11 Feb 2023 2:30 PM GMT
LiveLaw brings to you the most awaited High Court Digest on Hindu personal law cases from the year 2022.Allahabad High Court"Marriage Certificate Not Necessary For Adopting A Child": Allahabad HC In Transgender Person's Plea Seeking Marriage RegistrationCase title - Rina Kinnar And Another v. State of U.P. and AnotherCase Citation: 2022 LiveLaw (AB) 55The High Court has observed that for...
LiveLaw brings to you the most awaited High Court Digest on Hindu personal law cases from the year 2022.
Allahabad High Court
"Marriage Certificate Not Necessary For Adopting A Child": Allahabad HC In Transgender Person's Plea Seeking Marriage Registration
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
Wife Who Has Challenged Divorce Decree & Hasn't Accepted Permanent Alimony U/S 25 Hindu Marriage Act Can Seek Maintenance U/S125 CrPC: Allahabad HC
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."
Boy Not Being Above 21 Yrs Of Age Wouldn't Render Marriage Void; A Major Can Live With Person Of Choice: Allahabad High Court
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.
Matrimonial Case Can't Be Transferred On Gound Of Distance/ Financial Stress If Plea U/S 24 HMA Has Already Been Allowed: Allahabad HC
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.
No Desertion/Cruelty If Wife Visits Her Parents' House Frequently Without Taking Husband's Consent: Allahabad High Court
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.
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.
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.
Bombay High Court
Either Spouse Can Claim Alimony Under Sec 25 HMA : Bombay High Court Directs Wife To Pay Maintenance To Husband
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.
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.
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
Delhi High Court
Family Courts Expected To Bring About Settlement, Endeavour Can't Be To Simply Dispose Of Cases At Cost Of Justice: 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.
What Is The Scope Of Judicial Separation & Divorce Under Hindu Marriage Act, 1955? Delhi High Court Explains
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.
Wife Filed Unsubstantiated Criminal Complaint Against Husband, His Family Causing Immense Mental Cruelty": Delhi HC Dissolves Marriage
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.
Wife Opposing Husband's Plea For Restitution Of Conjugal Rights Does Not Affect Her Right Of Residence Under Domestic Violence Act: Delhi High Court
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.
'Keeping Legal Bond Alive Would Snatch Away Opportunity To Lead Fulfilling Life': Delhi HC Waives Cooling Off Period For Divorce By Mutual Consent
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.
Denial Of Conjugal Relationship Ground For Divorce But Not 'Exceptional Hardship' To Waive Cooling Off Period U/S 14 Hindu Marriage Act: Delhi HC
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".
Daughter Living With Grandparents Does Not Absolve Father's Responsibility To Provide Maintenance: Delhi High Court
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.
"Husband & Wife Two Pillars Of Family, Whole House Crashes Down If One Gets Weak": Delhi High Court Upholds Divorce Granted In Wife's Favour
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."
Daughter In Law Can Claim Maintenance From Her Father In Law If She Inherited Some Estate From Her Husband: Delhi High Court
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.
Gauhati High Court
"No Concept Of Bigamy In Hindu Religion; Second Wife Not Entitled To Family Pension In Presence Of First Wife": Gauhati High 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
Registrar Can't Refuse To Issue Birth Certificate In Adoptive Father's Name In Absence Of Challenge To Adoption Deed: Gujarat High Court
Case Title: Kajalben Rakeshbhai Bhadiyadra V/S The 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 theApplicant.
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 MaintenanceAct, 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".
Hindu Succession Act | Children Born From A Widow's First Marriage Can InheritProperty From Her Second Husband: Gujarat High Court
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."
Karnataka High Court
Properties Given As Dowry To Be Included In Partition Suit Instituted By Daughter Under Hindu Succession Act: Karnataka High Court
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."
Wife Levelling Unsubstantiated Allegations Of Husband Being Impotent Amounts To Cruelty: Karnataka High Court
Case Title: XXXXversus 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 MarriageAct.
Hindu Marriage Act | Able-Bodied Husband Having Earning Capacity Can't Seek Permanent Alimony From Wife: Karnataka High Court
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. A division bench of Justice Alok Aradhe and Justice J M Khazi dismissed the appeal filed by one T.Sadananda Pai, seeking permanent alimony from his wife under section 25 of the Hindu Marriage Act.
The bench said, "The appellant is an able bodied person and has the capacity to earn. The Family court therefore, has rightly rejected the petition filed by the appellant under Section 25 of the Act."
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.
Madhya Pradesh High Court
Divorce By Mutual Consent: Madhya Pradesh HC Rules Condition U/S13B(1) Hindu Marriage Act Of 'Living In Separation For One Year' Can't Be Waived
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.
Long Standing Domestic Dispute Constitutes 'Mental Cruelty' To Spouse Who Intends To Live In Peace: Madhya Pradesh HC
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.
Man Can't Run Away From Responsibility Towards Son & Wife By Simply Seeking Divorce To Serve His Parents: Madhya Pradesh High Court
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."
Orissa High Court
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."
Punjab & Haryana High Court
Hindu Adoptions & Maintenance Act Does Not Envisage Agreement To Adopt 'Unborn Child': Punjab & Haryana High Court
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.
Incessantly Filing Complaints Against Husband & His Family Resulting In Arrest & Damage To Reputation Amounts To Cruelty: Punjab & Haryana HC
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.
Punjab & Haryana High Court Denies Permanent Alimony Under Hindu Marriage Act To Wife Living In Adultery
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.
Rajasthan High Court
'Parties Are Educated and Aware of Their Rights': Rajasthan High Court Waives 6 Months Cooling Off Period For Divorce By Mutual Consent
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.
Divorce| Rajasthan HC Sets Aside Family Court's Order Refusing To Waive 6 Months Cooling-Off Period In Absence Of Documentary Evidence
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."
Divorce Application Cannot Be Thrown Out Only Because Exact Date Of Marriage Is Not Mentioned: Rajasthan High Court
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.
Uttarakhand High Court
Uttarakhand High Court Pulls Up Family Court For Not Allowing US Resident To File Divorce Petition Through POA Holder
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.