LiveLaw (Guj) 240
The Gujarat High Court has reiterated that a Registrar under the Births and Deaths Registration Act is bound to issue certificate in the name of adoptive father where there is no rebuttal to the adoption deed of the Applicant.
The observation was made by Justice AS Supehia in a petition moved by the mother of one 'Nidhi', seeking to include her second husband/ Nidhi's adoptive father's name in Nidhi's birth certificate. The bench observed that the Registrar cannot insist on a decree of the Court with regard to the adoption since as per Section 16 of the Hindu Adoption and Maintenance Act, 1956, a "presumption" is drawn in favour of the Petitioner under Section 16 of the Adoptions Act, since there is no rebuttal to the adoption deed of her daughter "Nidhi".
Case Title: Heir Of Niruben Chimanbhai Patel V/S State Of Gujarat
Citation: 2022 LiveLaw (Guj) 244
The High Court held that under Section 15 of the Hindu Succession Act, when a widow dies intestate, her heirs including son and daughter out of wedlock or even from illicit relationships are entitled to the share in her property.
Justice AP Thaker further held that since the deceased widow in the instant case was one of the owners of the suit property, she had every right to give her undivided share to anyone vide her Will, particularly, when the Will had not been challenged by anyone before the High Court.
"It is worthwhile to refer to Hindu Succession Act, wherein under Section 15, a Hindu widow can inherit land from his second husband and even her children born out of first marriage can also inherit land from second husband."
Case Title : Ena W/O Ashish Jain Versus State Of Gujarat
Citation: 2022 LiveLaw (Guj) 248
The High Court has held that the Surrogacy Regulation Act,2021 does not envisage any provision that would require the custody of anew-born child to be retained by the surrogate mother for a particular period of time, for the purpose of breastfeeding.
A division bench of Justice Vipul M. Pancholi and Justice Sandeep N. Bhatt held that the court must interpret the law as it stands and not on considerations of perceived morality. Thus, a new-born child could be handed over to the intended parents even without a court order, in lieu of the provisions of the Surrogacy Regulation Act, 2021 and the surrogacy agreement signed between the parties.
Case Title: Manyata Avinash Dolani v. State of Gujarat and Others
Citation: 2022 LiveLaw (Guj) 393
The Gujarat High Court, while dealing with a plea filed by the mother of a minor child, recently held that the habeas corpus petition is maintainable even in matters of child custody, provided that detention of the minor child by the other parent or others is proved to be illegal and without any authority of law.
The court made the observation while relying upon Supreme Court's observations in Tejaswini Gaud and Others v. Shekhar Jagdish Prasad Tewari and Others
Gujarat High Court Quashes State's First FIR Filed Under 'Anti-Love Jihad' Law
Case title - SAMIR @ SEMS/O ABDULBHAI QURESHI Versus STATE OF GUJARAT [CRIMINAL MISC.APPLICATIONNO. 18325 of 2022]
Case Citation: 2022 LiveLaw (Guj) 394
The Gujarat High Court quashed the first FIR registered by the Gujarat Police under the state's 'anti-love jihad' law after the husband and wife settled the matter among themselves.
"...this Court is of the considered view that further continuation of the criminal proceedings in relation to the impugned FIR would be nothing but unnecessary harassment to the parties and trial thereon would be futile and further continuation of the proceedings would amount to an abuse of process of law," observed the bench of Justice Niral R. Mehta as it quashed and set aside all the proceedings arising out of the FIR.
Case title - JAYANTIBHAISHRAVANBHAI RAJPUT v. MINOR NAYRA JAYANTIBHAI RAJPUT THROUGH MAULIKA W/OJAYANTIBHAI RAJPUT
Case Citation: 2022 LiveLaw (Guj) 406
The Gujarat High Court has observed that the valuation of the husband's economic condition put forth by the wife, if not disputed by the husband (backed by appropriate materials), can be taken as abase to determine interim maintenance to the wife.
The bench of Justice Umesh A Trivedi also observed that a husband is required to lead cogent evidence to prove that his wife leads an adulterous life before the Court to make a case that his wife is not entitled to maintenance.
HIMACHAL PRADESH HGIH COURT
Case Title: Ajay Kumar v. State Of Punjab And Another
Citation: 2022 LiveLaw (HP) 2
The Himachal Pradesh High Court granted relief to a husband by quashing a FIR lodged against him by his wife for allegedly demanding dowry and outraging her modesty, based on a compromise between the parties. Justice Sandeep Sharma said,
"offences alleged to have been committed by the petitioners do not involve offences of moral turpitude or any grave/heinous crime, rather same are petty offences, as such, this Court deems it appropriate to quash the FIR as well as consequential proceedings thereto, especially keeping in view the fact that the petitioners and the complainant have compromised the matter inter-se them, in which case, possibility of conviction is remote/bleak and no fruitful purpose would be served in continuing with the criminal proceedings."
Case Title : DURGI DEVI V. STATE OF HIMACHAL PRADESH AND ORS
Citation: 2022 LiveLaw (HP) 20
The Himachal Pradesh High Court observed that the second wife of a deceased employee is not entitled to family pension under the Central Civil Services Pension Rules, unless the personal law applicable to such employee permitted more than one subsisting marriage.
The observation was made by Justice Jyotsana Rewal Dua while hearing the claim made by a second wife of an employee who superannuated in the year 1983 and expired in 2002. The petitioner had approached the Court after the demise of her husband's first wife.
Case Title: Kuldeep v. Kartik
Citation: 2022 LiveLaw (HP) 41
The Himachal Pradesh High Court upheld an order of a Family Court which directed the petitioner to pay maintenance to his alleged son. The child's mother had also deposed that the child was born out of her physical relationship with the petitioner, who once had kept her as his 'mistress'.
While dismissing the revision petition, a Single Judge Bench of Justice Satyen Vaidya observed, "The statement of mother of the respondent regarding the paternity of respondent cannot be brushed aside easily. It is hard to believe that a female would name any unknown person to be the father of her son. Contest by petitioner to the prayer for DNA test strengthens the claim of the respondent."
JAMMU & KASHMIR & LADAKH HIGH COURT
Case Title: Neelofar Rasool v/s Imtiyaz Ahmad Ahangar and others
Citation: 2022 LiveLaw (JKL) 38
High Court of Jammu and Kashmir and Ladakh while framing guidelines pertaining to 'protection officer' in Domestic Violence cases said, "It shall neither be the duty of the Protection Officer nor his/her domain to undertake any mediation/conciliation once a Magistrate is seized of a domestic violence case."
The Court said the protection officer is under statutory duty to assist the Magistrate in discharge of his functions under the Act and to carry out directions/orders passed by such Magistrate without making his own interpretation.
Repeated Sexual Activity With 9 Yr Old Child Not Possible Sans Any Injury In Vaginal/ Genital Area: JKL HC Sets Aside Rape Conviction
Case Title: Ishfaq Ahmad Khan v. State of J&K & Ors.
Citation: 2022 LiveLaw (JKL) 62
A bench comprising Justice M A chaudhary observed repeated sexual activity on a 9 year old child is not possible without any injury in the vaginal /genital area.
The Court also noted that though accused could be held guilty for the commission of offence of rape based on the solitary evidence of the prosecutrix, howeever the same must inspire confidence and should appear to be absolutely trustworthy, unblemished and should be of sterling quality.
Case Title: Rouf Majid Naqash Vs SHO P/S Womens Wing
Citation: 2022 LiveLaw (JKL) 81
The Jammu & Kashmir & Ladakh High Court ruled that the proceedings for divorce or restitution of conjugal rights are of civil nature whereas the purpose of lodging of an FIR is to set the criminal law into motion, which is aimed at punishing the erring husband for his acts of cruelty. Therefore, merely because matrimonial litigation between the parties is going on at Sharjah would not be a ground to quash the impugned FIR," Justice Sanjay Dhar observed.
Husband's Relatives Can't Be Dragged Into Matrimonial Disputes In Absence Of Specific Instances Of Their Involvement In Crime: J&K&L High Court
Case Title: Junaid Hassan Masoodi Vs UT of J&K
Citation : 2022 LiveLaw (JKL) 86
The Jammu and Kashmir and Ladakh High Court ruled that in crimes pertaining to matrimonial disputes and dowry deaths the relatives of the husband should not be roped in on the basis of omnibus allegations unless specific instances of their involvement in the crime are made out.
These allegations are required to be carefully scrutinized before initiation of prosecution against the relatives of the husband and there being no mention of the specific instances of cruelty alleged to have been committed by the relatives of the husband in the instant case, the prosecution against them cannot be sustained, the bench noted.
Case Title: Abdul Qayoom Bhat Vs Danish Ul Islam & Ors.
Citation : 2022 LiveLaw (JKL) 94
The Jammu and Kashmir and Ladakh High Court held that merely because a settlement has taken place between warring spouses during the pendency of execution proceedings, the order of maintenance passed by a Magistrate under Section 488 of J&K CrPC does not get wiped out if the settlement does work.
The fact that the respondents may have resided with the petitioner during the period the settlement was in operation, is immaterial as the order of maintenance remained only suspended and the same was not wiped out but got revived retrospectively after the failure of the settlement, the court concluded.
Sec 125 CrPC | Grant Of Maintenance To Child Can Wait Till Veracity Of Claim Is Ascertained In Cases Of Disputed Paternity: J&K&L High Court
Case Title: Raaisha Vs Syed Sudhanshu Pandey
Citation: 2022 LiveLaw (JKL) 100
The Jammu and Kashmir and Ladakh High Court ruled that grant of maintenance to a minor child should be the paramount consideration for a Magistrate dealing with a petition under Section 125 of CrPC but, when the paternity of a child is seriously disputed it would not be prudent for a Magistrate to fasten the liability of maintaining the child without first ascertaining the veracity of the claims.
Case Title: Altaf Ahmad Zargar Vs Mst Sana & Ors
Citation: 2022 LiveLaw (JKL) 128
The Jammu and Kashmir and Ladakh High Court ruled that the proceedings under Section 12 of the Domestic Violence Act cannot be equated with lodging of a criminal complaint or initiation of prosecution and therefore a Magistrate, after obtaining the response from the husband and his relatives etc. is well within his jurisdiction to revoke his order of issuing summons to them or he can even drop the proceedings.
Case Title: Mohammad Ali Bhat Vs Shafeeqa Bano & Ors
Citation : 2022 LiveLaw (JKL) 137
The Jammu and Kashmir and Ladakh High Court held that for a Muslim husband to avoid his liability to maintain his wife on the ground that he has divorced his wife, has not only to show that the divorce is validly pronounced in accordance with Muslim law but he has also to show that the said divorce has been communicated to the wife.
"It is clear that for a Muslim husband to avoid his liability to maintain his wife on the ground that he has divorced his wife, has not only to show that the divorce is validly pronounced in accordance with Muslim law but he has also to show that the said divorce has been communicated to the wife,", Justice Sanjay Dhar observed.
Case Title : Mohd Hussain Vs Shabnam Ara
Citation : 2022 LiveLaw (JKL) 169
The Jammu and Kashmir and Ladakh High Court ruled that a Magistrate would be well within its jurisdiction to cancel the interim order passed by it under Section 12 of the Domestic Violence Act, if upon going through the response of the husband and his relatives, it finds that they have been unnecessarily roped in or no case for grant of interim order is made out.
Case Title : S Rawail Singh Vs Gurinder Jeet Kour.
Citation : 2022 LiveLaw (JKL) 190
The Jammu and Kashmir and Ladakh High Court ruled that once a marriage stands validly dissolved by a competent foreign court, the "domestic relationship" between the parties as husband and wife, which is necessary to invoke the provisions of the Domestic Violence Act, also ceases.
Interpreting Section 2(f) of the Domestic Violence Act which defines 'domestic relationship', the bench explained that in the instant case there is no domestic relationship existing between the parties and when the domestic relationship is not existing between the parties the provisions of the Domestic Violence Act cannot be invoked.
Case Title : Shashi Paul Singh Vs Gurmeet Paul & Anr.
Citation : 2022 LiveLaw (JKL) 220
The Jammu and Kashmir and Ladakh High Court reiterated that once a person enters into wedlock and decides to raise a family, he cannot turn around and say that he is not ready to perform his moral and legal obligation flowing out of the wedlock as he is in no mood to earn livelihood.
Case Title : Ajay Pratap Vs UT of J&K and Ors.
Citation : 2022 LiveLaw (JKL) 229
The Jammu and Kashmir and Ladakh High Court called out the "Quick Fixes" resorted to by the police during criminal investigations, holding that investigations must be conducted within the domain of "Facts in Issue" and "Relevant Facts".
JHARKHAND HIGH COURT
Case Title: Rinki Kumari @ Anita Kumari v. Kundan Kumar @ Kundan Kumar Singh
Citation: 2022 LiveLaw (Jha) 1
The Jharkhand High Court held that the claim for maintenance arises from the date of filing the application and not the date of judgment. Justice Anubha Rawat Choudhary referred to the Supreme Court Decision in Rajnesh v. Neha & Anr. and modified the impugned order, directing payment of monthly allowance from the date of application.
Case Title: Phoda Devi & Ors. v. Ganesh Mahto
Citation: 2022 LiveLaw (Jhar) 7
The Jharkhand High Court has held that the primary condition for claiming adverse possession of immovable property is that the party claiming it must first acknowledge the title of the party against whom it is being claimed.
The pleas regarding claiming the title on inheritance and title by adverse possession are mutually inconsistent, Justice Gautam Kumar Chowdhary added.
Case Title: Surendra Kumar v. The State of Jharkhand & Ors.
Citation: 2022 LiveLaw (Jha) 24
Hearing a matter arising out of Section 31 of the Protection of Women from Domestic Violence Act, the Jharkhand High Court held that taking cognizance, holding a person guilty and imposing penalty, all on the same day, is unknown to the law.
Quashing one such impugned order, Justice Sanjay Kumar Dwivedi noted that the condition precedent of Section 31 of the Protection of Women from Domestic Violence Act had not been taken care of by the Court below while passing an order under that section.
Case Title: Ugni Bibi v. Gobind Ram Hathampuria
Citation: 2022 LiveLaw (Jha) 35
The Jharkhand High Court held that a Motor Accident Tribunal cannot deny compensation to the wife of the deceased, merely for non-joinder of his remaining heirs, i.e. sons and daughters.
Case Title: Ram Kumar Singh v. The State of Jharkhand
Citation: 2022 LiveLaw (Jha) 41
The Jharkhand High Court expressed shock in a case where notices were not issued to agnates of a deceased, whose purported Will was sought to be executed by the applicant. It noted that no general notices in the locality were issued and the same were only sent to the State.
Thus refusing to entertain the appeal against dismissal of probate application, Justice Ananda Sen observed,
"This is a circumstance, which strikes the conscience of the Court. It is not explained as to why agnates of the deceased, who were alive, have not been made a party nor general notices were issued in the locality. Counsel appearing on behalf of the appellant also cannot give any proper explanation. This suggests that the claimant is trying to hide the existence of the WILL from the agnates."
Case Title: Rita Giri Versus The Jharkhand Urja Vikash Nigam Limited
Citation: 2022 LiveLaw (Jha) 75
The Jharkhand High Court granted relief to the married daughter of a deceased employee who was denied compassionate employment by the Jharkhand Urja Vikash Nigam Limited.
Justice S. N. Pathak observed that the case is an example where the applicant for compassionate appointment was "discriminated" on the ground of gender.
Case title - Sana Rashid v. The State of Jharkhand and others
Case Citation: 2022 LiveLaw (Jha) 88
The Jharkhand High Court granted relief to a 26-year-old woman who had moved the Court seeking adequate security against her family members and other co-religious persons claiming that her family members are forcing her to marry a 52-year-old Man.
The bench of Justice Sanjay Kumar Dwivedi directed the Senior Superintendent of Police, Ranchi to pass appropriate order so that her dignity and life be protected.
Case Title: Md. Sonu @ Sonu v. The State of Jharkhand & Ors.
Citation: 2022 LiveLaw (Jha) 94
The Jharkhand High Court has held that there is a presumption under Muslim law that people attain puberty at the age of '15 years' and upon attaining the same, they are at liberty to marry persons of their choice without any interference of their guardians.
Case Title: Manish Kumar Sharma @ Manish Kumar v. The State of Jharkhand & Anr.
Citation: 2022 LiveLaw (Jha) 96
The Jharkhand High Court has held that a married woman, who enters into a consensual sexual relationship with a man other than her husband, cannot later on prosecute him for rape on the false pretext of marriage. In other words, the Court was of the view that a married woman cannot be lured to give consent for sex on the false promise of marriage, as such promise is illegal.
Case title - Afan Ansari vs. The State of Jharkhand and another [W.P. (Cr.) No. 536 of 2022]
Case Citation: 2022 LiveLaw (Jha) 97
The Jharkhand High Court has observed that the order to conduct DNA Tests cannot be passed as a matter of course as such a direction may encroach privacy and physical autonomy of a person.
With this, the bench of Justice Sanjay Kumar Dwivedi upheld an order of the Special Judge, POCSO, Ranchi rejecting the plea of the man, facing rape charges under the POCSO Act, seeking a direction to conduct his own and the child's DNA examination.
KARNATAKA HIGH COURT
Case Title: K Mallikarjuna v. H A Sudha Mallikarjuna
Citation: 2022 LiveLaw (Kar) 15
Observing that "the marriage is totally dead" and that nothing would be gained by trying to keep the parties tied forever to a marriage that in fact has ceased to exist, the Karnataka High Court recently granted divorce to a couple who lived separately for a period of 21 years. A division bench of Justice B Veerapa and Justice K S Hemalekha said, "Once the parties have separated and the separation has continued for a sufficient length of time of more than 21 years and one of them presented a petition for divorce, it can well be presumed that the marriage has broken down."
Case Title: Suresh v.D Ramesh
Citation: 2022 LiveLaw(Kar) 18
Observing that the amount awarded to the parents is the compensation for loss of love, affection, care and companionship of the deceased child, the Karnataka High Court recently enhanced the compensation granted by the Motor Accidents Claim Tribunal (MACT) to a couple who lost their2-year old daughter in an accident. Justice Shivashankar Amarannavar modified the order dated August 16, 2016, by which MACT had awarded a compensation of Rs3.50 lakh to the petitioners.
Breaching Promise To Marry Will Not Amount To Offence Of Cheating Under IPC : Karnataka High Court
Case Title: Venkatesh And State of Karnataka
Citation: 2022 LiveLaw(Kar) 25
The Karnataka High Court while quashing the FIR registered against a man and his family has reiterated that not abiding with the promise of marriage will not amount to the offence of cheating under section 420 of the Indian Penal Code. A single-judge bench of Justice K Natarajan while allowing the petition filed by Venkatesh and others said "Absolutely there is no ingredient stated by her in order to show that there is a criminal intention of cheating by petitioner No.1 and thereby, he has promised to marry her but has broken his promise."
Case Title: Amrusha Das v. State Of Karnataka
Citation: 2022 LiveLaw(Kar) 26
The Karnataka High Court has said that estrangement between a couple should not affect their child's education prospects. Justice Krishna S Dixit thus allowed the petition filed by a mother and her 8-year old daughter, seeking directions to a school in Bengaluru to issue her Transfer certificate.
Case Title: Gaurav Raj Jain V. State Of Karnataka
Citation: 2022 LiveLaw(Kar) 28
Observing that "Litigants and members of the Bar appear to have not understood the importance and seriousness of this extraordinary writ of Habeas Corpus," the Karnataka High Court recently dismissed a petition filed by a father seeking directions to produce his 2 year old girl before the court, who is in safe custody of her mother. A division bench of Justice B Veerappa and Justice M G Uma while dismissing the petition filed by Gaurav Raj Jain, imposed a cost of Rs 50,000 on him, stating that no ground to allow the writ petition is made out and (petitioner) has abused the judicial process. Theamount is payable within a month to the Police Welfare Fund.
