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Hindu Marriage Act, 1955 – Section 13(1)(ia) – Relief of Judicial Separation, instead of the relief of divorce granted Family Court – Challenged – Powers of the Family Court to change the nature of the relief sought is absent.

DELHI HIGH COURT

DIVISION BENCH

VINAY KHURANA AND OTHERS — Appellant

Vs.

SHWETA KHURANA AND OTHERS — Respondent

( Before : Vipin Sanghi and Jasmeet Singh, JJ. )

Mat. App.(F.C.) 213 of 2018 & Cm Appl. 3289 of 2021 and Mat. App.(F.C.) 231 of 2018

Decided on : 18-02-2022

Hindu Marriage Act, 1955 – Section 10, Section 13(1)(ia)
Indian Evidence Act, 1872 – Section 65B

Hindu Marriage Act, 1955 – Section 13(1)(ia) – Relief of Judicial Separation, instead of the relief of divorce granted Family Court – Challenged – Powers of the Family Court to change the nature of the relief sought is absent. The Family Court cannot be heard to tell the petitioner before it, what is “good” for him/her. It may render its advice to the parties when the matter is pending before it, but when it comes to adjudication, the Family Court is bound to bear in mind the relief sought by the petitioner. If the petitioner has established the grounds for seeking the relief as sought, he/she should be granted the same. If not, he/she should be denied the relief sought. Conversely, the Family Court cannot grant a relief, the statutory grounds for seeking which, are not established, merely because it feels that that would be “good” for the parties – In the present case, the parties lived together only for 3 years, and have been living separately for more than 12 years now. The period of separation has left the relationship between the parties beyond repair – The adamance of the respondent to refuse to cohabitate with the appellant over the last 12 years shows us that there is nothing remaining in this marriage, for either party – Family Court erred in not granting the decree of divorce to the appellant and, instead, granting a decree of Judicial Separation to the appellant – Decree of divorce granted.

Counsel for Appearing Parties

Appellant-in-person, for the Appellant; Mr. Naman Joshi, Mr. Guneet Sidhu, Advocate, for the Respondent.

Cases Referred

Dastane vs. Dastane AIR 1975 SC 1534
Mangayakarasi v. M. Yuvaraj (2020) 3 SCC 786
Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558
Rayala M. Bhuvaneswari v. Nagaphanende Rayala AIR 2008 AP 98
Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511
Sheenu Mahendru v. Sangeeta, (2019) SCC Online Utt 376

JUDGMENT

1. MAT. APP. (F.C.) 213/2018 has been filed by the appellant-husband Vinay Khurana (hereinafter referred to as “appellant”) challenging the judgment dated 02.07.2018 passed by the Family Court, Shahdara District, wherein the Family Court has granted a relief of Judicial Separation, instead of the relief of divorce-as had been sought by the appellant.

2. On the other hand, MAT. APP. (F.C.) 231/2018 has been filed by the respondent-wife – Shweta Khurana (hereinafter referred to as “respondent”) challenging the findings returned by the Family Court, Shahdara District against the respondent in the said judgment.

3. The admitted facts are as under:

(a) The marriage of the parties took place on 14.04.2006 according to the Hindu rites and ceremonies. One girl child was born out of the wedlock on 23.09.2007, who is in the custody of the respondent.

(b) The appellant filed the petition for divorce on 13.07.2012, on the ground of cruelty under section 13(1)(ia) of the Hindu Marriage Act.

(c) The parties have been staying separately since 29.05.2009. There are conflicting statements placed before us as to the reasons why the appellant and the respondent have been staying separately since 29.05.2009. The appellant has levelled various allegations against the respondent, for ignoring him and his family members; giving importance to her own family while avoiding to perform her matrimonial obligations; excessively talking on the phone with her family members at odd hours of the night; showing a non-cooperative and disrespectful attitude towards the appellant and his parents. The appellant further alleged that the respondent constantly threatened him and his family members to desert them, and implicate them in false cases, amongst others.

(d) The respondent in her written statement, as well as her appeal, has denied all the allegations and rather blamed the appellant for committing physical and mental cruelty on the respondent for bringing less dowry. The respondent has stated that it was the appellant, who had thrown her out of the matrimonial house on 29.05.2009, after giving her beatings, and thereafter, he never made any efforts to bring her back. The respondent has stated that she has always been ready and willing to go back to the house of the appellant, and it is the appellant who is spoiling their matrimonial life.

(e) On 19.08.13 the Family Court granted Rs. 10,000/- per month to the respondent and the minor child as an interim maintenance.

4. On 03.08.2013, the Family Court framed the following issues:

(a) Whether the respondent has, after solemnization of marriage, treated the petitioner with cruelty? OPP;

(b) Relief.

5. In order to prove the case, the appellant has examined himself as PW-2, and his father Shri Om Prakash Khurana as PW-5. The appellant also examined Shri Khairati Lal, (Uncle of the appellant) as PW-1, Shri Rakesh Bawa, (Brother-in-law of the appellant) as PW-3, Shri Anurag Pahuja, (close friend of the appellant) as PW-4, and Smt. Mamta Mehra, (close friend of the appellant) as PW-6 – who had contacted respondent and had gone to her house on different occasions to make her understand and bring her back to the matrimonial home. On the other hand, the respondent examined herself as RW-1 and her brother Lucky, as RW-2.

6. After discussing the entire evidence on record, the Family Court in the impugned judgment has held as under:

“However, from the evidence led it is clear that that it was the respondent who left the matrimonial home without any sufficient reasons. In fact, she wanted to live with the petitioner in a separate house but not in the joint family. She always wanted the petitioner to separate himself from his parents and after taking share in the joint family, purchase separate property. Petitioner always wanted to live with the respondent but it was also not possible for him to ignore his parents. Petitioner had made various efforts for the compromise and to bring her back the respondent to this house but the adamant attitude of family member of the respondent created hurdles. Respondent was under full control and emotional pressure of her father and brother who were the real instrumental in damaging the matrimonial relations of the parties and they did not want to get the matter settled for their own ulterior motive so that respondent remain in their house and take care of them and other younger unmarried sisters. The act and conduct of the respondent amounted to desertion of the petitioner as well as cruelty upon him. However, I am of the view that if the respondent comes out of pressure of her father and brother, then the parties still can live together because petitioner always wanted that respondent should come back to him and even lastly in the court on 2-4-2018 he agreed to take her from the court room itself. I still feel that good sense can prevail over the respondent in future and she can remove pressure of her brother and father from her mind and can join the company of the petitioner at least for the welfare and sake of the child without insisting to live in a separate house after going against the wishes of her brother and father. Even if the act, conduct and behaviour of the respondent amounts to desertion and cruelty committed upon the petitioner but she was doing the same under pressure of her family members against whom she cannot revolt and apparently she has lost her own thinking power to determine what is wrong and what is right. Respondent is in fact doing what is asked by her family members without applying her own mind. Counsel for the respondent rightly relied upon the case law Dastane vs. Dastane AIR 1975 SC 1534 to show that in the present situation it is not a fit case where divorce should not be granted but instead relief of judicial separation can be given. This issue is accordingly decided against the respondent and in favour of the petitioner “. (emphasis supplied)

7. While holding that the respondent-wife was guilty of matrimonial misconduct, the Family Court was of the opinion that respondent, in fact, was doing what was asked by her family members, without applying her independent mind. The Family Court, thus, after relying on Dastane (supra), came to the conclusion that while the grounds of cruelty and desertion were attracted and fully proved, it was not a fit case where divorce should be granted and, instead, granted judicial separation. In addition, the respondent was advised to think again, independently, without any pressure of her family members, in order to settle and re-establish her matrimonial home.

8. The appellant has assailed this judgment, primarily, on the following grounds:

(a) The Family Court has found both desertion and cruelty in favour of the appellant and against the respondent, but has committed an illegality by not granting the decree of divorce in favour of the appellant, when that was the relief sought in the petition. The appellant had the option to choose one, or the other relief i.e. judicial separation, or divorce. Since the appellant had chosen the relief of divorce, the same could not have been substituted by the Family Court, on its own, as they are both qualitatively different reliefs, having completely different ramifications in law and different consequences for the future lives of the parties.

(b) The parties have been living separately since 2009 – for a period of more than 12 years now, and hence the bond and the golden thread of matrimony between them has been severely destroyed beyond repair. In these circumstances, the decree of divorce should have been passed by the Family Court.

(c) The marriage between the parties is dead emotionally and practically, and there is no chance of the parties reuniting and cohabitating together, and thus the continuance of such a marriage would, in itself, amount to cruelty to both the parties.

9. On the other hand, the learned counsel for the respondent has argued that the normal friction and discord of a matrimonial relationship has been construed as cruelty by the Family Court. None of the instances mentioned in the divorce petition, and proved on record, can be said to be instances constitute cruelty. At best, they are instances of normal wear and tear and disharmony in a matrimonial relationship. Learned counsel for the respondent has further submitted that the audio recording of the conversation between the appellant and the respondent, without the consent of respondent, is an illegality, for which he relied upon Rayala M. Bhuvaneswari v. Nagaphanende Rayala AIR 2008 AP 98. He submitted that the appellant interacted with the respondent with the premeditated intention of divorce, and for the said purpose made recordings of the conversation between him and the respondent, post-separation of the parties. Learned counsel for the respondent has further submitted that the conversations between the appellant and the respondent could not be relied upon in the absence of an affidavit under Section 65B of the Indian Evidence Act, 1872. Lastly, learned counsel for the respondent has submitted that all the witnesses, namely, Shri Khairati Lal/PW-1, Shri Rakesh Bawa/PW-3, Shri Anurag Pahuja/PW-4, Smt. Mamta Mehra/PW-6 & Shri Om Prakash/PW-5 are not credible, and that their testimony cannot be relied upon.

10. We have heard the learned counsel for the parties and have perused the findings of the Family Court.

11. We may first consider the issue whether finding of cruelty returned by the Family Court, against the respondent-wife calls for interference.

12. In MAT APP (F.C) 231/2018, and in the Written Statement in HMA 165/2018 before the Family Court – as well as the evidence by way of affidavit, the respondent has stated that the instances cited by the appellant can be said to be normal wear and tear of the marriage, and do not amount to cruelty. What is relevant, for our adjudication is that the respondent has categorically stated in her affidavit of evidence that “she was subjected to physical and mental cruelty on account of bringing less dowry”. Her brother RW-2 has also in his affidavit by way of evidence stated that “respondent was turned out of her matrimonial home by the petitioner and his family members on 29.05.2009 due to the non-fulfillment of dowry demands”. However, the affidavits of evidence of both respondent and her brother are totally silent on the date, time, and place of demand of dowry, or what were the demands. The respondent and her family members have never lodged any complaint to the police, or to any authority in this regard. Thus, her version that she was thrown out of her matrimonial home, or that the members of the appellant’s family tried to take her life – in respect whereof there was no complaint or evidence, is difficult for us to accept. In fact, RW-2 has stated that the appellant and his family members had given beatings to the respondent several times for the lack of dowry. Pertinently, respondent No.2, in his cross-examination has stated that no such demand was made in his presence, nor any demand was fulfilled by his family, and no beatings of the respondent-by the appellant or his family members, took place in his presence.

13. At one stage, the respondent put suggestions to the witnesses of the appellant, trying to show that the appellant had demanded a car as dowry, but since no such averment was made in the Written Statement, the suggestion, itself, was irrelevant. Even otherwise, the respondent did not disclose any articles demanded, which were fulfilled, or which were left unfulfilled. Hence, the allegations of demand of dowry by the appellant or his family members do not inspire any confidence, and remain unsubstantiated.

14. The Supreme Court in Mangayakarasi v. M. Yuvaraj (2020) 3 SCC 786 has held as follows:

“14. It cannot be in doubt that in an appropriate case the unsubstantiated allegation of dowry demand or such other allegation has been made and the husband and his family members are exposed to criminal litigation and ultimately if it is found that such allegation is unwarranted and without basis and if that act of the wife itself forms the basis for the husband to allege that mental cruelty has been inflicted on him, certainly, in such circumstance, if a petition for dissolution of marriage is filed on that ground and evidence is tendered before the original court to allege mental cruelty it could well be appreciated for the purpose of dissolving the marriage on that ground….”

15. In Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511, the Supreme Court has held as follows:

“No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of ‘mental cruelty’. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.

(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.

(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.

(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.

(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.

(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty.

(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.

(xi) If a husband submits himself for an operation of sterilisation without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.

(xiv) When there has been a long period of continuous separation, it may be fairly concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of the marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties, it may lead to mental cruelty “

16. Learned counsel for the respondent also argued that there are no specific instances of cruelty, and that the instances relied upon by the appellant, are instances of “friction”. The term ‘mental cruelty’ is a broad term, and there can be no particular set parameter to determine it. As held in Samar Ghosh v Jaya Ghosh (supra), there is no straitjacket formula for determining cruelty. Thus, the conduct of the parties – as established, would need examination to arrive at the conclusion, whether the same tantamount to cruelty.

17. On the aspect of cruelty, the Family Court has returned the following findings:

“However, from the evidence led it is clear that that it was the respondent who left the matrimonial home without any sufficient reasons, In fact, she wanted to live with the petitioner in a separate house but not in the joint family. She always wanted the petitioner to separate himself from his parents and after taking share in the joint family, purchase separate property. Petitioner always wanted to live with the respondent, but it was also not possible for him to ignore his parents. Petitioner had made various efforts for the compromise and to bring back the respondent to his house but the adamant attitude of family members of the respondent created hurdles Respondent was under full control and emotional pressure of her father and brother who were the real instrumental in damaging the matrimonial relations of the parties and they did not want to get the matter settled for their own ulterior motive so that respondent remain in their house and take care of them and other younger unmarried sisters. The act and conduct of the respondent amounted to desertion of the petitioner as well as cruelty upon him. “

18. As regards the respondent leaving the matrimonial home, the Family Court has observed that:

“Not only this court but also another court of MM tried to get the matter compromised between the parties on various occasions but most of the times, it was the respondent who showed disinterest in going back to matrimonial home. Order sheet dated 15-9-2015 of this case shows that once it was agreed upon between the parties that respondent shall search for a separate house and inform the petitioner about it and thereafter after finalization of the said house, parties will live together. However, no steps were taken by the respondent in this regard. Again order sheet dated 5-3-2018 point out that respondent was not ready to talk for any settlement and wanted to contest the case. One maintenance case between the parties was once pending in Mahila Court and order Ex. RWl/P-2 dated i4-3-2012 shows that it was the respondent who did not wish to go to the mediation centre for settlement.

The action of the petitioner to raise query from the respondent why she had gone to her parent’s house and coming late at about 10 p.m. cannot be held as improper especially when she had gone there one day before also. RW-2 in his cross examination denied giving of beatings by the petitioner to respondent in his presence which is contrary to the allegations made in his affidavit, It is not explained how and in which manner beatings were given and to what an extent. Whether the physical assault was of such nature that respondent was compelled to leave the house is also not explained. There is no medical to show that any physical assault was committed. Hence, the manner of leaving the, matrimonial house by the respondent as alleged by her cannot be accepted as correct. There is no ground to disbelieve the petitioner that she left the house her own merely on the ground of making query about the reasons of going to her parent’s house. The action on the part of the respondent amounts to desertion.

There is no hesitation to say that father and brother of the respondent were the main instrumental in damaging the relationship of the petitioner and respondent. They for their own convenience and benefit were unnecessary stopping the respondent to go back to her matrimonial home and were pressurizing or influencing her to desert the petitioner. Apparently, respondent fully understood the tricks of her family members as per admitted telephonic conversation taken place with the petitioner but due to their influence or emotional pressure was hesitating to join the company of the petitioner. Her conduct shown even during the pending proceedings not to live with the petitioner or even to settle the matter also point out that she was intentionally deserting the petitioner. Even respondent admittedly had not sent any reply to the legal notice Ex. PW2/5 sent by petitioner or anything in writing to show her willingness to join matrimonial house………………”

19. It is also an admitted case that the appellant and the respondent separated on 29.05.2009. It is further admitted, that the father of the respondent used to be abusive towards the appellant, as a result of which appellant was constrained to file a civil suit against the father of the respondent. The matter was compromised on 13.09.2011, and the father of the respondent had made a statement as under:

“I shall not interfere in the matrimonial life of my daughter and I further undertake that I shall not hurl abuses to the plaintiff and I shall not make any telephonic call to the Plaintiff (Petitioner herein) and the Plaintiff should also not visit my house without my permission and shall also not make a telephonic call to me. “

20. As per this statement, it was the father of the respondent, who forbade the appellant from coming to his house or making any calls. The onus, therefore, shifted on the respondent to show her intent, and the effort that she made to re-join company of the appellant. There is no evidence on record to show any effort made by the respondent to rejoin the company of the appellant. After 29.05.2009, no petition under Section 9 of the Hindu Marriage Act, 1955 -for Restitution of Conjugal Rights, was filed by the respondent. In fact, the appellant has led the evidence of Shri Khairati Lal/PW-1, Shri Rakesh Bawa/PW-3, Shri Anurag Pahuja/PW-4, Shrimati Mamta Mehra/PW-6 & Shri Om Prakash/PW-5, who all gave evidence to the effect that they have tried to get the respondent back to her matrimonial home and, despite their best efforts, they could not succeed.

21. Shri Khairati Lal/PW-1, by way of his evidence affidavit stated as under:

“4. That deponent says that the brother of the respondent namely Lucky Malhotra came and flatly refused to send the respondent with the deponent/at her matrimonial home. Then on persuasion of the deponent, Shweta herself came there and the deponent with folded hands requested her to come back at her matrimonial home and asked her if any type of difficulty, she is facing in coming back, then the respondent bluntly refused-to come back to her matrimonial home.”

22. Shri Rakesh Bawa/PW-3, by way of his evidence affidavit also stated:

“2. That deponent says that or. 29/05/2005, the deponent had talk with the father of the respondent and requested him not to ruin the matrimonial life of the petitioner and the respondent, but the father of the respondent didn’t talk in good manner, then in the evening he went at his home and again cleared about the position of both the parties. The deponent asked Shweta/respondent that whether he has any problem from the petitioner, but she replied that he has no problem from the petitioner rather, he praised about the behaviour of the petitioner, but the father of the respondent remarked that “MAIN APNI LADKI ,K0 GHAR PAR RAKHONGA AUR YE MERE GHAR KA KAAM KAREGI, MAIN APNI PROPERTY ISKE NAAM KAR DOONGA A UR YE AARAM SE RAHEGI, BUT I WILL SEND HER BACK TO HER MATRIMONIAL HOME ONLY IF VINAY WILL GIVE HIS SHARE IN PROPERTY IN THE HANDS OF SHWETA” and started abusing the deponent in filthy language and asserted that it will make no difference, if his daughter remains with him for the years together.

6. Father of Shweta had never met Vinay in my presence. It is wrong to suggest that even today Shweta is ready to live with Vinay. (Vol. The kind of language used by her brother and father on 29.06.2009 showed that they were not interested to sent her to her matrimonial home;). It is wrong to suggest that after 29.09.2009 I had called her father asking him to settle the dispute by divorcing both the parties after negotiating settlement amount and during negotiations her brother. Lucky will not sit. It is wrong to suggest that her father had told me that I should try patch up both the spouses and persuade them to live together. (Vol. Her father had told me to stay out of all this). “

23. Shri Anurag Pahuja/PW-4, also deposed:

“3. That in march 2010 deponent persuaded to the respondent to rejoined her matrimonial home then the respondent replied that petitioner/Vinay is a very good person and his no problem from Vinay but till his parent in laws did not full, fill her condition she will not rejoined her matrimonial home.

4. That deponent put his all efforts to convince respondent that she should not spoil her matrimonial home, but she flatly refused to come back -rather, threatened to take legal action against the petitioner and his parents and asked the deponent that he is 10th person from petitioner’s side who has trying to conveyance her to come back at her matrimonial home.”

24. Smt. Mamta Mehra/PW-6 also deposed :

“I came to know about the dispute between the (parties first time on 29.05.2009.I along with my husband had gone to the house of the respondent after 5-6 days of 29.05.2009 to “find out the reasons of separation. (Again said: Had gone to the house of the petitioner and not of the respondent). We had not gone to the house of the respondent as I had called her 3-4 times on phone but she disconnected die phone every time. “

25. Shri Om Prakash/PW-5, father of the appellant also has stated as under:

“10. That on 5.06.2009 deponent along with Sh. Khairati Lal Batra and his wife Neelam went to the parental home of the respondent to bring her back to the matrimonial home, but the respondent made a call to her father and informed him that the deponent along with his relatives have reached their home and she asked-her father to come immediately. After receiving the call, the respondent’s father; went to the residence of. Sh. Rakesh Bawa and then, wife of Mr. Bawa – Lalita Baw telephonically informed the deponent that father of respondent has come to their home and deponent should leave the parental home of respondent with their relatives. Mrs. Lalita Bawa further informed that if they won’t leave the parental home of the respondent, they will face the consequences as all of them have visited the parental house of respondent without any intimation. Then in-front of deponent Mr. Khairati Lal persuaded the respondent to come back at her matrimonial home but she bluntly refused for the same and her brother Lucky Malhotra said that he will get his sister remarried but will not send her back to her matrimonial home. He misbehaved with the deponent and other people along with him.”

26. All the appellant’s witnesses made efforts to repair the matrimonial bond of the parties. They endeavoured to help the parties to live together and solve their differences, and there is no reason to disbelieve their statements, or assume them to be untrustworthy. They are not “interested witnesses”, whose testimony should be discarded. They have been cross-examined, and nothing has come out from their cross-examination, to throw any doubt about their credibility. Their evidence is also corroborated by documentary evidence viz. the statement made by the respondent’s own father in the appellant’s suit, on 13.09.2011, and the lack of intent to resume cohabitation exhibited by the respondent.

27. The respondent’s attitude, reluctance and obstinacy to join the appellant in the matrimonial home, despite his, his relatives and friends’ effort to bring her back – also amount to cruelty. The respondent-wife seemingly left her matrimonial home for no reason; levelled various false and serious allegations against the appellant and her in-laws, and; refused to cohabitate or compromise with appellant. Such indifference on the part of the respondent would have caused substantial anguish and agony to the appellant. The appellant did not get married to the respondent to lead a bachelor’s life. He got married in the hope, and with the expectation, of leading a happy and fulfilling married life. The respondent, by not joining him, has denied him conjugal satisfaction. He has been denied the companionship that he would have been legitimately and rightfully hoping to experience with the respondent.

28. Further, despite the decree of judicial separation, the respondent-wife never even attempted to re-join the company of her husband, even temporarily. The respondent-wife – in the impugned judgment, was asked to give her marriage another chance, and think independently of her family members. However, there has been no positive move on the part of the respondent.

29. The appellant husband did all that he could, to cohabitate with his wife. However, the respondent-wife refused to cohabitate with him, and made false allegations of dowry demand without any proof whatsoever, and left the matrimonial home without any reason and refused to return after that. Thus, it is evident to us, that she perpetrated mental cruelty upon the appellant, and that nothing remains in this marriage.

30. We may now turn to the legality of the relief granted by the Family Court of judicial separation to the appellant, instead of a decree of divorce.

31. Under the scheme of the Hindu Marriage Act, 1955 the ambit and the scope of Judicial Separation and Divorce is qualitatively different. Judicial separation is a completely different relief that the aggrieved spouse may seek against the other, under Section 10 of the Hindu Marriage Act, which reads as under:

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

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

32. 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. While judicial separation does not end the matrimonial relationship and the marriage is preserved – after a declaration is made establishing the matrimonial misconduct by the other spouse, and it entitles the aggrieved spouse/petitioner to deny conjugal relationships to the other spouse/respondent, a decree of Divorce puts an end to the jural relationship of marriage between the parties, thus liberating them from their marital bond. Whereas a decree of judicial separation can be rescinded by the same court; a decree of divorce can be reversed only by a judicial order: either in review, or in appeal. If it is passed ex parte, it may be recalled on an application being made for that purpose.

33. Thus, when a decree of judicial separation is passed, the aggrieved spouse is no longer bound to cohabitate with the other, even though, the matrimonial bond continues to subsist. The parties cannot remarry during the period of judicial separation, since the status of marriage subsists. On the other hand, the parties cease to remain husband and wife, once a decree of divorce is granted, and the parties are free to remarry once the statutory period of appeal expires, and there is no restraint order passed by a competent court against remarriage.

34. Judicial separation and divorce are completely different reliefs-granted on the same grounds-as contained in Section 13 (1), and in the case of a wife, also on any of the grounds specified in sub-Section (2) of Section 13 of the Hindu Marriage Act, 1955.

35. The Supreme Court in Hirachand Srinivas Managaonkar v Sunanda (2001) 4 SCC 125 explained the concept of judicial separation as follows :

“16. In this connection another question that arises for consideration is the meaning and import of section 10(2) of the Act in which it is laid down that where a decree for judicial separation has been passed it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so. The question is whether applying this statutory provision to the case in hand can it be said that the appellant was relieved of the duty to cohabit with the respondent since the decree for judicial separation has been passed on the application filed by the latter. On a fair reading of the sub-section(2) it is clear that the provision applies to the petitioner on whose application the decree for judicial separation has been passed. Even assuming that the provision extends to both petitioner as well as the respondent it does not vest any absolute right in the petitioner or the respondent not to make any attempt for cohabitation with the other party after the decree for judicial separation has been passed. As the provision clearly provides the decree for judicial separation is not final in the sense that it is irreversible; power is vested in the Court to rescind the decree if it considers it just and reasonable to do so on an application by either party. The effect of the decree is that certain mutual rights and obligations arising from the marriage are as it were suspended and the rights and duties prescribed in the decree are substituted there for. The decree for judicial separation does not sever or dissolve the marriage tie which continues to subsist. It affords an opportunity to the spouse for reconciliation and re-adjustment. The decree may fall by a conciliation of the parties in which case the rights of respective parties which float from the marriage and were suspended are restored. Therefore, the impression that section 10(2) vests a right in the petitioner to get the decree of divorce notwithstanding the fact that he has not made any attempt for cohabitation with the respondent and has even acted in a manner to thwart any move for cohabitation does not flow from a reasonable interpretation of the statutory provisions. At the cost of repetition, it may be stated here that the object and purpose of the Act is to maintain the marital relationship between the spouses and not to encourage snapping of such relationship.” (emphasis supplied)

36. The Family Court in the impugned judgment observed:

“However, I am of the view that if the respondent comes out of pressure of her father and brother, then the parties still can live together because petitioner always wanted that respondent should come back to him and even lastly in the court on 2-4-2018 he agreed to take her from the court room itself. I still feel that good sense can prevail over the respondent in future and she can remove pressure of her brother and father from her mind and can join the company of the petitioner, at least for the welfare and sake of the child without insisting to live in a separate house after going against the wishes of her brother and father. Even if the act, conduct and behaviour of the respondent amounts to desertion and cruelty committed upon the petitioner but she was doing the same under pressure of her family members against whom she cannot revolt………

(8) ISSUE NO. 2 (RELIEF) :- In view of the above discussion, though the case is fully proved by the petitioner and the divorce grounds of cruelty and desertion are attracted but in the present facts and circumstances, while allowing this petition, I am granting the petitioner relief of judicial separation instead of divorce and giving advice to the respondent to think again independently without feeling any pressure of her family members in order to settle and reestablish her matrimonial home. ” (emphasis supplied)

37. The approach of the Family Court in ordering judicial separation, instead of Divorce is faulty, to our mind. What the Family Court failed to appreciate is that, firstly, it is for the petitioner- who approaches the Family Court, to decide whether he/she wishes to obtain the relief of divorce, or of judicial separation. It is not for the Court to decide to substitute the relief sought by the petitioner – from divorce to judicial separation, or vice versa. If the petitioner is able to establish the ground to seek one or the other of these reliefs, the Family Court cannot decide for the petitioner, that it is better for him/her, or the other/respondent spouse, to accept the relief that he/ she has not sought in his/ her petition. The two reliefs of Divorce or Judicial Separation are not-in that sense, larger or lesser reliefs, respectively. To test the approach of the Family Court, one may ask:-if the Family Court was of the view that the respondent-wife may come out of the influence of her family, could the Family Court have granted a decree of restitution of conjugal rights under Section 9 of the Hindu Marriage Act, even though the same was never prayed for by the appellant? In our view, the Family Court could not have done it, for the simple reason, that the petitioner before it had not sought that relief. The powers of the Family Court to change the nature of the relief sought is absent. The Family Court cannot be heard to tell the petitioner before it, what is “good” for him/her. It may render its advice to the parties when the matter is pending before it, but when it comes to adjudication, the Family Court is bound to bear in mind the relief sought by the petitioner. If the petitioner has established the grounds for seeking the relief as sought, he/she should be granted the same. If not, he/she should be denied the relief sought. Conversely, the Family Court cannot grant a relief, the statutory grounds for seeking which, are not established, merely because it feels that that would be “good” for the parties.

38. Now, we may look at the relief granted in the present case on the appellant’s Divorce Petition. Instead of granting a decree of Divorce-even though the ground there for was held established, the appellant was granted Judicial Separation, in the hope that the respondent will rejoin the appellant’s company. The grant of the said relief is a contradiction in itself. On the one hand, the Family Court expects the respondent to come out of the influence of her brother and father, and resume cohabitation with the appellant, but, on the other hand, fails to appreciate that the respondent cannot seek to resume cohabitation with the appellant, when the decree of Judicial Separation is operating against her, unless the appellant consents. So far as the appellant is concerned, he had expressed his intention to end the relationship, not only by filing the Divorce Petition, but also by filing the present appeal. The Family Court was swayed by the appellant’s statement that he was willing to resume cohabitation with the respondent when the matter was being heard by the Family Court. But the respondent did not respond positively, and the appellant never prayed to the Family Court to amend his prayer to seek a decree of Judicial Separation. The Family Court should have realised, that if the respondent has been unable to come out of the influence of her family members for the last 13 years, there is very little likelihood of her doing so in the near future. Moreover, the appellant could not have been asked to keep waiting, and to put his life on hold, in the hope that the respondent would change her ways – after 13 long years, and show her willingness to resume cohabitation with the appellant. The judgment of the Family Court is seemingly based more on optimism and hope, rather than the actual factual matrix of the case.

39. The judgment of Dastane (supra) relied upon by the Family Court is clearly distinguishable, as in Dastane (supra) the petition was filed seeking annulment of marriage; alternatively for divorce, or, for Judicial Separation. The annulment was sought on the ground of fraud, the divorce was sought on the ground of unsoundness of mind, and judicial separation on the basis of cruelty. On the other hand, the appellant had only sought to relief of divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955.

40. As regards the ground raised by the appellant that the Family Court has no power to modify an issue on its own, we find that the said argument is misconceived. There were two issues framed, as enumerated above. On the first issue, there is a clear finding of the respondent being guilty of cruelty. However, on the 2nd issue, i.e. the relief to be granted, the Family Court has decided to grant Judicial Separation, instead of divorce. We are of the view for the reasons stated above, and in facts of present case, the relief of Divorce could not have been denied to the appellant, once the ground of cruelty under Section 13(1) (ia) was held to have been established.

41. We must also take note of the fact that the parties have been living separately for over 12 years now, and the marriage has completely broken down.

42. The Supreme Court in Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558 has observed:

“72. Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties.

73. A law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the fault theory, guilt has to be proved; divorce courts are presented with concrete instances of human behaviour as they bring the institution of marriage into disrepute.

74. We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of the fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period continuous separation, it may be fairly surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.

87. The High Court ought to have visualised that preservation of such a marriage is totally unworkable which has ceased tobe effective and would be a greater source of misery for the parties.

88. The High Court ought to have considered that a human problem can be properly resolved by adopting a human approach. In the instant case, not to grant a decree of divorce would be disastrous for the parties. Otherwise, there may be a ray of hope for the parties that after a passage of time (after obtaining a decree of divorce) the parties may psychologically and emotionally settle down and start a new chapter in life.”

43. This court has held in the judgment MAT APP (F.C) 75/2020 titled ‘Rahul Kesarwani v. Sunita Bhuyan’ that:

“24. It has also been observed by the Supreme Court and other Courts that no straitjacket formula can be applied to cases of cruelty in matrimonial dispute. In Samar Ghosh (supra) it was observed that there can be no fixed parameter in determining cruelty. In most of the cases, cruelty is inflicted by one party and felt by another in a variety of circumstances. What may constitute cruelty in one matter may not constitute cruelty in another. Each case and relationship must be viewed separately and its own totality.