Case Title: Hemalatha v. Venkatesh Case No: Writ Petition No.39982 Of 2018
Citation: 2022 Livelaw(Kar) 52
The Karnataka High Court has held that the properties which had been given as dowry or otherwise at the time of marriage of the daughter, would be amenable for partition and the same will have to be included in a suit for partition, instituted by the daughter.
A single-judge bench of Justice Suraj Govindaraj said, "Ina suit for partition, the properties which had been given as dowry or otherwise at the time of marriage of the daughter plaintiff, claiming a right of partition under Section 6 of the Hindu Succession Act, would be amenable for partition and the same would have to be included in a suit for partition."
Case Title: Shivanand S/O Karabasappa Gurannavar v. Basavva @Laxmi W/O Shivanand Gurannavar Case No: Criminal Petition No.101378/2019
Citation: 2022 LiveLaw (Kar) 53
The Karnataka High Court has held that maintenance awarded to an estranged wife under the provisions of Protection of Women from Domestic Violence Act, 2005, cannot be enhanced on an application made by her undersection 127 of the Criminal Procedure Code (CrPC).
A single judge bench of Justice M. Nagaprasanna said, "A maintenance that is awarded under Section 125 of the Cr.P.C. can be varied in an application filed under Section 127 of the Cr.P.C. What is sine qua-non is that an order of maintenance should precede a petition under Section 127 of the Cr.P.C., failing which, a petition under Section 127 of the Cr.P.C. seeking enhancement of maintenance is not available."
Case Title: Michael Graham Prince v. Mrs. Nisha Misra Case No: Writ Petition No.15356 Of 2020
Citation: 2022 Livelaw (Kar) 57
The Karnataka High Court has held that Overseas Citizenship of India (OCI) cardholders can seek matrimonial reliefs before appropriate courts in India, against the estranged partner who is also an OCI cardholder. A single judge bench of Justice Krishna S Dixit said, "Subsection 2 of section 7Bof the Citizenship Act, excludes certain rights from being granted to the OCI Cardholders. However, this exclusion does not cover the right to seek matrimonial reliefs at the hands of the native Courts. The subject statutory notifications do not in so many words vest in them such a right to litigate maybe true; but, that per se does not divest them of such a right which otherwise avails even to the OCI Cardholders."
Case Title: Archana M G v. Abhilasha Case No: WRIT PETITION NO.3399 OF 2022
Citation: 2022 LiveLaw (Kar) 84
The Karnataka High Court has rejected a petition filed by one Archana M G, a Grama Panchayat Member, challenging the order of the Civil court which unseated her on the ground of lack of social status as a Scheduled Tribe member. A single judge bench of Justice Krishna S Dixit said, "There is no dispute as to petitioner does not belong to Scheduled Tribe, by birth, although she claims to have acquired the said social status by marriage to a member of scheduled tribe. Ordinarily, caste is determined by birth and caste of a person follows that of his/her father."
Case Title: Hrishikesh Sahoo v. State of Karnataka & Ors.
Citation: 2022 LiveLaw (Kar) 89
The Karnataka High Court on Wednesday rejected a petition filed by a husband seeking to drop charges of rape pending against him under Section376 of the Indian Penal Code after his wife filed a complaint against him. Justice M Nagaprasanna emphasised that a man who is well acquainted with a woman and performs all the ingredients as is found in pre or post amendment to Section 375 can be proceeded against for offences punishable under Section 376, thereby establishing that a man sexually assaulting or raping a woman is amenable to punishment under Section 376 of IPC.
Case Title: Hrishikesh Sahoo And State Of Karnataka Case No: Writ Petition No.48367 Of 2018
Citation: 2022 Livelaw (Kar) 89
In a significant judgement, the Karnataka High Court has rejected a petition filed by a husband seeking to drop charges of rape under Section 376 of the Indian Penal Code, levelled against him by his wife. The Court did not accept the husband's argument that the charge cannot be framed against him due to the exception to marital rape from the offence of rape asper Exception 2 to Section 375 of the Indian Penal Code. The Court observed that the exemption cannot be absolute.
Case Title: Sathish Nv. Ambika J Case No: CRIMINAL PETITION No. 474 OF 2022
Citation: 2022 LiveLaw(Kar) 148
The Karnataka High Court recently observed that if a wife moves out of the matrimonial house due to ill-treatment meted out by husband, he cannot claim that she moved out by mutual consent and thus he is not liable to pay maintenance amount.
Case Title: BANU BEGUMW/O KHAJASAB ALIAS MEHABOOBSAB and Others Versus State of Karnataka
Case No: CRIMINALPETITION NO. 100659 OF 2021
Citation: 2022 LiveLaw(Kar) 154
The Karnataka High Court has said that in the absence of a declaration that a child is deserted by his biological or adoptive parents or guardians, filing of chargesheet under section 80 of the Juvenile Justice (Care And Protection Of Children) Act 2015, is without any substance.
Case Title: POOJA S v. ABHISHEK SHETTY Case No: WRIT PETITION NO.24220 OF 2021
Citation: 2022 LiveLaw(Kar) 156
The Karnataka High Court recently directed a husband to pay Rs25,000 as litigation expenses to allow the wife to engage an advocate and to contest the proceedings filed by him seeking dissolution of marriage.
Bigamy Is A Continuing Offence; Wife's Consent For Second Marriage Immaterial: Karnataka High Court
Case Title: ANAND C. @ANKU GOWDA & others v. CHANDRAMMA
Case No: CRIMINALPETITION No.9849 OF 2021
Citation: 2022 LiveLaw(Kar) 190
The Karnataka High Court has said that bigamy under section 494of the Indian Penal Code (IPC) is a continuing offence and the consent of wife for the subsequent marriage would become immaterial for consideration of the offence.
Stridhan Cannot Be Retained By Family Of Husband On Annulment Of Marriage: Karnataka High Court
Case Title: GANESHPRASAD HEGDE & Others v SUREKHA SHETTY
Case No: CRIMINALPETITION No.4544 OF 2018
Citation: 2022 LiveLaw(Kar) 208
The Karnataka High Court has said that annulment of marriage cannot mean that all the articles that woman carried to the matrimonial house can be retained by the family of the husband.
Case Title: XXXX versus XXXX
Case No: MFA NO.102625/2015(MC)
Citation: 2022 LiveLaw(Kar) 213
The Karnataka High Court has held that a wife calling her husband an impotent without legally substantiating the same by itself would amount to cruelty within the meaning of Section 13(ia) of the Hindu Marriage Act.
Case Title: RAJAMMA Hv THIMMAIAH V
Case No: WRIT PETITIONNo.11265 OF 2022
Citation: 2022 LiveLaw(Kar) 214
The Karnataka High Court has said that an application filed under section 12 of the Protection of Women from Domestic Violence Act, 2005, should be decided by the Magistrate within two months (sixty days) from the date of its presentation.
Case Title: XXX versus STATE OF KARNATAKA
Case No: CRIMINALPETITION NO.2743 OF 2017
Citation: 2022 LiveLaw(Kar) 226
The Karnataka High Court has quashed an FIR registered against a woman under sections 498-A, 506, 504 and 34 of IPC and Section 3 and 4 of Dowry Prohibition Act by another woman alleging that the accused was having an illicit relationship with her husband.
Case Title: T. SADANANDA PAI v. SUJATHA S PAI
Case No: M.F.A.NO.1797 OF 2021
Citation: 2022 LiveLaw(Kar) 255
The Karnataka High Court has held that an able - bodied man having the capacity to earn cannot seek for permanent alimony on divorce from his wife.
Case title: NIRANJAN HEGDE v. THE STATE OF KARNATAKA
Case No: CRIMINAL PETITION No.5657 OF 2022
Citation: 2022 LiveLaw (Kar) 261
The Karnataka High Court has dismissed a petition filed by a husband seeking to quash a case of dowry death registered against him under Sections 304B and 498A of IPC, after his wife, living separately since over two years, committed suicide in her parental house.
Case Title: SANGEETA W/O BAPU LAMANI & Others v. BAPU S/O SOMAPPA LAMANI
Case No: REV.PET FAMILY COURT NO. 100043 OF 2020
Citation: 2022 LiveLaw (Kar) 273
The Karnataka High Court has held that family courts shall accept the affidavit by aggrieved parties (wife and children) indicating their place of residence away from matrimonial home and not raise issue of jurisdiction while hearing an application seeking maintenance from the husband under Section 125 of the Criminal Procedure Code.
Case Title: NAZRULLA KHAN @ NAZRULLA And THE STATE OF KARNATAKA
Case No: CRIMINAL APPEAL No.2045 OF 2018
Citation: 2022 LiveLaw (Kar) 276
The Karnataka High Court has set aside the conviction handed down to a husband under section 304-B (Dowry Death) of the Indian Penal Code, noting that there were discrepancies in the two dying declarations of the deceased wife, recorded before the police.
Case Title: RELIANCE GENERAL INSURANCE COMPANY LIMITED v GANGAPPA S/O. CHINNAPPA SAUNSHI
Case No: MISCELLANEOUS FIRST APPEAL NO. 102868 OF 2014
Citation: 2022 LiveLaw (Kar) 315
The Karnataka High Court has said that even married daughters are entitled for compensation on all the heads from the insurance company on the death of their parent in an accident.
A single judge bench of Justice H P Sandesh, sitting at Dharwad made the observation while dismissing the appeal filed by Reliance General Insurance Company Ltd challenging the order of the Motor Accidents Claim Tribunal dated May 9, 2014.
Case Title: Dr Shashidhar Subbanna v. State of Karnataka
Case no: Criminal Revision petition no 1612/2016 C/W Criminal revision petition 1613/2016
Citation: 2022 LiveLaw (Kar) 320
The Karnataka High Court has observed that a husband suggesting to his wife or asking her to pursue her education further, cannot be considered as cruelty.
Case Title: K.C.Ramu @ Ramanna v. State of Karnataka
Case No: CRIMINAL REVISION PETITION No.206 OF 2018 C/w. CRIMINAL PETITION No.711 OF 2018 AND CRIMINAL PETITION No.7026 OF 2019.
Citation: 2022 LiveLaw (Kar) 325
The Karnataka High Court has set aside an order of the Sessions Court discharging a woman accused of bigamy and hatching a conspiracy with her second husband to murder her first husband.
Case Title: HUSAINSAB v. MODINABI @ FAKRUBI
Case No: R.F.A.No.1979/2005
Citation: 2022 LiveLaw (kar) 326
The Karnataka High Court has held that a first cousin brother on the mother's side is not entitled to a share in the property of the deceased uncle, under the category of residuaries, as per Section 65 of the Mohammedan Law.
Case Title: KRISHNAPPA v ASHWATHAMMA
Case No: R.S.A.NO.87 OF 2010
Citation: 2022 LiveLaw (Kar) 362
The Karnataka High Court has held that a family settlement arrived at between parties to share immovable properties has to be among all the family members who agree to common terms and conditions and an agreement in writing between two parties to the suit arrived before the panchayat is not acceptable, unless it is a registered document.
The bench said, "Family settlement involves participation and the same needs to be signed by all the members and there has to be an acknowledgment when the agreement is arrived at, free of duress and coercion within the family members. A family settlement is admissible in evidence provided that the agreement is confirmed with approval of all family members who firmly support resolution given in the agreement at a later date which does not require registration."
'Marriage Dissolved, Chargesheet U/S 498A Without Any Substance': Karnataka HC Quashes Proceedings
Case Title: DR. SHAHUL HAMEED VALAVOOR & Others v. STATE OF KARNATAKA BY BANTWAL RURAL POLICE, BANTWAL.
Case No: CRIMINAL PETITION No.7036 OF 2019
Citation: 2022 LiveLaw (Kar) 408
The Karnataka High Court while quashing a case registered by a woman against her ex-husband and in-laws under section 498-A (dowry harassment) said the charge sheet filed on the basis of omnibus and general allegations is without any substance.
A single judge bench of Justice Hemant Chandangoudar allowed the petition filed by Dr. Shahul Hameed Valavoor and others and quashed the prosecution registered under sections 498 A read with Section 34 of IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961.
Case Title: MRS. DANIELA LIRA NANY v. THE STATE OF KARNATAKA
Case No: WRIT PETITION HABEAS CORPUS NO. 77 OF 2022
Citation: 2022 LiveLaw (Kar) 420
The Karnataka High Court has reiterated that disputes involving custody of minor children are complex, involving "human issues" and thus, there can be no straight-jacket formula to resolve the same. A division bench of Justices B Veerappa and KS Hemalekha said that such cases have to be decided on their own facts and circumstances, and no hard and fast rule can be laid down.
Karnataka High Court Quashes POCSO Case Against Muslim Man For Impregnating Minor Wife
Case Title: MOHAMMAD WASEEM AHAMAD & Others v. 1 STATE BY CHANDRA LAYOUT POLICE STATION.
Case No: CRIMINAL PETITION NO.5917 OF 2022
Citation: 2022 LiveLaw (Kar) 436
The Karnataka High Court has quashed the POCSO case registered against a Muslim man for impregnating his minor wife. The matter was put to rest after a settlement between the accused and the victim, who was married to him as per the Mohammedan Law.
The order was passed by Justice K.Natarajan on 10th October, two days before another single bench of the High Court declared that POCSO Act overrides personal law and thus, the age for involving in sexual activities is 18 years.
Case Title: XYZ v. ABC
Case No: CRIMINAL PETITION No.7582 OF 2022
Citation: 2022 LiveLaw (Kar) 438
The Karnataka High Court has said that maintenance under Section 125 CrPC is a matter of right to a neglected wife, even in cases where she withdraws the petition seeking divorce.
A single judge bench of Justice M Nagaprasanna said, "The divorce petition being withdrawn by the wife is of no avail as the wife is still in the matrimonial fold with the husband. So long as the respondent remains a legally wedded wife of the petitioner and the fact that she has been deserted by the husband, interim maintenance is a matter of right to the wife."
Wife Cannot Be Made Accused in NI Act Case For Cheque Issued By Her Husband: Karnataka High Court
Case Title: VEENASHRI v. SHANKAR
Case No: CRIMINAL PETITION NO.2129 OF 2019
Citation: 2022 LiveLaw (Kar) 439
The Karnataka High Court has said proceedings under Section 138 of the Negotiable Instruments Act cannot be initiated against the wife for "dishonor of the cheque issued by her husband".
A single judge bench of Justice M I Arun while allowing the petition filed by petitioner Veenashri and quashing the proceedings against her, said, "Petitioner cannot be made accused for dishonour of the cheque issued by her husband and he alone can be prosecuted for the same."
Adopted Child Entitled To Seek Compassionate Appointment: Karnataka High Court
Case Title: GIRISH S/O VINAYAK KMUTTATTI v. STATE OF KARNATAKA & Others
Case No: WRIT APPEAL NO. 100362 OF 2022
Citation: 2022 LiveLaw (Kar) 473
The Karnataka High Court has made it clear that an adopted child can seek compassionate appointment following the death of his/her adoptive parent who took care of the family.
A division bench of Justices Suraj Govindaraj and G Basavaraja observed, "A son is a son or a daughter is a daughter, adopted or otherwise, if such a distinction is accepted then there would be no purpose served by adoption."
Case Title: Uday Nayak v. Anita Nayak
Case No: Writ Petition no.22006 of 2022
Citation: 2022 LiveLaw (Kar) 504
The Karnataka High Court has said that a wife can claim maintenance under two different enactments, particularly after having been granted maintenance under a particular statute.
A single judge bench of Justice M Nagaprasanna rejected a petition filed by the husband challenging an order passed by the Family Court granting interim maintenance of Rs.30,000 to his wife under Section 24 of the Hindu Marriage Act. He argued that the wife was already in receipt of Rs. 20,000 maintenance in proceedings instituted under Section 12 of the Protection of Women from Domestic Violence Act, 2005.
'Unknown To Law': Karnataka High Court Dismisses Muslim Couple's Plea On Adopting Unborn Hindu Child
Case Title: Shahista & Others v. The State.
Case No: MISCELLANEOUS FIRST APPEAL NO.4617 OF 2022
Citation: 2022 LiveLaw (Kar) 509
The Karnataka High Court has said that Mohammedan Law does not recognise adoption and thus an agreement entered into between a Hindu couple to give their unborn child in adoption to a Muslim couple is not allowed.
A division bench of Justice B Veerappa and Justice K. S. Hemalekha dismissed a petition filed by the couples challenging the judgment of Additional Senior Civil Judge dismissing the petition filed under Sections 7 to 10 and 25 of the Guardians and Wards Act, 1890, by them.
Case Title: VS v. PKR & ANR.
Case No: WP 13165/2019
Citation: 2022 LiveLaw (Kar) 515
The Karnataka High Court has said that disclosure of mobile tower locations of a third party in a matrimonial case cannot be permitted as it would violate the right to privacy of the person, who is not a party to the proceedings.
Justice M Nagaprasanna said a citizen has a right to safeguard the privacy of his family, marriage and other incidental relationships. Informational privacy also forms an integral part of the right to privacy, said the court.
KERALA HIGH COURT
Case Title: K.S. Narayana Elayathu v. Sandhya
Citation: 2022 LiveLaw (Ker) 3
The Court ruled that while District Courts are empowered to appoint a guardian for a minor's property, only Family Court can appoint a guardian for the person of a minor. While partly allowing an appeal, a Division Bench comprising Justice A. Mohamed Mustaque and Justice Sophy Thomas set aside the proceedings of the District Court to the extent of appointing a guardian for the person of the minor.
Case Title: Thomas P. & Anr v. State of Kerala & Ors
Citation: 2022 LiveLaw (Ker) 15
The Court laid down that the Family Court with the respective territorial jurisdiction is empowered to give a child in adoption. After perusing the provisions of the Juvenile Justice Act 2015, the 2014 Rules framed thereunder and the Adoption Regulations 2017, Justice M.R. Anitha observed: "In the said circumstance, the finding of the learned District Judge that the court is not a proper forum and they have to approach the Child Welfare Committee is illegal and perverse."
Case Title: Mary Margret v. Jos P Thomas
Citation: 2022 LiveLaw (Ker) 44
While upholding a divorce decree, the Court observed that not taking treatment for mental issues in order to bring out a peaceful and harmonious family atmosphere, amounts to cruelty to the persons at the receiving end i.e., the Spouse.
A bench of Justice A. Muhamed Mustaque and Justice Sophy Thomas dismissed the wife's appeal as it came to the conclusion that the appellant was treating her husband with cruelty both physical and mental, and in the year 2005, she had deserted him.
Case Title: Joel K. Yoyakkim v. Sub Registrar & Ors.
Citation: 2022 LiveLaw (Ker) 70
The Court has ruled that when an Indian citizen intends to solemnise their marriage with an OCI (Overseas Citizen of India) Cardholder, any declaration evidencing their single status would be sufficient to register their marriage in India if the concerned foreign embassy does not issue certificates to that effect due to prevailing laws. Justice N. Nagaresh also opined that this was deemed necessary since no one can be compelled to perform an unattainable task that hinders the registration of their marriage.
Case Title: Dr. Uthara v. Dr. Sivapriyan
Citation: 2022 LiveLaw (Ker) 75
In a noteworthy judgment, the Court made several important observations on matrimonial cruelty and the scope of revival of condoned matrimonial offences. A Division Bench comprising Justice A. Muhamed Mustaque and Justice Sophy Thomas dismissed an appeal filed by a woman seeking to reverse the order of a Family Court which rejected her plea for divorce finding that she had failed to prove any form of matrimonial cruelty allegedly meted out on her.