25. The matrimonial disputes between a husband and a wife cannot be expected to, and are incapable of following strict parameters of evidence. In cases where there are allegations of cruelty – specially mental cruelty such as Dowry Demand, violent abusive behaviour, starving the spouse of affection, resources and emotional support, there can be no set parameters that the court can follow. Matrimonial issues are generally confined to the bedroom and the matrimonial home, away from public eye and gaze. A lot of times these cases do not have any independent or impartial witnesses. The doctrine of preponderance of probabilities has to be applied while evaluating the evidence, and the court must decide the matter based on the overall picture that emerges from the undisputed and uncontroverted facts and circumstances, and those established by documentary or other evidence.

26. In the case of Sheenu Mahendru v. Sangeeta, (2019) SCC Online Utt 376 the Court observed:

“The burden lies upon the respondent to establish the charge of cruelty. The question is as to what is the standard of proof to be applied in order to judge whether the burden has been discharged or not. The rule which governs matrimonial cases is, that a fact could be established, if it is proved by a preponderance of probabilities. Proof beyond a reasonable doubt is a proof of a higher standard, which generally governs criminal trials or trials involving inquiry into issues of a quasi- criminal nature. Such proof beyond a reasonable doubt could not be imported in matters of pure civil nature especially matrimonial matters. “

44. In the present case, the parties lived together only for 3 years, and have been living separately for more than 12 years now. The period of separation has left the relationship between the parties beyond repair. The adamance of the respondent to refuse to cohabitate with the appellant over the last 12 years shows us that there is nothing remaining in this marriage, for either party.

45. On a proper consideration of the facts and circumstances of this case, we are thus of the view that the Family Court erred in not granting the decree of divorce to the appellant and, instead, granting a decree of Judicial Separation to the appellant. We, accordingly, set aside the impugned judgement passed by the Family Court in so far as it grants a decree of Judicial Separation to the appellant-husband. Further, we find the respondent guilty of cruelty under Section 13 (1)(ia) of the Hindu Marriage Act, 1955.

46. In this view of this matter, we allow the appeal of the appellant-husband i.e. MAT. APP. (F.C.) 213/2018 and grant a decree of divorce between the appellant and the respondent. Their marriage stands dissolved forthwith. The appeal preferred by the respondent-wife i.e. MAT. APP. (F.C.) 231/2018 is dismissed.

47. As regards the alimony claim of the respondent, and maintenance for the 14-year old daughter, the respondent is free to avail of the legal remedies, and nothing said hereinabove shall be construed as an expression on the merits of such a claim. Parties are left to bear their own costs.

Posted on 4th March 2022 by rajatbindal5gmailcom — Leave a comment

तलाक में भरण पोषण का कानून

Posted on 4th March 20224th March 2022 by rajatbindal5gmailcom — 1 Comment

Counter claim can be filed in divorce case to seek relief under Hindu Marriage Act 1955

(2021) 6 AndhLD 104 : (2021) 4 CivCC 673 : (2021) 3 DMC 433 : (2021) 6 KLT 57 : (2021) 4 RCR(Civil) 558 : (2021) 12 SCALE 350

SUPREME COURT OF INDIA

DIVISION BENCH

NITABEN DINESH PATEL — Appellant

Vs.

DINESH DAHYABHAI PATEL — Respondent

( Before : M.R. Shah and A.S. Bopanna, JJ. )

Civil Appeal Nos. 5901-5902 of 2021

Decided on : 07-10-2021

Hindu Marriage Act, 1955 – Section 23A – Relief of divorce – Counter claim – Third party – On a fair reading of Section 23A of the Hindu Marriage Act, the respondent in any proceedings for divorce or judicial separation or restitution of conjugal rights, may not only oppose the relief sought on the ground of adultery, cruelty or desertion, but also make a counterclaim for any relief under Hindu Marriage Act, i.e, on the ground of petitioner’s adultery, cruelty or desertion and if the petitioner’s adultery, cruelty or desertion is proved, the court may give to the respondent any relief under Hindu Marriage Act to which he or she would have been entitled if he or she had presented a petition seeking such relief on that ground, i.e., seeking a divorce or judicial separation on the ground of petitioner’s adultery or cruelty – Therefore, by way of counter claim, the respondent in any proceedings for divorce or judicial separation or restitution of conjugal rights can pray for the relief by way of counter claim only those reliefs which can be prayed and/or granted under the Hindu Marriage Act, namely, the relief under Section 9 (Restitution of conjugal rights); Section 10(judicial separation); Sections 11 & 12 (declaration of marriage between the petitioner and the respondent void) and Section 13 (divorce) – Under the provisions of the Hindu Marriage Act, the relief of divorce, judicial separation etc. can be between the husband and the wife only and cannot extend to the third party.

Counsel for Appearing Parties

Mr. Puneet Jain, Advocate, Ms. Christi Jain, Advocate, for the Appellant; Mr. Mihir Thakore, Sr. Advocate, Ms. Aastha Mehta, Advocate, Mr. Tirthraj Pandya, Advocate, Mr. Jaimin Dave, Advocate, Ms. Vishakha, Advocate, Ms. Prema Mohapatra, Advocate, Ms. Deepanwita Priyanka, Advocate, for the Respondent.

Cases Referred

Abdul Rehman v. Mohd. Ruldu, (2012) 11 SCC 341
Ajendraprasadji N. Pandey v. Swami Keshavprakeshdasji N., (2006) 12 SCC 1
Andhra Bank v. ABN Amro Bank, (2007) 6 SCC 167
Ashok Kumar Kalra v. Wing Commander Surendra Agnihotri, (2020) 2 SCC 394
Chander Kanta Bansal v. Rajinder Singh Anand, (2008) 5 SCC 117
Damodar v. Urmila, AIR 1980 Raj. 57
Gurbakhsh Singh v. Buta Singh, (2018) 6 SCC 567
M. Revanna v. Anjanamma (dead) by Lrs., (2019) 4 SCC 332
Vidyabai v. Padmalatha, (2009) 2 SCC 409

JUDGMENT

M.R. Shah, J. -Feeling aggrieved and dissatisfied with the impugned common judgment and order dated 27.09.2019 passed by the High Court of Gujarat at Ahmedabad in SCA No. 11379/2018 and SCA No. 16101/2018, by which the High Court has dismissed writ petition being SCA No. 11379/2018 and has allowed SCA No. 16101/2018 and has quashed and set aside the order passed by the learned Family Court dated 8.5.2018 passed below the application (Exhibit 281) in Family Suit No. 862/2007, the original writ petitioner in SCA No. 11379/2018 and the original respondent in SCA No. 16101/2018 has preferred the present appeals.

2. The facts leading to the present appeals in nutshell are as under:

The marriage between the appellant and the respondent took place on 1.3.1987 according to the Hindu rites. Out of the said wedlock, they had a child, named as ‘Devashya’ on 3.5.1990. The appellant was also a doctor, but it was the case on behalf of the appellant that after the birth of the child she stopped practising as a doctor and remained housewife. The dispute arose between the husband and the wife and the respondent-husband filed a Hindu Marriage Petition No. 862 of 2007 before the learned Family Court under Section 13 of the Hindu Marriage Act for dissolution of marriage, mainly on the ground that the appellant-wife is guilty of cruelty. The learned Family Court issued notice. The appellant-wife appeared and filed reply (Exhibit 9) on 11.4.2008. A rejoinder affidavit was also filed by the respondent-husband (Exhibit 10) on 22.9.2008. The appellant further submitted an affidavit-in-sur-rejoinder as Exhibit 13 in the month of November, 2008. The respondent-husband also filed an affidavit of evidence on record. According to the appellant-wife, the respondent-husband deserted her and their son on 9.2.2006 and the respondent-husband refused to provide maintenance for her and their son.

2.1 At this stage, it is required to be noted that in the written statement filed by the appellant-wife, it was the case on behalf of the appellant that the respondent-husband as on today is cohabiting with another woman, openly moves around with the said woman and introduces the said lady as his new wife and is travelling not only in the country but abroad with her. It was the case on behalf of the appellant-wife in the written statement that since the respondent-husband wants to marry the said woman, a false and fabricated story is placed before the Court. However, in the rejoinder affidavit filed by the respondent-husband, so stated in para 20, it was the case on behalf of the respondent-husband that so far as Ms. Hinaben Manubhai Panchal is concerned, the said lady is a manager in the hospital run by him and she is looking after the hospital and accounts as her job, which has nothing to do with the present dispute between the parties. It was the case on behalf of the appellant that subsequently she got to know that the respondent-husband had married the aforesaid Ms. Hinaben Manubhai Panchal and has suppressed the said fact, she filed an application (Exhibit 281) seeking amendment in her written statement by adding paras 35,36 & 37, which read as under:

“Para No. 35:

The opponent submits that the petition married with one Hinaben Manubhai Panchal on 14.12.2006 at Sudama resort, Paldi, Ahmedabad. The opponent stated that after the marriage solemnized between the petitioner and Hinaben, the petitioner filed the petition for divorce in the month of July 2007 against the opponent. The petitioner never informed to the Hon’ble Court that he married with Hinaben on 14.12.2006. When the petition was filed that time the petitioner intentionally suppress material facts with malafide intention. When the petitioner did not come before the Hon’ble Court with clean hand than the petitioner petition is legally not tenable under the provisions of the law. Moreover, due to the marriage life with Hinaben, the petitioner have having illegitimate son Dev, who is as on today residing with the petitioner;

The petitioner stated that there is no divorce granted in favour of the petitioner by the Hon’ble Court or the by the family court and opponent are as today alive even though the petitioner married with Hina Panchal, only for sex purpose. Even the petitioner gone to many places of the World with Hina and they were residing to gather because the petitioner accepted Hina as wife.

Moreover, the petitioner went to so many places with in India, either for honeymoon purpose or for enjoyment. The petitioner as on today living the life in adultery therefore the divorce cannot be granted in favour of the petitioner. Moreover, the person who does not come before the Hon’ble Court with clean hands are not entitled any relief from the Court. Therefore, the petition filed by the petitioner are require to dismiss with cost.

The opponent states that as on today the marriage between the petitioner and the respondent are continued, no divorce are granted by any court even though the petitioner married with Hina Panchal on 14.12.2006.

Therefore, the marriage between the petitioner and Hina Manubhai Panchal are illegal, void and voidable. Therefore, there is a necessary to declare by Court that the marriage between the petitioner and Hinaben Manubhai Panchal are illegal, void and voidable. Therefore, the present counter claim application are filed by the petitioner.

Para No. 36:-

The respondent states that by doing the marriage by petitioner with Hinaben Panchal, it is a fraud with the respondent and therefore the provision of the limitation are not applicable in the present matter.

The opponent states that the cause of action of the counter claim is arisen when the petitioner done the second marriage with Hinaben Manubhai Panchal. The cause of action is continue day to day for declaring between the petitioner and Hinaben marriage illegal, void, voidable. Moreover the cause of action have arisen when the respondent have come to know that the petitioner have intentionally done the fraud with the respondent by doing the second marriage with Hinaben Panchal. Even when the first marriage between the petitioner and respondent are continued. Moreover till the second between the petitioner and Hinaben Panchal are not declare illegal, void and voidable till that the cause of action of the counter claim are continued. The marriage between the petitioner and Hinaben Panchal are illegal, void and voidable therefore the cause of action of the present counter claim application are arisen in the jurisdiction of this Court.

Para No. 37:-

Therefore, the respondent prays that,

a. Your Honor may allow the present counter claim application anddeclare that the marriage between the petitioner with Hina Manubhai Panchal dated 14.12.2006 are illegal, void and voidable. Further declare that Hina Panchal is not the legal wife of the petitioner and also declare that the petitioner are living with Hina Panchal in adultery.

b. Your Honor may declare that son Dev, born through the petitionerand Hinaben Panchal marriage life is illegitimate child of the petitioner.

c. Your Honor grant any other relief which your Honor think properand reasonable.

d. Cost of this application.

e. The proper court fees are affixed upon the application.”

2.2 By order dated 8.5.2018, the learned Family Court partly allowed the said application (Exhibit 281) and allowed the amendments by permitting the appellant-wife to incorporate paras 35 and 36 in the written statement and refused to permit the appellant-wife to amend the written statement as per para 37. At this stage, it is required to be noted that before the learned Family Court, the appellant-wife in support of her prayer to permit the amendment by adding para 37 heavily relied upon the provisions of Section 23A of the Hindu Marriage Act.

2.3 Aggrieved by the order passed by the learned Family Court rejecting her prayer to add the prayer clause in terms of para 37 and refusing to permit the amendment in terms of para 37, the appellant-wife preferred SCA No. 11379/2018 before the High Court. Simultaneously, the respondent-husband also challenged the order passed by the learned Family Court allowing and/or permitting the appellant-wife to add paras 35 and 36 in the written statement before the High Court being SCA No. 16101/2018. By the impugned judgment and order, the High Court has allowed the respondent-husband’s writ petition being SCA No. 16101/2018 and dismissed the appellant-wife’s writ petition being SCA No. 11379/2018 on the ground that the amendment could not be allowed at this belated stage. However, the High Court in the impugned judgment and order has observed that the appellant can file a separate suit seeking for a declaration that the second marriage of the respondent-husband is void.

2.4 Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the High Court, rejecting the application (Exhibit 281) preferred by the appellant-wife and not permitting the amendment as per paras 35, 36, and 37 in the written statement, the appellant-wife has preferred the present appeals. At this stage, it is required to be noted that the proposed prayer in terms of para 37 to declare that the second marriage between the respondent-husband and Hinaben Manubhai Panchal dated 14.12.2006 is illegal, void and voidable was as a counter claim and for that Section 23A of the Hindu Marriage Act was relied upon.

3. Shri Puneet Jain, learned Advocate has appeared on behalf of the appellant-wife and Shri Mihir Thakore, learned Senior Advocate, assisted by Ms. Aastha Mehta, learned Advocate, has appeared for the respondent-husband.

3.1 Shri Puneet Jain, learned Advocate appearing on behalf of the appellant has vehemently submitted that the marriage between the appellant and the respondent was solemnized on 1.3.1987 and a child named ‘Devashya’ was born.

3.2 It is submitted that during the subsistence of the marriage, the respondent-husband developed illicit relationship with one Hinaben Manubhai Panchal. The respondent-husband filed a petition under Section 13 of the Hindu Marriage Act on 6.8.2007 seeking divorce from the appellant. The fact regarding his entering into a marriage with the aforesaid Hinaben Manubhai Panchal on 14.12.2006 was deliberately suppressed by the respondent-husband. It is submitted that however at the relevant time the fact of illicit relationship of the respondent with Hinaben Manubhai Panchal was only known to the appellant and specific submissions/averments were made in the written statement dated 19.6.2008.

3.3 It is submitted that in the rejoinder affidavit, as such, the respondent-husband did not specifically deny the allegations of illicit relationship with Hinaben Manubhai Panchal but submitted that so far as Ms. Hinaben Manubhai Panchal is concerned, the said lady is a manager in the hospital run by him and she is looking after the hospital and accounts as a job.

3.4 It is submitted that when the rejoinder affidavit was filed in 2008, the respondent-husband did not disclose the factum of marriage on 14.12.2006 between the respondent-husband and the said Hinaben Manubhai Panchal. It is submitted therefore and thus the appellant was not aware about the respondent’s entering into the marriage with Hinaben Manubhai Panchal earlier. It is submitted that it came on record during the cross-examination of the respondent which concluded in 2017 that in fact he had entered into a second marriage with Hinaben Manubhai Panchal on 14.12.2006. Even the marriage certificate was produced on record as Exhibit 200. It also came on record that the respondent has a son named ‘Dev’ from the said illegal relationship and his birth certificate has also been produced on record as Exhibit 201.

3.5 It is submitted that therefore the appellant was absolutely justified in submitting the application (Exhibit 281) for amendment of the written statement to add paras 35 and 36 to plead the facts regarding the second marriage and also to seek relief in the nature of counter claim vide para 37 seeking a declaration inter alia that the marriage between the respondent and the said Hinaben Manubhai Panchal is null and void and that Hinaben Manubhai Panchal is not a legal wife of the respondent-husband and that he was living with her in adultery.

3.6 It is submitted that a declaration was also sought that the son ‘Dev’ born to the respondent with Hinaben Manubhai Panchal is an illegitimate child.

3.7 It is submitted that however the learned Family Court allowed the application in part allowing addition of paras 35 and 36 but did not permit amendment in the written statement to add/introduce counter claim in terms of para 37. It is submitted that even the order dated 8.5.2018 passed by the learned Family Court allowing the introduction/addition of paras 35 & 36 has also been set aside by the High Court, by the impugned judgment and order.

3.8 Shri Puneet Jain, learned Advocate appearing on behalf of the appellant has vehemently submitted that, as such, in the facts and circumstances of the case, narrated hereinabove, the application filed by the appellant-wife for amendment of the written statement is required to be allowed in toto. It is submitted that the fact regarding actual marriage of the respondent-husband with Hinaben Manubhai Panchal (third party) was not known to the appellant, which fact came to the knowledge only during cross-examination of the respondent in the present proceedings when the marriage certificated Ex. 200) as well as the birth certificate of his son ‘Dev’ (Ex. 201) out of the marriage between the respondent and Hinaben Manubhai Panchal came on record as Ex. 201.

3.9 It is submitted that soon thereafter the appellant filed an application for impleadment of Ms. Hinaben Manubhai Panchal as a party and the application for amendment of the written statement, Ex. 281. It is submitted that therefore at the first available opportunity after the appellant came to know about the actual marriage between the respondent and Hinaben Manubhai Panchal, which came to light in the year 2017, the application (Ex. 281) was filed and therefore the same ought to have been allowed.

3.10 It is submitted that the High Court has materially erred in rejecting the application (Ex. 281) on the ground that once the written statement has been filed, the defendant cannot be permitted to amend the written statement. It is submitted that in the facts and circumstances of the case, the High Court has erred in relying upon and/or has misconstrued the provisions of Order VIII, Rules 8 & 9 CPC and proviso to Order VI Rule 17 CPC.

3.11 It is submitted that even the factum of actual marriage between the respondent and Hinaben Manubhai Panchal on 14.12.2006 came to the knowledge of the appellant after filing of the written statement and therefore the appellant can be permitted to amend the written statement bringing on record the factum of actual marriage on 14.12.2006 between the respondent and Hinaben Manubhai Panchal and the bar contained in proviso to Order VI rule 17 CPC shall not come in the way and in any case the same may be permitted with the leave of the Court to either amending the written statement or by filing an additional written statement.

3.12 It is submitted that as such there was no delay in filing the application (Ex.281) under Order VI Rule 17 CPC from the date of knowledge of the actual marriage which came to light during the cross-examination of the respondent. It is submitted that even otherwise delay is no ground for refusal of prayer for amendment of a written statement. Reliance is placed on the decision of this Court in the case of Andhra Bank v. ABN Amro Bank, (2007) 6 SCC 167 (para 5). It is submitted that even the High Court has proceeded on an erroneous premise assuming knowledge of illicit relationship as knowledge of marriage between the respondent and Hinaben Manubhai Panchal.

3.13 It is further submitted that power to allow amendment is wide and is to be liberally construed; the Court is only required to see that if the amendment causes any prejudice to the other party. It is submitted that as such the learned Family Court has specifically found that no prejudice shall be caused to the respondent due to the amendment. Reliance is placed on the decisions of this Court in the cases of Chander Kanta Bansal v. Rajinder Singh Anand, (2008) 5 SCC 117 (para 11); Abdul Rehman v. Mohd. Ruldu, (2012) 11 SCC 341 (para 11); and Gurbakhsh Singh v. Buta Singh, (2018) 6 SCC 567 (paras 4 & 5).

3.14 It is submitted that as such the underlying principle behind allowing the application under Order VI Rule 17 CPC or to raise a counter claim under Order VIII Rule 6A is to prevent multiplicity of proceedings. It is submitted that the grounds raised in the amendment vide paras 35 and 36 are not only in the nature of a defence against the allegations of desertion and cruelty, but also constitute necessary pleadings in support of relief sought for in the counter claim. It is submitted that the amendment sought for would not change the character of the suit.

3.15 It is further submitted that even the relief sought in terms of para 37 is the counter claim for declaring the marriage of the respondent-husband with Hinaben Manubhai Panchal as null and void and for the legitimacy of their son ‘Dev’ is consequential in view of the undisputed and admitted fact that the marriage between the appellant and the respondent is still subsisting. It is submitted that it is to be noted that as such the present proceedings filed by the respondent-husband are to seek a decree for divorce under Section 13 of the Hindu Marriage Act which has yet not been decided and therefore as on today the marriage between the appellant and the respondent is subsisting. It is submitted that therefore the marriage between the respondent and Hinaben Manubhai Panchal is thus illegal under Section 5(a) of the Hindu Marriage Act. It is submitted that therefore the relief sought for in the counter claim is undeniable on admitted facts and will have to be granted “irrespective” of the outcome of the petition filed by the respondent under Section 13 of the HMA. It is submitted that as such the counter claim is permissible as per Section 23A of the HMA.

3.16 It is further submitted that even otherwise the cause of action for filing the counter claim has arisen after filing of the written statement and more particularly in the cross-examination of the respondent-husband that the respondent had got married to Hinaben Manubhai Panchal on 14.12.2006. It is submitted that therefore also the declaration as sought for in para 37 by way of counter claim ought to have been permitted/allowed. Reliance is placed on the decision of this Court in the case of Ashok Kumar Kalra v. Wing Commander Surendra Agnihotri, (2020) 2 SCC 394 (paras 12 to 18 & 21).

3.17 It is further submitted that even otherwise a counter claim is in any case is to be decided as an independent suit and so long as the relief sought for is otherwise within limitation, the same can be entertained. In the present case, the petition under Section 13 was still at the stage of evidence, wherein the appellant – original defendant has to lead evidence in defence who could lead common evidence for defence and counter claim and the respondent-husband can be permitted to rebut, if so required. It is submitted that therefore no prejudice would thus be caused to the respondent if application (Ex. 281) is allowed in toto.

3.18 Making the above submissions and relying upon the aforesaid decisions, it is prayed to allow the present appeals.

4. The present appeals are vehemently opposed by Shri Mihir Thakore, learned Senior Advocate appearing on behalf of the respondent-husband. Insofar as amendment sought vide para 37 in Ex.281, i.e., declaration sought that marriage between the respondent-husband and Hinaben Manubhai Panchal is null and void is concerned, it is submitted that such prayer which is in the nature of counter claim cannot be granted.

4.1 It is submitted that it is true that Section 23A of the Hindu Marriage Act permits the respondent to raise a counter claim. It is submitted that however under Section 23A, by way of counter claim, firstly, the respondent can seek relief against the petitioner on the ground of petitioner’s adultery, cruelty or desertion and secondly, the petitioner can seek only such relief as is maintainable under the Hindu Marriage Act, 1955 and not otherwise. It is submitted that under the HMA, 1955 the respondent can seek relief under Section 9 to 13 only. It is submitted that therefore by virtue of Section 23A, it is not open for the respondent (appellant herein) to seek a declaration to the effect that marriage between the respondent-husband and the third party (Hinaben Manubhai Panchal) is void. It is submitted that such relief falls within the ambit of Section 34 of the Special Relief Act, 1963 and in any case, it does not fall within any of the provisions of Sections 9 to 13 of the Hindu Marriage Act. Reliance is placed on the decision of the Rajasthan High Court in the case of Damodar v. Urmila, AIR 1980 Raj. 57.

4.2 Now so far as the amendment sought vide paragraphs 35 and 36 in Ex. 281 application is concerned, it is vehemently submitted that this prayer is required to be rejected inter alia on the ground that it is barred by proviso to Order VI Rule 17 CPC. It is submitted that as such the appellant-wife had knowledge about the factum of alleged respondent-husband’s second marriage with Hinaben Manubhai Panchal since 23.03.2007. It is submitted that the appellant-wife in the cross-examination recorded as Ex.359 has categorically admitted that her lawyer applied for so called marriage certificate on 12.03.2007 and he was supplied copy thereof on 23.03.2007. It is submitted that she also categorically admitted that despite having knowledge about the alleged marriage certificate since 23.03.2007, she did not mention about the alleged marriage of the respondent-husband with Hinaben Manubhai Panchal. It is submitted that therefore it is not open for the appellant-wife to file such an application at such a belated stage.

4.3 Learned Senior Counsel appearing on behalf of the respondent-husband has relied upon the following timeline which according to him is relevant for the purpose of considering amendment sought vide paragraphs 35 and 36 in Ex.281 application, which are as under:

Date	Event
2007	H.M.P. Suit No.862 of 2007 was instituted
27.03.2007	Appellant – Wife admittedly acquired knowledge about alleged marriage of Respondent – Husband
11.04.2008	Appellant – Wife filed written statement
22.09.2008	Respondent – Husband filed rejoinder
20.04.20017	Application filed for draft amendment

It is submitted that not only that but in the impugned judgment and order the High Court has also arrived at the specific conclusion that the appellant-wife had definite knowledge about the alleged marriage since 2007.

4.4 It is submitted that today we are at the stage of cross-examination of the appellant-wife and at this stage with a mala fide intention of delaying the proceedings such an application is filed. It is submitted that such an amendment is hit by proviso to Order VI Rule 17 CPC.

4.5 It is further submitted that proviso to Order VI Rule 17 CPC virtually prevents an application for amendment of pleadings from being allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial and a trial is deemed to have commenced. It is submitted therefore that the proviso to an extent curtails absolute discretion to allow amendment at any stage. The burden is on the person who seeks an amendment after commencement of the trial to show that inspite of due diligence, such an averment could not have been made earlier. Heavy reliance is placed on the decisions of this Court in the cases of Ajendraprasadji N. Pandey v. Swami Keshavprakeshdasji N., (2006) 12 SCC 1 (Paras 55,60 to 62); M. Revanna v. Anjanamma (dead) by Lrs., (2019) 4 SCC 332 (paras 7 to 9); Chander Kanta Bansal (supra) (paras 11 to 13,15, 17, 19 & 20); and Vidyabai v. Padmalatha, (2009) 2 SCC 409 (paras 11 to 13,19 & 21).

4.6 It is submitted that by virtue of Section 10 of the Family Courts Act, 1984 and Section 21 of Hindu Marriage Act, 1955, the provisions of CPC apply to proceedings under HMA and therefore proviso to Order VI Rule 17 CPC would come into play.

4.7 Making the above submissions and relying upon the aforesaid decisions, it is prayed to dismiss the present appeals.

5. We have heard the learned counsel for the respective parties at length.

By the impugned judgment and order, the High Court has dismissed the application (Ex.281) filed by the appellant herein in the family Court by which the appellant prayed to amend the written statement as per paragraphs 35, 36 and 37, reproduced hereinabove. By incorporating paragraphs 35 and 36, the appellant proposed to amend the written statement bringing on record the factum of marriage of the respondent with one Hinaben Manubhai Panchal on 14.12.2006 and other factual aspects. So far as the amendment sought vide para 37 is concerned, the same was for incorporating the prayer by way of counterclaim under Section 23 of the Hindu Marriage Act. As observed hereinabove, the learned Family Court partly allowed the application (Ex.281) and permitted the amendment in the written statement as per paras 35 and 36. However, rejected the amendment sought vide para 37. While refusing the amendment sought qua para 37, the learned Family Court observed that the appellant – original defendant cannot seek the proposed relief and in view of Section 23A of the Hindu Marriage Act, the defendant can seek relief under the Hindu Marriage Act only on the ground of adultery, cruelty or desertion and cannot seek the relief to declare that the second marriage of the respondent with Hinaben Manubhai Panchal (third party) is illegal, void, voidable etc. and as the appellant is not seeking any relief under the Hindu Marriage Act, she cannot seek the relief as proposed in para 37 as a counter claim. However, by the impugned judgment and order, the High Court has dismissed the entire application (Ex.281) mainly on the ground that once a written statement is filed and the trial has commenced, application to amend the written statement in exercise of powers under Order VI Rule 17 CPC is not required to be entertained and that in view of Order VIII Rule 6A CPC, the defendant can pray for a counter claim against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence (written statement) or before the time limited for delivering his defence has expired. Mainly relying upon the embargo under Order VI Rule 17 CPC and Order VIM Rule 6A CPC, the High Court has dismissed the application (Ex.281) in toto.

6. While deciding the issues involved in the present appeals, the relevant provisions of the CPC, namely, Order VI Rule 17 CPC and Order VIII Rule 6A CPC are required to be referred to, which read as under:

“Order VI Rule 17

17. Amendment of Pleadings – The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial.

Order VIM. Rule 6A

6A – Counter-claim by defendant – (1) A defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not:

Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court.

(2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, but on the original claim and on the counter-claim.

(3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court.

(4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints.”

7. Order VI Rule 17 CPC provides for amendment of the pleadings. The Court may at any stage of the proceedings allow either party to alter or amend his pleadings (including written statement) in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Proviso to Order VI Rule 17 CPC further provides that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. Relying upon the proviso to Order VI Rule 17 CPC, the High Court has refused the amendment sought qua paragraphs 35 and 36. However, it is required to be noted that as per the case of the appellant-wife, she actually came to know about the actual marriage between the respondent and Hinaben Manubhai Panchal on 14.12.2006 only during the cross-examination of the respondent and when the marriage certificate was produced on record. It is required to be noted that right from the very beginning, it was the specific case on behalf of the appellant that the respondent-husband is living in adultery with Hinaben Manubhai Panchal and in the rejoinder affidavit filed by the respondent-husband, the respondent -husband denied the allegation of adultery and stated that Hinaben Manubhai Panchal is manager in the hospital run by him and she is looking after the hospital and accounts as a job. Though, the respondent-husband had married with Hinaben Manubhai Panchal on 14.12.2006, he did not disclose the correct and true facts and suppressed the material facts. Only in the cross-examination, he admitted the marriage with Hinaben Manubhai Panchal on 14.12.2006 and produced the marriage certificate. Therefore, in view of the above, the restrictions as per the proviso to Order VI Rule 17 CPC shall not be applicable. The proviso to Order VI Rule 17 CPC that no application for amendment shall be allowed after the trial has commenced unless the court comes to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of trial. Therefore, if some facts have come to the knowledge subsequently and subsequent to the commencement of trial, may be during the course of trial and if it is found that it is necessary for the purpose of determining the real questions in controversy between the parties, on a fair reading of Order VI Rule 17 CPC, such an application for amendment can be allowed even after the trial has commenced. In the present case, as observed hereinabove, the factum of actual marriage on 14.12.2006 came to the knowledge of the appellant-wife when the marriage certificate was produced during the cross-examination of the respondent-husband and immediately thereafter the application (Ex.281) for amendment was made. Therefore, as such, and looking to the case on behalf of the appellant, so pleaded in the written statement, the learned Family Court was right and justified in allowing the amendment sought qua paras 35 and 36. The High Court has committed an error in misapplying the proviso to Order VI Rule 17 CPC and has erred in rejecting the amendment sought qua paras 35 and 36 in application (Ex.281).

8. Now so far as the amendment sought qua para 37 in Ex.281 application is concerned, at the outset, it is required to be noted that it was in the form of counter-claim. It is true that as per Order VIII Rule 6A CPC, a defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counterclaim is in the nature of a claim for damages or not. However, in the present case, according to the appellant, the cause for counter claim had accrued after the appellant-defendant has delivered her defence (written statement) and more particularly when during the cross-examination of the plaintiff (respondent herein) the factum of marriage with Hinaben Manubhai Panchal on 14.12.2006 was admitted and the marriage certificate was produced. Therefore, the High Court is not justified and/orright in refusing to allow the counter claim as proposed in para 37 on the ground that the same is not permissible after the appellant as defendant has delivered her defence by filing the written statement. On the aforesaid ground, the High Court ought not to have rejected the amendment sought qua para 37.

However, at the same time, the core question which is required to be considered is, whether the appellant-wife could have claimed the relief sought qua para 37 by way of counter claim in a marriage petition filed by the respondent-husband for dissolution of the marriage?

9. As per para 37, the appellant-original defendant has proposed the relief to declare that the marriage between the respondent-original plaintiff with Hinaben Manubhai Panchal on 14.12.2006 is illegal, void and voidable and further to declare that Hinaben Manubhai Panchal is not a legal wife of the respondent – original plaintiff and also to declare that the original plaintiff – respondent herein is living with Hinaben Manubhai Panchal in adultery. It is also further prayed to declare that the son ‘Dev’ born through the respondent and Hinaben Manubhai Panchal is not a legitimate child of the respondent-original plaintiff.

On a fair reading of Section 23A of the Hindu Marriage Act, we are afraid that the relief sought by way of counter claim in the Hindu Marriage Petition filed by the respondent can be claimed. Section 23A of the Hindu Marriage Act reads as under:

“23A. Relief for respondent in divorce and other proceedings – In any proceeding for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner’s adultery, cruelty or desertion, but also make a counter-claim for any relief under this Act on that ground; and if the petitioner’s adultery, cruelty or desertion is proved, the court may give to the respondent any relief under this Act to which he or she would have been entitled if he or she had presented a petition seeking such relief on that ground.”

On a fair reading of Section 23A of the Hindu Marriage Act, the respondent in any proceedings for divorce or judicial separation or restitution of conjugal rights, may not only oppose the relief sought on the ground of adultery, cruelty or desertion, but also make a counterclaim for any relief under Hindu Marriage Act, i.e, on the ground of petitioner’s adultery, cruelty or desertion and if the petitioner’s adultery, cruelty or desertion is proved, the court may give to the respondent any relief under Hindu Marriage Act to which he or she would have been entitled if he or she had presented a petition seeking such relief on that ground, i.e., seeking a divorce or judicial separation on the ground of petitioner’s adultery or cruelty. Therefore, by way of counter claim, the respondent in any proceedings for divorce or judicial separation or restitution of conjugal rights can pray for the relief by way of counter claim only those reliefs which can be prayed and/or granted under the Hindu Marriage Act, namely, the relief under Section 9 (Restitution of conjugal rights); Section 10 judicial separation); Sections 11 & 12(declaration of marriage between the petitioner and the respondent void) and Section 13 (divorce). Therefore, the respondent to the aforesaid proceedings can pray for the aforesaid reliefs only by way of counter claim and that too between the petitioner and the respondent. No relief can be prayed qua the third party. Under the provisions of the Hindu Marriage Act, the relief of divorce, judicial separation etc. can be between the husband and the wife only and cannot extend to the third party. Therefore, by virtue of Section 23A of the Hindu Marriage Act, it is not open for the appellant herein – original defendant to seek declaration to the effect that the marriage between the respondent – original plaintiff and the third party – Hinaben Manubhai Panchal is void. No relief can be prayed by way of counter claim even against ‘Dev’, the son born out of the alleged wedlock between the respondent – original plaintiff and the third party – Hinaben Manubhai Panchal. In such a situation, the only remedy available to the appellant would be to file a substantive suit and/or initiate independent proceedings claiming such reliefs. But such reliefs cannot be claimed by way of counter claim under Section 23A of the Hindu Marriage Act in the petition for divorce filed by the respondent herein against the appellant. At the most, the appellant herein – original defendant by way of counter claim could have claimed the relief and prayed for divorce and/or judicial separation on the ground of husband’s adultery. Beyond that, no relief which cannot be granted under the provisions of the Hindu Marriage Act can be claimed by way of counter claim.

10. An identical question came to be considered by the Rajasthan High Court in the case of Damodar (supra) and the Rajasthan High Court observed as under:

“…As already stated, the matrimonial Court has no jurisdiction to go into the factum or validity of the alleged divorce obtained by the husband from the community Panchayat in accordance with the so-called custom prevalent in the community. This is a matter which falls squarely within the jurisdiction of the Civil Courts. Section 9 of the CPC lays down that the Civil Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. A perusal of the relevant provisions of the Act would show that it is a complete code in itself creating new rights for an aggrieved spouse governed by the Act to obtain decree of restitution of conjugal rights judicial separation, nullity of marriage and divorce, as the case may be. Sections 9 to 13 deal with the rights of an aggrieved spouse to make an application seeking appropriate relief against the other spouse, Section 19 which provides for forum for seeking such relief lays down that every petition under the Act shall be presented to the District Court, within the local limits of whose ordinary original civil jurisdiction the cause of action arose in the manner and circumstances specified in Cls. (i), (ii), (iii) and (iv) of that Section. The words “every petition under this Act” occurring in this Section have reference clearly to the petitions under Sections 9 to 13 of the Act. The Act does not make any provision for the grant of relief to a spouse interested in getting a declaration that he or she, has already obtained dissolution of marriage according to custom or usage from the community Panchayat and that the aid dissolution is valid and binding on the two spouses. Similarly, there is no provision in the Act, to enable a spouse, against whom a petition is filed by the other spouse under any of the Sections from 9 to 18, to raise a plea indefence that he or she has already obtained dissolution of the marriage from the community Panchayat or the like according to custom governing the parties, and that, therefore, the marriage is no longer subsisting. It can, therefore, be safely held that the Act which deals with certain matrimonial disputes among the Hindus does not make any provision for adjudication of a claim or defence, that the marriage between the contending parties already stands dissolved by virtue of the decision of a private forum like the Panchayat of the tribe, community, group or family, as the case may be. Such adjudication can, therefore, be obtained only from the Civil Court and not from the matrimonial Court under the Act.”

We are in complete agreement with the view taken by the Rajasthan High Court.

11. In view of the above and for the reasons stated above, the present appeals succeed in part. The impugned judgment and order passed by the High Court is hereby quashed and set aside. The order passed by the learned Family Court dated 8.5.2018 passed in the application (Ex. 281) is hereby restored and the appellant herein -original defendant is permitted to amend the written statement as prayed qua paras 35 and 36. The amendment sought by the appellant qua para 37 is hereby dismissed. However, it will be open for the appellant to initiate independent proceedings by way of filing a substantive suit and/or any other remedy which may be available to the appellant under law with respect to prayer sought qua para 37.

12. The present appeals are partly allowed to the aforesaid extent. However, in the facts and circumstances of the case, there shall be no order as to costs.

Posted on 23rd February 2022 by rajatbindal5gmailcom — Leave a comment

Material fact of mental disorder not disclosed – Divorce granted

DELHI HIGH COURT

DIVISION BENCH

SANDEEP AGGARWAL — Appellant

Vs.

PRIYANKA AGGARWAL — Respondent

( Before : Vipin Sanghi and Jasmeet Singh, JJ. )

MAT. APP. (F.C.) No. 142 of 2020

Decided on : 24-12-2021

Civil Procedure Code, 1908 (CPC) – Order 26 Rule 10A, Section 151, Section 75(e)
Constitution of India, 1950 – Article 20, Article 21
Evidence Act, 1872 – Section 114
Family Courts Act, 1984 – Section 19
Hindu Marriage Act, 1955 – Section 12, Section 12(1)(b), Section 12(2)(a)(i), Section 12(2)(a)(ii), Section 13(1)(iii), Section 28, Section 5(ii), Section 9

Cases Referred

Kollam Chandra Sekhar vs. Kollam Padma Latha (2014) 1 SCC 225
Sharda vs. Dharmpal MANU/SC/0260/2003

Final Result : Allowed

JUDGMENT/ORDER

Jasmeet Singh, J. – The present appeal has been filed under Section 28 of the Hindu Marriage Act, 1955 read with Section 19 of the Family Courts Act, 1984 on behalf of the appellant (husband) against the impugned judgment and order dated 24.12.2019 passed by the Family Court, Dwarka, wherein the petition under Section 12 of the Hindu Marriage Act filed by the appellant was dismissed.

The brief factual matrix as per the appellant, necessitating filing of the petition under Section 12 of the Hindu Marriage Act and the present appeal, are as under:
The marriage between the appellant and the respondent was solemnized on 10.12.2005. As per the appellant, the marriage between the appellant and the respondent was the outcome of a calculated fraud that was perpetrated by the respondent and her family members as they chose not to disclose a vital and crucial fact regarding the respondent”s mental health/ailment.
According to the appellant, the respondent was, before the marriage, and during the days that she stayed with the appellant, suffering from Acute Schizophrenia. The respondent behaved in a very unusual manner after her marriage in the matrimonial home, as well as during their honeymoon.
Consequently, the appellant took the respondent to Dr. Inderjeet Sharma in January, 2006, who after examining her referred her to GB Pant hospital, where Dr. Rajiv Mehta examined the respondent and prescribed certain medicines. Finding no change in respondent”s behaviour, the appellant took her to a neuro surgeon at Institute of Human Behaviour and Allied Sciences, Delhi where the respondent was examined again and Dr. Harcharan Singh prescribed her medicines.
On 11.02.2006, the appellant took the respondent to Hindu Rao Hospital at Delhi, where Dr. Jitender Kumar examined the respondent. As per the appellant, after meeting the said doctor respondent shouted”isi doctor ne mujhe pehle bhi davai di hai.”
Since the appellant did not find any improvement in the mental health of the respondent, he also took her to All India Institute of Medical Sciences, where Dr. Mamta Sood, Neuro Psychiatrist examined her and prescribed her few medicines. As per Dr. Mamta Sood, the respondent was suffering from Acute Schizophrenia. The appellant thereafter questioned the respondent”s parents and narrated the mental condition of the respondent.
The appellant also averred in the petition regarding the mother and aunt of the respondent mixing something in the eatables. This is neither relevant, nor germane, to the issue in controversy and hence not adverted to, by us.
The appellant along with the other family members questioned the father of the Respondent, and it was then that the father of the respondent took the respondent with him to her parental home (after 9 weeks of marriage) on 17.02.2006 and, since then the respondent is living with her parents in their house. The appellant also averred that the marriage between the appellant and the respondent was not consummated.
The respondent filed her written statement wherein she denied that the marriage between the appellant and the respondent was not consummated. The respondent averred that she has never suffered from any mental or physical ailment, but she did suffer headaches during her college days due to which her studies were discontinued, and the said fact was clearly told to the appellant, the mediator, and all other persons concerned.
She further averred that the appellant, his family members, friends and relatives had met the respondent prior to marriage many a times, and there were numerous telephonic calls. Therefore, there was no question of respondent suffering from any mental ailment, much less, Schizophrenia either prior to the marriage or during subsistence of the marriage.
She further stated that the appellant met her prior to the ring ceremony with his family members at Lakshminarayana (Birla) Mandir, where he spent around an hour exclusively with the respondent. After the ring ceremony, the appellant along with his sister-in-law had discussions with the respondent at Pizza Hut, Netaji Subhash Marg, New Delhi. The respondent has denied that appellant had ever taken her to any doctor, or that she was examined by any doctor, or got any treatment.
The respondent had also filed a petition under Section 9 of the Hindu Marriage Act, seeking Restitution of Conjugal Rights against the appellant which, vide order dated 30.10.2009 of the Family Court, had been clubbed with the divorce petition.
In order to prove his case before the family court, the appellant examined himself as PW-1, and has exhibited medical slip dated 17.01.2006 (exhibit PW-1/B), Out Patient Cards dated 03.02.2006, 11.02.2006 and 07.02.2006 as exhibit PW-1/C, PW-1/D and PW-1/E respectively, and copy of police complaint dated 22.02.2006 as exihibit PW-1/G. Petitioner examined his father Sh. Bal Kishan Aggarwal as PW-2, Smt. Manju Aggarwal, his mother as PW-3, and Sh. Bharat Aggarwal, his brother as PW-4, who reiterated the averments made in the petition. The appellant also examined PW-5 Dr. Rajiv Mehta, PW-6 Dr. Inderjeet Sharma, PW-7 Dr. Mamta Sood and PW-8 Dr. Jitender Kumar. All PWs were extensively cross examined by learned Counsel for the respondent.
The respondent, on the other hand, examined herself as RW-1 and exhibited the Film and Report of CT Scan as exhibit RW-1/A, driving licence as exhibit RW-1/B, public notice dated 22.07.2006 in Times of India newspaper as exhibit RW-1/C, information under RTI Act dated 01.02.2006, 03.02.2006 and 11.02.2006 as exhibits PW-1/D and PW-1/E
The respondent examined her mother RW-2 Smt. Neena Rani Goel, and her father PW-3 Sh. Mohan Lal. The witnesses have reiterated the averments made in the written statement in their examination in chief, and were also cross-examined by learned Counsel for the appellant.
The Family Court after going through the documents, pleadings and evidence and analysing the same, has come to the conclusion that the petition must fail for the following reasons:
a) That neither the appellant, nor any of his witnesses have been able to conclusively prove that the respondent, prior to her marriage, was suffering from Schizophrenia. According to the Family Judge, the petitioner has failed to prove that his consent to marriage was obtained by playing fraud and suppressing material fact concerning the illness of the respondent.
b) The Family Court also relied upon the behaviour of the Respondent during cross-examination to hold “the conduct of the respondent exhibited by her during cross-examination does not show that she was not a normal lady or was suffering from schizophrenia or any other mental disorder. She understood all the questions put to her during cross-examination and answered these questions appropriately.”
c) Another factor which weighed with the Family Court was that the appellant, as well as his family members, had extensively interacted with the respondent for 4 months after the Sagai. The PW-4 Bharat Aggarwal (brother of the Appellant) also admitted that in the God Bharai ceremony, the respondent even danced and behaved properly and there was nothing unusual about the behaviour of the Respondent.
d) The allegations of respondent”s behaviour in Goa and other small instances at the house have also been considered by the Family Court in detail. However, the same are not relevant for the purpose of adjudication in the present appeal, for the reasons disclosed by us in subsequent paragraphs.
e) The Family Court further held that the medical prescription exhibit PW-1/C and PW-1/E have remained unsubstantiated and unproved, as the appellant has not examined any of the doctor from IHBAS Hospital. The Appellant, though examined PW-7 Dr. Mamta Sood-to prove medical prescription issued by AIIMS Ex. PW-1/E, PW-7 deposed that Ex. PW-1/E does not bear her hand writing anywhere. As regards PW-6 Dr. Indrajeet Sharma, he deposed that the medicines prescribed by him could be given for various purposes, including anxiety and did not know the patient personally, and the medical prescription did not bear the personal identification of the Respondent on the prescription. The testimony of PW-5 Dr. Rajiv Mehta was not relied upon by the Family Court, because no separate test was conducted for diagnosing the respondent provisionally.
f) What weighed with the Family Court while passing the impugned order, dismissing the petition, was also that during the span of less than one month, the appellant had taken respondent to 5 different doctors of different hospitals. The Family Court also came to the conclusion that the appellant did not wait to see the result of the treatment given by various doctors to the respondent as per prescription, and had taken respondent to one hospital after another for preparation of prescription and no medicine was given to the respondent. The Family Court was of the view that “it appears that the petitioner was only getting prepared these medical prescriptions to show that respondent was suffering with some ailment without any treatment being provided to the respondent.”
g) The Family Court also was of the view that the appellant failed to prove on record that respondent was suffering from Schizophrenia or any other ailment prior to her marriage. Hence, the petition was dismissed.
In appeal, detailed arguments were addressed by Mr. Asutosh Lohia, learned Counsel for the appellant and Mr. Mohan Lal, learned Counsel for the respondent, who is also her father.
The primary argument of the appellant was that the accumulated evidence supports the finding that the Respondent was/is suffering from “F-20 Hebephrenia”. He has referred to multiple prescriptions that diagnosed the Respondent with either Schizophrenia, or F-20-Hebephrenia. To further make his case, learned counsel for the appellant took us through the medical literature on Schizophrenia and Hebephrenia, as well as the literature on the medicines prescribed. He also relied on the statements of Dr. Inderjeet Sharma PW-6, Dr. Rajiv Mehta PW-5 and Dr. Mamta Sood PW-7.
The testimonies of doctors and medicines prescribed by them, relied upon by the Appellant are as under:
a) PW-5 Dr. Rajiv Mehta testified that the prescription dated 28.01.2006, Ex. PW-1/B is in his handwriting. He stated that the provisional diagnosis of the patient Priyanka was pertaining to Schizophrenia, and the patient was called on three occasions.
b) PW-8 Dr. Jitender Kumar, Psychiatry Department, Hindu Rao Hospital, Delhi proved the OPD card, Ex. PW-1/D and stated that the said exhibit was prepared by him and bears his signature at point “A”. He further stated that he had examined the patient and prescribed the medicines mentioned in OPD card, EX PW-1/D. As per the prescription, the Respondent was prescribed medicines Arip MT 15 and Resperidone, which are listed as Antipsychotic Drugs. She was also prescribed Risperidone including Sizodon, also in another prescription. Respondent was even prescribed Pacitane and Phenargan, which are anticholinergic drugs used to prevent drug-induced parkinsonism. She was also prescribed Bexol-used for treating Parkinsons disease.
c) He also relied on the Exhibit PW-1/E and the testimony of PW-7 Dr. Mamta Sood (a psychiatrist) of AIIMS, who, after examining the Respondent”s behaviour opined that the Respondent is suffering from Hebephrenia, and prescribed some medicines for the same.
The Appellant has relied on medical literature and provided a table, classifying the uses of the medicines. Following is the table


Brand name	Chemical Salt/Composition	Treatment Of
(i)	Arip MT 15	Aripiprazole	Schizophrenia
(ii)	Sizodon Plus	Risperidone	Schizophrenia
(iii)	Parkin Plus	Trifluoperazine + Trihexyphenidyl	Schizophrenia and Parkinson
(iv)	Risdone	Risperidone	Schizophrenia
(v)	Bexol	Trihexyphenidyl	Parkinson
(vi)	Respid	Risperidone	Schizophrenia
(vii)	Pacitane	Trihexyphenidyl	Parkinson

Learned counsel, by relying on medical literature, has shown that Risperidone, Trifluoperazine, and Aripiprazole are Antipsychotic Drugs. The Chapter on “Drugs Used in Mental Illness: Antipsychotic and Antimanic Drugs” in the medical text states that “Antipsychotic (neuroleptic, ataractic, major tranquillizer) useful in all types of functional psychosis, especially schizophrenia.” [K.D. Tripathi, Essentials of Medical Pharmacology (6th Edition, 2008) Jaypee Brothers Medical (P) Ltd.]
Learned Counsel for the appellant has submitted that courts are ill-equipped to weigh, analyse and arrive at definite findings of mental condition/illness of a litigant on their own. Hence, he has argued that the Respondent must be examined by a Medical Board of experts in the field, to ascertain the medical condition of the respondent in view of the rival claims made by the appellant and respondent. Learned counsel for the appellant has relied on the judgment in Sharda v. Dharmpal MANU/SC/0260/2003to submit that that the Court can always direct examination by a medical expert, to call for the medical opinion to arrive at the truth.
Mr. Lohia has submitted that even today, he is ready that the respondent be examined by a Medical Board to ascertain the mental condition of the respondent as to:
a) Whether she is suffering from Schizophrenia? and;
b) Since how long she has been suffering from the said ailment, if at all.
In addition the appellant has also submitted:
That the parties have not stayed together for longer than two months, and the marriage is not consummated.
They have been separated for 16 years.

iii. The Respondent admitted to attempting suicide in her testimony.

She also admitted to getting headaches and ear infections.
In the light of the judgment in Dharam Pal (supra), we asked Mr. Mohan Lal whether the respondent would be ready and willing to subject herself to examination by a Medical Board of specialists. The learned Counsel for the respondent flatly refused and said that subjecting the respondent to a Medical Board would amount to cruelty on her.
The learned Counsel for the respondent submitted that the appellant never took the respondent to any doctor, as none of the doctors have identified the respondent. He further submitted that there is not a single purchase of medicine shown by the appellant, and there is no justification as to why the appellant would take the respondent to 5 doctors within a period of 1 month, and not wait for the results of the medication.
Learned Counsel has refuted that the respondent was suffering from any mental disorder prior to her marriage; at the time of her marriage, and; thereafter. He has supported the findings returned in the impugned judgment.
We have heard learned Counsel for the parties and have gone through the documents.
At the outset, we may state that Judges are not medical professionals or experts, and acquire limited knowledge based on the arguments of the parties, and the medical literature produced before them; the testimonies of expert witnesses produced in Court, and; the submissions advanced before the Court. The Courts, to be able to decide such issues, needs expert opinion from credible persons in the field. The parties are also entitled to grant of opportunity to either support, or challenge the opinion that the experts may give after examination of the person concerned, and all other relevant materials. However, what weighs with us, at the outset is the denial of the respondent to subject herself to evaluation of her condition by an independent Medical Board to be appointed by the Court. This conduct itself raises a presumption against the respondent. The judgment of Dharampal (Supra) is clear and unequivocal in this regard. The relevant extract from Dharampal (Supra) read as under:

“9 .Clause 2(b) of Section 5 provides for one of the conditions for a valid Hindu marriage that neither party must be suffering from unsoundness of mind, mental disorder or insanity. In terms of Section 12(1)(b) of the Act a marriage may be held to be voidable if the other party was suffering from mental disorder or insanity. Section 13(1)(iii) of the Act provides that a party to the marriage may present a petition for dissolution of marriage by a decree of divorce inter alia on the ground that the other party has been incurably of unsound mind and has been suffering continuously or intermittently from mental disorder of such a kind that the petitioner cannot reasonably be expected to live with the respondent. It is beyond any cavil that a marriage in contravention of the aforementioned provisions of the Hindu Marriage Act is per se not void but is merely voidable.

10 .It is trite law that for the purpose of grant of a decree of divorce what is necessary is that the petitioner must establish that unsoundness of mind of the respondent is incurable or his/her mental disorder is of such a kind and to such an extent that he cannot reasonably be expected to live with his/her spouse. Medical testimony for arriving at such finding although may not be imperative but undoubtedly would be of considerable assistance to the court. We may, however, hasten to add that such medical testimony being the evidence of experts would not leave the court from the obligation of satisfying itself on the point in issue beyond reasonable doubt. Relevance of a medical evidence, therefore, cannot be disputed.

Having regard to the complexity of the situation, the doctor’s opinion may be of utmost importance for granting or rejecting a prayer for a decree of divorce. The question is as to whether a mental disorder is curable can be subject matter of determination of by a Court of Law having regard to the expert medical opinion and particularly the ongoing development in the scientific and medical research in this direction.
However, the Court has been empowered to issue such a direction in a civillitigation.
Yet again the primary duty of a Court is to see that truth is arrived at. A party to a civil litigation, it is axiomatic, is not entitled to constitutional protection under Article 20 of the Constitution of India. Thus, the Civil Court although may not have any specific provisions in the Code of Civil Procedure and the Evidence Act, has an inherent power in terms of Section 151 of the Code of Civil Procedure to pass all orders for doing complete justice to the parties to the suit.
In certain cases medical examination by the experts in the field may not only found to be leading to truth of the matter but may also lead to removal of misunderstanding between the parties. It may bring the parties to terms.
Having regard to development in medicinal technology, it is possible to find out that what was presumed to be a mental disorder of a spouse is not really so.
In matrimonial disputes, the court has also a conciliatory role to play- even for the said purpose if may require expert advice.
Under Section 75(e) of Code of Civil Procedure and Order 26 Rule 10A the Civil Court has the requisite power to issue a direction to hold a scientific, technical or expert investigation.
It was held that nobody can be forced to go to a mental hospital to undergo a medical treatment and it would be for the Court to draw an adverse inference against him for not doing so.

51..The prime concern of the Court is to find out as to whether a person who is said to be mentally ill could defend himself properly or not. Determination of such an issue although may have some relevance with the determination of the issue in the lis, nonetheless, the Court cannot be said to be wholly powerless in this behalf. Furthermore, it is one thing to say that a person would be subjected to test which would invade his right of privacy and may in some case amount to battery; but it is another thing to say that a party may be asked to submit himself to a psychiatrist or a psychoanalyst so as to enable the Court to arrive at a just conclusion. Whether the party to the marriage requires a treatment or not can be found out only in the event, he is examined by a properly qualified Psychiatrist. For the said purpose, it may not be necessary to submit himself to any blood test or other pathological tests.

53.Keeping in view of the fact that in a case of mental illness the Court has adequate power to examine the party or get him examined by a qualified doctor, we are of the opinion that in an appropriate case the Court may take recourse to such a procedure even at the instance of the party to the lis.

Furthermore, the Court must be held to have the requisite power even under Section 151 of Code of Civil Procedure to issue such direction either suo motu or otherwise which, according to him, would lead to the truth.
If despite an order passed by the Court, a person refuses to submit himself to such medical examination, a strong case for drawing an adverse inference would be made out Section 114 of the Indian Evidence Act also enables a Court to draw an adverse inference if the party does not produce the relevant evidences in his power an possession.
So viewed, the implicit power of a court to direct medical examination of a party to a matrimonial litigation in a case of this nature cannot beheld to be violative of one’s right of privacy.
To sum up, our conclusions are
A matrimonial court has the power to order a person to undergo medical test.
Passing of such an order by the court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution.
However, the Court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the Court. If despite the order of the court, the respondent refuses to submit himself to medical examination, the court will be entitled to draw an adverse inference against him.” (emphasis supplied)
The outright refusal of the respondent to undergo any medical examination, prevents the court arriving at the truth. It has been held by the Supreme Court in Kollam Chandra Sekhar v. Kollam Padma Latha (2014) 1 SCC 225by relying on the testimony of a doctor that Schizophrenia “is a treatable, manageable disease, which can be put on a par with hypertension and diabetes.” However, the same requires determination by a doctor, and in Dharam Pal (Supra) the court has observed that

“..but it is another thing to say that a party may be asked to submit himself to a psychiatrist or a psychoanalyst so as to enable the Court to arrive at a just conclusion. Whether the party to the marriage requires a treatment or not can be found out only in the event, he is examined by a properly qualified Psychiatrist.” Therefore, in such circumstance determination of truth is an important step for us to enable making of a fair decision.

In Kollam Chandra Sekhar (Supra), the Supreme Court has aptly described the institution of marriage, wherein the court has observed:

“42. Marriage is highly revered in India and we are a nation that prides itself on the strong foundation of our marriages, come hell or high water, rain or sunshine. Life is made up of good times and bad, and the bad times can bring with it terrible illnesses and extreme hardships. The partners in a marriage must weather these storms and embrace the sunshine with equanimity. Any person may have bad health, this is not their fault and most times, it is not within their control, as in the present case, the respondent was unwell and was taking treatment for the same. The illness had its fair share of problems…”

Marriage is not made of only happy memories and good times, and two people in a marriage have to face challenges and weather the storm together. It is not easy to live with a partner who has mental health issues, and such ailments come with their own challenges for the person facing the problem, and even more so for the spouse. There needs to be an understanding of the problems in a marriage, and communication between the partners especially when one of the two partners in a marriage is facing challenges of their own. Treatment of any mental ailment requires acceptance of the same, not only by the family members but, most importantly, by the person suffering therefrom. The same has been enunciated by the Department of Health, Australia Government where it has been observed that, “.Acceptance is acknowledged to be an important step in developing effective illness management strategies and working effectively with mental health services and complying with medications and treatments (Van Meijel et al 2002a, Van Meijel et al 2002b). This can be a difficult process, however, and takes time (Nemec & Taylor 1990). Acceptance is unlikely to occur immediately after the first episode; at this time, most people want to return to their previous self and previous life and are very reluctant to accept that they may have ongoing problems with their mental health.” [Rickwood D (2006). Pathways of Recovery: Preventing Further Episodes of Mental Illness (Monograph). Commonwealth of Australia, Canberra. (citations omitted)]
It is true that the medical opinion in the present case is not conclusive. However, the evidence of Dr. Rajiv Mehta, read with the evidence Dr. Inderjeet Sharma, coupled with the documents exhibited by them seems to suggest that Respondent was suffering from schizophrenia. In the cross-examination, the doctor opined that the provisional diagnosis of the patient was on the basis of history and the interview of the patient. PW-5 further deposed in his prescription that the patient was suffering from F-20.
Further, generally, tests are not conducted for Schizophrenia. Pertinently, the respondent herself admitted that even in her college days she used to have headache and the said headaches were of such severity, that they interfered with her education, as a result of which, the respondent could not complete her college. There is no explanation or reason, as to what was the nature of those headaches; what caused those headaches; and; what was the treatment given to the respondent for those headaches.
A combined reading of the evidence as well as the admission of the respondent, even though, may not conclusively prove that the respondent was suffering from Schizophrenia/Hebephrenia- F-20 prior to her marriage, at the time of her marriage, and; subsequent to her marriage, but definitely raises a serious doubt about the mental health of the respondent, and points to the possibility of the appellant”s allegations in that regard being true.
In these circumstances, the judgment of Sharda v. Dharampal is a clincher, as far as we are concerned. The Counsel for the appellant on one hand voluntarily made a statement that, at his cost and expense, the respondent be evaluated by a Medical Board to arrive at the truth of the mental health of the respondent. The appellant had also moved an application before the Family Court for evaluation of the respondent by a Medical Board. The prayer of the application reads as under:

“that this Honble Court be pleased to issue necessary directions in the matter to enable the respondent being referred to some medical board constituted by this Honble Court which may keep the respondent in observation for such period as may be necessary to determine th medical condition or the respondent and also the existence or otherwise of such condition of the respondents AND to pass such other orders/directions which this Honble Court may deem fit and proper.”

The said application was dismissed by a cryptic orderby the Family Court on date 27.08.2009 observing the following:

“After considering the pleadings of the parties, I am of the opinion that parties have to stand at their own legs in proving their case. It is the case of the respondent/husband that petitioner/wife is suffering from Schizophrenia and in order to prove the case, it is the duty of the respondent/husband to lead evidence and the court cannot provide assistance to the respondent/husband to procure the evidence. The application being devoid of merit is dismissed.”

As noticed above, the said plea was again made while this appeal was pending. The Counsel for the respondent flatly refused this proposal.
In Sharda v. Dharampal, the Courtheld as under:

“85. So viewed, the implicit power of a court to direct medical examination of a party to a matrimonial litigation in a case of this nature cannot beheld to be violative of one’s right of privacy. 86. To sum up, our conclusions are

A matrimonial court has the power to order a person to undergo medical test.
Passing of such an order by the court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution.
However, the Court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the Court. If despite the order of the court, the respondent refuses to submit himself to medical examination, the court will be entitled to draw an adverse inference against him.”
Thus, the Family Court fell in error in rejecting the appellant”s application. The approach of the Family Court that the appellant had to fend for himself, and he could not seek a direction from the Court for medical examination of the respondent was erroneous. It is not that this direction was sought by the appellant without any foundation or basis. The appellant had raised a plea that the respondent was suffering from Schizophrenia from day one. The appellant had shown the respondent to several specialists, and the medications prescribed show that they were relevant for treatment of Schizophrenia. The appellant also produced the medical doctors/ specialists and exhibited their prescriptions. The parties lived together for hardly any period, as the respondent was taken away by her father after about nine weeks of marriage from the matrimonial home. The evidence with regard to the respondent”s medical condition which related to her mental health, could possibly not have been garnered by the appellant without co-operation of the respondent. Only upon medical examination of the respondent, it could be established, with definiteness whether, or not, she is suffering from Schizophrenia, even though, there were pointers in that direction.
Pertinently, the Respondent could not establish any reason as to why, so early in the marriage, the parties separated, when according to the respondent, there were no serious issues in the relationship. The fact that she sought Restitution of Conjugal Rights itself shows that so far as she was concerned, she had no serious complaints with the appellant; or the relationship.
In the aforesaid circumstances, in our view, the Family Court was duty bound to direct the medical examination of the respondent. The appellant could not have been left to gather evidence of the respondent”s mental condition on his own.
The above factual matrix leads to an irrefutable assumption that all was not well with the respondent and she has been suffering from some disorder which she did not want to come out. We may also draw an analogy from section 114 illustration (h) of the Evidence Act, 1872. Section 114 of the Indian Evidence Act reads as under:

“Court may presume existence of certain facts. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”

Illustration (h) reads as under:

“That if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him”.