Case Title: Beena M.S v. Shino G. Babu
Citation: 2022 LiveLaw (Ker) 78
The Court has held that if one of the spouses is refusing to accord divorce on mutual consent despite being convinced of the fact that the marriage has failed, it is nothing but cruelty to the other spouse. A Division Bench of Justice A. Muhamed Mustaque and Justice Sophy Thomas noted that once the court is able to form an opinion that due to incompatibility, the marriage failed and one of the spouses was withholding consent for mutual separation, it can very well treat that conduct itself as cruelty.
Citation: 2022 LiveLaw (Ker) 91
While granting a decree of divorce to a couple, the Court ruled that a wife making secret phone calls to a man ignoring her husband's warning against the same amounts to matrimonial cruelty. Justice Kauser Edappagth in his judgment also observed that mere compromise would not amount to condonation of cruelty unless and until the matrimonial life was restored.
Case Title: Shiny Shukoor v. Union of India & Ors.
Citation: 2022 LiveLaw (Ker) 106
The Court asked an Assistant Passport Officer in Kottayam to shell out litigation expenses amounting to Rs. 25,000 from his own salary for objecting to re-issue passport to a single parent's daughter. In his order, Justice Amit Rawal has also called it a classic case of highhandedness by the Assistant Passport Officer objecting to re-issue the passport of children of a single parent facing a matrimonial discord and directing them to approach the court and obtain the court order.
Proof Of Will : Onus Is On The Propounder To Remove Suspicious Circumstances : Kerala High Court
Case Title: Kousalya & Anr v. Leena & Ors.
Citation: 2022 LiveLaw (Ker) 112
The Court ruled that if there exist suspicious circumstances surrounding the execution of the will, it is the onus of the propounder to remove all those reasonable doubts in the matter and the test to be applied in this connection is the satisfaction of judicial conscience.Justices P.B. Suresh Kumar and C.S Sudha observed that suspicion cannot be removed by the mere assertion of the propounder that the will bears the testator's signature or that the testator was in a sound state of mind at the time when the will was made or that the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them.
Case Title: Chaitanya S. Nair (minor) v. Union of India & Ors.
Citation: 2022 LiveLaw (Ker) 127
The Court ruled that even if one of the parents of a minor child refused to give consent, the passport issuing authority is entitled to issue a passport to the minor, provided the requisite form is submitted. While allowing the petition of a minor girl, Justice Bechu Kurian Thomas also observed that there is no legal prohibition in incorporating a non-citizen as the legal guardian in the passport of a minor child.
Case Title: P.T. Philipose & Anr. v. Sunil Jacob & Ors.
Citation: 2022 LiveLaw (Ker) 139
The Court has ruled that every transaction by either of the spouse or by both of them with the in-laws or relatives cannot be termed as 'in circumstances arising out of a marital relationship under the Family Courts Act, 1984. A Division Bench of Justice A. Muhamed Mustaque and Justice Sophy Thomas found that the impugned transaction in the plea was purely a business transaction between the son-in-law and father-in-law, and hence held that it cannot be termed as circumstances arising out of a marital relationship.
Family Courts Not To Remain A Neutral Umpire, Can Order Enquiry To Find Out Truth: Kerala High Court
Case Title: Nisha Haneefa v. Abdul Latheef & Ors.
Citation: 2022 LiveLaw (Ker) 157
In a significant decision, the Court has issued a few observations regarding the foundational function of the Family Courts in India, while asserting that a Family Court is not the mirror of an ordinary Civil Court and that it is empowered with inquisitorial powers as well. A Division Bench of Justice A. Muhamed Mustaque and Justice Sophy Thomas observed that the presiding officer of a Family Court was not expected to remain a neutral umpire while resolving disputes, but was empowered to find out the truth by utilising a fair approach.
Case Title: Leelamma Eapen v. District Magistrate & Ors
Citation: 2022 LiveLaw (Ker) 158
The Court has ruled that the power of the Maintenance Tribunal under the Senior Citizens Act is not circumscribed to mere ordering of monthly allowance for the maintenance of senior citizens where their children/relatives refuse to maintain them but to ensure maintenance from their own earnings to lead a dignified life. Justice Murali Purushothaman held that the Maintenance Tribunal has the jurisdiction and powers to issue directions to the children or relative not to deprive the senior citizen of their earnings so that they can maintain themself.
Case Title: Beksy A v. District Collector & Ors.
Citation: 2022 LiveLaw (Ker) 160
The Court reiterated that the marriage of an individual from one caste to another as permitted by law has no relevance for the purpose of claiming the benefit of reservation under Article 16(4) of the Constitution of India. Observing so, Justice P.V. Kunhikrishnan allowed the plea moved by a woman who had challenged the order rejecting her application for a caste certificate citing that she had married to another caste, and thus not eligible for the same.
Case Title: Shameena Siddique & Anr. v. M. Abubekhar Siddiq & Ors.
Citation: 2022 LiveLaw (Ker) 200
The High Court has ruled that a Magistrate is empowered to decide the pela of talaq raised by the husband in his wife's petition filed under the Domestic Violence Act if he disputes their marital status on that ground. Justice Kauser Edappagath thereby allowed a criminal revision petition holding that the finding of the appellate court that the Magistrate has no power to decide the validity of the talaq is wrong and only to be set aside.
Case Title: Mujeeb Rahiman v. Thasleena & Anr.
Citation: 2022 LiveLaw (Ker) 218
In a significant judgment, the Court has reiterated that a divorced Muslim woman can seek maintenance under Section 125 of CrPC until she obtains relief under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act while adding that an order passed under Section 125 shall continue to remain in force until the amount payable under Section 3 of the Act is paid. It was also held that the wife cannot be allowed to circumvent the provisions of the Act by refusing the offer made by the husband to make the payment under Section 3 without any valid reason.
Case Title: Mini Antony v. Savio Aruja
Citation: 2022 LiveLaw (Ker) 227
The Kerala High Court has established that the inconvenience of the power of attorney holder of the husband in a case before the Family Court (whether male or female) is not a reason to deny the transfer sought for by the wife. Justice A. Badharudeen found that by appointing a power of attorney, a principal appoints an agent to conduct his case and such an agent can be anybody capable of travelling and contesting the case of the respondent for and on behalf of the respondent.
Case Title: Sharafudheen V.T v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 260
The Court dismissed a habeas corpus petition filed by a husband seeking the production of his wife in an interfaith marriage finding that the wife had grave apprehensions about her safety at the petitioner's residence. A Division Bench of Justice K. Vinod Chandran and Justice C. Jayachandran dismissed the petition filed by the husband contending that his wife has been illegally confined by her father.
Case Title: Neethu v. Trijo Joseph
Citation: 2022 LiveLaw (Ker) 288
It has been ruled that a Court can strike off the defence of the defaulter if they deliberately or willfully refuse to comply with its order directing payment of interim maintenance under the Protection of Women from Domestic Violence Act (DV Act). Justice Kauser Edappagath held so after observing that in Rajnesh v. Neha & Anr, the Supreme Court had upheld the power of the court to strike off the defence if there was willful and contumacious non-compliance with the order of payment of maintenance.
Case Title: C Abdul Aziz & Ors. v Chembukandy Safiya & Ors.
Citation: 2022 LiveLaw (Ker) 332
The Kerala High Court observed that a partition deed executed by a Muslim mother on behalf of her minor children acting as their guardian is not valid going by the precedents of the Supreme Court. The Division Bench of Justice P. B Suresh Kumar and Justice C.S Sudha observed that while there was nothing in the personal law prohibiting the same, it was bound by the precedents of the Supreme Court which have established that the Muslim mother cannot be the guardian of her minor child's person or property except for movable property.
Production Of Succession Certificate Mandatory When Decree Holder Dies Only If Decree Amount Comes Under 'Debts' Or 'Securities': Kerala High Court
Case Title: M. Baburaj v. State of Kerala
Citation: 2022 LiveLaw (Ker) 353
The Kerala High Court held that the production of a succession certificate is mandatory as per Section 214(1)(b) of the Succession Act when the decree-holder dies in cases where the decree amount comes under the category 'debts' or 'securities'. Justice A Badharudeen further added that when the decree-holder dies after the deposit has been made, an exemption is made for the production of a succession certificate.
Case Title: Elappully Erancheri Jama-Ath Palli & Anr v. Mohammed Haneef & Ors.
Citation: 2022 LiveLaw (Ker) 358
The Kerala High Court ruled that every Muslim has the right to offer prayers in any mosque or bury their dead bodies in a public khabarsthan and that this cannot be obstructed merely because they belong to a different sect. A Division Bench of Justice S.V. Bhatti and Justice Basant Balaji was dealing with a petition filed by a wakf arguing that since some of its members had changed to a different sect, they were not entitled to offer prayers and buried their dead bodies in its property.
Case Title: XXX v. Registrar of Births and Dead Pathanamthitta Municipality and ors.
Citation: 2022 LiveLaw (Ker) 373
In a significant order, Kerala High Court, while allowing a Writ Petition held that a person has the right to not specify the name of their father in identity documents. The Court passed the order recognising the agonies faced by children of unwed mothers and rape victims. Referring to the Mahabharata charcater Karna, the Court observed in the judgment "We want a society with no such characters like "Karna," who curses his life because of the insult he faced for not knowing the whereabouts of his parents".
Kerala High Court Allows Bride To Appear Through Online Mode For The Solemnization Of The Marriage
Case Title: Shan S & anr. v. Marriage Officer
Citation: 2022 LiveLaw (Ker) 374
The Kerala High Court in a Writ Petition allowed one of the parties to appear through online mode for the solemnization of their marriage before the Marriage Officer. Justice V.G. Arun allowed the second petitioner, who is a Canadian citizen with an Overseas Citizen of India Card to appear before the Marriage office in online mode for the solemnization of their marriage, however, this is subject to certain conditions.
Case Title: R. Karthik v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 377
The Kerala High Court held that a person born in a particular community cannot be denied community certificate merely for the reason of change in his residence or because his mother and wife belong to another community. Justice VG Arun opined that to determine the community status of a person, enquiry must be conducted about the caste to which the applicant is born and how he was brought up and the mere fact that he changed residence or married a belonging to another caste, are not determining factors.
Case Title: Ajayakumar & Anr. v. State of Kerala
Citation: 2022 LiveLaw (Ker) 405
The Kerala High Court held that merely because an accused is found guilty under Section 498A of the IPC (cruelty), does not imply that he must also be held guilty of abetting his wife's suicide under Section 306 IPC.
Justice A. Badharudeen emphasised that Sections 498A (cruelty) and 306 IPC (abetment to suicide) are independent and constitute different offences.
Order Cancelling Maintenance U/S 127 CrPC Cannot Operate Retrospectively: Kerala High Court
Case Title: Jumaila Beevi v. A. Nissar
Citation: 2022 LiveLaw (Ker) 411
The Kerala High Court ruled that an order of cancellation of maintenance under Section 127(2) of the Code of Criminal Procedure (CrPC) always operates prospectively and not retrospectively.
A Division Bench of Justice A. Muhamed Mustaque and Justice Sophy Thomas added that such cancellation orders cannot date back to the date of application and will operate only from the date the maintenance was cancelled.
Case Title: Jincy K v. Vivek M.P
Citation: 2022 LiveLaw (Ker) 420
The Kerala High Court allowed a Transfer Petition observing that it is the convenience of the woman and children that has to be looked into while ordering the transfer of a case from one Court to another in matrimonial cases.
Justice C. S. Dias concluded so after referring to the Apex Court decisions regarding the transfer of matrimonial proceedings.
Case Title: Biny Kuriakose v. Joseph Sebastian & connected matters.
Citation: 2022 LiveLaw (Ker) 424
The Kerala High Court has ruled that while transferring petitions filed for custody of children, the convenience of the child should be given preference particularly when the wife is abroad and appearing through a power of attorney.
Observing so, Justice C.S Dias transferred all the pending cases between a couple to the court near the permanent residence of their child.
Case Title: xxxxxxx v. xxxxxxxxxx
Citation: 2022 LiveLaw(Ker) 433
The Kerala High Court, while dismissing a Matrimonial Appeal, observed that when a marriage has broken down beyond repair, the law should take notice of the fact as refusing to serve the legal tie of such marriages would be injurious to the interest of the parties as well as the society.
Division Bench, Consisting of Justice Anil K Narendran and Justice C S Sudha observed that nothing is gained by trying to keep the parties tied for ever to a marriage that in fact has ceased to exist.
Husband's Repeated Taunts, Comparisons With Other Women Qualify As Mental Cruelty: Kerala High Court
Case Title: xxxxxxxx v. xxxxxxxxxx
Citation: 2022 LiveLaw(Ker) 433
The Kerala High Court observed that constant and repeated taunts of the husband that his wife did not meet his expectations and comparisons with other women would amount to mental cruelty as contemplated under Section 10(x) of the Divorce Act, 1869 for the purpose of dissolution of marriage.
A Division Bench of Justice Anil K Narendran and Justice C. S. Sudha observed that for the conduct of a spouse to fall within the ground of cruelty, it should be 'grave and weighty' to the extent that the petitioner's spouse cannot be reasonably expected to live with the other spouse, and should be serious that "ordinary wear and tear of married life".
Case Title: Mathew Daniel v. Leena Mathew
Citation: 2022 LiveLaw(Ker) 441
The Kerala High Court held that the Magistrate exercising jurisdiction under the Protection of Women from Domestic Violence Act, 2005 (DV Act) has the power to refer the matter before it to mediation as per Section 89 of Civil Procedure Code (CPC), record the compromise and pass an order in terms of the settlement applying the principles of Order XXIII Rule 3 of CPC.
Case Title: Anuvarudeen v. Sabina
Citation: 2022 LiveLaw(Ker) 450
The Kerala High Court, while setting aside two orders restraining a Muslim man from invoking irrevocable Talaq and from conducting a second marriage, held that the Courts have no role in restraining the parties from invoking their personal law remedies as otherwise, it would be violative of their rights protected under Article 25 of the Constitution of India.
Division Bench consisting of Justice A. Muhamed Mustaque and Justice Sophy Thomas observed that the Court have no role in restraining the parties from invoking their personal law remedies as otherwise, it would be an encroachment of their constitutionally protected right.
Case Title: Madeswari v. K. Manickam
Citation: 2022 LiveLaw (Ker) 451
The Kerala High Court held that conducting DNA test and proving child's paternity would not be enough to prove the existence of a marriage or domestic relationship in a proceeding under Domestic Violence Act, 2005, when paternity or legitimacy in itself was not a fact in issue.
Justice Kauser Edappagath while holding so, observed that under the DV Act, what is required to be proved in order to maintain an application is that of the petitioner being an aggrieved person, and there being a domestic relationship between the parties.
Case Title:James Robert Edward Peirce & Ors. v. Anna Mathew & Ors.
Citation: 2022 LiveLaw (Ker) 457
The Kerala High Court held that an application with respect to the guardianship of a minor has to be made to the District Court having jurisdiction in the place where the "minor ordinarily resides".
A Division Bench consisting of Justice A Muhamed Mustaque and Justice Sophy Thomas observed that citizenship or domicile of the father of a child, or the fact that rightly or wrongly the child had acquired a foreign passport, will have no bearing in determining the jurisdiction.
Youngsters Avoiding Marriage To "Enjoy Free Life", Live-In Relationships On Rise : Kerala High Court
Case Title: xxxx v. xxxx
Citation: 2022 LiveLaw (Ker) 463
The Kerala High Court expressed concerns that the consumerist culture of 'use and throw' has affected matrimonial relationships. The Court lamented that the younger generation is seeing marraige as an "evil", which has to be avoided to "enjoy free life" and that live-in relationships are on the rise.
Remarking upon the sanctity that the institution of marriage has been attributed with, the Division Bench composed of Justice A. Muhammed Mustaque and Justice Sophy Thomas, observed, "Kerala, known as God's own Country, was once famous for its well knit family bondage. But the present trend it seems to break the nuptial tie on flimsy or selfish reasons, or for extra-marital relationships, even unmindful of their children. The wails and screams coming out of disturbed and destroyed families are liable to shake the conscience of the society as a whole. When warring couples, deserted children and desperate divorcees occupy the majority of our population, no doubt it will adversely affect the tranquility of our social life, and our society will have a stunted growth".
Case Title: Brinda & Ors v. Muktha K.N.
Citation: 2022 LiveLaw (Ker) 479
The Kerala High Court held that in order to attract Clause (c) of explanation to Section 7(1) of the Family Courts Act, it must be satisfied that a suit or proceedings for an order or injunction should be in circumstances "arising out of a marital relationship", and the dispute should be one with respect to the properties of such 'parties to marriage'. The provision states that a Family Court shall exercise jurisdiction in respect of suits and proceedings between the parties to a marriage with respect to the property of the parties or of either of them.
Thus, Justice MR Anitha held that a property dispute between a mother and her children cannot be included under Clause (c) of explanation to Section 7(1) of the Family Courts Act, for it is a civil dispute and does not involve any questions regarding the marital status or validity of marriage and as a consequence, it cannot be said that jurisdiction of Civil Courts is barred in case of such dispute between a mother and child.
Case Title: Lalan P. R. & Anr v. Chief Registrar General of Marriages (Common) & Anr.
Citation: 2022 LiveLaw (Ker) 520
In a significant order, the Kerala High Court held that the religion of the parties is not a consideration for registering marriages under the Kerala Registration of Marriages (Common) Rules, 2008.
Justice P. V. Kunhikrishnan observed, "The only condition for the registration of the marriage as per Rule 6 of the Rules, 2008 is that the marriage is to be solemnized. Religion of the parties is not a consideration for registering marriages."
It added that simply because the father or mother of one of the parties to a marriage belongs to a different religion, it is not a reason to reject an application submitted for registration of the marriage as per the Rules, 2008.
Case Title: Cardinal Mar George Alencherry v. State of Kerala
Citation: 2022 LiveLaw (Ker) 550
The Kerala High Court requested the Central Government to explore the possibility of a uniform Central legislation to regulate the functioning of charitable organizations and religious institutions.
Justice P. Somarajan made the above request while addressing the issue of massive encroachment upon Government properties, particularly by religious/ charitable institutions, and the inaction on part of the Government, political leaders and the society at large in this regard.
Case Title: Sandra Stephen v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 554
The Kerala High Court has prima facie held that the extent of family house plot of a married woman living separately cannot be a reason for denying her EWS Certificate. It thus directed the Village Officer to issue a provisional Economically Weaker Section (EWS) Certificate to the Petitioner, subject to the final outcome of the Writ Petition.
Justice V G Arun while admitting the Writ Petition, observed that:
I find prima facie merit in the contention urged by the learned Counsel for the petitioner that, being a married woman living separately, the extent of her family's house plot cannot be a reason for denying the EWS certificate to the petitioner.
Case Title: XXXXX v. XXXXX
Citation: 2022 LiveLaw (Ker) 559
Observing that Islamic law recognises a Muslim woman's right to demand termination of marriage, the Kerala High Court has ruled that the will of the wife cannot be "related to the will of the husband" who may not be agreeing to the divorce.
Dismissing a review petition against a judgment wherein the court had recognized a Muslim woman's right to resort to Khula, the division bench of Justice A. Muhamed Mustaque and Justice C. S. Dias said: "In the absence of any mechanism in the country to recognize the termination of marriage at the instance of the wife when the husband refuses to give consent, the court can simply hold that khula can be invoked without the conjunction of the husband"
The court at the outset of the 59-page judgment said:
"This is a typical review portraying that Muslim women are subordinate to the will of their male counterparts. This review does not look innocuous at the instance of the appellant, but rather appears to have been fashioned and supported by clergies and the hegemonic masculinity of the Muslim community who are unable to digest the declaration of the right of Muslim women to resort to the extra-judicial divorce of khula, unilaterally".