Carrying the illustration (h) further, and, in the light of the judgment of Dharampal (Supra), we can conclude that examination by medical specialist(s), if undertaken, would have been unfavourable to the respondent. The refusal by the respondent to undergo medical examination by the Medical Board of experts leads to the inference that she was not prepared to face the Medical Board as that could have exposed the condition of her mental well being, and would have established the allegation made by the appellant that she was suffering from Schizophrenia. Why else, such a spousewho claims to be not suffering from any mental ailment who has preferred a petition to seek restitution of conjugal rights, and expresses her desire to live with the appellant husband, not undergo such medical examination?
The only course that commends itself, in the facts of the case, is to call the opinion of an expert Medical Board. While the burden of proof is on the party alleging a claim, the conduct and cooperation of the other party is something to be taken a note of. The outright refusal by learned counsel of the Respondent to subject the Respondent to such medical examination, leaves the situation at a stalemate and prevents us from arriving at the definite truth. The Respondent has scuttled the effort of the court to arrive at a definite finding of truth. The only way of conclusively determining the mental health of the Respondent is by subjecting the Respondent to an examination by an expert Medical Board. The appellant has significantly discharged the onus by leading cogent evidence, and raise a preponderance of probability, that the Respondent is suffering from Schizophrenia.
For the abovesaid reasons, we draw an adverse inference against the Respondent that she is suffering from Schizophrenia.
Section 12 of the Hindu Marriage Act deals with voidable marriages. A Hindu marriage shall be voidable and may be annulled by a decree of nullity, inter alia, on the ground that the marriage is in contravention of the condition specified in Clause (ii) of Section 5. Section 5 Clause (ii), insofar as it is relevant, states that a marriage may be solemnized between two Hindus, inter alia, if:

“(ii) at the time of marriage, neither party

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

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

The fact that the parties could not live together beyond nine weeks itself shows that the mental disorder suffered by the respondent is of a kind, and to such an extent as to be unfit for marriage and the procreation of children. It is not the case of the respondent that either of the conditions enumerated in Section 12(2)(a)(i), or (ii) exists in the present case, which would have debarred the appellant from seeking annulment of marriage on the ground contained in Section 12(1)(b) of the Hindu Marriage Act. That is not the defence set up by her, or established by her. The failure on the part of the respondent to disclose her mental disorder before her marriage with the appellant as alleged by him, constituted a fraud perpetrated upon the appellant. Apart from stating that the parties had met a few times before the marriage, the respondent has not specifically averred, or established, that the appellant was made aware of the mental disorder suffered by the respondent, which was passed-off by her as mere “headaches”. Headachesby themselves are not a disease. They are only symptoms of a disease. The Respondent does not state what caused her such serious and frequent headaches, which debilitated her from completing her studies.
We are, therefore, inclined to allow the present appeal and annul the marriage between the appellant and the respondent on the ground contained in Section 12(1)(b) of the Hindu Marriage Act.
We may also observe that the learned counsel for the respondent is the father of the respondent, and it appears that his objectivity in dealing with the matter has been overshadowed by his love for his daughter, i.e. the respondent, which is only natural and to be expected. However, in the process, unfortunately, the life of the appellant has been ruined and he has remained stuck in this relationship for 16 years without any resolution. In the most important years of his life, when the appellant would have, otherwise, enjoyed marital and conjugal bliss and satisfaction, he has had to suffer due to the obstinacy displayed by not only the respondent, but even her father, who appears to have been calling the shots in relation to the matrimonial dispute raised by the appellant. In these circumstances, we grant token costs to the appellant of Rs. 10,000/- .

Posted on 15th November 202115th November 2021 by rajatbindal5gmailcom — Leave a comment

Complete breakdown of marriage – Supreme Court can pass decree of divorce under Article 142 Constitution of India.

SUPREME COURT OF INDIA

DIVISION BENCH

SUBHRANSU SARKAR — Appellant

Vs.

INDRANI SARKAR (NEE DAS) — Respondent

( Before : L. Nageswara Rao and B.R. Gavai, JJ. )

Civil Appeal No. 5696 of 2021 (@ SLP (C) No. 11747 of 2017)

Decided on : 14-09-2021

Constitution of India, 1950 – Article 142 – Divorce – Husband and wife have been living separately for more than 16 years – Marriage between the parties is emotionally dead and there is no point in persuading them to live together any more – Therefore, this is a fit case for exercise of jurisdiction under Article 142 of the Constitution of India – Marriage between the parties is dissolved.

Counsel for Appearing Parties

Mr. Saurav Gupta, Advocate, Mr. Kunal Chatterji, Advocate, Ms. Maitrayee Banerjee, Advocate, for the Appellant; Mr. Ranjan Mukherjee, Adv (A.C.), for the Respondent.

Cases Referred

Munish Kakkar v. Nidhi Kakkar, (2020) 14 SCC 657
Sukhendu Das v. Rita Mukherjee, (2017) 9 SCC 632

ORDER

Leave granted.

1. The Appellant married the Respondent on 02.03.1997 and registered the same under the Special Marriage Act, 1954. Thereafter, the marriage was solemnized between the parties on 07.12.2000 under the Hindu rites and customs. Alleging cruelty and desertion by the Respondent, the appellant filed a suit for dissolution of marriage on 05.03.2007 before the District Judge, Alipore. The suit was dismissed, aggrieved by which the Appellant filed an appeal before the High Court of Calcutta. The Respondent did not appear before the High Court. However, the High Court dismissed the appeal filed by the appellant upholding the judgment of the Trial Court. The allegation made by the Appellant against the Respondent is that she was insisting on his residing separately from his parents. Also, the Respondent misbehaved with her in-laws and that she was frequently leaving the matrimonial home. The appellant also alleged physical assault by the Respondent when both of them went to Puri and Shillong for holidays. The Respondent resisted the Petition filed for dissolution of marriage by denying the averments made against her. She accused the appellant of adultery and excessive consumption of alcohol. The Trial Court and the High Court refused to accept the contentions of the appellant that he is entitled for divorce by holding that he could not make out a case of cruelty meted out by the Respondent.

2. It was submitted by Mr. Nikhil Nayyar, learned Senior Counsel for the Appellant that the Appellant and Respondent have been living separately for more than 16 years and for all practical purposes the marriage is dead. He relied upon two judgments of this Court in Sukhendu Das v. Rita Mukherjee, (2017) 9 SCC 632 and Munish Kakkar v. Nidhi Kakkar, (2020) 14 SCC 657 in support of his submission that this Court in exercise of its power under Article 142 of the Constitution of India has dissolved marriages when they are totally unworkable and irretrievable.

3. We have requested Mr. Ranjan Mukherjee to assist this Court as Amicus Curiae on behalf of the Respondent as she did not engage an Advocate. Mr. Ranjan Mukherjee informed this Court that the Respondent intends to continue to live with the Appellant. Mr. Mukherjee informed this Court that he spoke to the Respondent several times and the Respondent is not convinced that an unworkable marriage should be put to an end. In Sukhendu Das v. Rita Mukherjee (supra), this Court considered a similar situation where the marriage between the parties took place on 19.06.1992 and they were living apart from the year 2000. The Trial Court found that the husband could not prove cruelty by his wife and that he was not entitled for decree of divorce. The judgment of the Trial Court was upheld by the High Court and the same was the subject matter of challenge before this Court. The Respondent failed to appear before this Court in spite of notice being served. By holding that there was an irretrievable breakdown of marriage, this Court dissolved the marriage between the parties therein by observing that they had been living separately for more than 17 years and no useful purpose would be served by compelling them to live together in matrimony.

4. To do complete justice between the parties, this Court in Munish Kakkar v. Nidhi Kakkar (supra) put an end to the bitter matrimonial dispute which lingered on for two decades between the parties therein.

5. The Appellant is a police officer in the State of West Bengal and has made allegation of cruelty and desertion against the Respondent. Though the respondent has insisted that she intends to live with the Appellant, no meaningful effort has been made by her for reconciliation. Allegations made by the Respondent relate to adultery by the Appellant which was the reason for her moving out of the matrimonial home. In spite of the best efforts made by Mr. Mukherjee, the Respondent has insisted that she is not willing for dissolution of the marriage. Mr. Mukherjee has brought to our notice that the Respondent has to take care of her son who is suffering from serious ailments.

6. Having scrutinized the material on record and considering the submissions made by Mr. Nikhil Nayyar and Mr. Ranjan Mukherjee, learned Amicus Curiae, without commenting on the merits of the matter, the marriage between the parties is emotionally dead and there is no point in persuading them to live together any more. Therefore, this is a fit case for exercise of jurisdiction under Article 142 of the Constitution of India. The marriage between the parties is dissolved. The Registry is directed to prepare a decree accordingly. Taking note of the submissions made by Mr. Ranjan Mukherjee, we direct the Appellant to pay an amount of Rs. 25 Lakhs (Rupees Twenty-Five Lakhs) to the Respondent within a period of eight weeks from today. The petition filed by the Respondent under Section 125 Cr. PC for maintenance shall be withdrawn by the Respondent on receipt of the amount of Rs. 25 Lakhs. The payment of the aforesaid amount is in full and final settlement of all claims of the Respondent against the Appellant.

7. The appeal is disposed of accordingly.

Posted on 19th August 2021 by rajatbindal5gmailcom — Leave a comment

False allegation of impotency amounts to defamation – can be sued.

(2019) 1 AIRBomR(Cri) 307 : (2019) ALLMR(Cri) 102 : (2019) 1 BomCR(Cri) 204 : (2019) 1 CriCC 362 : (2018) 4
Crimes 273 : (2019) 1 RCR(Criminal) 47
BOMBAY HIGH COURT (NAGPUR BENCH)
SINGLE BENCH
X. (NAME WITHHELD) — Appellant
Vs.
Y. (NAME WITHHELD) — Respondent
( Before : S.B. Shukre, J. )
Criminal Application No. 774 of 2017
Decided on : 02-11-2018
Criminal Procedure Code, 1973 (CrPC) – Section 202(1), Section 397, Section 482
Penal Code, 1860 (IPC) – Section 120B, Section 191, Section 193, Section 34, Section 499, Section
500, Section 503, Section 506
Criminal Procedure Code, 1973 (CrPC) – Sections 202(1), 397 and 482 – Penal Code, 1860 (IPC) –
Sections 34, 499, 500 and 506 – Offence of defamation – The expression “impotent person”, as the Counsel
for the applicant would like the Court to do, is read in all its contextual setting, in particular, in the
context of the birth of the child by adopting a medical procedure on the suggestion of the Gynecologist,
still the apparent harm that the expression “impotent person” causes, is not diluted or washed out. It is
for the reason that prima facie the word “impotent” when understood in it”s plain and grammatical sense,
reflects adversely upon the manhood of a person and has a tendency to invite derisive opinions about
such person from others and, therefore, use of such word and its publication as contemplated under
Section 499 of IPC would be sufficient to constitute, in a prima facie manner, the offence of defamation
punishable under Section 500 of IPC. If the non-applicant submits that the word has been used by her in
some different sense denoting medical condition of the non-applicant affecting the process of
conception, it would be a matter of evidence to be proved accordingly. At the stage, the meaning
apparently indicated by the word would have to be taken as it is. Then, such imputation has been made
by filing a writ petition and, therefore, the other ingredient of publication is also fulfilled in the present
case. Therefore, prima facie, the offence punishable under Section 500 of IPC is made out in this case –
The Court did not see any reason to make any interference with the impugned order – Application stands
dismissed.
Counsel for Appearing Parties
G.L. Bajaj, Adv., R.M. Daga, Adv.
8/19/2021 India Law Library
http://www.indialawlibrary.com/Judgement.aspx?sid=zGdYAeTn9f/ZFnagpcPMLw== 2/7
Cases Referred
Girish Kumar Suneji vs. Central Bureau of Investigation, (2017) 14 SCC 809
Inspector of Police, Chennai vs. S. Selvi and another, (2018) AIR(SC) 81
Jeffrey J. Diermeier and another vs. State of West Bengal and another, (2010) 6 SCC 243
M.K. Prabhakaran and another vs. T.E. Gangadharan and another, (2006) CriLJ 1872
M.N. Damani vs. S.K. Sinha and others, (2001) AIR(SC) 2037
Mohd. Abdulla Khan vs. Prakash K, (2018) 2 MhLJ(Cri) 721
Om Kumar Dhankar vs. State of Haryana and another, (2012) 11 SCC 252
Rajendra Kumar Sitaram Pande vs. Uttam and another, (1999) 3 SCC 134
Shri Sopullo Datta Naik Dessai vs. Shri Yeshwant Govind Dessai and another, (2010) AllMR(Cri) 151
Smt. Raminder Kaur Bedi vs. Shri Jatinder Singh Bedi, (1988) 2 ILR(Del) 633
Thangavelu Chettiar vs. Ponnammal, (1966) CriLJ 1149
Trichinopoly Ramaswamy Ardhanani, Bombay and others vs. Kripa Shanker Bhargava, (1990) CriLJ 2616
Urmila Devi vs. Yudhvir Singh, (2013) 15 SCC 624
Final Result : Dismissed
JUDGMENT/ORDER
S.B. Shukre, J. – Admit. Heard finally by consent.
2. By this application, the legality and correctness of the order of issuance of process, dated 24/07/2017, passed by
the Judicial Magistrate First Class, Court No.2, Nagpur, in Misc. Criminal Complaint No.2286/2017 has been
challenged. The applicant is legally wedded wife of the non-applicant. A matrimonial dispute has been brewingbetween the couple for quite some time and before different fora one after another or simultaneously. Their relations got strained especially after the applicant left her matrimonial house on 21/11/2016 taking along withher the couple’s daughter. The applicant did not return home and it was learnt by the non-applicant that she wasstaying at the house of her parents at Rajahmundry (Andhra Pradesh). The non-applicant tried his best topersuade the applicant to return to her matrimonial home along with the daughter, but in vain. The applicant too,on her part, filed a divorce petition bearing O.P. No.7/2017 in the Court of Principal Civil Judge, Senior Division,Rajahmundry. The Family Court on 26/04/2017 passed an order directing, inter alia, grant of interim custody ofthe daughter for a certain period of time to the non-applicant.
3. The order dated 26/04/2017 was challenged by the applicant by filing a writ petition being Writ Petition
No.2927/2017.
In this petition, certain statements were made by the applicant casting aspersions on the potency and
capacity of the nonapplicant.
These statements disturbed the non-applicant and were perceived by the non-applicant as per se
defamatory.
4. Following the perception nurtured by the non-applicant, the non-applicant filed a complaint case being Misc. Criminal Complaint No.2286/2017 for setting the law in motion for taking action against the applicant for offences punishable under Sections 500 and 506 of Indian Penal Code (‘IPC’ for short). In the complaint, a few more persons, being in-laws of the non-applicant, were also added as accused persons and so the intervention of the criminal court for taking action under Section 120-B of IPC against all the accused persons was also sought.
Section 34 of IPC was also invoked.
5. Initially, the learned Magistrate deferred the issuance of process and directed inquiry under Section 202(1) of the Code of Criminal Procedure (‘Cr.P.C.’ for short). On perusal of the statement of the non-applicant and statement of the witness examined by the non-applicant and the allegations made in the complaint, the learned Magistrate expressed his satisfaction that prima facie, offences punishable under Sections 500 and 506(I) of IPC were made out and, therefore, he issued process under these offences against the applicant and other co-accused persons by the order passed on 24/07/2017. Here, we are concerned only with the applicant, who has been made accused No.1 in the criminal complaint, as it is her, who has challenged in this application the order dated 24/07/2017 passed by the learned Magistrate.

6. Shri G.L. Bajaj, learned Counsel for the applicant submits that this application filed under Section 482 of Cr.P.C.
is maintainable at law, as held in the case of Urmila Devi vs. Yudhvir Singh, (2013) 15 SCC 624. He submits that the Hon’ble Apex Court has made it clear that for challenging the order of issuance of process, both remedies, one under Section 397 of Cr.P.C. and the other under Section 482 of Cr.P.C., are available.
7. On merits of the matter, Shri Bajaj submits that the impugned order has been passed without any application of mind.
He submits that it is well settled law that the alleged defamatory statement must appear to be apparently
defamatory and not upon it’s minute consideration. He submits that it is not permissible in law to read a few words from the whole sentence in isolation and draw a convenient meaning. He submits that when a
statement was made by the applicant in Writ Petition No.2927/2017 that the non-applicant was an impotent person, the applicant only meant that due to some medical problem, the conception of the child was not possible and that is the reason why after the words “impotent person”, the applicant has also asserted like “the child was born by medical ovulation period technique as was suggested by the Gynecologist”. According to him, this statement, when read in it’s entirety, would not appear to be defamatory per se. On the contrary, he maintains that it is a fact that the child was born through a technique of medical ovulation period and it was required to be resorted to because of some medical issues faced by the non-applicant.
8. Shri Bajaj further submits that it is also well settled law that whenever an allegation made in a litigation is found to be true, it does not amount to defamation within the meaning of Section 499 of IPC. He places his reliance upon the cases of Smt. Raminder Kaur Bedi vs. Shri Jatinder Singh Bedi, (1988) 2 ILR(Del) 633 and Kallumatam Gurubasayya vs. Sanna Setra Siddalingappa in Criminal Revision Case No.1094 of 1939 decided by Justice Lakshmana Rao on 22nd February, 1940.
9. Shri R.M. Daga, learned Counsel for the non-applicant, taking an objection on the maintainability of this
application filed under Section 482 of Cr.P.C., submits that when the order of issuance of process is revisable under Section 397 of Cr.P.C. and that being the settled law, this application deserves to be dismissed on the sole ground of not being maintainable before this Court due to availability of alternate remedy. For his such submission, he places reliance upon the cases of (i) Om Kumar Dhankar vs. State of Haryana & another, (2012) 11 SCC 252; (ii) Girish Kumar Suneji vs. Central Bureau of Investigation, (2017) 14 SCC 809; (iii) Rajendra Kumar Sitaram Pande vs. Uttam & another, (1999) 3 SCC 134.
10. The next submission of the learned Counsel for the nonapplicant is upon the merits of the case. According to him, no interference from this Court in exercise of it’s power under Section 482 of Cr.P.C. is warranted in the present case for the reason that when examined from any angle, the impugned order cannot be considered to be an order, which is perverse or patently illegal or contrary to law or causing grave prejudice or injustice to the parties. He submits that when the complaint discloses that the statements were made by the accused, which were defamatory per se and were made, with intention or knowledge to harm that such imputations will harm the reputation of the complainant, prima facie case would have to be said as made out against the applicant and, therefore, this Court should be very slow in interfering with the order impugned here. He further submits that whether there is sufficient evidence to establish guilt of the accused for the offences for which process has been issued is a question that needs to be examined only after recording of evidence at trial and it can never be a subject matter of a proceeding under Section 482 of Cr.P.C. He also submits that even such issues as to whether or not the statement has been made in good faith or was for public good would only raise questions of fact which, for
their resolution, require evidence and therefore, examination of such questions of fact at the stage of considering the legality and correctness of order of issuance of process is not permissible in law.
11. For the submissions so made on merits of the matter, Shri Daga has relied upon the following cases :
i. Mohd. Abdulla Khan vs. Prakash K, (2018) 2 MhLJ(Cri) 721 (S.C.).
ii. M.N. Damani vs. S.K. Sinha & others, (2001) AIR SC 2037.
iii. Jeffrey J. Diermeier & another vs. State of West Bengal & another, (2010) 6 SCC 243.
iv. Trichinopoly Ramaswamy Ardhanani, Bombay & others vs. Kripa Shanker Bhargava, (1990) CriLJ 2616
(M.P. High Court).
v. Thangavelu Chettiar vs. Ponnammal, (1966) CriLJ 1149 (Madras High Court).
vi. Shri Sopullo Datta Naik Dessai vs. Shri Yeshwant Govind Dessai & another, (2010) AllMR(Cri) 151.
vii. M.K. Prabhakaran & another vs. T.E. Gangadharan & another, (2006) CriLJ 1872.
12. Shri Daga has also relied upon the case of State by the Inspector of Police, Chennai vs. S. Selvi & another,(2018) AIR SC 81, wherein it is held that in an application filed for discharge of the accused, it is not permissiblefor the court to appreciate the entire material on record as if the court is trying the criminal case and the duty of the court is only to find out whether or not a prima facie case has been made out.
13. In the cases relied upon by Shri Daga, learned Counsel for the non-applicant, which are referred to in the paragraph No.9 it has been consistently held that an order of issuance of process is revisable under Section 397 of Cr.P.C. This would make it clear to us that remedy in the nature of a criminal revision application filed under Section 397 of Cr.P.C. before the Sessions Court is certainly available for an accused aggrieved by the order of issuance of process against him. But the question is, whether availability of such a remedy would, by itself bar the entry of the accused in this Court through the door of Section 482 of Cr.P.C. or not.
14. The answer to the question could be found out by referring to the observations of the Hon’ble Apex Court in the case of Urmila Devi (supra). The Hon’ble Apex Court by referring to it’s various judgments rendered earlier has held that an order of issuance of process or summons to an accused in exercise of it’s power under Sections 200 to 204 of Cr.P.C. can always be a subject matter of challenge under the inherent jurisdiction of the High Court under Section 482 of Cr.P.C. Considering it’s previous cases, Hon’ble Supreme Court held that in such a matter even the revisional jurisdiction under Section 397 of Cr.P.C. would be available to the aggrieved party. The exposition of the Hon’ble Supreme Court in this regard appears in paragraph 21 to 23.
These paragraphs are reproduced thus :
21. Having regard to the said categorical position stated by this Court in innumerable decisions resting with
the decision in Rajendra Kumar Sitaram Pande, as well as the decision in K.K. Patel, it will be in order to
state and declare the legal position as under :
21.1. The order issued by the Magistrate deciding to summon an accused in exercise of his power under
Section 200 to 204 Cr.P.C. would be an order of intermediatory or quasi-final in nature and not interlocutory
in nature.
21.2. Since the said position viz. Such an order is intermediatory order or quasi-final order, the revisionary
jurisdiction provided under Section 397, either with the District Court or with the High Court can be worked
out by the aggrieved party.
21.3. Such an order of a Magistrate deciding to issue process or summon to an accused in exercise of his
power under Sections 200 to 204 Cr.P.C. can always be subject-matter of challenge under the inherent
jurisdiction of the High Court under Section 482 Cr.P.C.
22. When we declare the above legal position without any ambiguity, we also wish to draw support to our
above conclusion by referring to some of the subsequent decisions. In a recent decision of this court in Om
Kumar Dhankar v. State of Haryana, the decisions in Madhu Limaye, V.C. Shukal, K.M. Mathew, Rakesh
Kumar Mishra v. State of Bihar ending with Rajendra Kumar Sitaram pande, was considered and by making
specific reference to para 6 of the judgment in Rajendra Kumar Sitaram Pande, this Court has held as under
in para 10: (Om Kumar Dhankar Case)
In view of the above legal position, we hold, as it must be, that revisional jurisdiction under Section 397
Cr.P.C. was available to Respondent 2 in challenging the order of the Magistrate directing issuance of
summons.
The first question is answered against the appellant accordingly.

23. Therefore, the position has now come to rest to the effect that th revisional jurisdiction under Section
397 Cr.P.C. is available to the aggrieved party in challenging the order of the Magistrate, directing issuance
of summons.
15. So, the position of law now is that both remedies, one under Section 397 of Cr.P.C. and other under Section 482 of Cr.P.C., are available. The applicant-accused No.1 has chosen the latter remedy and in view of the law laiddown by the Hon’ble Apex Court in the case of Urmila Devi, it is not possible to hold that the choice so exercised by the applicant is bad in law or was something not at all available to her at the threshold itself. The objection about the maintainability of this petition is, therefore, rejected.
16. The principles of law which I find to be useful for considering merits of the case and which arise from such cases, relied upon by the learned Counsel for the non-applicant, as that of Mohd. Abdulla Khan, Jeffrey J. Diermeier, Trichinopoly Ramaswamy Ardhanani, Thangavelu Chettiar, Sopullo Datta Naik Dessai, M.K. Prabhakaran and S. Selvi (paras 11 and 12 supra) are as follows :
[I] The essentials of offence of defamation are that there should be some imputation harming the reputation of a person and publication of such imputation by communicating it to a person other than a person againstwhom the imputation is made.
[ii] Existence of the aforestated two essentials of the offence of defamation must be ascertained from the
allegations made in the complaint and other material produced on record, if any, by applying the test of face value or prima facie worth of the material on record taken as it is, and a detailed analysis of the material available on record is not permissible.
[iii] The question as to whether or not there is sufficient evidence to establish guilt of the accused or the
question as to whether or not the imputation has been made in good faith or for public good or the question as to whether or not the imputation depicts the factual position, all are the questions which must be answered on merits of the case after a detailed evidence is available and not at the stage of issuance of
process.
[iv] A defamatory statement made in the plaint or written statement or a reply gets published the moment
such plaint or written statement or reply is filed in a Court of law.
These principles of law would have to be borne in mind while examining the impugned order for it’s legality
or otherwise.
17. Of course, Shri Bajaj, learned Counsel for the applicant relying upon the case of Raminder Kaur Bedi has
submitted that when the alleged defamatory imputation is made a ground for seeking divorce and is upheld by the civil court, conviction of the accused for an offence of defamation would not be possible and, therefore, the interest of justice would require that the criminal case is stayed till disposal of the divorce case. The learned Counsel for the non-applicant submits that this case does not involve any issue about stay of the criminal proceedings.
18. I think, the learned Counsel for the respondent is right.
What has been challenged in this application is the order of issuance of process and no issue about the
necessity of staying the trial of the criminal case has arisen in these proceedings and, therefore, the case of
Smt. Raminder Kaur Bedi would not help the applicant in any manner.
19. Shri Bajaj has also submitted that when the complaint is founded on an allegation in a plaint filed in a civil proceeding and has been found to be false, the offence would not be that of defamation punishable under Section 500 of IPC, but an offence relating to giving of false evidence punishable under Section 193 of IPC as held in the case of Kallumatam (supra). The learned Counsel for the non-applicant would like to express his disapproval to the submission so made by the learned Counsel for the applicant.
20. The disagreement expressed by the learned Counsel for the non-applicant, here also, I would say, is not
misplaced. Giving of false evidence is a different and distinct offence from that of the offence of defamation
punishable under Section 500 of IPC. The offence of giving of false evidence made punishable under Section 193 of IPC has been defined under Section 191. The definition indicates that any person who is bound by law or oath to state the truth or who is bound by law to make a declaration upon any subject, makes any statement which is false and which he either knows or believes to be false is said to give false evidence. So, it is clear that the offence of false evidence is committed when the person is required to give evidence or make a declaration upon a subject, as mandatorily required under the law. This offence is about making false declaration or statement knowing it to be false at a time when the law or the oath administered to such a person binds him to give a true disclosure of a fact and such a person, inspite of knowing his responsibility under the law, when chooses to speak or declare falsehood, is said to commit offence of giving false evidence. So, the offence is essentially of something which is a matter of evidence or law and not of pleadings. If any defamatory statement is made in pleadings, what would
arise would be an offence of defamation punishable under Section 500 read with Section 499 of IPC and not of offence of giving false evidence punishable under Section 193 read with Section 191 of IPC.
21. In the present case, the offence of defamation has, prima facie, arisen from pleadings and not from evidence.
In Kallumatam, the facts are not stated, but what can be inferred from the observations of Court is that no offence of defamation was involved and only offence of giving of false evidence was attracted as during course of evidence, a false allegation was made by a party. For the offence of giving of false evidence, complaint by Court is necessary or otherwise cognizance cannot be taken. But, no complaint was filed by the Court and, therefore, the Court observed that a party cannot be permitted to evade that provision of law which requires Court to file a complaint by filing a complaint of defamation. These facts would indicate that Kallumatam has no application to the facts of this case.
22. Keeping in mind the principles of law, discussed earlier and found to be applicable, let us now consider the merits of the case.
23. A perusal of the complaint and the statements of the non-applicant and his one witness, both made on oath,show that there is an imputation made by the applicant in the writ petition that she filed in this Court, which was Writ Petition No.2927/2017.
They also show that prior to filing of the petition, the applicant had issued a threat of doing something so as to injure reputation of the non-applicant, if the non-applicant conducted himself the way he was asked not to by the accused persons. The imputation made against the non-applicant, in order to comprehend it’s
prima facie worth, requires consideration at this stage. It reads thus :
“The petitioner wanted to avoid writing this in this petition but the conduct of the respondent compels her
to write that the respondent is an impotent person and the child was born by medical ovulation period
technique as was suggested by the gynecologist.”
24. Reading the aforestated allegation as it is and without adding anything to it or subtracting anything from it prima facie, one gets an impression that it is per se defamatory in character and has been, prima facie, calculated to cause harm or injury to the reputation of the non-applicant. It also gives an impression that apparently it has been made with consciousness about the repercussion that such a statement would have on the life of the nonapplicant. Even if the expression “impotent person”, as the learned Counsel for the applicant would like this Court to do, is read in all its contextual setting, in particular, in the context of the birth of the child by adopting a medical procedure on the suggestion of the Gynecologist, still the apparent harm that the expression “impotent person” causes, is not diluted or washed out.
This is for the reason that prima facie the word “impotent” when understood in it’s plain and grammatical
sense, reflects adversely upon the manhood of a person and has a tendency to invite derisive opinions about such person from others and, therefore, use of such word and its publication as contemplated under Section 499 of IPC would be sufficient to constitute, in a prima facie manner, the offence of defamation punishable under Section 500 of IPC. Now, if the non-applicant submits that this word has been used by her in some different sense denoting medical condition of the non-applicant affecting the process of conception, it would be a matter of evidence to be proved accordingly. At this stage, the meaning apparently indicated by the word would have to be taken as it is. Then, such imputation has been made by filing a writ petition and, therefore, the other ingredient of publication is also fulfilled in the present case. Therefore, prima facie, the offence punishable under Section 500 of IPC is made out in this case.

25. As regards the offence punishable under Section 506 of IPC, which is about criminal intimidation of the
complainant, I must say, even on this count, the allegations contained in the plaint and the material available on record, prima facie, are sufficient to show that this offence too has been constituted in the present case.
There are allegations supported by the material brought on record that prior to the filing of the writ
petition, the applicant had issued threat to the non-applicant to damage or injure his reputation. The
offence of criminal intimidation has been defined under Section 503 of IPC and it requires a threat given by
the accused to the complainant of such nature as would cause injury to the complainant’s reputation or
property or another person in whom the complainant is interested and it must be done with intent to cause
alarm to the complainant or such other person or make the complainant or such other person do or omit to
do something which otherwise he would not do or would omit to do under the law of land. The material as
disclosed by the allegations in the complaint and the statement of the witnesses, in my view, is sufficient to
prima facie make out the case for proceeding further in the matter under Section 506(I) of IPC as well.
26. All these aspects of the matter have been properly considered by the learned Magistrate and, therefore, I do not see any reason to make any interference with the impugned order.
The application stands dismissed.
(S.B. SHUKRE, J.)
At this stage, the learned Counsel for the applicant makes a prayer that the exemption granted by this Court
to the applicant from her personal appearance before the trial Court be extended for a further period of
eight weeks.
The prayer is opposed by the learned Counsel for the non-applicant.
Considering the fact that Diwali festival is round the corner, it is appropriate that the prayer is granted.
Prayer is granted.

Posted on 19th June 202112th August 2021 by rajatbindal5gmailcom — Leave a comment

Challenges and bottlenecks before Family Courts

Challenges before Family Courts :

As per the report of Times of India nearly 40% of the marriages performed in last 4 years are ending up in divorce. As per census 2011 U.P is fourth state where divorce cases are rising with nearly 1,00,000 cases every year. It behind with only Maharashtra, Gujrat and west Bengal. Whereas it was 0.50 person per thousand in 1990 , it is now more then 5 per thousand in 2018. Comparing to the rising number of divorce cases the number of family courts established are very few. A family court has more then 200 cases listed everyday. If the Presiding officer give even 5 minutes to each case then it require 16.66 hours of working. The result is that P.O. is under great pressure of work. P.O. is forced to post cases on longer dates despite the fact that justice delayed is justice denied.
Due to the fact the Family courts have huge pendency of cases and the relative burden on P.O. make it very unattractive posting to him/her. Most of the judges consider it as a punishment posting and refrains from performing . They gets busy in getting a better posting instead . We need to reverse this situation by opening more courts and providing better facilities and perks to the judges.
All of us are humans and matrimonial disputes are toughest to handle. We all are grossly involved with our spouses in daily life. The disputes in family court affects judges emotionally then any civil or criminal dispute.
There are issues like alimony which become the topic of great controversy and cause harassment to families. What further becomes a problem is that personal issues get intertwined with the legal issues and lead to the unnecessary prolonging of the disposal of these cases. The younger generation, being made a scapegoat in the changing times due to the ensuing cultural war between Conservatives and Liberals, wastes its useful youth in the precincts of the litigating corridors of the family courts, criminal courts and magistrate courts waiting in long queues being expectant of receiving justice.
It was laid down in the Family Courts Act that the majority of judges should be women. However, this provision has not been complied with. In the course of the workshop organised in March 2002 by the National Commission for Women, it was noted that there were only 18 women judges till then in the Family Courts in India out of 84 judges in all the 84 courts that existed at that time.
Government is empowered to make rules prescribing some more qualifications. Apart from prescribing the qualification of the Judges of Family Courts, the Central Government has no role to play in the administration of this Act. Different High Courts have laid down different rules of the procedure. However, this lack of uniformity could also be one of the reasons behind the fact that family disputes are still being heard by civil courts. Family courts also need to align themselves with women’s organizations and NGOs dealing with the welfare of families, women and children.
The question is whether a lawyer’s participation will be useful or detrimental to the performance of a family court. That is the crucial issue. It was suggested at the workshop that the Women’s Commission should consider whether an amendment could be proposed to allow participation of lawyers subject to a proviso giving power to the court to terminate his vakalatnama if he uses delaying tactics by unnecessary adjournments. If such control is given to the court the lawyers will not be able to get adjournments.
The lack of uniformity regarding the rules laid down by different states also leads to confusion in its application. Merely passing a central legislation is not in itself a complete step; for implementation in its spirit, it is to be ensured that some level of uniformity is maintained, at least in the initial stages of its coming into effect. Further, the need to amend certain laws is also to be examined and implemented effectively in order to ensure that these courts do not face any hindrance in their working. These small steps, if examined and implemented within time, will go a long way to ensure that the Family Courts are successful, to a greater degree, to fulfil the noble purpose for which they were created.