Case Title: XXXXX v. XXXXX
Citation: 2022 LiveLaw (Ker) 559
The Kerala High Court has said that Islamic clergy, who have no legal training or knowledge in legal sciences, cannot be relied upon by the court to decide on a point of law relating to the personal law applicable to the Muslim community.
"Ordinary scholars and the Islamic clergy, who have no formal legal training find it difficult to deduce Islamic law from its sources," said the division bench consisting of Justice A. Muhamed Mustaque and Justice C. S. Dias, while dismissing a revision petition challenging its decision on interpretation of Khula.
The bench said the courts are manned by trained legal minds and "shall not surrender" to the opinions of Islamic clergy, who has no legal training on the point of law.
Case Title: NG v. AKG & Ors.
Citation: 2022 LiveLaw(Ker) 574
The Kerala High Court reiterated the settled position that while considering custody matters, Court must pass orders ensuring that the child is not totally deprived of the love, affection and company of one of the parents.
The Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar observed that if the child is denied the opportunity to interact with one of the parents, it certainly will cause "snapping of the emotional and psychological bondage". While stating so, the bench took note of the position in Yashita Sahu v. State of Rajasthan (2020) where the Supreme Court held that child has a human right to have the love and affection of both parents. "Just because the parents are at war with each other, does not mean that the child should be denied the care, affection, love or protection of any one of the two parents. A child is not an inanimate object which can be tossed from one parent to the other. Every separation and every re-union may have a traumatic and psychosomatic impact on the child," the SC had said.
Case Title: Khaledur Rahman v. State of Kerala & Anr.
Citation: 2022 LiveLaw (Ker) 600
The Kerala High Court has ruled that a marriage between Muslims under personal law is not excluded from the sweep of the POCSO Act.
Justice Bechu Kurain Thomas said if one of the parties to the marriage is a minor, irrespective of the validity or otherwise of the marriage, offences under the POCSO Act will apply.
The court disagreed with the view taken by the Punjab and Haryana High Court in Javed v. State of Haryana (2022 LiveLaw (PH) 276); by Delhi High Court in Fija and Another v. State Govt. of NCT of Delhi and Others (2022 LiveLaw (Del) 793) and by Karnataka High Court in Mohammad Waseem Ahamad v. State (2022 LiveLaw (Kar) 436). "With respect to the learned Judges, I am unable to agree to the proposition laid down in those decisions that an offence under the POCSO Act will not get attracted against a Muslim marrying a minor," Justice Thomas said.
Case Title: Suhadath K.K. v. Shihab K.B. & Anr.
Citation: 2022 LiveLaw (Ker) 606
The Kerala High Court upheld the Magistrate Court's order granting an amount of Rs. 31,68,000/- as maintenance to a divorced woman under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986.
Single Judge Bench of Justice Kauser Edappagath observed that the parties hail from financially strong backgrounds and have a "very high" standard of living. It reiterated, "It is trite that the court while fixing the reasonable and fair provision of maintenance to be paid to a divorced woman shall keep in view the status of parties, capacity of the former husband to pay maintenance and also other attendant circumstances. The amount so fixed must be enough to take care of the future needs of a woman in the prevailing socio-economic...It has come out in evidence that both the petitioner and the 1st respondent are hailing from very financially well settled families and their standard of living was very high."
Case Title: Suneesh v. State of Kerala & Anr.
Citation: 2022 LiveLaw (Ker) 635
The Kerala High Court reiterated that the penalty provided under Section 31 of the Protection of Women from Domestic Violence Act would attract only for the breach of the protection orders passed under Section 18 of the Act and in case of violation of any other order passed under the 2005 enactment, the provisions of CrPC can be resorted to.
The breach of a protection order passed under Section 18 is an offence under Section 31 and can lead to imprisonment of one year. Justice A. Badharudeen in the decision dated December 5 considered the question that whether failure to comply with the order passed under Section 20 (monetary reliefs) would also attract penal proceedings under Section 31. The court said while incorporating provisions under Section 31 to impose penalty for breach of 'protection order', the legislature never intended to impose penalty for violation of 'residence orders' or 'monetary reliefs' under the Act.
"Based on this principle, this Court in Velayudhan Nair v. Karthiayani's case held that Section 31 of the D.V Act would apply only on violation of the interim order or final protection order passed under Section 18 of the D.V Act and it was held further that in case of violation of any order passed other than an order passed under Section 18 of the D.V Act, the provisions of the Cr.P.C can be resorted to," said Justice Badharudeen.
Case Title: Anvar Sadath Ibrahimkutty and Anr. v. The Chief Registrar General of Marriage and Ors.
Citation: 2022 LiveLaw (Ker) 637
The Kerala High Court held that authorities can entertain an application under Rule 13 of Kerala Registration of Marriages Rules 2008 for correction or cancellation of entries in the Register of Marriages (Common) only at the instance of the parties to the marriage.
Justice P. V. Kunhikrishnan observed that a third person who is not a party to the marriage cannot file an application for correction or cancellation of entries in the Register of Marriages (Common).
"From a plain reading of Rule 13 of Rule 2008, it clear that the 'application of the parties' referred to in Rule 13(1) means the parties to the marriage. Parties to the marriage means the spouses, that is husband and wife. A third person who is not a party to the marriage cannot file an application for correction or cancellation of entries".
Case Title: Anup Disalva & Anr. v. Union of India
Citation: 2022 LiveLaw (Ker) 640
The Kerala High Court held that the fixation of the minimum period of separation of one year under Section 10A of the Divorce Act, 1869 is violative of the fundamental rights and struck it down.
The Division Bench comprising Justice A. Muhamed Mustque and Justice Shoba Annamma Eapen, noted that the Legislature had imposed such a period in its wisdom, in order to act as a safeguard against impulsive decisions that may be taken by parties to separate and rid themselves of the marriage. "This period will insulate possible peril that may ensue for the parties as a follow-up of the decision for mutual separation. In the Indian social context, though marriages are solemnized by two individuals, it is seen more as a union for laying the foundation for a strong family and society. Many laws have been made and many rights have been created based on familial relationships. The legislature, therefore, decided that a minimum period of separation must precede before presentation of a petition for divorce on the ground of mutual consent".
However, the Court was quick to note that in the instant case, it was posed with the question as to whether, in the absence of any provisions allowing the parties to a marriage to move the Court before the lapse of one year from the date of marriage or the date of separation, the provisions could stand the test of constitutional scrutiny. "We would not have thought of interfering with a minimum period as it carries a laudable object behind it. But we are constrained to note that no remedy is provided by statute in exceptional and depraved conditions for a spouse to approach the Courts to get rid of the minimum period. The legislature in their wisdom felt that some provisions are to be made to relax the rigour of the minimum period to entertain a petition within the waiting period of separation in other statutes. This essentially ensures that efficacious judicial remedy is provided in cases of exceptional hardships to the parties. The denial of such a remedy to Christians bothers us", it observed.
Case Title: Anup Disalva & Anr. v. Union of India
Citation: 2022 LiveLaw (Ker) 640
The Kerala High Court said that the Union Government should seriously consider having a uniform marriage code in India in order to promote the common welfare and good of spouses in matrimonial disputes.
The Division Bench of Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen said the law at present differentiates parties on the basis of their religion, when it comes to matrimonial relationships.
"In a secular country, the legal paternalistic approach should be on the common good of the citizens rather than based on religion. The State's concern must be to promote the welfare and good of its citizens, and religion has no place in identifying the common good," said the court.
Case Title: Kiran Kumar S v. State of Kerala & Anr.
Citation: 2022 LiveLaw (Ker) 649
The Kerala High Court while dismissing the application filed by Kiran Kumar, the convict in the Vismaya dowry death case, seeking an interim order for suspension of his 10 years sentence, observed that even if there was no demand for dowry before or at the time of marriage, the subsequent demand made is sufficient to attract the definition of dowry under Section 2 of the Dowry Prohibition Act, 1961.
Division Bench consisting of Justice Alexander Thomas and Justice Sophy Thomas while expressing concern on the rise in atrocities against women in their matrimonial homes and harassment for dowry, observed that while enacting Section 304B of the IPC, the Legislature strongly intended to curb the social evil of dowry demand. Section 2 of the Dowry Prohibition Act was amended with effect from 19.11.1986, and Section 304B dowry death was introduced in the Indian Penal Code with effect from the very same day, i.e., on 19.11.1986. Section 113 B presumption as to dowry death was also introduced in the Indian Evidence Act, 1872, on the same day i.e., 19.11.1986. So the Legislative intent in bringing out these amendments in all the three statues simultaneously will show the strong desire to eradicate the social evil of dowry death from the society using the iron hands of law.
S.125 CrPC Confers Implied Power To Grant Interim Maintenance: Kerala High Court
Case Title: M.K. Gheevarghese v. Mariam Gheevarghese
Citation: 2022 LiveLaw (Ker) 654
The Kerala High Court reiterated that in the absence of any express bar or prohibition, Section 125 Cr.P.C. could be interpreted as conferring power by necessary implication to make interim order of maintenance subject to final outcome in the application.
The Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar while holding so, noted that the Apex Court in its decision in Shaila Kumari Devi v. Krishnana Bhagwan Pathak (2008) observed, that "so far as 'interim' maintenance is concerned, it is true that Section 125 of the Code as it originally enacted did not expressly empower the Magistrate to make an order directing payment of interim maintenance. But the Code equally did not prohibit the Magistrate from making such an order. Now, having regard to the nature of proceedings, the primary object to secure relief to deserted and destitute wives, discarded and neglected children and disabled and helpless parents and to ensure that no wife, child or parent is left beggared and destitute on the scrap-heap of society so as to be tempted to commit crime or to tempt others to commit crime in regard to them, it was held that the Magistrate had 'implied power' to make orders to pay interim maintenance. The jurisdiction of the Magistrate under Chapter IX (Order for Maintenance of Wives, Children and Parents) is not strictly criminal in nature. Moreover, the remedy provided by Section 125 of the Code is a summary remedy for securing reasonable sum by way of maintenance".
Case Title: K.G. Sunilkrishnan v. K.G. Premsankar
Citation: 2022 LiveLaw (Ker) 655
The Kerala High Court said that when an original petition is converted to a suit as contemplated under Rule 26 of the Indian Succession Rules (Kerala), 1968, the court fee has to be paid under Article 11 (k) of Schedule II of the Court Fees Act.
A trial court had earlier directed a plaintiff to pay court fees under Section 25(a) of the Act read with Article 1 Schedule I of the Court Fees Act, even after conversion of original petition to suit. However, Justice C.S. Dias said the same is incorrect and wrong.
The court said Chapter VI of the Kerala Court-Fees and Suits Valuation Act, 1959 deals with the manner in which court fee is to be computed and paid on applications filed for probate, letter of administration and certificate of administration.
Case Title: Amaldev v. Preeja & Anr.
Citation: 2022 LiveLaw (Ker) 659
The Kerala High Court deprecated attempts made by qualified persons to establish less income by producing salary certificates issued from private entrepreneurs, without opportunity to the other side to cross-examine the author of the document, in order to avoid paying maintenance to wife and children.
The Single Judge Bench of Justice A. Badharudeen observed that courts shall consider the entire evidence, the professional or other qualifications, otherwise the physical condition and all other attenuating circumstances of the husband/respondent, while quantifying the maintenance allowance.
"Clever attempts of qualified persons to establish less income by producing salary certificates issued from private entrepreneurs, without opportunity to the other side to cross-examine the author of the document to test its genesis, shall not be the sole basis of considering the income of the husband/respondent in a maintenance petition and such certificates alone shall not be decisive in determining the income also. The courts shall consider the entire evidence, the professional or other qualifications, otherwise the physical condition and all other attenuating circumstances of the husband/respondent, while quantifying the maintenance allowance".
Section 125 CrPC | Maintenance Must Be Granted From Date Of Filing Of Petition: Kerala High Court
Case Title: Sreeja T. & Ors. v. Rajaprabha
Citation: 2022 LiveLaw (Ker) 661
The Kerala High Court held that a petitioner under Section 125 CrPC must be granted maintenance from the date of filing of petition and not just date of passing of order.
Expressing shock at a Family Court's decision of granting maintenance from the date of order and not from the date of filing of petition, Justice A. Badharudeen said any deviation must come with reasons recorded in the order.
"...when a party claims allowance of maintenance by filing a petition, the party must get the maintenance from the date of the petition onwards and the same is the sanction of law. No doubt, deviation therefrom can be had for specified reasons to be recorded in writing and not otherwise. In the order impugned, the learned Family Court Judge not stated any reasons to deny maintenance from the date of petition and to grant the same from the date of order. Before this Court also nothing available to disallow maintenance from the date of the petition. In fact, there is no justifiable reason to uphold the said finding. To the contrary, it is held that the denial of maintenance allowance from the date of the petition without recording specific reasons is not the sanction of law and therefore, the said order is liable to be set aside..."
Case Title: Vysakh K.G. v. Union of India & Anr. And Other Connected Cases
Citation: 2022 LiveLaw (Ker) 665
Pronouncing a significant verdict on the "right to be forgotten", the Kerala High Court held that personal information of the parties may not be published on the High Court website in respect of the family and matrimonial cases if the parties in those cases make such a request.
While holding that the claim for protection of personal information based on right to privacy cannot coexist in open court justice system, the Court however permitted the masking of personal identities in matrimonial cases and in cases where the law does not recognize the open court system (cases for rape and sexual offences where the trial is held in-camera).
The Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen, said, "In family and matrimonial cases arising in family court and jurisdictions otherwise, and also in other cases where the law does not recognize open court system, the registry of the Court shall not publish personal information of the parties or shall not allow any form of publication containing the identities of parties in the website or any other information system maintained by the Court if the parties to such litigations so insist".
Case Title: Arun v. Reshma
Citation: 2022 LiveLaw (Ker) 667
The Kerala High Court observed the wife not being able to lead a peaceful life in matrimonial home, in view of the particular circumstances there, may not always be 'cruelty' but could be a reasonable ground to deny 'joint residence' and same does not grant the husband any discretion to deny payment of maintenance.
Justice A. Badharudeen, while dealing with an argument that wife may not be legally entitled to get maintenance from husband after leaving matrimonial home voluntarily, said:
"... when a party seeks divorce on the ground of cruelty, there shall be sufficient pleadings alleging cruelty, and evidence to prove the cruelty, to succeed in the divorce petition. But difference of opinion otherwise, in view of the particular circumstances at the matrimonial home, whereby the wife could not lead a peaceful life time, shall not, always be 'cruelty', but these are also reasonable grounds to deny joint residence. In such cases, it could not be held that there was willful discretion to deny payment of maintenance".Case Title: Guljar Khan Vs The State Of Madhya Pradesh And Others
Citation: 2022 LiveLaw (MP) 21
Deciding a Habeas Corpus petition, the High Court of Madhya Pradesh upheld the constitutional right of major persons to stay together, either by way of marriage or live-in relationship.
Justice Nandita Dubey was essentially dealing with a petition moved by a husband who alleged that the parents of his wife have forcibly taken her to Banaras and have illegally detained her. The Petitioner submitted that he married his wife with her consent and that she willingly embraced Islam.
Case Title: Rajlakshmi Foundation v. The State Of Madhya Pradesh
Case citation: 2022 LiveLaw (MP) 28
The Madhya Pradesh High Court, Indore Bench recently dismissed a PIL that sought for transfer of power of a Family Court in respect of deciding custody of a child, to the Child Welfare Committee (CWC). The division bench of Justice Vivek Rusia and Justice Rajendra Kumar (Verma) also imposed a cost of Rs. 10,000 on the Petitioner, calling the petition to be "nothing but a misuse of the process of law".
NOC From Husband Not Required For Wife To Donate Kidney: Madhya Pradesh High Court
Case Title: Meena Devi v. State of Madhya Pradesh
Case citation: 2022 LiveLaw (MP) 37
The High Court of Madhya Pradesh recently held that the rejection of an application, moved by the Petitioner/mother to donate her kidney to her ailing son, by the Respondent/Hospital on the ground of non-issuance of the NOC by her husband was not sustainable.
Justice Purushaindra Kumar Kaurav was dealing with a writ petition filed by the Petitioner who was aggrieved by the communication from the Hospital, whereby it had rejected her request for a kidney transplant.
Case Title: Shakila Begum (Siddiqui) & another Vs Northern Coal Field Ltd. & others
Citation: 2022 LiveLaw (MP) 40
The Madhya Pradesh High Court recently held that the policy of National Coal Wage Agreement (NCWA) to not consider sisters/ married daughters for compassionate appointment is a clear case of gender bias and is thus, unconstitutional.
Justice S.A. Dharmadhikari was essentially dealing with a writ petition filed by the Petitioner who was aggrieved by the order passed by the Respondent company, whereby it had rejected her application for grant of compassionate appointment on the ground that she is a married daughter of the deceased.
Case Title: GENERAL ADMINISTRATION DEPARTMENT v. PREMSINGH
Citation: 2022 LiveLaw (MP) 42
The Madhya Pradesh High Court, Indore Bench recently upheld the decision of a single bench wherein the Writ Court had directed the State to consider the younger son of a deceased government employee for compassionate appointment, despite his elder son serving in the Indian Army. The division bench of Justice Vivek Rusia and Justice Pranay Verma noted that the elder son, though was in regular employment, lived separately, had constituted his own family and was not in a position to provide financial aid to the deceased's family, i.e. deceased's wife and younger son.
Case Title: FAISAL KHAN Vs THE STATE OF MADHYA PRADESH AND OTHERS
Citation: 2022 LiveLaw (MP) 43
The Madhya Pradesh High Court on Tuesday, directed the release of an adult woman confined at Nari Niketan, who was facing opposition in her family for wanting to marry a man outside her religion. The division bench of Justice Sheel Nagu and Justice Manindar Singh Bhatti further advised her to concentrate on finishing her studies, stating that marriage, though important, can be postponed when pitched against education.
Case Title: Jaya Chakravarti Versus The State of Madhya Pradesh and others
Citation: 2022 LiveLaw (MP) 56
The High Court, Indore Bench refused to pass an order of child custody in favour of the Appellant-mother, upon noting that the children themselves had expressed their inclination to reside with their father.
"It is true that both of them are minor, however, the age of 16 years is not such an age where a child, given a choice, is not able to make up his or her mind as to his or her inclination to reside with either of the parents. In the present case, this choice has been exercised in favour of the father and thus, despite agreeing with the contentions of the appellant/petitioner regarding the legality of the impugned order, the learned Writ Court has not found it to be appropriate to hand over the custody of the children to the appellant/petitioner/wife," division bench of Justice Subodh Abhyankar and Justice Satyendra Kumar Singh observed.
Case title : Raghunandan Dhakad Vs. The State of M.P.
Citation :2022 LiveLaw (MP) 69
The High Court of Madhya Pradesh, Gwalior Bench held that the paramour of mother-in-law of the deceased would not come within the ambit of Section 304-B IPC, since he cannot be considered to be a family member of the husband of the deceased for the purpose of Section 304-B and 498-A IPC.
Justice Anand Pathak was dealing with a criminal revision preferred by the Applicant, challenging the order passed by the trial court, whereby the court framed charges against him for offences punishable U/S 304-B R/W 109 IPC.