Bottlenecks of family court

The family court was established with the sole purpose of alienating it from the clumsy atmosphere of Civil and criminal courts, so that the litigants , may settle their matrimonial disputes in a cool and comfortable atmosphere. However, in almost every district the family courts are functioning in the same building where the district Civil and Criminal courts are functioning. Hence, the litigants are facing the same atmosphere and gets hasitent in coming to the family courts and put their problem in a free and comfortable zone.
The family courts are not provided with enough funds to operate. Before discussing this issue we must understand that the family courts were established for a special purpose and the litigants are not habitual offenders or habitual litigants. They includes men, women and kids from our society . A special seating arrangement along with facility of basic needs such as chairs, fans, drinking water, a special room for feeding, proper and clean toilets are required. Untill and unless these basic facilities are provided the proper functioning of family courts is a fallacy.
Family court is established for the purpose of saving the families and not for breaking the families. The reconciliation process is an integral part of the court procedure.These counmcellors must include, a pshychologist, who can ensure that the disputes are handled by experts who do not forget that while there may be core legal issues to be dealt with; there is also a human and psychological dimension to be dealt with in these matters. The role of the counsellors is not limited to counselling but extends to reconciliation and mutual settlement wherever deemed feasible. However, in our system the counsellors are not appointed looking at their actual qualification and ability to resolve matrimonial disputes and the presence of councellors are at present is just notional.
The Family Courts’ main purpose is to assist the smooth and effective disposal of cases relating to family matters. However, like any other system there are certain issues which become a matter of concern when it comes to the working of these courts. One such issue is that of continuity. For example, in the family courts the counsellors are changed every three months. Thus, when cases stretch for a period of time which is longer than this, the woman or the aggrieved person has to adjust with new counsellors and their story has to be retold several times.
Since the Family Court has restrictive jurisdiction and does not have the power to decide issues of contempt, people do not seem to take the court as seriously as they would a magistrate or a city civil court.

Posted on 3rd April 2021 by rajatbindal5gmailcom — Leave a comment

Maintenance case 125 Cr.P.C. – Affidavit with disclosure of Assets and Liabilities to be made in every case.

(2020) 4 CivCC 282 : (2020) 11 JT 558 : (2020) 4 RCR(Criminal) 879 : (2020) 13 SCALE 29
SUPREME COURT OF INDIA
DIVISION BENCH
RAJNESH — Appellant
Vs.
NEHA AND ANOTHER — Respondent
( Before : Indu Malhotra and R. Subhash Reddy, JJ. )
Criminal Appeal No. 730 of 2020 (Arising out of SLP (Criminal) No. 9503 of 2018)
Decided on : 04-11-2020
A. Criminal Procedure Code, 1973 (Cr.PC) – Section 125 – Matrimonial matters –
Payment of Maintenance – Maintenance in all cases will be awarded from the date of
filing the application for maintenance.
B. Hindu Marriage Act, 1956 – Section 28A – Enforcement/Execution of orders of
maintenance – For enforcement/execution of orders of maintenance, it is directed that
an order or decree of maintenance may be enforced under Section 28A of the Hindu
Marriage Act, 1956; Section 20(6) of the D.V. Act; and Section 128 of Cr.P.C., as may be
applicable – Order of maintenance may be enforced as a money decree of a civil court as
per the provisions of the CPC, more particularly Sections 51, 55, 58, 60 r.w. Order XXI.
Counsel for Appearing Parties
Ms. Anitha Shenoy, Sr. Advocate, (A.C.), Mr. Gopal Sankaranarayanan, Sr. Advocate (A.C.), Mr. Anurag
Gharote, Advocate and Mrs. Pragya Baghel, Advocate, for the Appellant; Mr. Satyajit A. Desai,
Advocate, Mr. Satya Kam Sharma, Advocate and Ms. Anagha S. Desai, Advocate, for the Respondent.
Cases Referred
Arun Kumar Nayak vs. Urmila Jena, (2010) 93 AIC 726 (Ori).
Ashok Singh Pal vs. Manjulata, AIR 2008 MP 139
Badshah vs. Urmila Badshah Godse, (2014) 1 SCC 188
Bani vs. Parkash Singh, AIR 1996 P&H 175.
Bhagwan Dutt vs. Kamla Devi, (1975) 2 SCC 386
Bharat Hedge vs. Smt. Saroj Hegde, 140 (2007) DLT 16
Bhuwan Mohan Singh vs. Meena, 2015 6 SCC 353
Bina Devi & Ors. vs. State of Uttar Pradesh & Ors. (2010) 69 ACC 19.
Captain Ramesh Chander Kaushal vs. Mrs. Veena Kaushal & Ors., (1978) 4 SCC 70
Chand Dhawan vs. Jawaharlal Dhawan., (1993) 3 SCC 406.
Chander Prakash Bodhraj vs. Shila Rani Chander Prakash, AIR 1968 Delhi 174
Chandra Mohan Das vs. Tapati Das, 2015 SCC Online Cal 9554
Chanmuniya vs. Virendra Kumar Singh Kushwaha & Anr., (2011) 1 SCC 141
Chaturbhuj vs. Sitabai, (2008) 2 SCC 316
D. Velusamy vs. D. Patchaiammal, (2010) 10 SCC 469
Ganga Prasad Srivastava vs. Additional District Judge, Gonda & Ors., 2019 (6) ADJ 850.
Gouri Das vs. Pradyumna Kumar Das, 1986 (II) OLR 44.
Gurvinder Singh vs. Murti & Ors. I (1990) DMC 559.
Hiral P. Harsora & Ors. vs. Kusum Narottamdas Harsora & Ors., (2016) 10 SCC 165
Indra Sarma vs. V.K.V. Sarma, (2013) 15 SCC 755
Jasbir Kaur Sehgal vs. District Judge, Dehradun & Ors. (1997) 7 SCC 7.
K. Sivaram vs. K. Mangalamba & Ors. 1989 (1) APLJ (HC) 604.
Kalpana Das vs Sarat Kumar Das, AIR 2009 Ori. 133
Kamala & Ors. vs. M.R. Mohan Kumar (2019) 11 SCC 491.
Kanhu Charon Jena vs. Smt. Nirmala Jena, 2001 Cri LJ 879
Krishna Jain vs. Dharam Raj Jain, 1993 (2) MPJR 63.
Kusum Sharma II, (2015) 217 DLT 706
Kusum Sharma III, MANU/DE/2406/2017
Kusum Sharma IV, 2017-(2018) 246 DLT 1
Kusum Sharma vs. Mahinder Kumar Sharma, (2014) 214 DLT 493
Mahabir Agarwalla vs. Gita Roy [1962] 2 Cr. L.J. 528
Manish Jain vs. Akanksha Jain, (2017) 15 SCC 801
Mohan Swaroop Chauhan vs. Mohini., (2016) 2 MP LJ 179.
Mohinder Verma vs. Sapna, MANU/PH/3684/2014
Nagendrappa Natikar vs. Neelamma, (2014) 14 SCC 452
Nalini Ranjan v. Kiran Rani: AIR1965 Pat 442
Nanak Chand vs. Chandra Kishore Aggarwal & Ors., (1969) 3 SCC 802
P. Suresh vs. S. Deepa & Ors., 2016 Cri LJ 4794.
Panditrao Chimaji Kalure vs. Gayabai (2002) 2 Mah LJ 53.
Puneet Kaur vs. Inderjit Singh Sawhney, ILR (2012) I Delhi 73
Rakesh Malhotra vs. Krishna Malhotra., 2020 SCC Online SC 239
Ram Singh vs. State: AIR 1963 All 355
RD vs. BD, 2019 VII AD (Delhi) 466
Reema Salkan vs. Sumer Singh Salkan (2019) 12 SCC 303.
S. R. Batra vs. Taruna Batra, (2007) 3 SCC 169
S. Radhakumari vs. K.M.K. Nair, AIR 1983 Ker 139.
Sakeer Hussain T.P. vs Naseera & Ors., 2016 (4) ILR (Kerala) 917.
Samir Banerjee vs. Sujata Banerjee, 70 CWN 633
Sanjay Damodar Kale vs. Kalyani Sanjay Kale, 2020 SCC Online Bom 694.
Satish Kumar vs. Meena, 2001 (60) DRJ 246
Shail Kumari Devi and Ors. vs. Krishnan Bhagwan Pathak, 2008 9 SCC 632
Shamima Farooqui vs. Shahid Khan, (2015) 5 SCC 705
Smt. Santosh Sehgal vs. Shri Murari Lal Sehgal, AIR 2007 Delhi 210
Sudeep Chaudhary vs. Radha Chaudhary, (1997) 11 SCC 286
Sujit Adhikari vs. Tulika Adhikari, (2017) SCC Online Cal 15484.
Sunita Kachwaha & Ors. vs Anil Kachwaha, (2014) 16 SCC 715
Sushila Viresh Chhawda vs. Viresh Nagsi Chhawda, AIR 1996 Bom 94
Susmita Mohanty vs. Rabindra Nath Sahu, 1996 (I) OLR 361.
Tanushree & Ors. vs. A.S. Moorthy, 2018 SCC Online Del 7074
Vinny Paramvir Parmar vs. Paramvir Parmar, (2011) 13 SCC 112.
Vipul Lakhanpal vs. Smt. Pooja Sharma, 2015 SCC Online HP 1252.
Vishal vs. Aparna & Anr., 2018 SCC Online Bom 1207
JUDGMENT
INDEX
PART A Order passed in Criminal Appeal No.730 of 2020
PART B General Guidelines and Directions
I. Issue of Overlapping Jurisdictions
II. Payment of interim maintenance
III. Criteria for determining quantum of maintenance
IV. Date from which Maintenance to be awarded
V. Enforcement of orders of maintenance
VI. Final Directions
Indu Malhotra, J.
PART A
Leave granted.
(i) The present Criminal Appeal arises out of an application for Interim Maintenance filed in a
petition u/S. 125 Cr.P.C. by the Respondent-wife and minor son. The Respondent No. 1-wife left the
matrimonial home in January 2013, shortly after the birth of the son-Respondent No.2. On
02.09.2013, the wife filed an application for interim maintenance u/S. 125 Cr.P.C. on behalf of
herself and the minor son. The Family Court vide a detailed Order dated 24.08.2015 awarded interim
maintenance of Rs. 15,000 per month to the Respondent No.l-wife from 01.09.2013; and Rs.5,000
per month as interim maintenance for the Respondent No.2-son from 01.09.2013 to 31.08.2015; and
@ Rs. 10,000 per month from 01.09.2015 onwards till further orders were passed in the main
petition.
(ii) The Appellant-husband challenged the Order of the Family Court vide Criminal Writ Petition
No.875/2015 filed before the Bombay High Court, Nagpur Bench. The High Court dismissed the
Writ Petition vide Order dated 14.08.2018, and affirmed the Judgment passed by the Family Court.
(iii) The present appeal has been filed to impugn the Order dated 14.08.2018. This Court issued
notice to the wife and directed the Appellant-husband to file his Income Tax Returns and Assessment
Orders for the period from 2005-2006 till date. He was also directed to place a photocopy of his
passport on record. By a further Order dated 11.09.2019, the Appellant-husband was directed to
make payment of the arrears of Rs.2,00,000 towards interim maintenance to the wife; and a further
amount of Rs.3,00,000, which was due and payable to the wife towards arrears of maintenance, as
per his own admission. By a subsequent Order dated 14.10.2019, it was recorded that only a part of
the arrears had been paid. A final opportunity was granted to the Appellant-husband to make
payment of the balance amount by 30.11.2019, failing which, the Court would proceed under the
Contempt of Courts Act for wilful disobedience with the Orders passed by this Court.
In the backdrop of the facts of this case, we considered it fit to frame guidelines on certain aspects
pertaining to the payment of maintenance in matrimonial matters. There are different statutes
providing for making an application for grant of maintenance / interim maintenance, if any person
having sufficient means neglects, or refuses to maintain his wife, children, parents. The different
enactments provide an independent and distinct remedy framed with a specific object and purpose.
Inspite of time frames being prescribed by various statutes for disposal of interim applications, we
have noticed, in practice that in a vast majority of cases, the applications are not disposed of within
the time frame prescribed. To address various issues which arise for consideration in applications for
grant of maintenance / interim maintenance, it is necessary to frame guidelines to ensure that there is
uniformity and consistency in deciding the same. To seek assistance on these issues, we have
appointed Ms. Anitha Shenoy and Mr. Gopal Sankaranaryanan, Senior Advocates as Amicus Curiae,
who have graciously accepted to assist this Court.
(iv) By a further Order dated 17.12.2019, the Appellant was directed to pay an amount of Rs.
1,45,000 to the Respondent no.l-wife within a period of 45 days.
On the issue of framing guidelines, the National Legal Services Authority was directed to elicit
responses from the State Legal Services Authorities of various States.
(v) By a subsequent Order dated 05.08.2020, it was recorded that an Affidavit of Compliance had
been filed on 04.08.2020 by the Appellant-husband, wherein it was stated that arrears of Rs. 1,45,000
till 11.09.2019 had been paid by him in January, 2020. However, he had made no further payment to
the wife thereafter. With respect to the amount of Rs. 10,000 p.m. payable for the minor son, the
Order had been complied with till July 2020. A statement was made by the Counsel for the Appellant
that he was not disputing the payment of maintenance for his son, and would continue to pay the
same. A direction was issued by this Court to pay the entire arrears of maintenance to the wife @ Rs.
15,000 p.m. as fixed by the Family Court, and continue to pay the said amount during the pendency
of proceedings.
(vi) By the Order dated 25.08.2020, it was noted that the Appellant had filed an Affidavit dated
23.08.2020 wherein he had admitted and acknowledged that an amount of Rs.5,00,000 was pending
towards arrears of maintenance to the Respondent No.l-wife. The Appellant was directed to pay 50%
of the arrears within a period of 4 weeks to the Respondent No.l, failing which, he was directed to
remain present before the Court on the next date of hearing. The Counsel for the husband placed on
record a chart of various proceedings pending between the parties. Taking note of the aforesaid facts,
we considered it appropriate to refer the matter for mediation by Mr. Shridhar Purohit, Advocate, a
well-known Mediator in Nagpur, to resolve all disputes pending between the parties, and arrive at an
overall settlement.
(vii) On 08.10.2020, we were informed that the mediation had failed. The husband appeared before
the Court, and made an oral statement that he did not have the financial means to comply with the
Order of maintenance payable to the Respondent No.l-wife, and had to borrow loans from his father
to pay the same. He however stated that he had paid the maintenance awarded to the son, and would
continue to do so without demur. Both parties addressed arguments and filed their written
submissions.
(viii) We have heard the Counsel for the parties, and perused the written submissions filed on their
behalf.
The husband has inter alia submitted that he was presently unemployed, and was not in a position to
pay maintenance to the Respondent No. 1-wife. He stated that he did not own any immovable
property, and had only one operational bank account. The husband declined to pay any further
amount towards the maintenance of his wife. It was further submitted that the Family Court had
erroneously relied upon the Income Tax Returns of 2006, while determining the maintenance payable
in 2013. He further submitted that he was exploring new business projects, which would enable him
to be in a better position to sustain his family.
The wife has inter alia submitted that the amount of Rs. 10,000 awarded for the son was granted
when he was 2 V2 years old in 2015. The said amount was now highly inadequate to meet the
expenses of a growing child, who is 7 V2 years old, and is a school-going boy. It was further
submitted that the admission fee for the current academic year 2020-2021 had not yet been paid. If
the fee was not paid within time, the school would discontinue sending the link for online classes.
She submitted that she was being over-burdened by the growing expenses, with no support from the
husband.
With respect to the contention of the husband that he had no income, she submitted that the husband
had made investments in real estate projects, and other businesses, which he was concealing from the
Court, and diverting the income to his parents. It has also been alleged that the Appellant had
retained illegal possession of her Streedhan, which he was refusing to return. Despite orders being
passed by this Court, and in the proceedings under the D. V. Act, he was deliberately not complying
with the same. In these circumstances, it was submitted that there was a major trust deficit, and there
was no prospect for reconciliation.
(ix) With respect to the issue of enhancement of maintenance for the son, the Respondent is at liberty
to move the Family Court for the said relief. We cannot grant this relief in the present appeal, as it
has been filed by the husband.
(x) In the facts and circumstances of the case, we order and direct that:
(a) The Judgment and order dated 24.08.2015 passed by the Family Court, Nagpur,
affirmed by the Bombay High Court, Nagpur Bench vide Order dated 14.08.2018 for
payment of interim maintenance @ Rs. 15,000 p.m. to the Respondent No. 1-wife, and Rs.
10,000 p.m. to the Respondent No.2-son, is hereby affirmed by this Court;
(b) The husband is directed to pay the entire arrears of maintenance @ Rs. 15,000 p.m.,
within a period of 12 weeks’ from the date of this Judgment, and continue to comply with
this Order during the pendency of the proceedings u/S. 125 Cr.P.C. before the Family
Court;
(c) If the Appellant-husband fails to comply with the aforesaid directions of this Court, it
would be open to the respondents to have the Order enforced u/S.128 Cr.P.C, and take
recourse to all other remedies which are available in accordance with law;
(d) The proceedings for payment of interim maintenance u/S. 125 Cr.P.C. have been
pending between the parties for a period of over 7 years now. We deem it appropriate that
the Family Court decides the substantive application u/S. 125 Cr.P.C. in Petition No. E443/ 2013 finally, in light of the directions / guidelines issued in the present judgment,
within a period of 6 months’ from the date of this judgment.
The Registry is directed to forward a complete copy of the pleadings, alongwith the written
submissions filed by the parties, and the record of the proceedings in the present Criminal Appeal, to
the Family Court, Nagpur. The present Criminal Appeal is disposed of accordingly.
PART B
Given the backdrop of the facts of the present case, which reveal that the application for interim
maintenance under Section 125 Cr.P.C. has remained pending before the Courts for seven years now,
and the difficulties encountered in the enforcement of orders passed by the Courts, as the wife was
constrained to move successive applications for enforcement from time to time, we deem it
appropriate to frame guidelines on the issue of maintenance, which would cover overlapping
jurisdiction under different enactments for payment of maintenance, payment of Interim
Maintenance, the criteria for determining the quantum of maintenance, the date from which
maintenance is to be awarded, and enforcement of orders of maintenance.
Guidelines / Directions on Maintenance
Maintenance laws have been enacted as a measure of social justice to provide recourse to dependant
wives and children for their financial support, so as to prevent them from falling into destitution and
vagrancy.
Article 15(3) of the Constitution of India provides that:
“Nothing in this article shall prevent the State from making any special provision for women
and children. ”
Article 15 (3) reinforced by Article 39 of the Constitution of India, which envisages a positive role
for the State in fostering change towards the empowerment of women, led to the enactment of
various legislations from time to time.
Justice Krishna Iyer in his judgment in Captain Ramesh Chander Kaushal vs. Mrs. Veena
Kaushal & Ors., (1978) 4 SCC 70 held that the object of maintenance laws is :
“9. This provision is a measure of social justice and specially enacted to protect women and
children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. We
have no doubt that sections of statutes calling for construction by courts are not petrified print
but vibrant words with social functions to fulfil. The brooding presence of the constitutional
empathy for the weaker sections like women and children must inform interpretation if it has to
have social relevance. So viewed, it is possible to be selective in picking out that interpretation
out of two alternatives which advances the cause – the cause of the derelicts. ”
The legislations which have been framed on the issue of maintenance are the Special Marriage Act
1954 (“SMA”), Section 125 of the Cr.P.C. 1973; and the Protection of Women from Domestic
Violence Act, 2005 (“D. V. Act”) which provide a statutory remedy to women, irrespective of the
religious community to which they belong, apart from the personal laws applicable to various
religious communities.
I. Issue of Overlapping Jurisdiction
Maintenance may be claimed under one or more of the afore-mentioned statutes, since each of these
enactments provides an independent and distinct remedy framed with a specific object and purpose.
For instance, a Hindu wife may claim maintenance under the Hindu Adoptions and Maintenance Act
1956 (“HAMA”), and also in a substantive proceeding for either dissolution of marriage, or
restitution of conjugal rights, etc. under the Hindu Marriage Act, 1955 (“HMA”) by invoking
Sections 24 and 25 of the said Act.
(i) In Nanak Chand vs. Chandra Kishore Aggarwal & Ors., (1969) 3 SCC 802 the Supreme Court
held that there was no inconsistency between the Cr.P.C. and HAMA. Section 4(b) of HAMA would
not repeal or affect the provisions of Section 488 of the old Cr.P.C. It was held that:
“4. Both can stand together. The Maintenance Act is an act to amend and codify the law relating
to adoptions and maintenance among Hindus. The law was substantially similar before and
nobody ever suggested that Hindu Law, as in force immediately before the commencement of
this Act, insofar as it dealt with the maintenance of children, was in any way inconsistent with
Section 488, Cr.P.C. The scope of the two laws is different. Section 488 provides a summary
remedy and is applicable to all persons belonging to all religions and has no relationship with
the personal law of the parties. Recently the question came before the Allahabad High Court in
Ram Singh vs. State: AIR 1963 All 355, before the Calcutta High Court in Mahabir
Agarwalla vs. Gita Roy [1962] 2 Cr. L.J. 528 and before the Patna High Court in Nalini
Ranjan v. Kiran Rani: AIR1965 Pat 442. The three High Courts have, in our view, correctly
come to the conclusion that Section 4(b) of the Maintenance Act does not repeal or affect in any
manner the provisions contained in Section 488, Cr.P.C.” (emphasis supplied)
While it is true that a party is not precluded from approaching the Court under one or more
enactments, since the nature and purpose of the relief under each Act is distinct and independent, it is
equally true that the simultaneous operation of these Acts, would lead to multiplicity of proceedings
and conflicting orders. This would have the inevitable effect of overlapping jurisdiction. This process
requires to be streamlined, so that the respondent / husband is not obligated to comply with
successive orders of maintenance passed under different enactments.
For instance, if in a previous proceeding under Section 125 Cr.P.C, an amount is awarded towards
maintenance, in the subsequent proceeding filed for dissolution of marriage under the Hindu
Marriage Act, where an application for maintenance pendente lite is filed under Section 24 of
Act, or for maintenance under Section 25, the payment awarded in the earlier proceeding must be
taken note of, while deciding the amount awarded under HMA.
Statutory provisions under various enactments
(a) The Special Marriage Act, 1954 (“SMA”)
Section 4 of the Special Marriage Act, 1954 provides that a marriage between any two persons who
are citizens of India may be solemnised under this Act, notwithstanding anything contained in any
other law for the time being in force. It is a secular legislation applicable to all persons who
solemnize their marriage in India.
Section 36 of the Special Marriage Act provides that a wife is entitled to claim pendente lite
maintenance, if she does not have sufficient independent income to support her and for legal
expenses. The maintenance may be granted on a weekly or monthly basis during the pendency of the
matrimonial proceedings. The Court would determine the quantum of maintenance depending on the
income of the husband, and award such amount as may seem reasonable. Section 36 reads as:
“S.36. Alimony pendente lite.-Where in any proceeding under Chapter V or Chapter VI it
appears to the district court that the wife has no independent income sufficient for her support
and the necessary expenses of the proceeding, it may, on the application of the wife, order the
husband to pay her the expenses of the proceeding, and weekly or monthly during the
proceeding such sum as, having regard to the husband’s income, it may seem to the court to be
reasonable.
Provided that the application for the payment of the expenses of the proceeding and such
weekly or monthly sum during the proceeding under Chapter V or Chapter VI, shall, as far as
possible, be disposed of within sixty days from the date of service of notice on the husband. ”
Section 37 provides for grant of permanent alimony at the time of passing of the decree, or
subsequent thereto. Permanent alimony is the consolidated payment made by the husband to the wife
towards her maintenance for life. Section 37 reads as:
“S. 37. Permanent alimony and maintenance.-(1) Any court exercising jurisdiction under
Chapter V or Chapter VI may, at the time of passing any decree or at any time subsequent to the
decree, on application made to it for the purpose, order that the husband shall secure to the wife
for her maintenance and support if necessary, by a charge on the husband’s property such gross
sum or such monthly or periodical payment of money for a term not exceeding her life, as,
having regard to her own property, if any, her husband’s property and ability, the conduct of the
parties and other circumstances of the case, as it may seem to the court to be just.
(2) If the district court is satisfied that there is a change in the circumstances of either party at
any time after it has made an order under sub-Section (1), it may, at the instance of either party,
vary, modify or rescind any such order in such manner as it may seem to the court to be just.
(3) If the district court is satisfied that the wife in whose favour an order has been made under
this Section has remarried or is not leading a chaste life, it may, at the instance of the husband,
vary, modify or rescind any such order and in such manner as the court may deem just. ”
(b) The Hindu Marriage Act, 1955 (“HMA”)
The HMA is a complete code which provides for the rights, liabilities and obligations arising from a
marriage between two Hindus. Sections 24 and 25 make provision for maintenance to a party who
has no independent income sufficient for his or her support, and necessary expenses. This is a
gender-neutral provision, where either the wife or the husband may claim maintenance. The
prerequisite is that the applicant does not have independent income which is sufficient for her or his
support, during the pendency of the lis.Section 24 of the HMA provides for maintenance pendente lite, where the Court may direct the
respondent to pay the expenses of the proceeding, and pay such reasonable monthly amount, which is
considered to be reasonable, having regard to the income of both the parties.
Section 24 reads as:
“24. Maintenance pendente lite and expenses of proceedings.-
Where in any proceeding under this Act it appears to the court that either the wife or the
husband, as the case may be, has no independent income sufficient for her or his support and the
necessary expenses of the proceeding, it may, on the application of the wife or the husband,
order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during
the proceeding such sum as, having regard to the petitioner’s own income and the income of the
respondent, it may seem to the court to be reasonable.
Provided that the application for the payment of the expenses of the proceeding and such
monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days
from the date of service of notice on the wife or the husband, as the case may be. ” (emphasis
supplied)
The proviso to Section 24 providing a time line of 60 days for disposal of the application was
inserted vide Act 49 of 2001 w.e.f 24.09.2001.
Section 25 provides for grant of permanent alimony, which reads as :
“25. Permanent alimony and maintenance –
(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree
or at any time subsequent thereto, on application made to it for the purpose by either the
wife or the husband, as the case may be, order that the respondent shall pay to the
applicant for her or his maintenance and support such gross sum or such monthly or
periodical sum for a term not exceeding the life of the applicant as, having regard to the
respondent’s own income and other property, if any, the income and other property of the
applicant, the conduct of the parties and other circumstances of the case, it may seem to
the court to be just, and any such payment may be secured, if necessary, by a charge on the
immovable property of the respondent.
(2) If the court is satisfied that there is, a change in the circumstances of either party at any
time after it has made an order under sub-section (1), it may at the instance of either party,
vary, modify or rescind any such order in such manner as the court may deem just.
(3) If the court is satisfied that the party in whose favour an order has been made under this
section has remarried or, if such party is the wife, that she has not remained chaste, or, if
such party is the husband, that he has had sexual intercourse with any woman outside
wedlock, it may at the instance of the other party vary, modify or rescind any such order in
such manner as the court may deem just. ” (emphasis supplied)
Section 26 of the HMA provides that the Court may from time to time pass interim orders with
respect to the custody, maintenance and education of the minor children.
(c) Hindu Adoptions & Maintenance Act, 1956 (“HAMA”)
HAMA is a special legislation which was enacted to amend and codify the laws relating to adoption
and maintenance amongst Hindus, during the subsistence of the marriage. Section 18 provides that a
Hindu wife shall be entitled to be maintained by her husband during her lifetime. She is entitled to
make a claim for a separate residence, without forfeiting her right to maintenance. Section 18 read in
conjunction with Section 23 states the factors required to be considered for deciding the quantum of
maintenance to be paid. Under sub-section (2) of Section 18, the husband has the obligation to
maintain his wife, even though she may be living separately. The right of separate residence and
maintenance would however not be available if the wife has been unchaste, or has converted to
another religion.
Section 18 reads as follows :
“18. Maintenance of wife.-
(1) Subject to the provisions of this section, a Hindu wife, whether married before or after
the commencement of this Act, shall be entitled to be maintained by her husband during
her lifetime.
(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting
her claim to maintenance-
(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause
and without her consent or against her wish or willfully neglecting her;
(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her
mind that it will be harmful or injurious to live with her husband;
(c) [****]
(d) if he has any other wife living;
(e) if he keeps a concubine in the same house in which his wife is living or habitually
resides with a concubine elsewhere;
(f) if he has ceased to be a Hindu by conversion to another religion;
(g) if there is any other cause justifying living separately.
(3) A Hindu wife shall not be entitled to separate residency and maintenance from her husband
if she is unchaste or ceases to be a Hindu by conversion to another religion.”
The distinction between maintenance under HMA and HAMA is that the right under Section 18 of
HAMA is available during the subsistence of a marriage, without any matrimonial proceeding
pending between the parties. Once there is a divorce, the wife has to seek relief under Section 25 of
HMA. Panditrao Chimaji Kalure vs. Gayabai (2002) 2 Mah LJ 53.
Under HMA, either the wife, or the husband, may move for judicial separation, restitution of
conjugal rights, dissolution of marriage, payment of interim maintenance under Section 24, and
permanent alimony under Section 25 of the Act, whereas under Section 18 of HAMA, only a wife
may seek maintenance.
The interplay between the claim for maintenance under HMA and HAMA came up for consideration
by the Supreme Court in Chand Dhawan vs. Jawaharlal Dhawan., (1993) 3 SCC 406. The
Supreme Court, while considering the various laws relating to marriage amongst Hindus, discussed
the scope of applications under the HMA and HAMA in the following words :
“23. …Section 18(1) of the Hindu Adoptions and Maintenance Act, 1956 entitles a Hindu wife
to claim maintenance from her husband during her life-time. Sub-section (2) of Section 18
grants her the right to live separately, without forfeiting her claim to maintenance, if he is guilty
of any of the misbehaviors enumerated therein or on account of his being in one of
objectionable conditions as mentioned therein. So while sustaining her marriage and preserving
her marital status, the wife is entitled to claim maintenance from her husband. On the other
hand, under the Hindu Marriage Act, in contrast, her claim for maintenance pendente lite is
durated on the pendency of a litigation of the kind envisaged under Sections 9 to 14 of the
Hindu Marriage Act, and her claim to permanent maintenance or alimony is based on the
supposition that either her marital status has been strained or affected by passing a decree for
restitution of conjugal rights or judicial separation in favour or against her, or her marriage
stands dissolved by a decree of nullity or divorce, with or without her consent. Thus when her
marital status is to be affected or disrupted the court does so by passing a decree for or against
her. On or at the time of the happening of that event, the court being seized of the matter,
invokes its ancillary or incidental power to grant permanent alimony. Not only that, the court
retains the jurisdiction at subsequent stages to fulfill this incidental or ancillary obligation when
moved by an application on that behalf by a party entitled to relief. The court further retains the
power to change” or alter the order in view of the changed circumstances. Thus the whole
exercise is within the gammit of a diseased or a broken marriage. And in order to avoid conflict
of perceptions the legislature while codifying the Hindu Marriage Act preserved the right of
permanent maintenance in favour of the husband or the wife, as the case may be, dependent on
the court passing a decree of the kind as envisaged under Sections 9 to 14 of the Act. In other
words without the marital status being affected or; disputed by the matrimonial court under the
Hindu Marriage Act the claim of permanent alimony was not to be valid as ancillary or
incidental to such affectation or disruption. The wife’s claim to maintenance necessarily has
then to be agitated under the Hindu Adoptions and Maintenance Act, 1956 which is a legislative
measure later in point of time than the Hindu Marriage Act, 1955, though part of the same
socio-legal scheme revolutionizing the law applicable to Hindus…. ” (emphasis supplied)
Section 19 of the HAMA provides that a widowed daughter-in-law may claim maintenance from her
father-in-law if (i) she is unable to maintain herself out of her own earnings or other property; or, (ii)
where she has no property of her own, is unable to obtain maintenance; (a) from the estate of her
husband, or her father or mother, or (b) from her son or daughter, if any, or his or her estate. Section
20 of HAMA provides for maintenance of children and aged parents.
Section 20 casts a statutory obligation on a Hindu male to maintain an unmarried daughter, who is
unable to maintain herself out of her own earnings, or other property. In Abhilasha vs. Parkash &
Ors.,[1] a three-judge bench of this Court held that Section 20(3) is a recognition of the principles of
Hindu law, particularly the obligation of the father to maintain an unmarried daughter. The right is
absolute under personal law, which has been given statutory recognition by this Act. The Court noted
the distinction between the award of maintenance to children u/S. 125 Cr.P.C, which limits the claim
of maintenance to a child, until he or she attains majority. However, if an unmarried daughter is by
reason of any physical or mental abnormality or injury, unable to maintain herself, under Section
125(l)(c), the father would be obligated to maintain her even after she has attained majority. The
maintenance contemplated under HAMA is a wider concept. Section 3(b) contains an inclusive
definition of maintenance including marriage expenses. The purpose and object of Section 125
Cr.P.C. is to provide immediate relief to the wife and children in a summary proceeding, whereas
under Section 20 read with Section 3(b) of HAMA, a much larger right is contemplated, which
requires determination by a civil court.
[1] Decided on 15.10.2020 in Criminal Appeal No. 615/2020.
Section 22 provides for maintenance of dependants. Section 23 provides that while awarding
maintenance, the Court shall have due regard to the criteria mentioned therein :
“23. Amount of maintenance.-
(1) It shall be in the discretion of the court to determine whether any, and if so what,
maintenance shall be awarded under the provisions of this Act, and in doing so, the court
shall have due regard to the consideration set out in sub-section (2) or sub-section (3), as
the case may be, so far as they are applicable.
(2) In determining the amount of maintenance, if any, to be awarded to a wife, children or
aged or infirm parents under this Act, regard shall be had to-
(a) the position and status of the parties;
(b) the reasonable wants of the claimant;
(c) if the claimant is living separately, whether the claimant is justified in doing so;
(d) the value of the claimant’s property and any income derived from such property, or
from the claimant’s own earning or from any other source;
(e) the number of persons entitled to maintenance under this Act.
(3) In determining the amount of maintenance, if any, to be awarded to a dependant under
this Act, regard shall be had to-
(a) the net value of the estate of the deceased after providing for the payment of his debts;
(b) the provision, if any, made under a will of the deceased in respect, of the dependant;
(c) the degree of relationship between the two;
(d) the reasonable wants of the dependant;
(e) the past relations between the dependant and the deceased;
(f) the value of the property of the dependant and any income derived from such property,
or from his or her earnings or from any other course;
(g) the number of dependants entitled to maintenance under this Act. ”
(d) Section 125 of the Cr.P.C.
Chapter IX of Code of Criminal Procedure, 1973 provides for maintenance of wife, children and
parents in a summary proceeding. Maintenance under Section 125 of the Cr.P.C. may be claimed by a
person irrespective of the religious community to which they belong. The purpose and object of
Section 125 Cr.P.C. is to provide immediate relief to an applicant. An application under Section 125
Cr.P.C. is predicated on two conditions : (i) the husband has sufficient means; and (ii) “neglects” to
maintain his wife, who is unable to maintain herself. In such a case, the husband may be directed by
the Magistrate to pay such monthly sum to the wife, as deemed fit. Maintenance is awarded on the
basis of the financial capacity of the husband and other relevant factors.
The remedy provided by Section 125 is summary in nature, and the substantive disputes with respect
to dissolution of marriage can be determined by a civil court / family court in an appropriate
proceeding, such as the Hindu Marriage Act, 1956.
In Bhagwan Dutt vs. Kamla Devi, (1975) 2 SCC 386 the Supreme Court held that under Section
125(1) Cr.P.C. only a wife who is “unable to maintain herself is entitled to seek maintenance. The
Court held :
“19. The object of these provisions being to prevent vagrancy and destitution, the Magistrate
has to find out as to what is required by the wife to maintain a standard of living which is
neither luxurious nor penurious, but is modestly consistent with the status of the family. The
needs and requirements of the wife for such moderate living can be fairly determined, only if
her separate income, also, is taken into account together with the earnings of the husband and
his commitments. ” (emphasis supplied)
Prior to the amendment of Section 125 in 2001, there was a ceiling on the amount which could be
awarded as maintenance, being Rs. 500 “in the whole”. In view of the rising costs of living and
inflation rates, the ceiling of Rs. 500 was done away by the 2001 Amendment Act. The Statement of
Objects and Reasons of the Amendment Act states that the wife had to wait for several years before
being granted maintenance. Consequently, the Amendment Act introduced an express provision for
grant of “interim maintenance”. The Magistrate was vested with the power to order the respondent to
make a monthly allowance towards interim maintenance during the pendency of the petition.
Under sub-section (2) of Section 125, the Court is conferred with the discretion to award payment of
maintenance either from the date of the order, or from the date of the application.
Under the third proviso to the amended Section 125, the application for grant of interim maintenance
must be disposed of as far as possible within sixty days’ from the date of service of notice on the
respondent.
The amended Section 125 reads as under :
“125. Order for maintenance of wives, children and parents.
(1) If any person having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain
itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained
majority, where such child is, by reason of any physical or mental abnormality or injury
unable to maintain itself or
(d) his father or mother, unable to maintain himself or herself,
a Magistrate of the first class may, upon proof of such neglect or refusal, order such person
to make a monthly allowance for the maintenance of his wife or such child, father or
mother, at such monthly rate as such Magistrate thinks fit, and to pay the same to such
person as the Magistrate may from time to time direct:
Provided that the Magistrate may order the father of a minor female child referred to in
clause (b) to make such allowance, until she attains her majority, if the Magistrate is
satisfied that the husband of such minor female child, if married, is not possessed of
sufficient means :
Provided further that the Magistrate may, during the pendency of the proceeding regarding
monthly allowance for the maintenance under this sub-section, order such person to make
a monthly allow for the interim maintenance of his wife or such child, father or mother,
and the expenses of such proceeding which the Magistrate considers reasonable, and to
pay the same to such person as the Magistrate may from time to time direct:
Provided also that an application for the monthly allowance for the interim maintenance
and expenses of proceeding under the second proviso shall, as far as possible, be disposed
of within sixty days from the date of the service of notice of the application to such person.
Explanation. -For the purposes of this Chapter, –
(a) “minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9
of 1875); is deemed not to have attained his majority;
(b) “wife” includes a woman who has been divorced by, or has obtained a divorce from,
her husband and has not remarried.
(2) Any such allowance for the maintenance or interim maintenance and expenses of proceeding
shall be payable from the date of the order, or, if so ordered, from the date of the application for
maintenance or interim maintenance and expenses of proceeding, as the case may be.
(3) If any person so ordered fails without sufficient cause to comply with the order, any such
Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the
manner provided for levying fines, and may sentence such person, for the whole, or any part of
each month’s allowance for the maintenance or the interim maintenance and expenses of
proceeding, as the case may be, remaining unpaid after the execution of the warrant, to
imprisonment for a term which may extend to one month or until payment if sooner made:
Provided that no warrant shall be issued for the recovery of any amount due under this
section unless application be made to the Court to levy such amount within a period of one
year from the date on which it became due:
Provided further that if such person offers to maintain his wife on condition of her living
with him, and she refuses to live with him, such Magistrate may consider any grounds of
refusal stated by her, and may make an order under this section notwithstanding such offer,
if he is satisfied that there is just ground for so doing.
Explanation. – If a husband has contracted marriage with another woman or keeps a
mistress, it shall be considered to be a just ground for his wife’s refusal to live with him.
(4) No wife shall be entitled to receive an allowance for the maintenance or interim
maintenance and expenses of proceeding, as the case may be, from her husband under this
section 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.
(5) On proof that any wife in whose favour an order has been made under this section is living
in adultery, or that without sufficient reason she refuses to live with her husband, or that they
are living separately by mutual consent, the Magistrate shall cancel the order. ” (emphasis
supplied)
In Chaturbhuj vs. Sitabai, (2008) 2 SCC 316 this Court held that the object of maintenance
proceedings is not to punish a person for his past neglect, but to prevent vagrancy and destitution of a
deserted wife by providing her food, clothing and shelter by a speedy remedy. Section 125 of the
Cr.P.C. is a measure of social justice especially enacted to protect women and children, and falls
within the constitutional sweep of Article 15(3), reinforced by Article 39 of the Constitution.
Proceedings under Section 125 of the Cr.P.C. are summary in nature. In Bhuwan Mohan Singh vs.
Meena & Ors., (2015) 6 SCC 353 this Court held that Section 125 of the Cr.P.C. was conceived to
ameliorate the agony, anguish, financial suffering of a woman who had left her matrimonial home, so
that some suitable arrangements could be made to enable her to sustain herself and the children.
Since it is the sacrosanct duty of the husband to provide financial support to the wife and minor
children, the husband was required to earn money even by physical labour, if he is able-bodied, and
could not avoid his obligation, except on any legally permissible ground mentioned in the statute.
The issue whether presumption of marriage arises when parties are in a live-in relationship for a long
period of time, which would give rise to a claim u/S. 125 Cr.P.C. came up for consideration in
Chanmuniya vs. Virendra Kumar Singh Kushwaha & Anr.,[2] before the Supreme Court. It was
held that where a man and a woman have cohabited for a long period of time, in the absence of legal
necessities of a valid marriage, such a woman would be entitled to maintenance. A man should not
be allowed to benefit from legal loopholes, by enjoying the advantages of a de facto marriage,
without undertaking the duties and obligations of such marriage. A broad and expansive
interpretation must be given to the term “wife,” to include even those cases where a man and woman
have been living together as husband and wife for a reasonably long period of time. Strict proof of
marriage should not be a pre-condition for grant of maintenance u/S. 125 Cr.P.C. The Court relied on
the Malimath Committee Report on Reforms of Criminal Justice System published in 2003, which
recommended that evidence regarding a man and woman living together for a reasonably long
period, should be sufficient to draw the presumption of marriage.
[2] (2011) 1 SCC 141
This judgment was referred to a larger bench.
The law presumes in favour of marriage, and against concubinage, when a man and woman cohabit
continuously for a number of years. Unlike matrimonial proceedings where strict proof of marriage is
essential, in proceedings u/S. 125 Cr.P.C. such strict standard of proof is not necessary. Kamala &
Ors. vs. M.R. Mohan Kumar (2019) 11 SCC 491.
(e) Protection of Women from Domestic Violence Act, 2005 (“D. V. Act”)
The D.V. Act stands on a separate footing from the laws discussed hereinabove. The D.V. Act
provides relief to an aggrieved woman who is subjected to “domestic violence.” The “aggrieved
person” has been defined by Section 2(a) to mean any woman who is, or has been, in a domestic
relationship with the respondent, and alleges to have been subjected to any act of domestic violence.
Section 2(f) defines “domestic relationship” to include a relationship between two persons who live,
or have at any point of time lived together in a shared household, when they are related by
consanguinity, marriage, or through a relationship in the nature of marriage, adoption, or are family
members living together as a joint family.
Section 2(q) of the Act defined “respondent” to mean an “adult male person” who is, or has been, in a
domestic relationship with the aggrieved woman. In Hiral P. Harsora & Ors. vs. Kusum
Narottamdas Harsora & Ors., (2016) 10 SCC 165 this Court held that the “respondent” could also
be a female in a domestic relationship with the aggrieved person. Section 3 of the D.V. Act gives a
gender-neutral definition to “domestic violence”. Physical abuse, verbal abuse, emotional abuse and
economic abuse can also be inflicted by women against other women. Even sexual abuse may, in a
given fact circumstance, be by one woman on another. Section 17(2) provides that the aggrieved
person cannot be evicted or excluded from a “shared household”, or any part of it by the
“respondent”, save in accordance with the procedure established by law. If “respondent” is to be read
as only an adult male person, women who evict or exclude the aggrieved person would then not be
covered by the ambit of the Act, and defeat the very object, by putting forward female persons who
can evict or exclude the aggrieved woman from the shared household. The Court struck down the
words “adult male” before the word “person” in Section 2(q) of the 2005 Act, and deleted the proviso
to Section 2(q), as being contrary to the object of the Act.
The expression “relationship in the nature of marriage” as being akin to a common law or a de facto
marriage, came up for consideration in D. Velusamy vs. D. Patchaiammal, (2010) 10 SCC 469. It
was opined that a common law marriage is one which requires that although a couple may not be
formally married : (a) the couple hold themselves out to society as being akin to spouses; (b) the
parties must be of legal age to marry; (c) the parties must be otherwise qualified to enter into a legal
marriage, including being unmarried; and (d) the parties must have voluntarily cohabited, and held
themselves out to the world as being akin to spouses for a significant period of time. However, not all
live-in relationships would amount to a relationship in the nature of marriage to avail the benefit of
D. V. Act. Merely spending week-ends together, or a one-night stand, would not make it a “domestic
relationship”.
For a live-in relationship to fall within the expression “relationship in the nature of marriage”, this
Court in Indra Sarma vs. V.K.V. Sarma, (2013) 15 SCC 755 laid down the following guidelines :
(a) duration of period of relationship; (b) shared household; (c) domestic arrangements; (d) pooling
of resources and financial arrangements; (e) sexual relationship; (f) children; (g) socialisation in
public and (h) intention and conduct of the parties. The Court held that these guidelines were only
indicative, and not exhaustive.
“Domestic violence” has been defined in Section 3 of the Act, which includes economic abuse
as defined in Explanation 1 (iv) to Section 3, as :
“Economic abuse which means deprivation of all or any economic or financial resources,
to which the aggrieved person is entitled under any law or custom, whether payable under
an order of a Court or otherwise, or which the aggrieved person requires out of necessity,
including but not limited to household necessities for the aggrieved per son, or her
children. ”
Section 17 by a non-obstante clause provides that notwithstanding anything contained in any other
law for the time being in force, every woman in a domestic relationship shall have the right to reside
in the “shared household”, irrespective of whether she has any right, title or beneficial interest in the
same. Section 17 reads as :
“17. Right to reside in a shared household:
(1) Notwithstanding anything contained household: in any other law for the time being in
force, every woman in a domestic relationship shall have the right to reside in the shared
household, whether or not she has any right, title or beneficial interest in the same.
(2) The aggrieved person shall not be evicted or excluded from the shared household or
any part of it by the respondent save in accordance with the procedure established by law.
”
Section 19 deals with residence orders, grant of injunctive reliefs, or for alternate accommodation /
payment of rent by the respondent.
A three-judge bench of this Court in Satish Chander Ahuja vs. Sneha Ahuja[3] has overruled the
judgment in S. R. Batra vs. Taruna Batra, (2007) 3 SCC 169 wherein a two judge bench held that
the wife is entitled to claim a right of residence in a “shared household” u/S. 17 (1), which would
only mean the house belonging to, or taken on rent by the husband, or the house which belongs to the
joint family of which the husband is a member. In Satish Chander Ahuja (supra), the Court has held
that although the judgment in S.R. Batra (supra) noticed the definition of shared household under
Section 2(s), it did not advert to different parts of the definition, which makes it clear that there was
no requirement for the shared household to be owned singly or jointly by the husband, or taken on
rent by the husband. If the interpretation given in S.R. Batra is accepted, it would frustrate the object
of the Act. The Court has taken the view that the definition of “shared household” in Section 2(s) is
an exhaustive definition. The “shared household” is the household which is the dwelling place of the
aggrieved person in present time. If the definition of “shared household” in Section 2(s) is read to
mean all the houses where the aggrieved person has lived in a domestic relationship alongwith the
relatives of the husband, there will be a number of shared households, which was never contemplated
by the legislative scheme. The entire scheme of the legislation is to provide immediate relief to the
aggrieved person with respect to the shared household where the aggrieved woman lives or has lived.
The use of the expression “at any stage has lived”, is with the intent of not denying protection to an
aggrieved woman merely on the ground that she was not living there on the date of the application,
or on the date when the Magistrate passed the order u/S. 19. The words “lives, or at any stage has
lived in a domestic relationship” has to be given its normal and purposeful meaning. Living of the
woman in a household must refer to a living which has some permanency. Mere fleeting or casual
living at different places would not make it a shared household. The intention of the parties and the
nature of living, including the nature of the household, must be considered, to determine as to
whether the parties intended to treat the premises as a “shared household” or not. Section 2(s) r.w.
Sections 17 and 19 grant an entitlement in favour of an aggrieved woman to the right of residence in
a “shared household”, irrespective of her having any legal interest in the same or not. From the
definition of “aggrieved person” and “respondent”, it was clear that:
(i) it is not the requirement of law that the aggrieved person may either own the premises jointly
or singly, or by tenanting it jointly or singly;
(ii) the household may belong to a joint family of which the respondent is a member,
irrespective of whether the respondent or the aggrieved person has any right, title, or interest in
the shared household;
(iii) the shared household may either be owned, or tenanted by the respondent singly or jointly.
[3] Decided on 15.10.2020 in C.A. No. 2483/2020 by a bench comprising of Hon’ble Justices
Ashok Bhushan, R. Subhash Reddy and MR. Shah.
The right to residence u/S. 19 is, however, not an indefeasible right, especially when a daughter-inlaw is claiming a right against aged parents-in-law. While granting relief u/S. 12 of the D.V. Act, or
in any civil proceeding, the court has to balance the rights between the aggrieved woman and the
parents-in-law.
Section 20 provides for monetary relief to the aggrieved woman :
“20. Monetary reliefs.-
(1) While disposing of an application under sub-section (1) of section 12, the Magistrate
may direct the respondent to pay monetary relief to meet the expenses incurred and losses
suffered by the aggrieved person and any child of the aggrieved per son as a result of
domestic violence and such relief may include, but is not limited to,-
(a) the loss of earnings;
(b) the medical expenses;
(c)the loss caused due to destruction, damage or removal of any property from the control
of the aggrieved person; and
(d) the maintenance for the aggrieved person as well as her children, if any, including an
order under or in addition to an order of maintenance under section 125 of the Code of
Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.
(2) The monetary relief granted under this section shall be adequate, fair and reasonable
and consistent with the standard of living to which the aggrieved per son is accustomed.
(3) The Magistrate shall have the power to order an appropriate lump sum payment or
monthly payments of maintenance, as the nature and circumstances of the case may
require.” (emphasis supplied)
Section 20(l)(d) provides that maintenance granted under the D.V. Act to an aggrieved woman and
children, would be given effect to, in addition to an order of maintenance awarded under Section 125
of the Cr.P.C, or any other law in force.
Under sub-section (6) of Section 20, the Magistrate may direct the employer or debtor of the
respondent, to directly pay the aggrieved person, or deposit with the court a portion of the wages or
salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted
towards the monetary relief payable by the respondent.
Section 22 provides that the Magistrate may pass an order directing the respondent to pay
compensation and damages for the injuries, including mental torture and emotional distress, caused
by the acts of domestic violence perpetrated by the respondent.
Section 23 provides that the Magistrate may grant an ex parte order, including an order under Section
20 for monetary relief. The Magistrate must be satisfied that the application filed by the aggrieved
woman discloses that the respondent is committing, or has committed an act of domestic violence, or
that there is a likelihood that the respondent may commit an act of domestic violence. In such a case,
the Magistrate is empowered to pass an ex parte order on the basis of the affidavit of the aggrieved
woman.
Section 26 of the D.V. Act provides that any relief available under Sections 18, 19, 20, 21 and 22
may also be sought in any legal proceeding before a Civil Court, Family Court or Criminal Court.
Sub-section (2) of Section 26 provides that the relief mentioned in sub-section (1) may be sought in
addition to, and alongwith any other relief that the aggrieved person may seek in a suit or legal
proceeding before a civil or criminal court. Section 26 (3) provides that in case any relief has been
obtained by the aggrieved person in any proceeding other than proceedings under this Act, the
aggrieved woman would be bound to inform the Magistrate of the grant of such relief.
Section 36 provides that the D.V. Act shall be in addition to, and not in derogation of the provisions
of any other law for the time being in force.
Conflicting judgments on overlapping jurisdiction
(i) Some High Courts have taken the view that since each proceeding is distinct and independent of
the other, maintenance granted in one proceeding cannot be adjusted or set-off in the other. For
instance, in Ashok Singh Pal vs. Manjulata, AIR 2008 MP 139 the Madhya Pradesh High Court
held that the remedies available to an aggrieved person under S. 24 of the HMA is independent of S.
125 of the Cr.P.C. In an application filed by the husband for adjustment of the amounts awarded in
the two proceedings, it was held that the question as to whether adjustment is to be granted, is a
matter of judicial discretion to be exercised by the Court. There is nothing to suggest as a thumb rule
which lays down as a mandatory requirement that adjustment or deduction of maintenance awarded
u/S. 125 Cr.P.C. must be off-set from the amount awarded under S.24 of the HMA, or vice versa.
A similar view was taken by another single judge of the Madhya Pradesh High Court in Mohan
Swaroop Chauhan vs. Mohini., (2016) 2 MP LJ 179.
Similarly, the Calcutta High Court in Sujit Adhikari vs. Tulika Adhikari, (2017) SCC Online Cal
15484. held that adjustment is not a rule. It was held that the quantum of maintenance determined by
the Court under HMA is required to be added to the quantum of maintenance u/S. 125 Cr.P.C.
A similar view has been taken in Chandra Mohan Das vs. Tapati Das, 2015 SCC Online Cal 9554
wherein a challenge was made on the point that the Court ought to have adjusted the amount awarded
in a proceeding under S. 125 Cr.P.C, while determining the maintenance to be awarded under S.24 of
the HMA, 1955. It was held that the quantum of maintenance determined under S.24 of HMA was to
be paid in addition to the maintenance awarded in a proceeding under S.125 Cr.P.C.
(ii) On the other hand, the Bombay and Delhi High Courts, have held that in case of parallel
proceedings, adjustment or set-off must take place.
The Bombay High Court in a well-reasoned judgment delivered in Vishal vs. Aparna & Anr., 2018
SCC Online Bom 1207 has taken the correct view. The Court was considering the issue whether
interim monthly maintenance awarded under Section 23 r.w. Section 20 (l)(d) of the D.V. Act could
be adjusted against the maintenance awarded under Section 125 Cr.P.C. The Family Court held that
the order passed under the D.V. Act and the Cr.P.C. were both independent proceedings, and
adjustment was not permissible. The Bombay High Court set aside the judgment of the Family Court,
and held that Section 20(l)(d) of the D.V. Act makes it clear that the maintenance granted under this
Act, would be in addition to an order of maintenance under Section 125 Cr.P.C, and any other law for
the time being in force. Sub-section (3) of Section 26 of the D.V. Act enjoins upon the aggrieved
person to inform the Magistrate, if she has obtained any relief available under Sections 18, 19,20,21
and 22, in any other legal proceeding filed by her, whether before a Civil Court, Family Court, or
Criminal Court. The object being that while granting relief under the D.V. Act, the Magistrate shall
take into account and consider if any similar relief has been obtained by the aggrieved person. Even
though proceedings under the D.V. Act may be an independent proceeding, the Magistrate cannot
ignore the maintenance awarded in any other legal proceedings, while determining whether over and
above the maintenance already awarded, any further amount was required to be granted for reasons
to be recorded in writing.
The Court observed :
“18. What I intend to emphasize is the fact that the adjustment is permissible and the
adjustment can be allowed of the lower amount against the higher amount. Though the
wife can simultaneously claim maintenance under the different enactments, it does not in
any way mean that the husband can be made liable to pay the maintenance awarded in
each of the said proceedings.” (emphasis supplied)
It was held that while determining the quantum of maintenance awarded u/S.125 Cr.P.C, the
Magistrate would take into consideration the interim maintenance awarded to the aggrieved woman
under the D.V. Act.
The issue of overlapping jurisdictions under the HMA and D.V. Act or Cr.P.C. came up for
consideration before a division bench of the Delhi High Court in RD vs. BD, 2019 VII AD (Delhi)
466 wherein the Court held that maintenance granted to an aggrieved person under the D.V. Act,
would be in addition to an order of maintenance u/S. 125 Cr.P.C, or under the HMA. The legislative
mandate envisages grant of maintenance to the wife under various statutes. It was not the intention of
the legislature that once an order is passed in either of the maintenance proceedings, the order would
debar re-adjudication of the issue of maintenance in any other proceeding. In paragraphs 16 and 17
of the judgment, it was observed that:
“16. A conjoint reading of the aforesaid Sections 20, 26 and 36 of DV Act would clearly
establish that the provisions of DV Act dealing with maintenance are supplementary to the
provisions of other laws and therefore maintenance can be granted to the aggrieved person (s)
under the DV Act which would also be in addition to any order of maintenance arising out of
Section 125 of Cr.P.C.
17. On the converse, if any order is passed by the Family Court under Section 24 of HMA, the
same would not debar the Court in the proceedings arising out of DV Act or proceedings under
Section 125 of Cr.P. C instituted by the wife/aggrieved person claiming maintenance. However,
it cannot be laid down as a proposition of law that once an order of maintenance has been
passed by any Court then the same cannot be re-adjudicated upon by any other Court. The
legislative mandate envisages grant of maintenance to the wife under various statutes such as
HMA, Hindu Adoption and Maintenance Act, 1956 (hereinafter referred to as HAMA’), Section
125 of Cr.P.C as well as Section 20 of DV Act. As such various statutes have been enacted to
provide for the maintenance to the wife and it is nowhere the intention of the legislature that
once any order is passed in either of the proceedings, the said order would debar re adjudication
of the issue of maintenance in any other Court. ” (emphasis supplied)
The Court held that u/S. 20(l)(d) of the D.V. Act, maintenance awarded to the aggrieved woman
under the D.V. is in addition to an order of maintenance provided u/S. 125 Cr.P.C. The grant of
maintenance under the D.V. Act would not be a bar to seek maintenance u/S. 24 of HMA.
Similarly, in Tanushree & Ors. vs. A.S. Moorthy, 2018 SCC Online Del 7074 the Delhi High
Court was considering a case where the Magistrate’s Court had sine die adjourned the proceedings
u/S. 125 Cr.P.C. on the ground that parallel proceedings for maintenance under the D.V. Act were
pending. In an appeal filed by the wife before the High Court, it was held that a reading of Section
20(l)(d) of the D.V. Act indicates that while considering an application u/S. 12 of the D.V. Act, the
Court would take into account an order of maintenance passed u/S. 125 Cr.P.C, or any other law for
the time being in force. The mere fact that two proceedings were initiated by a party, would not
imply that one would have to be adjourned sine die. There is a distinction in the scope and power
exercised by the Magistrate under S.125, Cr.P.C. and the D.V. Act. With respect to the overlap in
both statutes, the Court held :
“5. Reading of Section 20(1) (d) of the D. V. Act further shows that the two proceedings are
independent of each other and have different scope, though there is an overlap. Insofar as the
overlap is concerned, law has catered for that eventuality and laid down that at the time of
consideration of an application for grant of maintenance under Section 12 of the D. V. Act, the
maintenance fixed under Section 125 Cr.P.C. shall be taken into account. ” (emphasis supplied)
The issue whether maintenance u/S. 125 Cr.P.C. could be awarded by the Magistrate, after permanent
alimony was granted to the wife in the divorce proceedings, came up for consideration before the
Supreme Court in Rakesh Malhotra vs. Krishna Malhotra., 2020 SCC Online SC 239. The Court
held that once an order for permanent alimony was passed, the same could be modified by the same
court by exercising its power u/S. 25(2) of HMA. The Court held that:
“16. Since the Parliament has empowered the Court Under Section 25(2) of the Act and kept a
remedy intact and made available to the concerned party seeking modification, the logical
sequitur would be that the remedy so prescribed ought to be exercised rather than creating
multiple channels of remedy seeking maintenance. One can understand the situation where
considering the exigencies of the situation and urgency in the matter, a wife initially prefers an
application Under Section 125 of the Code to secure maintenance in order to sustain herself. In
such matters the wife would certainly be entitled to have a full-fledged adjudication in the form
of any challenge raised before a Competent Court either under the Act Or similar such
enactments. But the reverse cannot be the accepted norm. ”
The Court directed that the application u/S. 125 Cr.P.C. be treated as an application u/S. 25(2) of
HMA and be disposed of accordingly.
(iii) In Nagendrappa Natikar vs. Neelamma, (2014) 14 SCC 452 this Court considered a case
where the wife instituted a suit under Section 18 of HAMA, after signing a consent letter in