Case title: Siddhi Gupta v State of Madhya Pradesh
Citation:2022 LiveLaw (MP) 71
The Madhya Pradesh High Court on Wednesday refused to accede to the request of a family to bring their adult daughter (Petitioner) back to them, under police custody, and to further hand her over to them. The Petitioner, who eloped from her house to pursue further studies and aspired to be an IAS Officer, had approached the Court seeking protection from her family
Justice Nandita Dubey was dealing with a writ petition filed by a 20-year-old woman who was worried about her safety, pursuant to an F.I.R. lodged by her uncle, from whose house she went missing.
Case Title: Alka sharma and anr. V. The state of madhya pradesh and ors.
Citation: 2022 LiveLaw (MP) 78
The Madhya Pradesh High Court, Indore Bench refused to interfere in a matter related to custody of a child, holding that an adopted child cannot be handed over to his biological parents without enquiring whether the child has any knowledge of his parentage. The Court further noted that family courts are appropriate forums for such enquires since they are well equipped for the same.
Justice Vivek Rusia was dealing with a writ petition in the nature of Habeas Corpus, wherein the Petitioners being the biological parents of a 12-years-old child, were seeking custody of their child from his adoptive parents.
Madhya Pradesh High Court Directs Police Protection For Woman Who Married Outside Her Caste
Case Title : Gadiya Sejal Ben V The State Of Madhya Pradesh
Citation : 2022 LiveLaw (MP) 80
The High Court of Madhya Pradesh directed police protection to a woman who married outside her caste, as she was being threatened by her parents for the same.
Justice Vishal Mishra was essentially dealing with a writ petition, wherein the Petitioner was seeking police protection for herself, her husband and her in-laws. She also sought for transit bail for her husband so that he could appear before the court of JMFC, District Surendranagar in Gujarat.
Case Title: Vishal Kushwaha v. Ragini Kushwaha
Citation: 2022 LiveLaw (MP) 88
The Madhya Pradesh High Court held that the period of one year of living in separation is a must to the filing of an application for divorce by mutual consent under Section 13B(1) of the Hindu Marriage Act and that waiver of this period under Section 14 of the Act is not permissible.
The division bench of Justice Sheel Nagu and Justice D.K. Paliwal was dealing with first appeal under Section 28 of Hindu Marriage Act, 1956 preferred by the Appellant/husband against the order of the lower court, whereby the application for mutual divorce of the Appellant and his wife under Section 13B of the Act was rejected.
Case Title : Smt. Kala Devi v State of M.P. and others
Case Citation: 2022 LiveLaw (MP) 96
The High Court of Madhya Pradesh, Gwalior Bench recently held that a harmonious reading of Rule 4A, 6 (3) of M.P. Pension Rules, 1979 and Rule 47 of M.P. Civil Services (Pension) Rules, 1976 would reveal that family of a person employed in a regular work-charged establishment, cannot be deprived of the pension, which it would be entitled for by virtue of Rule 4A of Rules, 1979.
The Division Bench of Justice Rohit Arya and Justice M.R. Phadke was dealing with a writ appeal preferred by the Appellant against the order passed by the Writ Court, wherein her prayer for directing the State to provide her with family pension was rejected.
Case Tite :Nirman Sagar Vs. Smt. Monika Sagar Chaudhari and another
Case Citation: 2022 LiveLaw (MP) 102
The Madhya Pradesh High Court, Gwalior Bench has recently held that the word "resides" under Section 126 CrPC cannot be equated to a place where one makes 'a casual stay or a flying visit'.
The provision provides that proceedings for maintenance under Section 125 may be taken against any person in any district: (a) where he is, or (b) where he or his wife, resides, or (c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.
Case title - Rajesh Bhoyale v. Smt. Mahadevi
Case Citation: 2022 LiveLaw (MP) 103
Dissolving a marriage on an appeal filed by the husband alleging cruelty at the hands of his wife, the Madhya Pradesh High Court recently observed that a long-standing dispute itself is mental cruelty to a party who intends to live in a domestic relationship and peace. The Bench of Justice Sheel Nagu and Justice Anand Pathak observed thus as it allowed the appeal filed by the appellant-husband against the judgment of the Family Court, Gwalior rejecting his application under Section 13 (1)(ia) of the Hindu Marriage Act 1955 seeking a divorce.
Case Title: Alok Lodhi & Ors. Vs. State of MP & Anr.
Case Citation: 2022 LiveLaw (MP) 105
The Madhya Pradesh High Court, Gwalior Bench recently quashed the FIR filed by a wife against her in-laws under Section 498-A IPC, observing that the same was filed 'to wreak vengeance' and 'with a revengeful intent in order to pressurize and harass' her in-laws.
Justice R.K. Shrivastava was dealing with an application under Section 482 CrPC moved by the Applicants seeking directions of the Court to quash the FIR registered against them for offences punishable under Section 498A, 506, 34 IPC and the consequential criminal proceedings against them.
Case Title: Parag Pandit V Smt.Sadhana
Citation: 2022 LiveLaw (MP) 110
The Madhya Pradesh High Court, Indore Bench recently dismissed the appeal preferred by Appellant/husband for grant of divorce, holding that being a husband and a father, he could not run away from the responsibility by simply taking divorce on the ground that he wants to serve his mother and father for the remainder of his life or that he and his wife were not living together for many years.
Elucidating the concept of marriage as per Hindu Laws, the division bench of Justice Vivek Rusia and Justice A.N. Kesharwani observed-
"Based on Hindu law, marriage is a sacred tie and the last of ten sacraments that can never be broken. Also, it is a relationship that is established by birth to birth. Also, it is not only considered as sacred but it is also a holy union. The main objective of marriage is to enable a woman and a man to perform their religious duties. Along with this, they also have to beget progeny. Based on ancient writings, a woman is considered half of her husband and thus completes him. While a man is also considered incomplete without a woman."
Case Title - ABHISHEK v. THE STATE OF MADHYA PRADESH
Citation: 2022 LiveLaw (MP) 116
The Madhya Pradesh High Court recently termed the bane of live-in-relationship as a by-product of the Constitutional guarantee as provided under Article 21 of the Constitution, and has observed that such relations promote 'promiscuity' and 'lascivious behavior', giving further rise to sexual offences.
"Those who wanted to exploit this freedom are quick to embrace it but are totally ignorant that it has its own limitations, and does not confer any right on any of the partners to such relationship," the bench of Justice Subodh Abhyankar further remarked as it rejected the anticipatory bail of a 25-year-old man who has been accused of raping a woman, with whom he allegedly had a live in relation.
Case Title : Rajaram and ors v State Of MP
Citation: 2022 LiveLaw (MP) 121
The Madhya Pradesh High Court, Indore Bench recently converted the conviction of the Appellants, including the wife of the deceased, under Section 302 to Section 304 IPC, for burning the deceased to death, observing that the same was done under the heat of passion.
While acquitting the Appellants, the Court also took into consideration that they were first-time offenders and that Appellant/wife had to take care of her children.
Case Title: vishal pandey and anr. versus food corporation of india and ors.
Case Citation: 2022 LiveLaw (MP) 134
The Madhya Pradesh High Court recently held that the child of the deceased government employee shall be considered as 'Dependant', despite the parent losing their custody, for the purpose of compassionate employment.
Deciding the writ petition, Justice Vivek Agarwal observed-
I am of the opinion that impugned order deserves to be quashed as it is arbitrary and has failed to take into consideration a comprehensive meaning of the word 'dependent'. Respondents have tried to supply a very restricted meaning to the clause 'dependents', vide Annexure P-10, whereas admittedly, by virtue of divorce of his mother, petitioner No.1 will not lose his status of being a son who is covered by definition of 'dependent family member'.3.
Case Title: Meghna Agarwal Vs. Anurag Bagadiya and another
Case Citation: 2022 LiveLaw (MP) 141
The Madhya Pradesh High Court, Gwalior Bench recently set aside bail of a man, accused of committing unnatural sex with his wife.
The Court observed that the ground taken by the lower court while granting anticipatory bail to the accused/husband that there was delay in disclosure of offence under Section 377 IPC on the part of the Applicant/wife was unwarranted and made in a casual manner without appreciating the surrounding circumstances.
Case Title: Venkateswarane Sivadjy v. Alice Viala
Citation: 2022 LiveLaw (Mad) 15
In a divorce proceeding characterised by questions on Conflict of Laws, Madras High Court has held that a suit filed for partition and separate possession of the property in India, as per Indian laws is maintainable and will not be barred by virtue of not approaching French Notary for liquidation under Article 1444 of the French Civil Code.
A Division Bench of Justice T. Raja and Justice D. Bharatha Chakravarty was disposing of an appeal filed by the Husband under Section 96 of C.P.C r/w under Order 41 R 1 of C.P.C against the judgment and decree by Family Court, Pudukottai.
The court responded in the judgment to the above submission of the appellant in consonance with the findings of the Family Court. The court added that the manner of effecting partition is a rule of procedure, and therefore, in rules of procedure, lex fori(law of the forum) will apply.The court held that the Indian Law would be lex causae and not the French Code Civil. This would mean that Article 1444 wouldn't apply.
Case Title: Nakkeeran @ JeroanPandy v. State & Anr.
Citation: 2022 LiveLaw (Mad) 40
In a pertinent judgment, Madras High Court has observed that extramarital affairs can cause grave mental trauma and mental health issues leading to serious consequences in the matrimony, and that in turn, would amount to mental cruelty under Section 498(A) IPC.
Justice D. Bharatha Chakravarty however added that when deciding whether a conduct amounted to cruelty, the Court has to look at the facts and circumstances of the case.
The observation was made while confirming the conviction of a husband accused of engaging in an extramarital relationship with another woman while the marriage with the respondent-wife was still valid.
In its order, the Bench noted that the evidence on record proves the existence of an extramarital relationship that has gone to the roots of the marriage and severely affected the mental health of the wife. This ultimately resulted in the wife leaving the matrimonial home.
Case Title: S. Meena & Anr. v. Sivakumar & Ors.
Citation: 2022 LiveLaw (Mad) 94
While dismissing an appeal suit filed by a woman claiming 1/7th share for herself and her son in the ancestral property of her deceased husband's family, Madras High Court has underscored that the factum of marriage cannot be inferred from a single photograph where both are seen together.
The single-judge bench of Justice G. Jayachandran added that though the courts should generally 'lean upon legitimacy and frown upon bastardy' [as laid down in Badri Prasad v. Dy. Director of Consolidation and others] it can also not consider a deceased person as responsible for the birth of the minor appellant. Attempts made to obtain the property of a deceased person by claiming parentage must be equally frowned upon, the court remarked.
Before the bench, an appeal suit under Section 96 CPC was filed by submitting that the appellants are the widow and son of one late Sakthivel. They contended that they are the legal heirs of Sakthivel, and therefore, they are legally entitled to 1/7th share in the ancestral property jointly held by defendants who are the brothers, mother and father of the deceased Sakthivel.
"The factum of marriage and long cohabitation are not matters, which can be inferred through a single photograph, where a male and female are seen together. More so, when only the positive is filed without negative and the person, who took the photograph not examined. The Ex.A-1, the photograph is in colour and new...", the court said while clarifying that the photo and the CD that contains the photograph will not be admissible in evidence.
Case Title: Major Frank Ralston Samuel Raj v Kezia Padmini Swarna Pandian
Citation: 2022 Live Law (Mad) 139
The Madras High reiterated that marriage can be dissolved by decree of divorce on a petition presented either by the husband or the wife on the ground that the other party as after the solemnization of the marriage has not cooperated to consummate the marriage.
Justice K Kalyanasundaram and Justice V Sivagnanam were hearing an appeal filed by an army officer, Major Frank Ralston Samuel Raj. Observing that the marriage was beyond broken, the court stated that Continuance of the relationship for namesake is prolonging the agony and affliction would be a cruelty to both the parties.
The court drew attention to Section 10 of Indian Divorce Act 1869, marriage can be dissolved by decree of divorce on a petition presented either by the husband or the wife on the ground that the other party as after the solemnization of the marriage not co-operated to consummate the marriage and the marriage has not therefore been consummate is entitled for divorce.
The court also relied on judgements were it was held that a spouse willfully avoiding another spouse to have sexual intercourse without sufficient reason, amounts to mental cruelty to such spouse.
Delay In Deciding Custody Cases May Prolong Harassment Of Minor Children: Madras High Court
Case Title: C Shamilakumari v P Chandrasekar
Citation: 2022 LiveLaw (Mad) 226
The Madras High Court has observed that while dealing with matters relating to custody of minor children under the Guardians and Wards Act, the Courts have a duty to ensure that minor children are protected and their interests, vision and wishes are preserved to the maximum possible extent, giving them a better life.
A Bench of Justices SM Subramaniam and Sathya Narayana Prasad observed that matters of custody of minor children have to be decided expeditiously by the courts. If the decision of the court is delayed, it may lead to prolonged harassment of the minor children.
The court also observed that today's younger generation is wise and intelligent and can assess human behaviors. Hence, when the children are left in a lurch by the father and mother, the minor children have to be enquired and the veracity of the statement made by them has to be assessed in a proper manner to arrive at a conclusion in the interest of children.
Case Title: S.Sarath Kumar v. The District Collector and another
Citation: 2022 LiveLaw (Mad) 277
The Madras High Court recently refused to issued directions for registration of a couple's marriage under the Special Marriage Act, stating that the conditions stipulated under Section 4 of the Act for solemnization of special marriages and the procedure thereof contained under Sections 5-13 has to be mandatorily complied with.
Justice GR Swaminathan of the Madurai Bench observed that the marriage was performed on 10.06.2022. Only thereafter, notice was given under Section 5 of the Act. Therefore, it was not solemnized as per the procedure laid down under the Special Marriage Act. The court observed that since the petitioner did not marry Lediya under the Special Marriage Act, he could not claim benefits under Section 4 of the Act.
Case Title: C Sivakumar v. A Srividhya
Citation: 2022 LiveLaw (Mad) 297
While granting the relief of divorce to a husband on the ground of cruelty by his wife, the bench of Justice V.M Velumani and Justice S Sounthar recently observed that the act of wife suspecting the character of the husband and making allegations of extra marital affair in the presence of his colleagues would all amount to mental cruelty. The court also noted that the respondent wife had also given police complaint connecting the appellant husband with his female colleagues without specifically naming anybody. Such a police complaint would also amount to cruelty when it is not substantiated by any evidence. The court observed that during the time of separation, the respondent had removed her thali chain. The court opined that tying of Thali Chain was an essential ritual in marriage ceremony and its removal was an unceremonious act.
Case Title: Irfana Nasreen v. The State
Citation: 2022 LiveLaw (Mad) 320
Allowing an application for alteration of FIR filed by an estranged wife, the Madras High Court recently directed the respondent police to register offences under Section 417 and 420 of IPC for cheating against the husband who deceived the wife by non-disclosing his impotency.
Justice V Sivagnanam of the Madurai Bench directed the respondent police to add the offences along with already existing Section 498-A and 406 and submit the final report within four months after investigation.
Case Title: Vasmi Sudarshini v. The Sub Registrar
Citation: 2022 LiveLaw (Mad) 329
Coming to the aid of a young couple, the Madras High Court allowed solemnisation of marriage through virtual mode with the groom in USA and bride in India. The court also allowed the bride's plea for getting marriage certificate by observing that she could affix signature in the certificate for both herself and the groom as she had a power of attorney to that effect.
Justice GR Swaminathan of the Madurai bench observed that Section 12 of the Special Marriage Act 1954, gives liberty to the parties to adopt any form of solemnisation of marriage provided that it must be recognised and reasonable and not against public policy.
Case Title: P.Ganesan v. M.Revathy Prema Rubarani
Citation: 2022 LiveLaw (Mad) 330
The Madras High Court has held that proceedings under the Protection of Women from Domestic Violence Act, though before a Magistrate, are civil in nature. It observed that the intention of the legislature in enacting the Domestic Violence Act was to ensure civil law remedies to the victims of domestic abuse by adopting criminal procedure.
The court also held that since the legislature had clear intentions while granting special powers to the Magistrate under the Act, the same could not be diluted by transferring the domestic violence proceedings to a civil court or a family court, without the victim's consent.
The bench of Justice M Duraiswamy and Justice Sunder Mohan was answering a reference made by two single judge benches of Justice R Subramanian and Justice K Murali Shankar.
Case Title: Subburaj and another v. State and another
Citation: 2022 LiveLaw (Mad) 332
Criticising the trend of implicating family members in matrimonial cases, the Madras High Court bench of Justice N Satish Kumar observed that in such cases, mere omnibus allegation against the family members could not be the basis for initiating criminal proceedings.
The court also opined that though under Section 482 CrPC, it cannot assume the role of a trial court. However, if it is satisfied that the prosecution has been maliciously instituted, it could go into the materials and find out whether there are materials, which requires a trial.
Case Title: Natchal vs. V Chokkalingam
Citation: 2022 LiveLaw (Mad) 344
The Madras High Court has held that hormonal imbalance or irregular periods would not amount to impotency of a woman and would not mean that she is unfit to have sex.
Justice RN Manjula observed thus while hearing a revision petition against a Family Court's order directing a woman's medical examination on her husband's plea for annulment of marriage citing non-consummation.
The bench held that when the woman herself had admitted the fact of her hormonal imbalance and details of examination by a gynecologist, it was unnecessary to subject her to medical examination.
Case Title: V Anusha v. B Krishnan
Citation: 2022 LiveLaw (Mad) 352
While allowing a wife's plea for permanent injunction, the Madras High Court has opined that if removal of the husband from home alone is the only way to ensure domestic peace, the Family Courts should not hesitate to pass such orders.
The bench of Justice RN Manjula observed,
"The protection orders are normally given to ensure the peaceful movement of a woman within her domestic sphere. When a woman fears the presence of her husband and screams, the Courts cannot be indifferent by just directing the husband that he should not harass the wife, but by allowing him to reside in the same house."
Case Title: Arul Daniel and others v. Suganya
Citation: 2022 LiveLaw (Mad) 353
A single judge of the Madras High Court recently referred to a larger bench, the question regarding the applicability of provisions of Section 482 CrPC and/or Article 227 of the Constitution for quashing an application under Section 12 of the Domestic Violence Act.
Justice N Sathish Kumar was considering a batch of petitions seeking to quash the application filed under Section 12 of the DV Act by invoking the provision under Section 482 CrPC.
Case Title: S. Annapoorni v. K Vijay
Citation: 2022 LiveLaw (Mad) 381
The Madras High Court on Friday ruled in favour of original jurisdiction of High Court for hearing child custody and guardianship cases in a 3:2 majority decision.
Justice R Mahadevan, Justice M Sunder and Justice AA Nakkiran delivered the majority judgment and held that the jurisdiction of the High Court on original side is not ousted in view of explanation (g) to Section 7(1) of the Family Courts Act. They further observed that the judgement in Mary Thomas continued to be a good law.
Justice PN Prakash and Justice Anand Venkatesh however ruled against original jurisdiction of High Court and held that Mary Thomas was not a good law.
Marriage Not For Mere Carnal Pleasure, But Mainly For Progeneration: Madras High Court
Case Title: V Anusha v. B Krishnan
Citation: 2022 LiveLaw (Mad) 414
Dealing with an estranged couple's case related to the custody of their children, the Madras High Court in a recent order said marriage is not for "mere satisfying the carnal pleasure" but mainly for the purpose of progeneration. Justice Krishnan Ramasamy was dealing with a petition filed by a woman, lawyer by profession, for interim custody of her two minor sons from her husband, who is also a lawyer.
Stating that though courts are mindful of the interest of the child, Justice Ramasamy said it is "to be lamented" that the law leaves the child "with only one hand, rather than two". The court also said child "brought into this vicious world through the act of the two individuals for their pleasure" is made to suffer for no fault of his.