proceedings u/S. 125 Cr.P.C, stating that she would not make any further claims for maintenance
against the husband. It was held that the proceedings u/S. 125 Cr.P.C. were summary in nature, and
were intended to provide a speedy remedy to the wife. Any order passed u/s. 125 Cr.P.C. by
compromise or otherwise would not foreclose the remedy u/S. 18 of HAMA.
(iv) In Sudeep Chaudhary vs. Radha Chaudhary, (1997) 11 SCC 286 the Supreme Court directed
adjustment in a case where the wife had filed an application under Section 125 of the Cr.P.C, and
under HMA. In the S. 125 proceedings, she had obtained an order of maintenance. Subsequently, in
proceedings under the HMA, the wife sought alimony. Since the husband failed to pay maintenance
awarded, the wife initiated recovery proceedings. The Supreme Court held that the maintenance
awarded under Section 125 Cr.P.C. must be adjusted against the amount awarded in the matrimonial
proceedings under HMA, and was not to be given over and above the same.
Directions on overlapping jurisdictions
It is well settled that a wife can make a claim for maintenance under different statutes. For instance,
there is no bar to seek maintenance both under the D.V. Act and Section 125 of the Cr.P.C, or under
H.M.A. It would, however, be inequitable to direct the husband to pay maintenance under each of the
proceedings, independent of the relief granted in a previous proceeding. If maintenance is awarded to
the wife in a previously instituted proceeding, she is under a legal obligation to disclose the same in a
subsequent proceeding for maintenance, which may be filed under another enactment. While
deciding the quantum of maintenance in the subsequent proceeding, the civil court/family court shall
take into account the maintenance awarded in any previously instituted proceeding, and determine
the maintenance payable to the claimant.
To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in
different proceedings, we direct that in a subsequent maintenance proceeding, the applicant shall
disclose the previous maintenance proceeding, and the orders passed therein, so that the Court would
take into consideration the maintenance already awarded in the previous proceeding, and grant an
adjustment or set-off of the said amount. If the order passed in the previous proceeding requires any
modification or variation, the party would be required to move the concerned court in the previous
proceeding.
II. Payment of Interim Maintenance
(i) The proviso to Section 24 of the HMA (inserted vide Act 49 of 2001 w.e.f 24.09.2001), and the
third proviso to Section 125 Cr.P.C. (inserted vide Act 50 of 2001 w.e.f. 24.09.2001) provide that the
proceedings for interim maintenance, shall as far as possible, be disposed of within 60 days’ from the
date of service of notice on the contesting spouse. Despite the statutory provisions granting a timebound period for disposal of proceedings for interim maintenance, we find that applications remain
pending for several years in most of the cases. The delays are caused by various factors, such as
tremendous docket pressure on the Family Courts, repetitive adjournments sought by parties,
enormous time taken for completion of pleadings at the interim stage itself, etc. Pendency of
applications for maintenance at the interim stage for several years defeats the very object of the
legislation.
(ii) At present, the issue of interim maintenance is decided on the basis of pleadings, where some
amount of guess-work or rough estimation takes place, so as to make a prima facie assessment of the
amount to be awarded. It is often seen that both parties submit scanty material, do not disclose the
correct details, and suppress vital information, which makes it difficult for the Family Courts to make
an objective assessment for grant of interim maintenance. While there is a tendency on the part of the
wife to exaggerate her needs, there is a corresponding tendency by the husband to conceal his actual
income.
It has therefore become necessary to lay down a procedure to streamline the proceedings, since a
dependant wife, who has no other source of income, has to take recourse to borrowings from her
parents / relatives during the interregnum to sustain herself and the minor children, till she begins
receiving interim maintenance.
(iii) In the first instance, the Family Court in compliance with the mandate of Section 9 of the Family
Courts Act 1984, must make an endeavour for settlement of the disputes. For this, Section 6 provides
that the State Government shall, in consultation with the High Court, make provision for counsellors
to assist a Family Court in the discharge of its functions. Given the large and growing percentage of
matrimonial litigation, it has become necessary that the provisions of Section 5 and 6 of the Family
Courts Act are given effect to, by providing for the appointment of marriage counsellors in every
Family Court, which would help in the process of settlement.
If the proceedings for settlement are unsuccessful, the Family Court would proceed with the matter
on merits.
(iv) The party claiming maintenance either as a spouse, or as a partner in a civil union, live-in
relationship, common law marriage, should be required to file a concise application for interim
maintenance with limited pleadings, alongwith an Affidavit of Disclosure of Assets and Liabilities
before the concerned court, as a mandatory requirement.
(v) On the basis of the pleadings filed by both parties and the Affidavits of Disclosure, the Court
would be in a position to make an objective assessment of the approximate amount to be awarded
towards maintenance at the interim stage.
(vi) The Delhi High Court in a series of judgments beginning with Puneet Kaur vs. Inderjit Singh
Sawhney, ILR (2012) I Delhi 73 and followed in Kusum Sharma vs. Mahinder Kumar Sharma,
(2014) 214 DLT 493 (“Kusum Sharma 7”) directed that applications for maintenance under the
HMA, HAMA, D.V. Act, and the Cr.P.C. be accompanied with an Affidavit of assets, income and
expenditure as prescribed. In Kusum Sharma II, (2015) 217 DLT 706 the Court framed a format of
Affidavit of assets, income and expenditure to be filed by both parties at the threshold of a
matrimonial litigation. This procedure was extended to maintenance proceedings under the Special
Marriage Act and the Indian Divorce Act, 1869. In Kusum Sharma III, MANU/DE/2406/2017 the
Delhi High Court modified the format of the Affidavit, and extended it to maintenance proceedings
under the Guardians & Wards Act, 1890 and the Hindu Minority & Guardianship Act, 1956. In
Kusum Sharma IV, 2017-(2018) 246 DLT 1 the Court took notice that the filing of Affidavits
alongwith pleadings gave an unfair advantage to the party who files the affidavit subsequently. In this
judgment, it was clarified that the Affidavit must be filed simultaneously by both parties. In Kusum
Sharma V[4] the Court consolidated the format of the Affidavits in the previous judgments, and
directed that the same be filed in maintenance proceedings.
[4] Decided by the Delhi High Court vide Judgment dated 06.08.2020.
(vii) Given the vastly divergent demographic profile of our country, which comprises of metropolitan
cities, urban areas, rural areas, tribal areas, etc., it was considered appropriate to elicit responses from
the various State Legal Services Authorities (“SLSAs”).
This Court vide its Order dated 17.12.2019 requested the National Legal Services Authority
(“NALSA”) to submit a report of the suggestions received from the SLSAs for framing guidelines on
the Affidavit of Disclosure of the Assets and Liabilities to be filed by the parties.
(viii) The NALSA submitted a comprehensive report dated 17.02.2020 containing suggestions from
all the State Legal Service Authorities throughout the country. We find the various suggestions made
by the SLSAs to be of great assistance in finalizing the Affidavit of Disclosure which can be used by
the Family Courts for determining the quantum of maintenance to be paid.
(ix) Keeping in mind the varied landscape of the country, and the recommendations made by the
SLSAs, it was submitted that a simplified Affidavit of Disclosure may be framed to expedite the
process of determining the quantum of maintenance.
We feel that the Affidavit to be filed by parties residing in urban areas, would require to be entirely
different from the one applicable to rural areas, or tribal areas.
For this purpose, a comprehensive Affidavit of Disclosure of Assets and Liabilities is being attached
as Enclosure I and II to this judgment.
(x) We have been informed by the Meghalaya State Legal Services Authority that the State of
Meghalaya has a predominantly fribal population, which follows a matrilineal system of society. The
population is comprised of three tribes viz. the Khasis, Jaintia and Garo tribes. In Meghalaya, the
youngest daughter is the custodian of the property, and takes important decisions relating to family
property in consultation with her maternal uncle. The majority of the population is employed in the
unorganized sector, such as agriculture. Under Section 10(26) of the Income Tax Act 1961, the tribals
residing in this State are exempted from payment of income tax.
The Meghalaya State Legal Services Authority has suggested that the declaration in Meghalaya be
made in the format enclosed with this judgment as Enclosure III.
(xi) Keeping in mind the need for a uniform format of Affidavit of Disclosure of Assets and
Liabilities to be filed in maintenance proceedings, this Court considers it necessary to frame
guidelines in exercise of our powers under Article 136 read with Article 142 of the Constitution of
India :
(a) The Affidavit of Disclosure of Assets and Liabilities annexed at Enclosures I, II and III of
this judgment, as may be applicable, shall be filed by the parties in all maintenance proceedings,
including pending proceedings before the concerned Family Court / District Court / Magistrate’s
Court, as the case may be, throughout the country;
(b) The applicant making the claim for maintenance will be required to file a concise
application accompanied with the Affidavit of Disclosure of Assets;
(c) The respondent must submit the reply alongwith the Affidavit of Disclosure within a
maximum period of four weeks. The Courts may not grant more than two opportunities for
submission of the Affidavit of Disclosure of Assets and Liabilities to the respondent.
If the respondent delays in filing the reply with the Affidavit, and seeks more than two
adjournments for this purpose, the Court may consider exercising the power to strike off the
defence of the respondent, if the conduct is found to be wilful and contumacious in delaying the
proceedings.[5]
[5] Kaushalya vs. Mukesh Jain, Criminal Appeal Nos. 1129-1130 / 2019 decided vide Judgment
24.07.2019.
On the failure to file the Affidavit within the prescribed time, the Family Court may proceed to
decide the application for maintenance on basis of the Affidavit filed by the applicant and the
pleadings on record;
(d) The above format may be modified by the concerned Court, if the exigencies of a case
require the same. It would be left to the judicial discretion of the concerned Court, to issue
necessary directions in this regard.
(e) If apart from the information contained in the Affidavits of Disclosure, any further
information is required, the concerned Court may pass appropriate orders in respect thereof.
(f) If there is any dispute with respect to the declaration made in the Affidavit of Disclosure, the
aggrieved party may seek permission of the Court to serve interrogatories, and seek production
of relevant documents from the opposite party under Order XI of the CPC;
On filing of the Affidavit, the Court may invoke the provisions of Order X of the C.P.C or
Section 165 of the Evidence Act 1872, if it considers it necessary to do so;
The income of one party is often not within the knowledge of the other spouse. The Court may
invoke Section 106 of the Evidence Act, 1872 if necessary, since the income, assets and
liabilities of the spouse are within the personal knowledge of the party concerned.
(g) If during the course of proceedings, there is a change in the financial status of any party, or
there is a change of any relevant circumstances, or if some new information comes to light, the
party may submit an amended / supplementary affidavit, which would be considered by the
court at the time of final determination.
(h) The pleadings made in the applications for maintenance and replies filed should be
responsible pleadings; if false statements and misrepresentations are made, the Court may
consider initiation of proceeding u/S. 340 Cr.P.C, and for contempt of Court.
(i) In case the parties belong to the Economically Weaker Sections (“EWS”), or are living
Below the Poverty Line (“BPL”), or are casual labourers, the requirement of filing the Affidavit
would be dispensed with.
(j) The concerned Family Court / District Court / Magistrate’s Court must make an endeavour to
decide the LA. for Interim Maintenance by a reasoned order, within a period of four to six
months at the latest, after the Affidavits of Disclosure have been filed before the court.
(k) A professional Marriage Counsellor must be made available in every Family Court.
Permanent alimony
(i) Parties may lead oral and documentary evidence with respect to income, expenditure, standard of
living, etc. before the concerned Court, for fixing the permanent alimony payable to the spouse.
(ii) In contemporary society, where several marriages do not last for a reasonable length of time, it
may be inequitable to direct the contesting spouse to pay permanent alimony to the applicant for the
rest of her life. The duration of the marriage would be a relevant factor to be taken into consideration
for determining the permanent alimony to be paid,
(iii) Provision for grant of reasonable expenses for the marriage of children must be made at the time
of determining permanent alimony, where the custody is with the wife. The expenses would be
determined by taking into account the financial position of the husband and the customs of the
family,
(iv) If there are any trust funds / investments created by any spouse / grandparents in favour of the
children, this would also be taken into consideration while deciding the final child support.
III. Criteria for determining quantum of maintenance
(i) The objective of granting interim / permanent alimony is to ensure that the dependant spouse is
not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a
punishment to the other spouse. There is no straitjacket formula for fixing the quantum of
maintenance to be awarded.
The factors which would weigh with the Court inter alia are the status of the parties; reasonable
needs of the wife and dependant children; whether the applicant is educated and professionally
qualified; whether the applicant has any independent source of income; whether the income is
sufficient to enable her to maintain the same standard of living as she was accustomed to in her
matrimonial home; whether the applicant was employed prior to her marriage; whether she was
working during the subsistence of the marriage; whether the wife was required to sacrifice her
employment opportunities for nurturing the family, child rearing, and looking after adult members of
the family; reasonable costs of litigation for a non-working wife.[6]
[6] Refer to Jasbir Kaur Sehgal vs. District Judge, Dehradun & Ors. (1997) 7 SCC 7.
Refer to Vinny Paramvir Parmar vs. Paramvir Parmar, (2011) 13 SCC 112.
In Manish Jain vs. Akanksha Jain, (2017) 15 SCC 801 this Court held that the financial position of
the parents of the applicant-wife, would not be material while determining the quantum of
maintenance. An order of interim maintenance is conditional on the circumstance that the wife or
husband who makes a claim has no independent income, sufficient for her or his support. It is no
answer to a claim of maintenance that the wife is educated and could support herself. The court must
take into consideration the status of the parties and the capacity of the spouse to pay for her or his
support. Maintenance is dependent upon factual situations; the Court should mould the claim for
maintenance based on various factors brought before it.
On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for
his own maintenance, and dependant family members whom he is obliged to maintain under the law,
liabilities if any, would be required to be taken into consideration, to arrive at the appropriate
quantum of maintenance to be paid. The Court must have due regard to the standard of living of the
husband, as well as the spiralling inflation rates and high costs of living. The plea of the husband that
he does not possess any source of income ipso facto does not absolve him of his moral duty to
maintain his wife if he is able bodied and has educational qualifications. Reema Salkan vs. Sumer
Singh Salkan (2019) 12 SCC 303.
(ii) A careful and just balance must be drawn between all relevant factors.
The test for determination of maintenance in matrimonial disputes depends on the financial status of
the respondent, and the standard of living that the applicant was accustomed to in her matrimonial
home. Chaturbhuj vs. Sita Bai (2008) 2 SCC 316.
The maintenance amount awarded must be reasonable and realistic, and avoid either of the two
extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes
oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to
penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself
with reasonable comfort.
(iii) Section 23 of HAMA provides statutory guidance with respect to the criteria for determining the
quantum of maintenance. Sub-section (2) of Section 23 of HAMA provides the following factors
which may be taken into consideration : (i) position and status of the parties, (ii) reasonable wants of
the claimant, (iii) if the petitioner/claimant is living separately, the justification for the same, (iv)
value of the claimant’s property and any income derived from such property, (v) income from
claimant’s own earning or from any other source.
(iv) Section 20(2) of the D. V. Act provides that the monetary relief granted to the aggrieved woman
and / or the children must be adequate, fair, reasonable, and consistent with the standard of living to
which the aggrieved woman was accustomed to in her matrimonial home.
(v) The Delhi High Court in Bharat Hedge vs. Smt. Saroj Hegde, 140 (2007) DLT 16 laid down
the following factors to be considered for determining maintenance :
“1. Status of the parties.
2. Reasonable wants of the claimant.
3. The independent income and property of the claimant.
4. The number of persons, the non-applicant has to maintain.
5. The amount should aid the applicant to live in a similar lifestyle as he/she enjoyed in the
matrimonial home.
6. Non-applicant’s liabilities, if any.
7. Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the
applicant.
8. Payment capacity of the non-applicant.
9. Some guess work is not ruled out while estimating the income of the non-applicant when all
the sources or correct sources are not disclosed.
10. The non-applicant to defray the cost of litigation.
11. The amount awarded u/s 125 Cr.PC is adjustable against the amount awarded u/ 24 of the
Act. 17. ”
(vi) Apart from the aforesaid factors enumerated hereinabove, certain additional factors would also
be relevant for determining the quantum of maintenance payable.
(a) Age and employment of parties
In a marriage of long duration, where parties have endured the relationship for several years, it would
be a relevant factor to be taken into consideration. On termination of the relationship, if the wife is
educated and professionally qualified, but had to give up her employment opportunities to look after
the needs of the family being the primary caregiver to the minor children, and the elder members of
the family, this factor would be required to be given due importance. This is of particular relevance in
contemporary society, given the highly competitive industry standards, the separated wife would be
required to undergo fresh training to acquire marketable skills and re-train herself to secure a job in
the paid workforce to rehabilitate herself. With advancement of age, it would be difficult for a
dependant wife to get an easy entry into the work-force after a break of several years.
(b) Right to residence
Section 17 of the D. V. Act grants an aggrieved woman the right to live in the “shared household”.
Section 2(s) defines “shared household” to include the household where the aggrieved woman lived
at any stage of the domestic relationship; or the household owned and rented jointly or singly by
both, or singly by either of the spouses; or a joint family house, of which the respondent is a member.
The right of a woman to reside in a “shared household” defined under Section 2(s) entitles the
aggrieved woman for right of residence in the shared household, irrespective of her having any legal
interest in the same. This Court in Satish Chander Ahuja vs. Sneha Ahuja[7] (supra) held that
“shared household” referred to in Section 2(s) is the shared household of the aggrieved person where
she was living at the time when the application was filed, or at any stage lived in a domestic
relationship. The living of the aggrieved woman in the shared household must have a degree of
permanence. A mere fleeting or casual living at different places would not constitute a “shared
household”. It is important to consider the intention of the parties, nature of living, and nature of the
household, to determine whether the premises is a “shared household”. Section 2(s) read with
Sections 17 and 19 of the D.V. Act entitles a woman to the right of residence in a shared household,
irrespective of her having any legal interest in the same. There is no requirement of law that the
husband should be a member of the joint family, or that the household must belong to the joint
family, in which he or the aggrieved woman has any right, title or interest. The shared household may
not necessarily be owned or tenanted by the husband singly or jointly.
[7] Civil Appeal No. 2483 / 2020 decided vide Judgment dated 15.10.2020.
Section 19 (l)(f) of the D.V. Act provides that the Magistrate may pass a residence order inter alia
directing the respondent to secure the same level of alternate accommodation for the aggrieved
woman as enjoyed by her in the shared household. While passing such an order, the Magistrate may
direct the respondent to pay the rent and other payments, having regard to the financial needs and
resources of the parties.
(c) Where wife is earning some income
The Courts have held that if the wife is earning, it cannot operate as a bar from being awarded
maintenance by the husband. The Courts have provided guidance on this issue in the following
judgments.
In Shailja & Anr. vs. Khobbanna,[8] this Court held that merely because the wife is capable of
earning, it would not be a sufficient ground to reduce the maintenance awarded by the Family Court.
The Court has to determine whether the income of the wife is sufficient to enable her to maintain
herself, in accordance with the lifestyle of her husband in the matrimonial home. Chaturbhuj vs.
Sita Bai, (2008) 2 SCC 316. Sustenance does not mean, and cannot be allowed to mean mere
survival. Vipul Lakhanpal vs. Smt. Pooja Sharma, 2015 SCC Online HP 1252.
[8] (2018) 12 SCC 199.
See also Decision of the Karnataka High Court in P. Suresh vs. S. Deepa & Ors., 2016 Cri LJ
4794.
In Sunita Kachwaha & Ors. vs Anil Kachwaha, (2014) 16 SCC 715 the wife had a postgraduate
degree, and was employed as a teacher in Jabalpur. The husband raised a contention that since the
wife had sufficient income, she would not require financial assistance from the husband. The
Supreme Court repelled this contention, and held that merely because the wife was earning some
income, it could not be a ground to reject her claim for maintenance.
The Bombay High Court in Sanjay Damodar Kale vs. Kalyani Sanjay Kale, 2020 SCC Online
Bom 694. while relying upon the judgment in Sunita Kachwaha (supra), held that neither the mere
potential to earn, nor the actual earning of the wife, howsoever meagre, is sufficient to deny the claim
of maintenance.
An able-bodied husband must be presumed to be capable of earning sufficient money to maintain his
wife and children, and cannot contend that he is not in a position to earn sufficiently to maintain his
family, as held by the Delhi High Court in Chander Prakash Bodhraj vs. Shila Rani Chander
Prakash, AIR 1968 Delhi 174. The onus is on the husband to establish with necessary material that
there are sufficient grounds to show that he is unable to maintain the family, and discharge his legal
obligations for reasons beyond his control. If the husband does not disclose the exact amount of his
income, an adverse inference may be drawn by the Court.
This Court in Shamima Farooqui vs. Shahid Khan, (2015) 5 SCC 705 cited the judgment in
Chander Prakash (supra) with approval, and held that the obligation of the husband to provide
maintenance stands on a higher pedestal than the wife.
(d) Maintenance of minor children
The living expenses of the child would include expenses for food, clothing, residence, medical
expenses, education of children. Extra coaching classes or any other vocational training courses to
complement the basic education must be factored in, while awarding child support. Albeit, it should
be a reasonable amount to be awarded for extra-curricular / coaching classes, and not an overly
extravagant amount which may be claimed.
Education expenses of the children must be normally borne by the father. If the wife is working and
earning sufficiently, the expenses may be shared proportionately between the parties.
(e) Serious disability or ill health
Serious disability or ill health of a spouse, child / children from the marriage / dependant relative
who require constant care and recurrent expenditure, would also be a relevant consideration while
quantifying maintenance.
IV. Date from which Maintenance to be awarded
There is no provision in the HMA with respect to the date from which an Order of maintenance may
be made effective. Similarly, Section 12 of the D.V. Act, does not provide the date from which the
maintenance is to be awarded.
Section 125(2) Cr.P.C. is the only statutory provision which provides that the Magistrate may award
maintenance either from the date of the order, or from the date of application. K. Sivaram vs. K.
Mangalamba & Ors. 1989 (1) APLJ (HC) 604.
In the absence of a uniform regime, there is a vast variance in the practice adopted by the Family
Courts in the country, with respect to the date from which maintenance must be awarded. The
divergent views taken by the Family Courts are : first, from the date on which the application for
maintenance was filed; second, the date of the order granting maintenance; third, the date on which
the summons was served upon the respondent.
(a) From date of application
The view that maintenance ought to be granted from the date when the application was made, is
based on the rationale that the primary object of maintenance laws is to protect a deserted wife and
dependant children from destitution and vagrancy. If maintenance is not paid from the date of
application, the party seeking maintenance would be deprived of sustenance, owing to the time taken
for disposal of the application, which often runs into several years.
The Orissa High Court in Susmita Mohanty vs. Rabindra Nath Sahu, 1996 (I) OLR 361. held that
the legislature intended to provide a summary, quick and comparatively inexpensive remedy to the
neglected person. Where a litigation is prolonged, either on account of the conduct of the opposite
party, or due to the heavy docket in Courts, or for unavoidable reasons, it would be unjust and
contrary to the object of the provision, to provide maintenance from the date of the order.
In Kanhu Charon Jena vs. Smt. Nirmala Jena, 2001 Cri LJ 879 the Orissa High Court was
considering an application u/S. 125 Cr.P.C, wherein it was held that even though the decision to
award maintenance either from the date of application, or from the date of order, was within the
discretion of the Court, it would be appropriate to grant maintenance from the date of application.
This was followed in Arun Kumar Nayak vs. Urmila Jena, (2010) 93 AIC 726 (Ori). wherein it
was reiterated that dependents were entitled to receive maintenance from the date of application.
The Madhya Pradesh High Court in Krishna Jain vs. Dharam Raj Jain, 1993 (2) MPJR 63. held
that a wife may set up a claim for maintenance to be granted from the date of application, and the
husband may deny it. In such cases, the Court may frame an issue, and decide the same based on
evidence led by parties. The view that the “normal rule” was to grant maintenance from the date of
order, and the exception was to grant maintenance from the date of application, would be to insert
something more in Section 125(2) Cr.P.C, which the Legislature did not intend. Reasons must be
recorded in both cases, i.e. when maintenance is awarded from the date of application, or when it is
awarded from the date of order.
The law governing payment of maintenance u/S. 125 Cr.P.C. from the date of application, was
extended to HAMA by the Allahabad High Court in Ganga Prasad Srivastava vs. Additional
District Judge, Gonda & Ors., 2019 (6) ADJ 850. The Court held that the date of application
should always be regarded as the starting point for payment of maintenance. The Court was
considering a suit for maintenance u/S. 18 of HAMA, wherein the Civil Judge directed that
maintenance be paid from the date of judgment. The High Court held that the normal inference
should be that the order of maintenance would be effective from the date of application. A party
seeking maintenance would otherwise be deprived of maintenance due to the delay in disposal of the
application, which may arise due to paucity of time of the Court, or on account of the conduct of one
of the parties. In this case, there was a delay of seven years in disposing of the suit, and the wife
could not be made to starve till such time. The wife was held to be entitled to maintenance from the
date of application / suit.
The Delhi High Court in Lavlesh Shukla vs. Rukmani[9] held that where the wife is unemployed
and is incurring expenses towards maintaining herself and the minor child / children, she is entitled
to receive maintenance from the date of application. Maintenance is awarded to a wife to overcome
the financial crunch, which occurs on account of her separation from her husband. It is neither a
matter of favour to the wife, nor any charity done by the husband.
[9] Crl.Rev.P. 851/2019 decided by the Delhi High Court vide Order dated 28.11.2019.
(b) From the date of order
The second view that maintenance ought to be awarded from the date of order is based on the
premise that the general rule is to award maintenance from the date of order, and grant of
maintenance from the date of application must be the exception. The foundation of this view is based
on the interpretation of Section 125(2) Cr.P.C. which provides :
“(2) Any such allowance for the maintenance or interim maintenance and expenses for
proceeding shall be payable from the date of the order, or, if so ordered, from the date of the
application for maintenance or interim maintenance and expenses of proceeding, as the case
may be. ” (emphasis supplied)
The words “or, if so ordered” in Section 125 has been interpreted to mean that where the court is
awarding maintenance from the date of application, special reasons ought to be recorded. Bina Devi
& Ors. vs. State of Uttar Pradesh & Ors. (2010) 69 ACC 19.
In Bina Devi vs. State of U.P., (2010) 69 ACC 19 the Allahabad High Court on an interpretation of
S. 125(2) of the Cr.P.C. held that when maintenance is directed to be paid from the date of
application, the Court must record reasons. If the order is silent, it will be effective from the date of
the order, for which reasons need not be recorded. The Court held that Section 125(2) Cr.P.C. is
prima facie clear that maintenance shall be payable from the date of the order.
The Madhya Pradesh High Court in Amit Verma vs. Sangeeta Verma & Ors.[10] directed that
maintenance ought to be granted from the date of the order.
[10] CRR No. 3542/2019, decided by the Madhya Pradesh High Court vide Order dated
08.01.2020.
(c) From the date of service of summons
The third view followed by some Courts is that maintenance ought to be granted from the date of
service of summons upon the respondent.
The Kerala High Court in S. Radhakumari vs. K.M.K. Nair, AIR 1983 Ker 139. was considering
an application for interim maintenance preferred by the wife in divorce proceedings filed by the
husband. The High Court held that maintenance must be awarded to the wife from the date on which
summons were served in the main divorce petition. The Court relied upon the judgment of the
Calcutta High Court in Samir Banerjee vs. Sujata Banerjee, 70 CWN 633 and held that Section 24
of the HMA does not contain any provision that maintenance must be awarded from a specific date.
The Court may, in exercise of its discretion, award maintenance from the date of service of summons.
The Orissa High Court in Gouri Das vs. Pradyumna Kumar Das, 1986 (II) OLR 44. was
considering an application for interim maintenance filed u/S. 24 HMA by the wife, in a divorce
petition instituted by the husband. The Court held that the ordinary rule is to award maintenance
from the date of service of summons. It was held that in cases where the applicant in the maintenance
petition is also the petitioner in the divorce petition, maintenance becomes payable from the date
when summons is served upon the respondent in the main proceeding.
In Kalpana Das vs Sarat Kumar Das, AIR 2009 Ori. 133 the Orissa High Court held that the wife
was entitled to maintenance from the date when the husband entered appearance. The Court was
considering an application for interim maintenance u/S. 24 HMA in a petition for restitution of
conjugal rights filed by the wife. The Family Court awarded interim maintenance to the wife and
minor child from the date of the order. In an appeal filed by the wife and minor child seeking
maintenance from the date of application, the High Court held that the Family Court had failed to
assign any reasons in support of its order, and directed :
“9. …Learned Judge. Family Court has not assigned any reason as to why he passed the order of
interim maintenance w.e.f. the date of order. When admittedly the parties are living separately
and prima facie it appears that the Petitioners have no independent source of income, therefore,
in our view order should have been passed for payment of interim maintenance from the date of
appearance of the Opposite Party-husband… ” (emphasis supplied)
Discussion and Directions
The judgments hereinabove reveal the divergent views of different High Courts on the date from
which maintenance must be awarded.
Even though a judicial discretion is conferred upon the Court to grant maintenance either from the
date of application or from the date of the order in S. 125(2) Cr.P.C, it would be appropriate to grant
maintenance from the date of application in all cases, including Section 125 Cr.P.C. In the practical
working of the provisions relating to maintenance, we find that there is significant delay in disposal
of the applications for interim maintenance for years on end. It would therefore be in the interests of
justice and fair play that maintenance is awarded from the date of the application.
In Shail Kumari Devi and Ors. vs. Krishnan Bhagwan Pathak, 2008 9 SCC 632 this Court held
that the entitlement of maintenance should not be left to the uncertain date of disposal of the case.
The enormous delay in disposal of proceedings justifies the award of maintenance from the date of
application. In Bhuwan Mohan Singh vs. Meena, 2015 6 SCC 353 this Court held that repetitive
adjournments sought by the husband in that case resulted in delay of 9 years in the adjudication of
the case. The delay in adjudication was not only against human rights, but also against the basic
embodiment of dignity of an individual. The delay in the conduct of the proceedings would require
grant of maintenance to date back to the date of application.
The rationale of granting maintenance from the date of application finds its roots in the object of
enacting maintenance legislations, so as to enable the wife to overcome the financial crunch which
occurs on separation from the husband. Financial constraints of a dependant spouse hampers their
capacity to be effectively represented before the Court. In order to prevent a dependant from being
reduced to destitution, it is necessary that maintenance is awarded from the date on which the
application for maintenance is filed before the concerned Court.
In Badshah vs. Urmila Badshah Godse, (2014) 1 SCC 188 the Supreme Court was considering the
interpretation of Section 125 Cr.P.C. The Court held :
“13.3. …purposive interpretation needs to be given to the provisions of Section 125 CrPC.
While dealing with the application of a destitute wife or hapless children or parents under this
provision, the Court is dealing with the marginalised sections of the society. The purpose is to
achieve “social justice ” which is the constitutional vision, enshrined in the Preamble of the
Constitution of India. The Preamble to the Constitution of India clearly signals that we have
chosen the democratic path under the rule of law to achieve the goal of securing for all its
citizens, justice, liberty, equality and fraternity. It specifically highlights achieving their social
justice. Therefore, it becomes the bounden duty of the courts to advance the cause of the social
justice. While giving interpretation to a particular provision, the court is supposed to bridge the
gap between the law and society. ” (emphasis supplied)
It has therefore become necessary to issue directions to bring about uniformity and consistency in the
Orders passed by all Courts, by directing that maintenance be awarded from the date on which the
application was made before the concerned Court. The right to claim maintenance must date back to
the date of filing the application, since the period during which the maintenance proceedings
remained pending is not within the control of the applicant.
V. Enforcement of orders of maintenance
Enforcement of the order of maintenance is the most challenging issue, which is encountered by the
applicants. If maintenance is not paid in a timely manner, it defeats the very object of the social
welfare legislation. Execution petitions usually remain pending for months, if not years, which
completely nullifies the object of the law. The Bombay High Court in Sushila Viresh Chhawda vs.
Viresh Nagsi Chhawda, AIR 1996 Bom 94 held that:
“The direction of interim alimony and expenses of litigation under Section 24 is one of urgency
and it must be decided as soon as it is raised and the law takes care that nobody is disabled from
prosecuting or defending the matrimonial case by starvation or lack of funds. ”
(i) An application for execution of an Order of Maintenance can be filed under the following
provisions :
(a) Section 28 A of the Hindu Marriage Act, 1956 r.w. Section 18 of the Family Courts
Act, 1984 and Order XXI Rule 94 of the CPC for executing an Order passed under Section
24 of the Hindu Marriage Act (before the Family Court);
(b) Section 20(6) of the DV Act (before the Judicial Magistrate); and
(c) Section 128 of Cr.P.C. before the Magistrate’s Court.
(ii) Section 18 of the Family Courts Act, 1984 provides that orders passed by the Family Court
shall be executable in accordance with the CPC / Cr.P.C.
(iii) Section 125(3) of the Cr.P.C provides that if the party against whom the order of
maintenance is passed fails to comply with the order of maintenance, the same shall be
recovered in the manner as provided for fines, and the Magistrate may award sentence of
imprisonment for a term which may extend to one month, or until payment, whichever is earlier.
Striking off the Defence
(i) Some Family Courts have passed orders for striking off the defence of the respondent in case of
non-payment of maintenance, so as to facilitate speedy disposal of the maintenance petition.
In Kaushalya vs. Mukesh Jain[11], the Supreme Court allowed a Family Court to strike off the
defence of the respondent, in case of non-payment of maintenance in accordance with the interim
order passed.
[11] Criminal Appeal Nos. 1129-1130 / 2019 decided vide Judgment dated 24.07.2019.
(ii) The Punjab & Haryana High Court in Bani vs. Parkash Singh, AIR 1996 P&H 175. was
considering a case where the husband failed to comply with the maintenance order, despite several
notices, for a period of over two years. The Court taking note of the power to strike off the defence of
the respondent, held that:
“Law is not that powerless as not to bring the husband to book. If the husband has failed to
make the payment of maintenance and litigation expenses to wife, his defence be struck out. ”
(iii) The Punjab & Haryana High Court in Mohinder Verma vs. Sapna, MANU/PH/3684/2014
discussed the issue of striking off the defence in the following words :
“8. Section 24 of the Act empowers the matrimonial court to award maintenance pendente lite
and also litigation expenses to a needy and indigent spouse so that the proceedings can be
conducted without any hardship on his or her part. The proceedings under this Section are
summary in nature and confers a substantial right on the applicant during the pendency of the
proceedings. Where this amount is not paid to the applicant, then the very object and purpose of
this provision stands defeated. No doubt, remedy of execution of decree or order passed by the
matrimonial court is available under Section 28A of the Act, but the same would not be a bar to
striking off the defence of the spouse who violates the interim order of maintenance and
litigation expenses passed by the said Court. In other words, the striking off the defence of the
spouse not honouring the court’s interim order is the instant relief to the needy one instead of
waiting endlessly till its execution under Section 28A of the Act. Where the spouse who is to
pay maintenance fails to discharge the liability, the other spouse cannot be forced to adopt time
consuming execution proceedings for realising the amount. Court cannot be a mute spectator
watching flagrant disobedience of the interim orders passed by it showing its helplessness in its
instant implementation. It would, thus, be appropriate even in the absence of any specific
provision to that effect in the Act, to strike off the defence of the erring spouse in exercise of its
inherent power under Section 151 of the Code of Civil Procedure read with Section 21 of the
Act rather than to leave the aggrieved party to seek its enforcement through execution as
execution is a long and arduous procedure. Needless to say, the remedy under Section 28A of
the Act regarding execution of decree or interim order does not stand obliterated or
extinguished by striking off the defence of the defaulting spouse. Thus, where the spouse who is
directed to pay the maintenance and litigation expenses, the legal consequences for its nonpayment are that the defence of the said spouse is liable to be struck off. ” (emphasis supplied)
(iv) The Delhi High Court in Satish Kumar vs. Meena, 2001 (60) DRJ 246 held that the Family
Court had inherent powers to strike off the defence of the respondent, to ensure that no abuse of
process of the court takes place.
The Delhi High Court in Smt. Santosh Sehgal vs. Shri Murari Lal Sehgal, AIR 2007 Delhi 210
framed the following issue for consideration :
“Whether the appeal against the decree of divorce filed by the appellant-wife can be allowed
straightway without hearing the respondent-husband in the event of his failing to pay interim
maintenance and litigation expenses granted to the wife during the pendency of the appeal. ”
The reference was answered as follows :
“5. The reference to the portion of the judgment in Bani’s case extracted herein-above
would show that the Punjab and Haryana High Court and Orissa Page 2216 High Court
have taken an unanimous view that in case the husband commits default in payment of
interim maintenance to his wife and children then he is not entitled to any matrimonial
relief in proceedings by or against him. The view taken by Punjab and Haryana High Court
in Bani’s case has been followed by a Single Judge of this Court in Satish Kumar v.
Meena. We tend to agree with this view as it is in consonance with the first principle of
law. We are of the view that when a husband is negligent and does not pay maintenance to
his wife as awarded by the Court, then how such a person is entitled to the relief claimed
by him in the matrimonial proceedings. We have no hesitation in holding that in case the
husband fails to pay maintenance and litigation expenses to his wife granted by the Court
during the pendency of the appeal, then the appeal filed by the wife against the decree of
divorce granted by the trial court in favor of the husband has to be allowed. Hence the
question referred to us for decision is answered in the affirmative.”
The Court concluded that if there was non-payment of interim maintenance, the defence of the
respondent is liable to be struck off, and the appeal filed by the appellant-wife can be allowed,
without hearing the respondent.
(v) The Punjab and Haryana High Court in Gurvinder Singh vs. Murti & Ors.[12] was considering
a case where the trial court stuck off the defence of the husband for non-payment of ad-interim
maintenance. The High Court set aside the order of the trial court, and held that instead of following
the correct procedure for recovery of interim maintenance as provided u/S. 125 (3) or Section 421 of
the Cr.P.C, the trial court erred in striking off the defence of the husband. The error of the court did
not assist in recovery of interim maintenance, but rather prolonged the litigation between the parties.
[12] Gurvinder Singh vs. Murti & Ors. I (1990) DMC 559.
(vi) The issue whether defence can be struck off in proceedings under Section 125 Cr.P.C. came up
before the Madhya Pradesh High Court in Venkateshwar Dwivedi vs. Ruchi Dwivedi[13] The
Court held that neither Section 125(3) of the Cr.P.C, nor Section 10 of the Family Courts Act either
expressly or by necessary implication empower the Magistrate or Family Court to strike off the
defence. A statutory remedy for recovery of maintenance was available, and the power to strike off
defence does not exist in a proceeding u/S. 125 Cr.P.C. Such power cannot be presumed to exist as an
inherent or implied power. The Court placed reliance on the judgment of the Kerala High Court in
Davis vs. Thomas[14] and held that the Magistrate does not possess the power to strike off the
defence for failure to pay interim maintenance.
[13] II (2018) DMC 103 MP.
Karnataka High Court affirmed this view in Ravindra Kumar vs. Renuka & Anr. 2009 SCC
Online Kar 481.
[14] 2007(4) ILR (Kerala) 389
See also Sakeer Hussain T.P. vs Naseera & Ors., 2016 (4) ILR (Kerala) 917.
Discussion and Directions on Enforcement of Orders of Maintenance
The order or decree of maintenance may be enforced like a decree of a civil court, through the
provisions which are available for enforcing a money decree, including civil detention, attachment of
property, etc. as provided by various provisions of the CPC, more particularly Sections 51, 55, 58, 60
read with Order XXI.
Striking off the defence of the respondent is an order which ought to be passed in the last resort, if
the Courts find default to be wilful and contumacious, particularly to a dependant unemployed wife,
and minor children.
Contempt proceedings for wilful disobedience may be initiated before the appropriate Court.
VI. Final Directions
In view of the foregoing discussion as contained in Part B -1 to V of this judgment, we deem it
appropriate to pass the following directions in exercise of our powers under Article 142 of the
Constitution of India :
(a) Issue of overlapping jurisdiction
To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in
different proceedings, it has become necessary to issue directions in this regard, so that there is
uniformity in the practice followed by the Family Courts/District Courts/Magistrate Courts
throughout the country. We direct that:
(i) where successive claims for maintenance are made by a party under different statutes, the
Court would consider an adjustment or set-off, of the amount awarded in the previous
proceeding/s, while determining whether any further amount is to be awarded in the subsequent
proceeding;
(ii) it is made mandatory for the applicant to disclose the previous proceeding and the orders
passed therein, in the subsequent proceeding;
(iii) if the order passed in the previous proceeding/s requires any modification or variation, it
would be required to be done in the same proceeding.
(b) Payment of Interim Maintenance
The Affidavit of Disclosure of Assets and Liabilities annexed as Enclosures I, II and III of this
judgment, as may be applicable, shall be filed by both parties in all maintenance proceedings,
including pending proceedings before the concerned Family Court / District Court / Magistrates
Court, as the case may be, throughout the country.
(c) Criteria for determining the quantum of maintenance
For determining the quantum of maintenance payable to an applicant, the Court shall take into
account the criteria enumerated in Part B – III of the judgment. The aforesaid factors are however not
exhaustive, and the concerned Court may exercise its discretion to consider any other factor/s which
may be necessary or of relevance in the facts and circumstances of a case.
(d) Date from which maintenance is to be awarded
We make it clear that maintenance in all cases will be awarded from the date of filing the application
for maintenance, as held in Part B – IV above.
(e) Enforcement / Execution of orders of maintenance
For enforcement / execution of orders of maintenance, it is directed that an order or decree of
maintenance may be enforced under Section 28A of the Hindu Marriage Act, 1956; Section 20(6) of
the D.V. Act; and Section 128 of Cr.P.C, as may be applicable. The order of maintenance may be
enforced as a money decree of a civil court as per the provisions of the CPC, more particularly
Sections 51, 55, 58, 60 r.w. Order XXI.
Before we part with this judgment, we note our appreciation of the valuable assistance provided by
the Ld. Amici Curiae Ms. Anitha Shenoy and Mr. Gopal Sankaranarayanan, Senior Advocates in this
case.
A copy of this judgment be communicated by the Secretary General of this Court, to the Registrars of
all High Courts, who would in turn circulate it to all the District Courts in the States. It shall be
displayed on the website of all District Courts / Family Courts / Courts of Judicial Magistrates for
awareness and implementation.
Enclosure I
Affidavit of Assets and Liabilities for Non-Agrarian Deponents
I ______, d/o _______or s/o _________, aged about ______years, resident of _, do hereby
solemnly affirm and declare as under:
A. Personal Information
1. Name:
2. Age/Sex:
3. Qualifications (Educational and Professional):
4. Whether the Applicant is staying in the matrimonial house / parental home / separate
residence. Please provide the current residential address of matrimonial home or place of
residence and details of ownership of residence, if owned by other family member.
5. Date of marriage:
6. Date of separation:
7. General monthly expenses of the Applicant (rent, household expenses, medical bills,
transportation, etc.):
B. Details of Legal Proceedings and Maintenance being paid
1. Particulars of any ongoing or past legal proceedings with respect to maintenance or child
support between the Applicant and Non-Applicant.
2. Whether any maintenance has been awarded in any proceeding arising under the D.V.Act,
Cr.P.C, HMA, HAMA, etc.? If yes, provide details of the quantum of maintenance awarded in
the proceedings.
3. If so, provide particulars thereof, alongwith a copy of the Order/s passed.
4. Whether the Order of maintenance passed in earlier proceedings has been complied with. If
not, arrears of maintenance.
5. Whether any voluntary contribution towards maintenance has been made/ will be made in the
future? If yes, provide details of the same.
C. Details of dependant family members
1. Details of Dependant family members, if any.
a. Relationship with dependants:
b. Age and sex of dependant/s:
2. Disclose if any independent source/s of income of the dependants, including interest income,
assets, pension, tax liability on any such income and any other relevant details.
3. The approximate expenses incurred on account of the dependant.
D. Medical details if any, of the Deponent and/or dependant family members
1. Whether either party or child /children is suffering from any physical / mental disability, or
any other serious ailment. If yes, produce medical records.
2. Whether any dependant family member has serious disability, requiring continuous medical
expenditure. If yes, produce disability certificate and approximate medical expenditure incurred
on such medical treatment.
3. Whether either party or child/children or any other dependent family member is suffering
from life-threatening diseases, which would entail expensive and regular medical expenditure?
If yes, provide details of the same along with summary of previous details of
hospitalisation/medical expenses incurred.
E. Details of Children of the parties
1. Number of children from the existing marriage / marital relationship/ previous marriage
2. Name and age of children
3. Details of the parent who has the custody of the children.
4. Expenditure for maintenance of dependant children.
a. Towards food, clothing and medical expenses
b. Towards expenses for education, and a summary of general expenses
c. Towards expenses, if any, of any extra educational, vocational or professional /
educational course, specialised training or special skills programme of dependent children.
d. Details of any loan, mortgage, charge incurred or instalment plan (being paid or
payable), if any, on account of any educational expenses of children.
5. Whether any voluntary contribution by either of the parties is being made towards these
educational expenses. If yes, provide details of the same. Also provide an estimate of any
additional contribution that may be required.
6. Whether any financial support is being provided by a third party for the educational expenses
of the children?
F. Details of Income of the Deponent
1. Name of employer:
2. Designation:
3. Monthly income:
4. If engaged in Government Service, furnish latest Salary Certificates or current Pay Slips or
proof of deposit in bank account, if being remitted directly by employer.
5. If engaged in the private sector, furnish a certificate provided by the employer stating the
designation and gross monthly income of such person, and Form 16 for the relevant period of
current employment.
6. If any perquisites, benefits, house rent allowance, travel allowance, dearness allowance or
any other service benefit is being provided by the employer during the course of current
employment.
7. Whether assessed to income tax?
If yes, submit copies of the Income Tax Returns for the periods given below :
(i) One year prior to marriage
(ii) One year prior to separation
(iii) At the time when the Application for maintenance is filed
8. Income from other sources, such as rent, interest, shares, dividends, capital gains, FDRs, Post
office deposits, mutual funds, stocks, debentures, agriculture, or business, if any, alongwith
TDS in respect of any such income.
9. Furnish copies of Bank Statement of all accounts for the last 3 years.
G. Assets (movable and immovable) owned by the Deponent
1. Self-acquired property, if any:
2. Properties jointly owned by the parties after marriage:
3. Share in any ancestral property:
4. Other joint properties of the parties (accounts/ investments/ FDR/ mutual funds, stocks,
debentures etc.), their value and status of possession:
5. Status of possession of immovable property and details of rent, if leased:
6. Details of loans taken or given by the Deponent
7. Brief description of jewellery and ornaments of parties acquired during /after marriage
8. Details of transfer deeds or transactions of alienation of properties previously owned by the
applicant, executed during the subsistence of the marriage. Also provide brief reasons for such
sale or transaction, if any.
H. Details of Liabilities of the Deponent
1. Loans, liabilities, mortgage, or charge outstanding against the Deponent, if any.
2. Details of any EMIs being paid.
3. Date and purpose of taking loan or incurring any such liability:
4. Actual amount borrowed, if any, and the amount paid upto date of filing the Affidavit:
5. Any other information which would be relevant to describe current liabilities of the
Deponent.
I. Self-employed persons / Professionals / Business Persons / Entrepreneur
1. Brief description of nature of business/profession/vocation/self-employed/work activity.
2. Whether the business/profession/ self-employment is carried on as an individual, sole
proprietorship concern, partnership concern, LLP, company or association of persons, HUF,
joint family business or any other form? Give particulars of Applicant’s share in the
partnership/business/ professional association/self-employment. In case of partnership, specify
the share in the profit/losses of the partnership.
3. Net Income from the business/profession/ partnership/self-employment.
4. Business/partnership/self-employment liabilities, if any, in case of such activity.
5. In case of business of company, provide brief details of last audited balance sheet to indicate
profit and loss of the company in which such party is in business in the company.
6. In case of a partnership firm, provide details of the filings of the last Income Tax Return of
partnership.
7. In case of self-employed individual, provide the filings of the last Income Tax Return from
any such professional/business/vocational activity.
J. Information provided by the Deponent with respect to the income, assets and liabilities of the
other Spouse
1. Educational and professional qualifications of the other spouse:
2. Whether spouse is earning? If so, give particulars of the occupation and income of the
spouse.
3. If not, whether he/she is staying in his/her own accommodation, or in a rented
accommodation or in accommodation provided by employer/business/partnership?
4. Particulars of assets and liabilities of spouse as known to the deponent, alongwith any
supporting documents.
K. Details of Applicant or the other Spouse, in case parties are Non-Resident Indians, Overseas
Citizens of India, Foreign Nationals or Persons living abroad outside India.
1. Details of Citizenship, Nationality and current place of residence, if the Applicant or other
spouse is residing abroad outside India, temporarily or permanently.
2. Details of current employment and latest income in foreign currency of such
applicant/spouse, duly supported by relevant documentation of employment and income from
such foreign employer or overseas institution by way of employment letter or testimonial from
foreign employer or overseas institution or latest relevant bank statement.
3. Details of household and other expenditure of such applicant/spouse in foreign jurisdiction.
4. Details of tax liability of applicant/other spouse in foreign jurisdiction.
5. Details of income of applicant/other spouse from other sources in India/foreign jurisdiction.
6. Details of expenses incurred or contribution made on account of spousal maintenance, child
support or any other educational expenses, medical treatment of spouse or children.
7. Any other relevant detail of expenses or liabilities, not covered under any of the above
headings and any other liabilities to any other dependant family members in India or abroad.
Declaration
1. I declare that I have made a full and accurate disclosure of my income, expenditure, assets and
liabilities from all sources. I further declare that I have no assets, income, expenditure and liabilities
other than as stated in this affidavit.
2. I undertake to inform this Court immediately with respect to any material change in my
employment, assets, income, expenses or any other information included in this affidavit.
3. I understand that any false statement in this affidavit, apart from being contempt of Court, may
also constitute an offence under Section 199 read with Sections 191 and 193 of the Indian Penal
Code punishable with imprisonment upto seven years and fine, and Section 209 of Indian Penal Code
punishable with imprisonment upto two years and fine. I have read and understood Sections 191,
193, 199 and 209 of the Indian Penal Code, 1860.
DEPONENT
Verification
Verified at on this day of that the contents of the above affidavit are true to my personal
knowledge, no part of it is false and nothing material has been concealed therefrom, whereas the
contents of the above affidavit relating to the assets, income and expenditure of my spouse are
based on information believed to be true on the basis of record. I further verify that the copies of
the documents filed along with the affidavit are the copies of the originals.
DEPONENT
Enclosure II
Details for Affidavit for Agrarian Deponents (Krishi)
1. Total extent of the rural land/s owned, or the specific share holding in the same land:
2. Jamabandis / Mutations to show ownership
3. Location of the land owned by the party.
4. Nature of land : whether wet land or dry land.
5. Whether such land is agricultural land or non-agricultural land:
6. Nature of agriculture / horticulture :
7. Nature of crops cultivated during the year :
8. If rural land is not cultivable, whether the same is being used for business, leasing or other activity
:
9. Income generated during the past 3 years from the land.
10. Whether any land is taken on lease /battai (or any other term used for a lease in the local area of
the concerned jurisdiction where rural /agricultural land is located.)
11. (a) Whether owner of any livestock, such as buffaloes, cows, goats, cattle, poultry, fishery, bee
keeping, piggery etc., the number thereof and Income generated therefrom?
(b) Whether engaged in dairy farming, poultry, fish farming or any other livestock activity.
12. Loans, if any obtained against the land. Furnish details of such loans.
13. Any other sources of income :
14. Liabilities, if any
15. Any other relevant information :
Declaration
1. I declare that I have made a full and accurate disclosure of my income, expenditure, assets and
liabilities from all sources. I further declare that I have no assets, income, expenditure and liabilities
other than as stated in this affidavit.
2. I undertake to inform this Court immediately with respect to any material change in my
employment, assets, income, expenses or any other information included in this affidavit.
3. I understand that any false statement in this affidavit, apart from being contempt of Court, may
constitute an offence under Section 199 read with Sections 191 and 193 of the Indian Penal Code
punishable with imprisonment upto seven years and fine, and Section 209 of Indian Penal Code
punishable with imprisonment upto two years and fine. I have read and understood Sections 191,
193, 199, and 209 of the Indian Penal Code, 1860.
DEPONENT
Verification
Verified at on this day of that the contents of the above affidavit are true to my personal
knowledge, no part of it is false and nothing material has been concealed therefrom. I further
verify that the copies of the documents filed along with the affidavit are the copies of the
originals.
DEPONENT
Enclosure III
Affidavit for the State of Meghalaya
1. Whether the woman is the youngest daughter of the family.
2. Whether the woman is staying with her husband in her family property.
3. Whether she has any maternal uncle, who plays a very important role in their family matters,
which includes settlement of matrimonial disputes. The woman should also disclose her clan and her
lineage.
4. The woman should disclose if her children have adopted the surname of her mother, in as much as
Khasi has been defined as “a person who adopts the surname of his or her mother”.
5. The woman should disclose if she gets any financial assistance from her clan or family member.
6. The woman should disclose if her parents are alive more specifically, her mother, and how many
siblings she has.
7. In event of a woman not being the youngest daughter, she has to disclose who the youngest
daughter is.
8. The woman should disclose if she has any movable or any immovable property, self-acquired or
inherited from her clan.
9. The woman should disclose if she is married to tribal or non-tribal
The above format may be modified or adapted by the concerned Court, as may be considered
appropriate.
Declaration
1. I declare that I have made a full and accurate disclosure of my income, expenditure, assets and
liabilities from all sources. I further declare that I have no assets, income, expenditure and liabilities
other than as stated in this affidavit.
2. I undertake to inform this Court immediately with respect to any material change in my
employment, assets, income, expenses or any other information included in this affidavit.
3. I understand that any false statement in this affidavit, apart from being contempt of Court, may
also constitute an offence under Section 199 read with Sections 191 and 193 of the Indian Penal
Code punishable with imprisonment upto seven years and fine, and Section 209 of Indian Penal Code
punishable with imprisonment upto two years and fine. I have read and understood Sections 191,
193, 199, and 209 of the Indian Penal Code, 1860.
DEPONENT
Verification
Verified at on this day of that the contents of the above affidavit are true to my personal
knowledge, no part of it is false and nothing material has been concealed therefrom, whereas the
contents of the above affidavit relating to the assets, income and expenditure of my spouse are
based on information believed to be true on the basis of record. I further verify that the copies of
the documents filed along with the affidavit are the copies of the originals.
DEPONENT