Madras HC Sets Aside Order Requiring Wife To 'Serve Snacks' To Estranged Husband During Visitation
Case Title: Richa Sharma v. Ganesh Kasinathan
Citation: 2022 LiveLaw (Mad) 416
The Madras High Court recently allowed a mother's appeal against a single judge order requiring her to treat her estranged husband, during child visits, as an "Athithi" (Guest) and show hospitality by providing snacks and dinner, etc.
The bench of Justice Paresh Upadhyay and Justice D Bharatha Chakravarthy observed that the single judge was swayed by what should be the conduct of the parties towards each other and that prescribing such stipulations was not relevant for deciding their rights.
Case Title: Mohammed Siddiq v. Rasheeda Begum and another
Citation: 2022 LiveLaw (Mad) 418
The Madras High Court recently reiterated that as per the settled legal position, there is no bar or prohibition on initiating simultaneous proceedings for claiming maintenance under different statutes. The parties however should disclose about previous maintenance petition before the subsequent court.
Justice Murali Shankar of Madurai Bench was deciding upon the plea of a husband, who was seeking to quash the proceedings before the Family Court, Thiruchirappalli in which the wife had moved a Maintenance case.
Case Title: P Senthil v. State
Citation: 2022 LiveLaw (Mad) 419
The Madras High Court recently observed that while deciding upon matters involving matrimonial disputes, the courts should not brush aside the evidence of the woman's family members merely because they are interested parties.
Justice P Velmurugan observed that in these types of matters, it is the family members who can notice the incidents and come forward to give evidence since a third party may not interfere in such matters thinking that it's a family dispute.
The court observed that mere non-production of a medical certificate or not lodging of the complaint soon after the occurrence was not fatal to the case of the prosecution, especially in matrimonial disputes. This was because a newly married girl will not immediately rush to the police station to lodge a complaint in a quarrel as she would take time to settle the issues instead.
'Ego' Is A Small Three Letter Word That Spoils Relationships: Madras High Court
Case Title: Mrs Karthika v. Superintendent of Police
Citation: 2022 LiveLaw (Mad) 436
While dismissing a wife's habeas corpus petition claiming that her husband had kept their four year old son in illegal custody, the Madras High Court stressed that parents must keep aside their 'ego' for the welfare of the child.
Justice S Vaidyanathan and Justice C Saravanan dismissed the petition observing that the child was not in the illegal custody of the husband. The court, however, gave liberty to the petitioner to approach the appropriate forum and work out her remedy for the custody of the child.
Case Title: Arul Daniel v Suganya and other connected matters
Citation: 2022 LiveLaw (Mad) 467
A Full Bench of the Madras High Court on Thursday held that proceedings under Section 12 of the Domestic Violence Act can be challenged in the High Court only under Article 227 of the Constitution and not by invoking the court's power under Section 482 CrPC.
The matter was referred to the bench of Justice PN Prakash, Justice RMT Teeka Raman and Justice AD Jagadish Chandira after Justice N Satish Kumar, while considering a batch of petitions seeking to quash the application filed under Section 12 of the DV Act by invoking the provision under Section 482 CrPC, in an order observed that a division bench's recent ruling on the legal question was not in consonance with the Supreme Court decisions.
While disposing of the petition, the larger bench observed that the High Court did not have the powers to quash proceedings under the Domestic Violence Act through Section 482 of CrPC. It observed that this is because, under the Domestic Violence Act, a Magistrate court is the designated court to hear applications. Since Magistrate's court is not a criminal court, a petition under Section 482 is not maintainable. The High Court could thus entertain challenges against proceedings under Domestic Violence Act only under Article 227.
Case Title: M Ramya v N Satish Kumar
Citation: 2022 LiveLaw (Mad) 509
Observing that the delay in disposal of the maintenance petitions infringes the fundamental right of the minor children, the Madras High Court has said that the family courts dealing with matrimonial matters must ensure that the interest of minor children is taken care of and their livelihood is protected by all possible means.
Justice SM Subramaniam took note of a submission that courts across Tamil Nadu are delaying the proceedings in maintenance petitions by not disposing the petitions or even granting interim maintenance.
Justice Subramaniam stressed that courts must consider social implications of such cases and consider the interest and livelihood of the children. "...and in case the mother, who filed the maintenance petition is unemployed, then interim maintenance must be ordered to protect the livelihood of the child in the custody of the moth," the bench added.Case title - Shri. Skhemborlang Suting & Anr. v. State of Meghalaya & Anr.
Citation: 2022 LiveLaw (Meg) 11
The Meghalaya High Court recently quashed FIR and criminal proceedings in a POCSO case registered against a man as it noted that the accused man and victim-wife were living with each other as husband and wife and out of the said union, a child was born.
The Bench of Justice W. Diengdoh however stressed that such cases of consensual or voluntary sexual intercourse with an underage girl by an adult man while they are living as husband and where the wife gives birth to a child, are complex.
Case title - Olius Mawiong & Anr. Vs. State of Meghalaya & Anr. [Crl.Petn. No. 22 of 2022]
Citation: 2022 LiveLaw (Meg) 25
The Meghalaya High Court recently quashed FIR and criminal proceedings in a POCSO case registered against a man as it noted that the accused man and victim-wife (a minor) were living with each other as husband and wife.
The Bench of Justice W. Diengdoh stressed that though POCSO Act punishes the act of sexual penetration inflicted upon a minor, yet, if other attending factors such as a case of consensual sex within the bond of marriage will not be taken into consideration then the cause of justice wouldn't be served.
"The POCSO Act speaks of penetrative sexual assault and aggravated penetrative sexual assault to indicate that an act of sexual penetration inflicted upon a minor will attract the punishment for the same under the relevant provisions of the said Act. However, in a case where other attending factors such as a case of consensual sex or sex within the bond of marriage albeit between persons who are still minors or one of whom is a minor, are not taken into account in the correct perspective, the course or cause of justice may not have been served, but only the letter of the law fulfilled," the bench remarked.
Case title - Pyniarlang Kurkalang & Anr. v. State of Meghalaya & Anr. [Crl.Petn. No. 28 of 2022]
Citation: 2022 LiveLaw (Meg) 26
The Meghalaya High Court on Tuesday requested the Meghalaya State Government to conduct an extensive awareness program to highlight the aspects of the danger of underaged marriage or cohabitation to avoid unnecessary conflict with the relevant provisions of law.
The bench of Justice W. Diengdoh ordered this while quashing a POCSO Case before the Court of Special Judge, (POCSO), Shillong as it noted the accused and the victim were living with each other as husband and wife with their baby.
Case Title: Shri. Kwantar Khongsit & Ors. v. State of Meghalaya & Ors.
Citation: 2022 LiveLaw (Meg) 28
The Meghalaya High Court, on Wednesday, quashed and set aside charges levelled against a man under the provisions of the Protection of Children from Sexual Offences Act, 2012 ('POCSO Act') for allegedly having 'consensual sex' with his minor wife.
A Single Judge Bench of Justice W. Diengdoh took note of the peculiar circumstances of the case and observed,
"…in the event it is apparent that a young couple are in a relationship where love is the deciding factor even to the extent that it has culminated into a marriage relationship, it may be the case that in such a relationship even if the girl involved is legally a minor, if she has the capacity to procreate and her age is perhaps ranging from about 16 to 17 years and more but below 18 years, it would not shock the conscience of this Court if hypothetically speaking such a girl enters into a marriage relationship on her own free will, as oppose to a child of about 12 or 13 years voluntarily entering into a marriage relationship."
Case Title: Shri. Adelbert Marbaniang & Anr. Vs. State of Meghalaya & Ors.
Citation :2022 LiveLaw (Meg) 32
The Meghalaya High Court, while quashing a POCSO FIR against a minor's partner, reiterated that rigors of the Act may not be applied to break down a happy family relationship. Such cases must be decided by taking a sympathetic view towards the accused, who is in a consensual relationship with the minor, in the instant case almost 18 years of age.
The observation came from Justice W. Diengdoh while disposing of the plea preferred by the POCSO accused and his child-bearing minor partner. The couple had been living together like husband and wife.
Case Title : Smti. Bernadeth Marwein Vs. Smti. Cynthia Khongwet
Citation :2022 LiveLaw (Meg) 35
The Meghalaya High Court recently observed that Article 137 of the Limitation Act applies to applications made under Section 383 of the Indian Succession Act which for revocation of a succession certificate.
Justice H. S. Thangkhiew observed:
"Article 137 of the Limitation Act, provides for 3(three) years as a period of limitation, on an application for which no period of limitation is provided elsewhere in the division. As the Succession Act, does not prescribe a specific period of limitation in such matters, it would thus imply that Article 137 be applied."
Case Title: Baisakhu Sethy @ Behera v. State of Odisha
Citation: 2022 LiveLaw (Ori) 72
The High Court upheld the conviction of a person, who was sentenced to life for committing murder of his cousin-brother. While dismissing the appeal, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik observed,
"This is not a case of mistaken identity since all the witnesses are close relations of both the accused and the deceased. The fact that the accused hits the deceased with Bala on the head clearly reveals his intention to cause the death of the deceased. This was not on the spur of the moment. The quarrel happened in the evening whereas the incident happened in the night when the deceased was sleeping and wholly unarmed. There was no need for the close relations of the accused to falsely implicate him in the homicidal death of the deceased."
Case Title: Varsha Priyadarshini v. Government of India & Ors.
Citation: 2022 LiveLaw (Ori) 92
A Vacation Division Bench of the High Court comprising of Justice Bibhu Prasad Routray and Justice Mruganka Sekhar Sahoo recently ordered Member of Parliament (MP) from Kendrapara and Odia actor Anubhav Mohanty to refrain from making any video/comment against his wife and actor Varsha Priyadarshini in any media, including social media during the pendency of their divorce proceedings. A similar direction has been passed against his wife. Varsha Priyadarshini had recently approached the High Court against her husband, alleging that he is maligning her image by making a series of videos and releasing them on YouTube.
Can't Issue Writ Of Habeas Corpus In Child Custody Matters Between Husband & Wife: Orissa High Court
Case Title: Koushalya Das v. State of Odisha & Ors.
Citation: 2022 LiveLaw (Ori) 103
The Orissa High Court declined to issue the writ of habeas corpus in favour of a woman who claimed custody of her minor child from her husband. A Division Bench of Justices Sangam Kumar Sahoo and Murahari Sri Raman widely noted the observations made by the Apex Court in Tejaswini Gaud & Ors. v. Shekhar Jagdish Prasad Tewari & Ors., while discouraging issuance of habeas corpus for granting custody of child from one parent to another. It further noted,
"In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. In cases arising out of the proceedings under the Guardians and Wards Act, the jurisdiction of the Court is determined by whether the minor ordinarily resides within the area on which the Court exercises such jurisdiction. There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ Court which is summary in nature. What is important is the welfare of the child. In the writ Court, rights are determined only on the basis of affidavits. Where the Court is of the view that a detailed enquiry is required, the Court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the Civil Court. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus."
Case Title: Jaladhar Jena v. Union of India & Ors.
Citation: 2022 LiveLaw (Ori) 148
The High Court ordered Rs. 10 Lakhs compensation to the father of a boy who died in 2011 after receiving injuries while playing cricket in the school premises. While holding the school liable for contributory negligence, a Single Bench of Justice Arindam Sinha held, "Court is convinced there was contributory negligence on part of the school leading to loss of the young life. In the circumstances, following judgment dated 11th August, 2022 (supra) and order dated 30th September, 2021(supra), there will be direction upon opposite parties, jointly and severally, to pay compensation of Rs.10,00,000/- to petitioner within four weeks from date."
Case Title: Basanti Nayak v. State of Orissa & Ors.
Citation: 2022 LiveLaw (Ori) 150
In an important verdict, the Court held that a 'married daughter' cannot be denied the benefits under the Rehabilitation Assistance Scheme after the death of her father. While reaffirming the rights of a married daughter to seek compassionate employment upon death of her father, a Single Bench of Dr. Justice Sanjeeb Kumar Panigrahi observed,
"…this court is of the view that marriage by itself is not a disqualification and impugned policy of the State Government barring and prohibiting the consideration of the 'married' daughter from seeking appointment under the Rehabilitation Assistance Scheme, merely on the ground of marriage, is plainly arbitrary and violative of constitutional guarantees, as envisaged in Articles 14, 15, and 16(2) of the Constitution of India."
Case Title: Sambara Sabar v. State of Odisha & Ors.
Citation: 2022 LiveLaw (Ori) 155
In an important judgment, the Orissa High Court directed the State Government to constitute an Advisory Board of health care experts to draw up a 'Comprehensive Action Plan' to address the issue of maternal deaths. It also ordered the Government to come up with a Scheme or Policy to address the need for providing redress including award of compensation for every avoidable maternal death and the fixing of responsibility in a time-bound manner.The above directions were issued by a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Murahari Sri Raman while deciding the case relating to death of a tribal lady, who died in 2015 at the time of delivery.
"In the present case, there has been an acute failure of the entire teams of doctors at each level of the health care system in Odisha to provide timely and adequate care and treatment to the deceased as pointed out by the EC. It shocks the judicial conscience that a poor tribal woman had been carrying a dead foetus for a week prior to her death with not one person in the health care system being able to provide her the needed care and treatment and which neglect resulted in her inevitable death. There has been a clear violation of the fundamental right to health of the deceased which constitutes an integral part of the right to life guaranteed in Article 21 of the Constitution of India", the Bench observed.
Family Court Can Restore Application U/S 125 CrPC After Its Dismissal For Default: Orissa High Court
Case Title: Sachindra Kumar Samal v. Madhusmita Samal @ Swain & Anr.
Citation: 2022 LiveLaw (Ori) 156
The Orissa High Court held that the Family Courts possess the 'inherent power' to restore a Section 125 CrPC application dismissed earlier for non-prosecution. While holding so, a Single Bench of Justice Radha Krishna Pattanaik observed,
"When a proceeding of maintenance is dismissed on account of default and if it is claimed that the court lacks jurisdiction to restore it in absence of any provision, how it could have been dismissed for non-prosecution, again for having no provision in the Cr.P.C. According to the Court since such is action is predominantly civil in nature, the power to restore a proceeding under Section 125 Cr. P.C. is inherent."
Case Title: Jaga Sarabu v. State of Orissa & Anr.
Citation: 2022 LiveLaw (Ori) 157
The High Court held that charge under Section 498-A of the Indian Penal Code cannot be quashed in exercise of jurisdiction under Section 482 CrPC against a husband merely because Family Court while deciding an application for maintenance under Section 125 CrPC has given a finding that she is not his wife. While refusing to quash an order taking cognizance under Section 498-A against the petitioner, Justice Gourishankar Satapathy said:
"…it would not be proper for a Court to undertake hair splitting scrutiny of materials on record in a proceeding under section 482 of Cr.P.C. to conclude that the proceeding under section 498-A of IPC is not maintainable for want of valid marriage which would not only encourage harassment of women but also demoralizes them."
PUNJAB & HARYANA HIGH COURT
Case Title: Maam Gujjar @ Maam Hussain v. State of Punjab
Citation: 2022 LiveLaw (PH) 13
If there is no prima facie case against the wife and no dying declaration or suicide note alleging the same, just the fact that she is allegedly a woman of easy character is not indicative of the wife abetting and inciting suicide of her husband, the Punjab and Haryana High Court has held.
Case title - Jai Nrain and another v. State of Punjab and others
Case Citation: 2022 LiveLaw (PH) 32
While granting police protection to a live-in relationship couple, the Punjab and Haryana High Court last week observed that there is a need to shift perspective from didactics of the orthodox society, shackled with the strong strings of morality supported by religions to one that values an individual's life above all.
The Bench of Justice Anoop Chitkara observed thus while hearing a protection plea filed by one Jai Nrain and his Live-In Partner, a married woman, who had moved the Court fearing for their lives and liberty at the hands of the private respondents.
Case title - Amandeep Kaur and another v. State of Punjab and others
Citation: 2022 LiveLaw (PH) 58
The Punjab and Haryana High Court on Tuesday dismissed a plea filed by a same-sex live-in couple seeking protection of their life and liberty on account of the fact that their family members are against their alliance and are extending threats to them that they would be falsely implicated in criminal cases.
Case title - Devesh Yadav v. Smt. Meenal [FAO-M-208 of 2013]
Case Citation- 2022 LiveLaw (PH) 66
The Punjab and Haryana High Court recently observed that if the wife is bent upon destroying the career and reputation of her husband by making complaints against him to his senior officers, then it would amount to mental cruelty and the same would entitle the man to divorce.
Case Title : Manpreet Kaur v. State Of Punjab And Ors.
Citation: 2022 LiveLaw (PH) 73
The Punjab and Haryana High Court has held that duration of marriage is not a ground to discard the willingness of one of the spouse, to donate kidney in favour of other spouse, particularly when the case has been verified on all legal parameters.
Case Title : Swaran Kaur v. State of Punjab and others
Citation: 2022 LiveLaw (PH) 80
Punjab and Haryana High Court has held that entitlement for the grant of family pension to the dependent parents needs to be seen after the widow or the children loose their eligibility for the grant of the said benefit.
Case title - Rinky Rani v. Daljit Kumar
Case Citation: 2022 LiveLaw (PH) 81
The Punjab and Haryana High Court recently dismissed a plea filed by a woman who sought transfer of the matrimonial case to her home district as it observed that merely because the applicant is a wife, the Court should not be swayed by emotions tilting toward the fairer sex.
Case Title : Poonam Kalsi v. State Of Punjab And Others
Citation: 2022 LiveLaw (PH) 85
Punjab and Haryana High Court has dismissed a petition filed by the mother of a 3 year old, seeking issuance of a writ of habeas corpus to get the custody of the minor son from alleged illegal confinement of her husband and in-laws.
Wife Can't Be Denied Maintenance On Grounds That She Is Well-Educated: Punjab And Haryana High Court
Case title - Lovedeep Singh v. Gurpreet Kaur [CRR(F)-314-2022]
Citation: 2022 LiveLaw (PH) 94
The Punjab and Haryana High Court has observed that a wife cannot be denied maintenance on the grounds of being well-educated and that a husband is legally and morally responsible to look after his wife and children. The Court, in its order, observed that there was nothing on record showing that the respondent-wife had deserted the petitioner without any rhyme and reason. The Court also discarded the argument of the Husband that since the respondent-wife is well educated and has done her MA in Hindi and thus, she is not entitled to the maintenance.
Case Title: Simranjit Kaur @ Simarn Kaur Versus Bhinder Pal Singh
Citation: 2022 LiveLaw (PH) 96
Punjab and Haryana High Court while dealing with a transfer plea by the wife in a divorce case has allowed the transfer on the ground that it is difficult for the wife who has a minor child to travel a distance of 55 km stating that it is certainly a case of undue hardship of exceptional nature, necessitating intervention by the Court.
Case Title: Resuna & Anr. v. State of Haryana and others
Citation: 2022 LiveLaw (PH) 98
"In the ever-evolving society, evolving the law with it, the time is to shift perspective from didactics of the orthodox society, shackled with the strong strings of morality supported by religions to one that values an individual's life above all", the Punjab and Haryana High Court observed recently while hearing a protection plea filed by a live-in couple. The court also remarked that the times are changing fast, even in those lands that were left behind and stuck with the old ethos and conservative social milieu. We are governed by the rule of law and follow the Constitutional dharma, added the court.
Child Adopted Post-Retirement Can't Be Denied Family Pension: Punjab & Haryana High Court
Case Title: Raj Bala v. State of Haryana and Others
Citation: 2022 LiveLaw (PH) 104
Punjab and Haryana High Court held that an adoption post-retirement would not be a ground to deny the benefit of the family pension to a child. Merely because the adoption is post retirement which is mainly for the purpose of providing dependency and also some light in the evening of the life of the couple. The same would not as such be good enough to deny the said child the benefit of the family pension merely on account of the fact that the decision as such to adopt was taken at a belated stage.
Case title: Harbans Kaur v. Joginder Pal [FAO-M-272 of 2017]
Case Citation: 2022 LiveLaw (PH) 107
The Punjab and Haryana High Court noted that the Supreme Court had held that even one complaint lodged by the wife found to be false against the husband and his family members amounted to cruelty. Even if husband and wife are staying together and husband does not speak to the wife, it would cause mental cruelty and a spouse staying away by sending vulgar and defamatory letters or notices or filing complaints containing indecent allegations or by initiating number of judicial proceedings can make the life of other spouse miserable, the Court added.
Case Title : Jaswant Kaur v. Lakhwinder Singh and others
Citation : 2022 LiveLaw (PH) 125
Punjab and Haryana High Court while dealing with an appeal filed by the widow claiming right over the suit property on the basis of natural succession, held that appellant's husband was not the owner of the suit land on the date of his death, therefore, the question of inheritance of the estate does not arise.
Case Title : Smt. Satya Roopa Sinha v. Sarwan Kumar Mehto
Citation: 2022 LiveLaw (PH) 148
Punjab and Haryana High Court while dealing with a revision petition against the order passed by the Family Court, allowing respondent's application seeking DNA test to determine the paternity of the petitioner's child in response to her maintenance petition, held that since the marriage is disputed by the respondent, order of DNA test to determine paternity is not warranted.
Case title - Som Dutt v. Babita Rani
Citation : 2022 LiveLaw (PH) 153
The Punjab and Haryana High Court observed recently that once the parties have separated and separation has continued for a sufficient length of time and any one of them presents a petition for divorce, it can well be presumed that the marriage has broken down.
Case title - Gulam Deen and another v. State of Punjab and others
Citation : 2022 LiveLaw (PH) 157
The Punjab And Haryana High Court last week granted protection to a Muslim Girl (16 Year Old) who married a Muslim boy (21 year old) while noting that she is of Marriageable Age under Muslim Personal Law.
Case Title : Ajaib Singh v. State of Punjab
Citation : 2022 LiveLaw (PH) 159
The Punjab and Haryana High Court while denying anticipatory bail to the father in a case where he was allegedly acting in connivance with his son who solemnized various marriages without getting divorce from his disabled spouse, held that in view of the seriousness of the allegation and to unravel the truth, the custodial interrogation of the petitioner is necessary.
Case Title : Pooja Rani v. State of Punjab and Others
Citation : 2022 LiveLaw (PH) 160
The Punjab and Haryana High Court while dealing with a case of adoption of an unborn child, held that no such provision as to give effect to adoption of an unborn child is envisaged under the Hindu Adoptions and Maintenance Act, 1956.
Case Title - Kamlesh Rani V. State Of Punjab And Ors.
Citation: 2022 LiveLaw (PH) 174
In a significant order, the Punjab and Haryana High Court recently directed the handing over of the custody of a four-month-old boy to his biological mother for the purpose of breastfeeding. However, the High Court's bench of Justice Sureshwar Thakur did clarify that the custody would be interim in nature for the limited purpose of breastfeeding the Child. In this regard, the Court also relied upon Article 25(2) of the Universal Declaration of Human Rights.
Case Title: Anmol Verma v. Radhika Sareen
Citation: 2022 LiveLaw (PH) 180
The Punjab and Haryana High Court recently allowed the appeal by the husband against the order of the Trial Court wherein his petition under Section 13 of the Hindu Marriage Act, 1955 (HMA) for dissolution of marriage was dismissed.
Case Title : Sourav v. State of Haryana and Others
Citation : 2022 LiveLaw (PH) 202
Punjab and Haryana High Court recently held that when a family member has already availed financial assistance under the prevalent Rules at that time of the death of the government employee, they cannot agitate the claim of compassionate appointment under the new Rules.
Case Title: Megha Rana Versus Kanwar Samir
Citation: 2022 LiveLaw (PH) 221
The Punjab and Haryana High Court recently upheld lower court's decision dismissing the execution petition of decree holder-wife as unsatisfied, due to the fact that she could not bring on record the properties or assets owned by the judgement-debtor/husband.
DNA Test Cannot Be Ordered As Matter Of Course To Determine Parentage: Punjab & Haryana High Court
Case Title: Sukhdev Singh and Others Versus Jaswinder Kaur
Citation: 2022 LiveLaw (PH) 230
Punjab and Haryana High Court recently held that a Court cannot order a DNA test as a matter of course and for this reason a prayer to order DNA test cannot be granted to lead to a roving inquiry, in this case into the parentage of the respondent.
Case Title: Kiran Kaur Versus State of Punjab
Citation:2022 LiveLaw (PH) 238
Punjab and Haryana High Court recently acquitted a woman convicted by the trial court for slapping her husband and asking him to die anywhere, thereby abetting his suicide.
Case title - Chaman Lal Chimnu v. State of Haryana [CRA-D-700-DB-2010]
Citation:2022 LiveLaw (PH) 242
The Punjab and Haryana High Court on Wednesday upheld the life sentence awarded to a man who had raped his own 12-year-old niece in the year 2008. Noting that the accused was the real uncle of the victim, the Court remarked thus:
"The factual matrix of this appeal is unfortunately related to a sordid and obnoxious incident, where the appellant, who is the real uncle of the victim, raped his niece, a girl child of the tender age of 12 years. The result was that the sacred relationship of uncle and niece was besmirched. Such offenders are a menace to the civilised society and have to be dealt with strictly as per law. It is an act, which is not only a blow to her supreme honour and offends her self-esteem and dignity, it degrades and humiliates the victim and where the victim is a helpless child or a minor, it leaves behind a traumatic experience. Such crime is not only a crime against a minor innocent child, rather it is a crime against the entire society."
Case Title : Dr. Priyanka Dahiya v. Dr. Manish Raj
Citation :2022 LiveLaw (PH) 251
The Punjab and Haryana High Court recently held that in terms of Section 38 of the Special Marriage Act, a father can approach the Family Court which passed the decree of divorce based on mutual consent under Section 28 of the Special Marriage Act, for seeking custody of the child living with the mother.
Case title - Amit Kumar Yadav v. Suman Devi and others [CRR(F)-384-2021 (O&M)]
Case Citation: 2022 LiveLaw (PH) 267
The Punjab and Haryana High Court has observed that unless it is found that at the relevant point of time, the wife was actually living in adultery, she is not disentitled to claim maintenance. The Court further opined that the material on record must indicate that the wife was living in adultery shortly before or after the petition of maintenance has been instituted.
Case title - Renuka v. Shelly Kumar [FAO 6740 of 2018]
Case Citation: 2022 LiveLaw (PH) 268
Stressing that motherhood is innate, natural, and fulfilling to every woman, the Punjab and Haryana High Court has observed that forcing a wife to terminate her pregnancy against her will constitutes cruelty.
Case title - Ratandeep Singh Ahuja v. Harpreet Kaur [FAO-M-182 of 2017]
Case Citation: 2022 LiveLaw (PH) 272
The Punjab and Haryana High Court recently decreed a divorce plea filed by a man on account of the desertion and cruelty meted out to him by his wife, who filed false and frivolous cases against him.
Case Title: Javed v. State of Haryana and Others
Citation: 2022 LiveLaw (PH) 276
The Punjab and Haryana High Court has reiterated that Muslim female aged 15 years and above can marry a person of her choice on her own willingness and consent, and such a marriage would not be void in terms of Section 12 of the Prohibition of Child Marriage Act 2006.
Case title - Joginder Singh v. Rajwinder Kaur [FAO-M-12 of 2017(O&M)]
Case Citation: 2022 LiveLaw (PH) 279
The Punjab and Haryana High Court recently decreed a divorce plea filed by a man after holding that the act of the wife of filing false and frivolous cases against her husband amounted to cruelty.
Case Title: ABC v. XYZ and Anr.
Citation: 2022 LiveLaw (PH) 283
The Punjab and Haryana High Court recently denied permanent alimony to a wife living in adultery, after a divorce decree was passed on the very ground of such adultery.
Case Title: Karamjit Singh v. Davinder Kaur
Citation: 2022 LiveLaw (PH) 284
The Punjab and Haryana High Court, while disposing of an appeal filed by the husband, held that the act of the respondent-wife in taunting the husband's physical disability, snatching his crutches and manhandling and throwing him around, amounted to both physical and mental cruelty.
Case Title: Mansi v. State of Punjab and Others
Citation: 2022 LiveLaw (PH) 290
The Punjab and Haryana High Court on Monday, while disposing of a habeas corpus petition filed by a mother alleging illegal detention of her 2 years old child at the hands of her husband and in-laws, held that a mother, even if she is mentally ill, is entitled to the custody of a minor child, especially if the child is below the age of 5 years, unless the mental illness is such that it shall be detrimental to the health of the child.
Case Title: Vishal Vashisht v. Nitasha Sharma
Citation: 2022 LiveLaw (PH) 298
The Punjab and Haryana High Court has rejected a husband's petition seeking appointment of a Local Commissioner in divorce proceedings for getting expert opinion with regard to an illness of his wife.
Punjab & Haryana High Court Directs Police To Ensure Safety Of 'Major-Minor' Live-In Couple
Case Title: Naveen and Another v. State of Punjab and Others
Citation: 2022 LiveLaw (PH) 312
The Punjab and Haryana High Court has directed the police to ensure safety of a 22-year-old man and a 17-year-old girl, who are in a live-in relationship.
Case Title: Simrit Gulani v. Anil Gulani
Citation: 2022 LiveLaw (PH) 323
The Punjab and Haryana High Court has reiterated that Courts must adopt a practical approach while dealing with matrimonial litigation, instead of approaching the case in a hyper-technical manner. This is because matrimonial disputes ultimately affect families and human relationships.
Case Title: Sandeep Tomar v. State of Punjab
Citation: 2022 LiveLaw (PH) 331
The Punjab and Haryana High Court on Monday held that a husband convicted for killing his wife shall not be entitled to claim ownership over the dowry articles received at the time of marriage in view of the Dowry Prohibition Act, 1961.
RAJASTHAN HIGH COURT
Case Title: Shobha and Another v. State of Rajasthan and Others
Case Citation: 2022 LiveLaw (Raj) 9
The Rajasthan High Court has denied Police protection to a runaway couple, apprehending threat from their families. The court observed that there is no material or reason for it to conclude that the petitioners' life and liberty are at peril.
Justice Dinesh Mehta further observed, " If the petitioners have decided to marry, they must muster the audacity and possess tenacity to face and to persuade the society and their family to accept the step they have taken."
In the instant case, it noted that there is not even an iota of evidence to evince that the respondents (relatives of the petitioner No.1) are likely to cause physical or mental assault to the petitioners.
Case Title: Sheela Dhobi v. Satish
Citation: 2022 LiveLaw (Raj) 19
The Rajasthan High Court has allowed a joint application filed by the petitioner-wife and the respondent-husband for waiver of six months cooling off period prescribed under Section 13-B(2) of the Hindu Marriage Act, 1955 for divorce by mutual consent.
Justice Dinesh Mehta, observed, " In light of the facts and circumstances of the case, particularly the fact that the parties are sufficiently educated and are aware of their rights...as they have mutually decided to end their matrimony finding no hope/chance of reconciliation, I am of the opinion that their application for waiver of the statutory period of six months specified under Section 13-B(2) of the Act of 1955 deserves acceptance."
The parties had approached the court after being aggrieved with the order passed by the Family Court, Bhilwara, which on 16 Dec, 2021 dismissed the aforesaid prayer of the parties.
Case Title: Shobha Devi v. Jodhpur Vidhyut Vitran Nigam Limited and Another
Citation: 2022 LiveLaw (Raj) 20
In a significant judgment, the single bench of Rajasthan High Court held that the married daughter of a deceased employee falls within the definition of 'dependents' for compassionate appointment.
"The perception of the daughter, after marriage no longer being a part of her father's household and becoming an exclusive part of her husband's household, is an outdated view and mindset."Justice Dr. Pushpendra Singh Bhati, observed.
The court observed that any discrimination between unmarried and married daughter and married son and married daughter would be in clear violation of Article 14 ,15 and 16 of the Constitution.
Case Title: Smt. Sayari and Others v. State of Rajasthan
Citation: 2022 LiveLaw (Raj) 29
While taking a lenient view, a Division Bench of Rajasthan High Court reduced sentence awarded to an 82 year old woman charged under 498A IPC to the period already served by her which is nearly two and half months.
Justice Sandeep Mehta and Justice Vinod Kumar Bharwani observed, "We are of the view that as appellant Sayari has already attained the age of 82 years, the sentences awarded to her be reduced to the period already undergone by her which is nearly two and half months".
Affirming the conviction of the woman, the court ordered that for the offence under Section 498A IPC, as recorded by the trial court and passed by the learned Additional Sessions Judge, Sojat, Pali, the sentence awarded to the appellant be reduced to the period already undergone by her..
Case Title: Sunita Rani v. State of Rajasthan
Citation: 2022 LiveLaw (Raj) 47
The Rajasthan High Court reiterated that females outside the State on migrating to Rajasthan post marriage may not be entitled to the benefit of reservation in public employment in the State, on account of being a member of a SC or ST or OBC in another State.
However, they can avail of other benefits as being an member of a reserved category, if the scheme envisages domicile or residence as entitlement.
The observation was made in a writ petition filed by one Sunita Rani, being aggrieved with the action of the respondents- Sub Divisional Magistrate and Tehsildar of Hanumangarh for not accepting her application for issuance of a caste certificate in her favour declaring that she is a member of Scheduled Caste (SC).
Justice Dinesh Mehta ruled, "So it is clear that the petitioner is not entitled for reservation in public employment in the State of Rajasthan being the resident of State of Punjab, however, she can get the other benefits as being an SC on the strength of the certificate if the scheme envisages domicile or residence as entitlement."
Case Title: Chandrakant Jain v. Veermati Jain
Citation: 2022 LiveLaw (Raj) 96
The Rajasthan High Court observed that the husband, who admittedly earns Rs.40,000/- per month, cannot be absolved of his obligation to pay interim maintenance, merely because the wife has chosen to file the application after 36 years of marriage.
Essentially, the present petition has been filed by the petitioner under section 482 of the Code of Criminal Procedure, 1973 challenging the order passed by Gram Nyayalay, Aspur, District Dungarpur ("Trial Court"), whereby the Trial Court had partly allowed the application for interim maintenance filed by the respondent-wife. The Trial Court had directed the petitioner-husband to pay a sum of Rs.5,000/- per month as interim maintenance.
As per the petitioner, the couple got married on 17.02.1976 and have been living separately since 1986.
Justice Dinesh Mehta, while dismissing the petition, opined, "In the opinion of this Court, an order under section 125 of Cr.P.C. is in the nature of interim maintenance and husband, who admittedly earns Rs.40,000/- per month cannot be absolved of his obligation to pay interim maintenance, merely because the respondent – wife has chosen to file the application after 36 years of marriage."
Case Title: Nand Lal Through His Wife Rekha v. State of Rajasthan
Citation: 2022 LiveLaw (Raj) 122
In a significant judgment, the division bench of Rajasthan High Court, Jodhpur observed that denial to the convict-prisoner to perform conjugal relationship with his wife more particularly for the purpose of progeny would adversely affect the rights of his wife. In this regard, the court granted 15 days parole to the life convict.
The bench opined that Hindu philosophy also advocates the importance of pitra – rin, i.e. parental debt. Our lives are the consequence of the fact that ancestors have been carrying and forwarding the said pitra rin, it is because of this, life came to us and in order to maintain the continuity of life, we must pay off this debt, added the the court.
Justice Sandeep Mehta and Farjand Ali, while allowing the petition, observed,
"As an upshot of the observations made herein above, we are of the considered view that though there is no express provision in the Rajasthan Prisoners Release On Parole Rules, 2021 for releasing the prisoner on parole on the ground of his wife to have progeny; yet considering the religious philosophies, cultural, sociological and humanitarian aspects, coupled with the fundamental right guaranted by the Constitution of India and while exercising extra ordinary power vested in it, this Court deem it just and proper to allow the instant writ petition."
Case Title: Suresh Sharma & Anr. v. Dhanwanti Sharma
Citation: 2022 LiveLaw (Raj) 126
The Rajasthan High Court observed that the land where Vasudhaiva Kutumbakam was manuscripted, which considers the whole world a single family, the ill- treatment meted out to parents by their own children is both alarming and disturbing. The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 was formulated to redress the said grievance in a simple, inexpensive and speedy manner qua maintenance of the parents and senior citizens, added the court.
Justice Sameer Jain, while dismissing the petition filed by son and his wife, ruled,
"Therefore, the petitioners along with their family are directed to honor the impugned order dated 08.03.2019 and vacate the premises within a period of 30 days from the date of pronouncement of the judgment on their own cost and restore the house in vacant manner and in appropriate condition to the respondent-mother with due respect. The SHO of the concerned Police Station may be provided a copy of this judgment by the Registrar (Judicial) for carrying out the directions, within the stipulated time, giving full security to the respondent. The respondent will be at liberty to permit the petitioner and his family to visit or live in the disputed property in future, if she so chooses."
Case Title: Kalu Ram Jangid v. State Of Rajasthan
Citation: 2022 LiveLaw (Raj) 138
The Rajasthan High Court observed that the petitioner is a married brother of the deceased government servant, and therefore, the petitioner cannot be held to be a dependant and to be entitled for compassionate appointment in terms of the Rajasthan Compassionate Appointment of Dependants of Deceased Government Servants Rules, 1996.
Justice Rekha Borana, while dismissing the writ petition, opined,
"Admittedly, the petitioner is married and therefore, in terms of the Rules of 1996, the petitioner cannot be held to be a dependant and to be entitled for compassionate appointment. In view of the specific provisions of law, this Court is not inclined to interfere with the order dated 01.01.2019."
Case Title: Vishal Kochar v. Smt. Pulkit Sahni & Anr.
Citation: 2022 LiveLaw (Raj) 150
The Rajasthan High Court observed that an order of interim maintenance passed under Sec. 125 of Cr.P.C by any Family Court or Magistrate, during the pendency of the proceeding, remains effective up to the final order only and does not decide the rights and liabilities of the parties in finality.
In this regard, the court opined that the impugned order dated 27.01.2021, regarding interim maintenance under Section 125 Cr.P.C., is an interlocutory order, hence revision petitions being not maintainable, either under Section 397/401 Cr.P.C. or under Section 19 of the Family Courts Act.
The court considered the question whether the order of interim maintenance passed under Section 125 of Cr.P.C is an interlocutory order and consequently, whether criminal revision petition is maintainable against that order or not.
Justice Uma Shanker Vyas, ordered:
" An order of interim maintenance passed under Sec. 125 of Cr.P.C by any Family Court or Magistrate, during the pendency of the proceeding, remains effective up to the final order only and does not decide the rights and liabilities of the parties in finality.
Case Title: Anop Singh v. State Of Rajasthan, Through Pp
Citation: 2022 LiveLaw (Raj) 153
The Rajasthan High Court observed that Section 11 of the Prohibition of Child Marriage Act, 2006 makes it abundantly clear that organising marriage is a sine qua non to constitute an offence under the Act. However, mere engagement of a child in any case does not amount to an offence under Section 11, added the court.
Section 11 of the Act provides punishment for promoting or permitting solemnisation of child marriages while Section 15 of the Act states that notwithstanding anything contained in the CrPC), an offence punishable under this Act shall be cognizable and non-bailable.
Justice Dinesh Mehta observed,
"A perusal of Section 11 of the Act of 2006, makes it abundantly clear that organising marriage is a sine qua non to constitute an offence under the Act of 2006. Engagement of a child in any case does not amount to an offence under Section 11 of the Act of 2006. Admittedly, on the fateful day of 25.02.2020, petitioner's son was getting engaged which cannot be confused with or construed to be a marriage, falling foul to the provisions of the Act of 2006."
Case Title: Raju Singh v. Twinkle Kanwar
Citation: 2022 LiveLaw (Raj) 160
The Rajasthan High Court observed that a family court had committed illegality in rejecting the divorce application of the parties for waiving cooling-off six months' period in the absence of any documentary evidence, especially when the parties have already stated on oath through affidavit that both of them are living separately since July, 2018.
Notably, a joint application was filed by the parties before the Family court for waving six months' cooling-off period as provided under Section 13-B of the Hindu Marriage Act of 1955 on 26.04.2022, however, the Family court rejected the same while observing that the parties have failed to produce documents to prove the fact that both of them are living separately since July, 2018.
Justice Vijay Bishnoi, while allowing the writ petition and setting aside the order passed by the Family Court, observed,
"In the present case, when the parties have already stated on oath through affidavit that both of them are living separately since July, 2018, the court below has committed illegality in rejecting the application of the parties for waiving cooling-off six months' period in the absence of any documentary evidence."
Case Title: Neha Mathur & Anr. v. Dr. Arvind Kishore with connected matter
Citation: 2022 LiveLaw (Raj) 174
The Rajasthan High Court on Thursday observed that merely the fact that the wife is earning would not dis-entitle her from claiming maintenance from her husband. The Court opined that the charge of desertion cannot become a ground so as to enable the husband to disqualify the wife from claiming the amount of monthly maintenance, in any manner whatsoever.
Essentially, the marriage of the parties was solemnized on 27.05.2010 at Bikaner; thereafter, the couple went to reside in the USA. Out of the said wedlock, Master Anay (son) was born on 21.05.2011. On account of the alleged disharmony in their matrimonial relationship, the wife left her matrimonial home at USA on 13.11.2013 and came back to India alongwith the son. Later, the wife filed an application against the husband under Section 125 Cr.P.C. which was allowed by the trial court on 30.08.2018, while awarding a monthly maintenance to the wife and son, to the tune of Rs.50,000/- and Rs.20,000/- (totalling Rs.70,000/-).
Case Title: Sarvjeet Kaur v. State of Rajasthan & Anr.
Citation: 2022 LiveLaw (Raj) 186
While hearing a matter pertaining to maintenance, the Rajasthan High Court observed that the husband, who is a welder, is almost like a skilled workman, and thus, it cannot be presumed that he is not earning sufficiently to maintain the petitioner-wife.
The court also opined that even if the petitioner-wife is stitching clothes domestically and has some income source, then also the husband is liable to pay maintenance to the wife along with her two children.
Dr. Justice Pushpendra Singh Bhati, while allowing the criminal revision petition, observed,
"This Court, after hearing the submissions and analyzing the record of the case, is of the firm opinion that even if the petitioner-wife is stitching clothes domestically then also she is entitled to get the maintenance. The respondent No.2-husband is a welder, which is almost like a skilled workman, and thus, it cannot be presumed that he is not earning sufficiently to maintain the petitioner-wife, even if the petitioner-wife has some income source, then also there are three family members whom the respondent No.2-husband is liable to maintain. In the given circumstances, it is a fit case for grant of maintenance to the petitioner-wife."
Case Title: Richa Dharu v. Hemant Panwar
Citation: 2022 LiveLaw (Raj) 187
The Rajasthan High Court has observed that a lady suffering from cruelty on account of her husband's conduct cannot be said to have deserted him or to be voluntarily residing away. The court added that the circumstances created by the husband, if not conducive, are bound to push away the wife.
Essentially, the case of the petitioner-wife is that respondent-husband is working on the post of Branch Manager in Bank of Baroda and is earning income of Rs.90,000/- per month. She submitted that the trial court has denied the monthly maintenance to her only on the ground that the divorce has been allowed between the parties. As per her, the divorce was ex-parte claimed by the respondent.
Case Title: X v. Y
Citation: 2022 LiveLaw (Raj) 188
The Rajasthan High Court has observed that in the present times, when the education itself is very costly and the daily life requires a respectable amount, the denial of maintenance to the wife and the daughter cannot be justified.
The petitioner was thus directed to pay Rs. 15,000 per month maintenance to them.
The Petitioner had filed the present criminal review petition under Section 19(4) of the Family Courts Act, 1984 read with Sections 397 and 401 CrPC against the Family Court's order against an order which allowed the wife's application under Section 125 CrPC for maintenance.
Case Title: Bajaj Allianz General Insurance Company Limited & Anr. .v. Sharda
Citation: 2022 LiveLaw (Raj) 190
The Rajasthan High Court has observed that remarrying of the deceased's wife does not disentitle her from claiming compensation for death of her husband under Employees' Compensation Act, 1923. The court added that the amount of compensation awarded by the trial court looking at the young age of the deceased and number of claimants cannot be said to be unreasonable.
Justice Rameshwar Vyas, while dismissing the first appeal preferred by the Insurance Company observed,
"Contention with regard to remarrying of the deceased's wife is concerned, the same does not disentitle her from claiming compensation for death of her husband. The amount of compensation awarded by the learned trial court looking to the young age of the deceased and number of claimants cannot be said to be unreasonable. There is no merit in this appeal."
Case Title: Manisha Vishnoi v. State of Rajasthan & Ors.
Citation: 2022 LiveLaw (Raj) 191
The Rajasthan High Court has directed a woman, who was married off while a minor and now wishes to part her ways, to file a representation before the Superintendent of Police, Jodhpur (Rural) for appropriate security.
Notably, the woman has approached the court with the grievance that her parents are pressuring her to live with the person with whom her marriage was solemnised while she was a child. She argued that such marriage was illegal, as she was not of marriageable age at the relevant time.
Moreover, the woman informed the court that though she wants to pursue her studies, her family members would get her arrested or forcefully take her to her village and restrict her movement due to which she would be unable to complete her studies.
Justice Dinesh Mehta, observed,
"Having regard to the apprehension expressed by the petitioner that her parents and family members will intrude in her life and liberty, instant petition is being disposed of with a direction to the petitioner to file a representation before the Superintendent of Police, Jodhpur (Rural) for appropriate security so as to enable her to take up her examinations at Jaipur which are going to be scheduled from 11.06.2022 to 06.07.2022."
Case Title: Smt. Rekha Kumari v. Hemendra Choudhary @ Hemraj
Citation: 2022 LiveLaw (Raj) 219
The Rajasthan High Court has observed that failure to mention the exact date of marriage in an application for divorce alone cannot be the reason for dismissing such application.
A bench comprising Justices Sandeep Mehta and Farzand Ali observed that if the Family Court suspects that the averments on the aspect of marriage are inconclusive, it can exercise powers under Section 165 of the Indian Evidence Act to put questions to the parties, so as to verify the truthfulness of the averments made in the application.
Essentially, the instant misc. appeal was filed by the appellant assailing the judgment-cum-decree passed by the Family Court whereby the application preferred by the appellant and respondent under Section 13B of the Hindu Marriage Act seeking decree of divorce by mutual consent was dismissed.
Case Title: Priyanka Shrimali v. State of Rajasthan and Others with other connected matters
Citation: 2022 LiveLaw (Raj) 231
In a significant development, a 3-judge bench of the Rajasthan High Court has observed that the use of the word 'unmarried' in Rule 2(c) of the Rajasthan Compassionate Appointment of Dependents of Deceased Government Servant Rules, 1996 depriving a married daughter from right of consideration for compassionate appointment, violates the equality clause and cannot be countenanced.
While answering a reference made by the division bench, the 3-judge bench comprising Justice Sandeep Mehta, Justice Vijay Bishnoi and Justice Arun Bhansali, observed,
"The provision of Rule 2(c) of the Rules of 1996, which excludes the married daughter from definition of dependent prior to its amendment vide notification dated 28.10.2021, is discriminatory and violative of Articles 14 to 16 of the Constitution of India and as such, the word 'unmarried' from the definition of 'dependent', is struck down. Further, in Rule 5 of the Rules of 1996 also the word unmarried daughters/adopted unmarried daughter, shall be read as daughters/adopted daughter."
Case title - Chandra Devi and another v. State Of Rajasthan and others
Case Citation: 2022 LiveLaw (Raj) 243
The Rajasthan High Court (Jodhpur Bench) has observed that a compassionate appointment cannot be denied to the child born from the second wife of the deceased employee.
To arrive at the conclusion, the bench of Justice Kuldeep Mathur relied upon the Supreme Court's recent ruling in the case of Mukesh Kumar v. Union of India 2022 LiveLaw (SC) 205 wherein it was observed that a compassionate appointment policy cannot discriminate against a person only on the ground of descent by classifying children of the deceased employee as legitimate and illegitimate.
Case Title: Gaytri and Another v. State of Rajasthan
Citation: 2022 LiveLaw (Raj) 250
The Rajasthan High Court, while disposing of a petition filed for protection of life and personal liberty by a widowed woman and a widower man staying together in a live-in relationship, observed that the petitioners have a constitutional right to privacy, liberty and choice.
The single bench of Justice Birendra Kumar ordered the Superintendent of Police, along with other authorities, to ensure the protection of life and personal liberty of the petitioners. The Court observed that privacy and liberty of individuals cannot be infringed by taking the law in one's hands and that in case there is an allegation of violation of law by the aggrieved person then legal recourse must be adopted, which recourse can never be at the whim of anyone.
Case Title: Kshama Chaturvedi v. State of Rajasthan and Others
Citation: 2022 LiveLaw (Raj) 252
The Jaipur Bench of the Rajasthan High Court, while disposing of a writ petition filed by a married woman claiming compassionate appointment upon her father's death, has held her to be entitled to claim such appointment, since the application for compassionate appointment was made by her while she was still unmarried.
The single bench of Justice Inderjeet Singh, after hearing the parties, allowed the writ petition and passed an order directing the respondent authorities to consider the petitioner for compassionate appointment along with consequential benefits within a period of three months.
"This writ petition filed by the petitioner deserves to be allowed; for the reasons, firstly, admittedly, at the time of submitting the application for compassionate appointment the petitioner was unmarried; secondly, the objection raised by the respondents regarding marriage of the petitioner is not sustainable as the petitioner solemnized marriage after one year of submitting the application for compassionate appointment."
Case title: The Secretary, Rajasthan Public Service Commission and another v. Sangeeta Varhat and others
Case Citation: 2022 LiveLaw (Raj) 255
The Rajasthan High Court has observed that a decree of divorce is essential for consideration of candidature for appointment against the quota of divorcees and that exemption from presenting such a decree cannot be sought on the ground of customs prevalent in a particular community.
With this, the bench of Justice Sandeep Mehta and Justice Kuldeep Mathur clarified that the claim of divorce on the basis of social practice in public recruitment is not valid and that a decree of divorce is mandatory for a woman who wishes to avail the benefit of the quota reserved for divorced women in government service.
TELANGANA HIGH COURT
Case Title: Jonnagaddala Swathi v. L. Karthika Chakravarthy
Citation: 2022 LiveLaw (Tel) 31
The Telangana High Court has recently ruled that even if the husband offers to pay the conveyance charges for the wife to appear for the family court hearings, if such an offer seems to have been made without bona fides, it can order for the case to be transferred to the Family Court near the residence of the wife.
Justice A. Venkateshwara Reddy ruled that although it is settled that a wife can be compensated by the husband by paying conveyance charges, each case depends on its own facts and the principles laid in various precedents are distinguishable from the facts of the present case.
Case Title: P. Rajeshwari And Another v. The State Of A.P. Another
Citation: 2022 LiveLaw (Tel) 78
Taking a serious view of the trend of false implication of the relatives of the husband in matrimonial disputes, the Telangana High Court recently observed that, the false implication of the relatives of the husband in matrimonial disputes based on general and omnibus allegations, if left unchecked would result in misuse of the process of law.
With this, the bench of Justice A. Santosh Reddy ordered to quash further proceedings against the mother-in-law/A2, brother-in-law/A3 (husband's brother), and sister-in-law/A4 (wife of husband's brother) of a woman, who had leveled allegations of harassing her for dowry [booked u/s 498-A IPC and S. 3, 4 of Dowry Prohibition Act].
Case Title: Vakalapudi Yugandhar v. The State Of Telangana And Anr.
Citation: 2022 LiveLaw (Tel) 45
The Telangana High Court permitted a petitioner, accused under Section 498-A IPC, to travel abroad to pursue his employment subject to executing a personal bond for a sum of Rs. 1 lakh before the trial Court and offering bank guarantee for the said amount before the departure.
"It is made clear that if the petitioner fails to return to India within the stipulated time, the personal bond and bank guarantee/FDR offered by the petitioner shall stand forfeited in favour of State Government without any notice."
Case Title: K. Rajkumar v. State Of A.P.
Citation: 2022 LiveLaw (Tel) 96
the Telangana High Court upheld the conviction of a husband under section 498A of Indian Penal Code despite there being contradictions in the dying declarations as there were consistent statements about abuse and cruelty committed on the wife in all the dying declarations.
"Both these statements are consistent with regard to the quarrel ensued between the deceased and A1 and that he came in drunken condition, abused her and came upon to beat her. Unable to bear the same, she poured kerosene oil from the stove on her body and set herself ablaze, which is sufficient to attract the ingredients of Section 498-A IPC. Even after removing the exaggerations, the statement of the deceased in Exs.P4 and P11 is consistent with regard to the harassment and cruelty met by her in the hands of A1 which drove her to commit suicide. As such, this Court does not find any illegality or impropriety in the judgment of the trial court in coming to the conclusion about the guilt of the Accused No.1 for the offence under Section 498-A IPC."
TRIPURA HIGH COURT
Case title - Pintu Ghosh v. The State of Tripura
Case Citation: 2022 LiveLaw (Tri) 1
In a significant observation, the Tripura High Court has observed that the mother of a sexual assault victim girl would never put her daughter's entire name, fame, and even entire life at stake by giving her a label of a victim of sexual assault.
Observing thus, the Bench of Justice T. Amarnath Goud and Justice Arindam Lodh affirmed the rape conviction of a man under Sections 376(2)(f) of the IPC for sexually assaulting a 4-year-old girl in the year 2012.
Case Title: Nirmal Ghosh v. Partha Ghosh
Case Citation: 2022 LiveLaw (Tri) 2
The Tripura High Court has recently held that unless and until there is an explicit challenge to birth documents and school records of a person, a plea for conducting his/ her DNA test cannot be entertained by the Court.
Justice T. Amarnath Goud was adjudicating upon a plea wherein the case of the petitioner was that the respondent (Partha Ghosh) was not the son of the deceased Kshitish Ghosh and under the garb of certain wills purportedly executed by the latter, the respondent had been selling the properties which were in dispute before the trial court.
Case Title: The State of Tripura & Ors. v. Smt. Debashri Chakraborty and other connected matters
Citation: 2022 LiveLaw (Tri) 3
The Tripura High Court has held that making 'married daughters' ineligible for availing benefits under the die-in-harness scheme of the State Government is discriminatory and violates Articles 14 to 16 of the Constitution.
While granting relief to the respondents (the aggrieved married daughters), the Division Bench of Chief Justice Indrajit Mahanty and Justice S.G. Chattopadhyay held,
"Marriage does not break the bond between a daughter and her parents as it does not do between a son and his parents. A crisis in the family of her parents equally worries a married daughter. As such, there is no rationale behind exclusion of a married daughter from the scheme. Therefore, a die-in-harness policy inasmuch as it operates as a disqualification in the case of a married woman, as against a married man must be held to be discriminatory and such policy, tested on the touchstone of Articles 14 to 16 of the Constitution, cannot be held to be valid."
Tripura High Court Grants Judicial Separation To Old Couple On Humanitarian Grounds
Case Title: Smti. Pramila Ghosh (Guha) Versus Sri Anup Kumar Guha
Citation: 2022 LiveLaw (Tri) 35
The Tripura High Court recently granted judicial separation to an old couple on humanitarian grounds, stating that they have mutually agreed to be away from each other and the court would not want to precipitate the litigation.
The observation came from a division bench of Justice T. Amarnath Goud & Justice S.G. Chattopadhyay:
"After elaborate arguments on behalf of both sides, both the parties present in court have mutually consented to be away from each other in view of their domestic issues and prays for judicial separation for some period. As the parties are senior citizens and considering their case on special reasons and having humanitarian grounds not to precipitate the litigation and with a hope in future they will have better days this court is of the view that for granting judicial separation which would be appropriate instead of divorce."
UTTARAKHAND HIGH COURT
Case title - Amanjot Singh Chadha. v. State of Uttarakhand
Case Citation: 2022 LiveLaw (Utt) 14
The Uttarakhand High Court has directed the State Government to frame and notify the rules making provisions for registration of marriage of people of Sikh community.
The Bench of Acting Chief Justice Sanjaya Kumar Mishra and Justice Ramesh Chandra Khulbe issued a direction to this effect to the Chief Secretary of the State on a PIL plea filed by the party in person, Amanjot Singh Chadha, commanding the State to notify the Rules under Anand Marriage Act, 1909.
Case Title : Abhishek Rajput v Smt. Pooja Rajput & another
Citation :2022 LiveLaw (Utt) 31
The Uttarakhand High Court has reiterated that an application with respect to the guardianship of a minor has to be made to the District Court having jurisdiction in the place where the "minor ordinarily resides".
The observation came from a division bench of Chief Justice Vipin Sanghi and Justice RC Khulbe:
"Since the minor is studying at a school in Mohali, it is that place where he is ordinarily residing. It does not matter whether the minor is residing at the said place only for a few months before the filing of the petition. What is relevant is the nature of residence, i.e., whether it is continuous and on a permanent basis, or it is only a casual visit. Since the minor child is studying at Mohali, it cannot be said that the child is making only a casual visit to Mohali."
Case title - Mahendra Prasad Dwivedi v. Lajji Devi [APPEAL FROM ORDER NO. 331 OF 2022]
Case Citation: 2022 LiveLaw (Utt) 38
The Uttarakhand High Court ordered a man to pay ₹50K to his pay after finding that he obtained an ex-parte divorce decree by misleading her. The Court further ordered him to deposit ₹50K with the State Legal Services Authority within four weeks.
Essentially, the Husband (while living with his wife and keeping her in dark), managed to get an 'ex-parte divorce decree' after obtaining the wife's signature by misrepresenting to her that her signatures are required in relation to some cases. This was done to show before the Court that his wife had been served with divorce proceedings and she 'agreed to them'.
Case Title: Dr. Surjeet v. Dr. Namita
Citation: 2022 LiveLaw (Utt) 42
The Uttarakhand High Court directed a family court in Haldwani to entertain a man's petition for divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955 on the basis of the power of attorney furnished on behalf of his father.
The division bench of Chief Justice Vipin Sanghi and Justice R.C. Khulbe, while expressing its dismay on the approach of the Family Court, said the subordinate court is expected to deal with issues, which arise before it, without waiting for a pronouncement by the high court.
Case Title: Manish Saini v. State of Uttarakhand
The Uttarakhand High Court has clarified that it is not mandatory for a person claiming maintenance under Section 125 Cr.P.C. to implead all the persons responsible for maintaining him/her, having sufficient means, as respondents. It is up to the claimant from whom he/she needs maintenance and is free to implead any one or all the persons.