Posted on 19th March 2021 by rajatbindal5gmailcom — Leave a comment

Supreme Court can adjudicate on divorce case originally in exceptional case.

(2020) 1 AirKarR 687 : (2020) AIR(SC) 111 : (2020) AIR(SC)Civil 734 : (2020) 1 AndhLD 116 : (2020) 3
ApexCourtJudgments(SC) 301 : (2020) 2 CivCC 41 : (2020) 1 DMC 3 : (2019) 12 JT 350 : (2020) 1
LawHerald(SC) 94 : (2020) 3 MLJ 777 : (2020) 197 PLR 302 : (2020) 1 SCALE 10 : (2020) 1 SCJ 6
SUPREME COURT OF INDIA
DIVISION BENCH
MUNISH KAKKAR — Appellant
Vs.
NIDHI KAKKAR — Respondent
( Before : Sanjay Kishan Kaul and K.M. Joseph, JJ. )
Civil Appeal No. 9318 of 2014
Decided on : 17-12-2019
Hindu Marriage Act, 1955 – Section 13(1)(ia) – Divorce on the ground of cruelty – It is no doubt true that
the divorce legislations in India are based on the ‘fault theory’, i.e., no party should take advantage of
his/her own fault, and that the ground of irretrievable breakdown of marriage, as yet, has not been
inserted in the divorce law, despite a debate on this aspect by the Law Commission in two reports – A
party, divorce was granted on the ground of irretrievable breakdown of marriage, after examining various
judicial pronouncements. It has been noted that such powers are exercised not in routine, but in rare
cases, in view of the absence of legislation in this behalf, where it is found that a marriage is totally
unworkable, emotionally dead, beyond salvage and has broken down irretrievably. That was a case where
parties had been living apart for the last twenty-two (22) years and a re-union was found to be impossible
– This Court has also extended caution from time to time on this aspect, apart from noticing that it is
only this Court which can do so, in exercise of its powers under Article 142 of the Constitution of India. If
parties agree, they can always go back to the trial court for a motion by mutual consent, or this Court has
exercised jurisdiction at times to put the matter at rest quickly. But that has not been the only
circumstance in which a decree of divorce has been granted by this Court. In numerous cases, where a
marriage is found to be a dead letter, the Court has exercised its extraordinary power under Article 142 of
the Constitution of India to bring an end to it – Divorce granted.
Constitution of India, 1950 – Article 142 – Complete justice – Provisions of Article 142 of the
Constitution provide a unique power to the Supreme Court, to do “complete justice” between the parties,
i.e., where at times law or statute may not provide a remedy, the Court can extend itself to put a quietus
to a dispute in a manner which would bet the facts of the case.
Counsel for Appearing Parties
Mr. Manoj Swarup, Advocate, Mr. Santosh Mishra, Advocate, Mr. Neewani Pant, Advocate, Ms. Vidisha Swarup,
Advocate, Mr. Ashok Anand, Advocate, Mr. Somnath Padhan, Advocate, Mr. Mukul Kumar, Advocate, for the Appellant;
Respondent-in-person (Not present)
Cases Referred
R. Srinivas Kumar vs. R. Shametha (2019) 9 SCC 409
JUDGMENT
Sanjay Kishan Kaul, J. – Marriages are said to be made in heaven. They are broken on earth. We are faced with a scenario where for the better part of almost two decades, the parties before us, who are husband and wife, have been engaged in multifarious litigation, including a divorce proceeding, which forms subject matter of the appeal before us.
2. The marriage between the parties was solemnized at Jalandhar according to Hindu rites on 23.4.2000, where apparently the family of the appellant was based. The family of the respondent is stated to have been based in Canada. It appears from the allegations that the constant period of stay of the parties was only for about two months, with the respondent moving back and forth, but, undisputedly on 24.5.2001, the respondent left for Canada to be with her family. It is the case of the appellant that this was not with his consent, while on the other hand it is the case of the respondent that she was making an endeavour for immigration of the appellant to Canada, and at his behest. The respondent did not return to India till 16.8.2002, which was soon after she obtained Canadian citizenship on 6.8.2002. It is also an admitted position that during this time, no papers were led with the Canadian authorities for immigration of the appellant and that the respondent puts the blame on incomplete papers sent by the appellant. As to why the papers could not be completed over such a long period of time is a moot point. It does appear that the respondent was apparently interested in Canadian citizenship and only after having achieved that, came back to India.
3. The parties resided for barely two and a half months together, when a ght is stated to have broken out between the parties and the respondent again left the company of the appellant. There was an intervention by the Panchayat and the parties were asked to reside separately from their family, in a rented accommodation, but that too did not last for more than a couple of months. The respondent is stated to have left the common residence on 15.4.2003 after an altercation and then again left for Canada.
4. The aforesaid resulted in the appellant ling a petition for divorce under Section 13(1)(ia) of the Hindu
Marriage Act, 1955 on the ground of cruelty, on 16.5.2003.
5. It is the appellant’s case that he had reasonable apprehension about the safety of his life and limb, and that the respondent was really not interested in living with the appellant in India, away from Canada. The loneliness and lack of co-habitation is stated to have caused physical and mental torture. The appellant also sought to make out a case that the respondent was suffering from depression and was on medication. Despite the appellant’s stable job in India, the respondent kept on pressuring him to shift to Canada, and despite his reluctance he had signed the immigration papers in order to save his marriage. However, the papers were never submitted. In fact, he came to know that the respondent herself had reached Canada on improper travel documents and, thus, could not apply for the appellant’s immigration. It is the further submission of the appellant that all stridhan was taken away by the respondent in April, 2001 itself. The appellant has alleged that the respondent was extremely suspicious and maligned his character in front of his colleagues on the basis of alleged liaisons with his colleagues.
6. The respondent naturally had her own version and claimed to have travelled to Canada to meet his insistence of immigrating to Canada, though she admitted that she had not taken any documents of the appellant with her to Canada. She, in fact, blamed the appellant of abandoning her and made various other allegations including of dowry, physical assault and extra-marital affairs. In respect of her continued stay in Canada she claims to have had an “insect bite”! In her testimony, she claims that an unconsented abortion took place when she was taken to a doctor, though it is an admitted position that she never made a complaint in respect thereof. The version of the appellant is different, i.e., that she was taken for general medical treatment, and was in fact never pregnant.

7. The Additional District Judge, Nawanshahr vide judgment and order dated 9.12.2009, granted a decree of
divorce against which an appeal was led before the High Court. The learned Single Judge vide impugned order dated 10.2.2011, however, set aside the decree of divorce.
8. We may note here that the trial court’s view was predicated on inter alia the continued character assassination by the respondent of the appellant, since she had neither been able to prove any extra-marital affair of the appellant, nor could she prove the factum of forcible termination of pregnancy.
9. The learned Single Judge of the High Court, however, framed six primary grounds to examine the case for
dissolution of marriage. It is the nding in the impugned order that while the parties did stay apart, no sense of anger could be made out to display any real discord between the parties herein; though there were adjustment issues. The learned Judge took note of the allegations regarding extra-marital affairs made by one another,including the allegation of having a child out of the wedlock, but came to the conclusion that serious imputation could not be attached to the same. The same were attributed to “inamed passions”, which resulted in these grave suggestions; but were opined to not knock down the fundamental walls of marriage. It was concluded that neither party had transgressed the limits in making imputations regarding each other’s extra-marital affairs and, thus,this would not constitute cruelty. The aspect of physical assault alleged by the parties was also said not to have been established.
10. Insofar as the aspect of irretrievable breakdown of the marriage is concerned, it was opined that since that did not form part of statutory law in India, that could not be treated as a ground.
11. It is relevant to note that at various times there were efforts made to mediate the dispute, which failed.
Multiple efforts have been made even by this Court, but to no avail. In a last ditch effort, the parties were referred to a counselor after one of us, with the consent of the parties, had taken the matter in chambers. The counselor/psychologist, however, opined that the separation of sixteen (16) years since 2003 had made both the parties bitter and cynical about the relationship and there was no sign of any affection or bonding on either side. The parties apparently had no history of pleasant time and only feelings of resentment arising from the several court cases. There was also no family support from either side. This would also be apparent, in our view, from the fact that there are stated to be multiple cases led by both set of family members against the opposite party.
12. We had, thus, no option but to hear the parties at some length. Despite our query of whether the respondent would like to be assisted by a counsel, she refused the same and wanted to address the Court personally, having acquired a law degree herself.
13. We have given our deep thought to the matter and to the discussions in the trial court judgment and the High Court judgment. Learned single Judge appears to have brushed aside the allegations of extra marital affairs as also of a child out of the wedlock as part of the wear and tear of marriage and as “inamed passions.” The fact, however, remains that the relationship appears to have deteriorated to such an extent that both parties see little good in each other, an aspect supported by the counselor’s report; though the respondent insists that she wants to stay with the appellant. In our view, this insistence is only to somehow not let a decree of divorce be passed against the respondent. This is only to frustrate the endeavour of the appellant to get a decree of divorce, completely losing sight of the fact that matrimonial relationships require adjustments from both sides, and a willingness to stay together. The mere say of such willingness would not sufce.
14. It is no doubt true that the divorce legislations in India are based on the ‘fault theory’, i.e., no party should take advantage of his/her own fault, and that the ground of irretrievable breakdown of marriage, as yet, has not been inserted in the divorce law, despite a debate on this aspect by the Law Commission in two reports.
15. We, however, nd that there are various judicial pronouncements where this Court, in exercise of its powers under Article 142 of the Constitution of India, has granted divorce on the ground of irretrievable breakdown of marriage; not only in cases where parties ultimately, before this Court, have agreed to do so but even otherwise.There is, thus, recognition of the futility of a completely failed marriage being continued only on paper.
16. We have noticed above that all endeavours have been made to persuade the parties to live together, which have not succeeded. For that, it would not be appropriate to blame one or the other party, but the fact is that nothing remains in this marriage. The counselor’s report also opines so. The marriage is a dead letter.

17. Much could be said about what the learned single Judge has observed as wear and tear of marriage and
“inamed passions”, but wisdom requires us to not traverse that same path, as we feel that, on the ground of
irretrievable breakdown of marriage, if this is not a t case to grant divorce, what would be a t case!
18. No doubt there is no consent of the respondent. But there is also, in real terms, no willingness of the parties,including of the respondent to live together. There are only bitter memories and angst against each other. This angst has got extended in the case of the respondent to somehow not permit the appellant to get a decree of divorce and “live his life”, forgetting that both parties would be able to live their lives in a better manner, separately, as both parties suffer from an obsession with legal proceedings, as reected from the submissions before us.
19. We may note that in a recent judgment of this Court, in R. Srinivas Kumar vs. R. Shametha (2019) 9 SCC 409 to which one of us (Sanjay Kishan Kaul, J.) is a party, divorce was granted on the ground of irretrievable breakdown of marriage, after examining various judicial pronouncements. It has been noted that such powers are exercised not in routine, but in rare cases, in view of the absence of legislation in this behalf, where it is found that a marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably. That was a case where parties had been living apart for the last twenty-two (22) years and a re-union was found to be impossible. We are conscious of the fact that this Court has also extended caution from time to time on this aspect, apart from noticing that it is only this Court which can do so, in exercise of its powers under Article 142 of the Constitution of India. If parties agree, they can always go back to the trial court for a motion by mutual consent, or this Court has exercised jurisdiction at times to put the matter at rest quickly. But that has not been the only circumstance in which a decree of divorce has been granted by this Court. In numerous cases, where a marriage is found to be a dead letter, the Court has exercised its extraordinary power under Article 142 of the Constitution of India to bring an end to it.
20. We do believe that not only is the continuity of this marriage fruitless, but it is causing further emotional
trauma and disturbance to both the parties. This is even reected in the manner of responses of the parties in the Court. The sooner this comes to an end, the better it would be, for both the parties. Our only hope is that with the end of these proceedings, which culminate in divorce between the parties, the two sides would see the senselessness of continuing other legal proceedings and make an endeavour to even bring those to an end.
21. The provisions of Article 142 of the Constitution provide a unique power to the Supreme Court, to do
“complete justice” between the parties, i.e., where at times law or statute may not provide a remedy, the Court can extend itself to put a quietus to a dispute in a manner which would bet the facts of the case. It is with this objective that we nd it appropriate to take recourse to this provision in the present case.
22. We are of the view that an end to this marriage would permit the parties to go their own way in life after
having spent two decades battling each other, and there can always be hope, even at this age, for a better life, if not together, separately.
23. We, thus, exercising our jurisdiction under Article 142 of the Constitution of India, grant a decree of divorce and dissolve the marriage inter se the parties forthwith.
24. The respondent is a qualied lawyer; she claims to have not gone back to her family in Canada, but stayed in India only to battle this litigation. The respondent is being paid Rs. 7,500 per month by the appellant. With a law degree she would be able to meet her needs better, though she claims that her sole concentration has been on the inter se dispute. Be that as it may, we are of the view that the maintenance of Rs. 7,500 per month should be continued to be paid by the appellant to the respondent, and it is open for the parties to move appropriate proceedings for either enhancement of this maintenance or reduction and cessation thereof. We only hope that this aspect can also be reconciled between the parties once a decree of divorce is granted.
25. The appeal is allowed leaving the parties to bear their own costs.

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Wife made several defamatory complaints to the superiors of the Husband’s in Army – Court of inquiry was held by the Army authorities against the husband – sufficient ground of mental cruelty – divorce can be granted.

SUPREME COURT OF INDIA
FULL BENCH
JOYDEEP MAJUMDAR — Appellant
Vs.
BHARTI JAISWAL MAJUMDAR — Respondent
( Before : Sanjay Kishan Kaul, Dinesh Maheshwari and Hrishikesh Roy, JJ. )
Civil Appeal Nos. 3786-3787 of 2020
Decided on : 26-02-2021
Important Point: Matrimonial Law – Restitution of conjugal rights – Wronged party
cannot be expected to continue with the matrimonial relationship.
A. Hindu Marriage Act, 1955 – Section 13(1) (ia) – Dissolution of marriage – Mental
cruelty by wife – Wife made several defamatory complaints to the superiors of the
Husband’s in Army – Court of inquiry was held by the Army authorities against the
husband – Wife also making complaints to other authorities, such as, the State
Commission for Women and has posted defamatory materials on other platforms –
Husband suffered adverse consequences in his life and career on account of the
allegations made by the wife, the legal consequences must follow and those cannot be
prevented only because, no Court has determined that the allegations were false – When
the reputation of the spouse is sullied amongst his colleagues, his superiors and the
society at large, it would be difficult to expect condonation of such conduct by the
affected party – Explanation of the wife that she made those complaints in order to
protect the matrimonial ties would not justify the persistent effort made by her to
undermine the dignity and reputation of the husband – Wronged party cannot be
expected to continue with the matrimonial relationship and there is enough justification
for him to seek separation – High Court was in error in describing the broken
relationship as normal wear and tear of middle class married life – It is a definite case of
cruelty inflicted by the wife against the husband and as such enough justification is
found to set aside the impugned judgment of the High Court and to restore the order
passed by the Family Court – Husband is accordingly held entitled to dissolution of his
marriage and consequently the wife’s application for restitution of conjugal rights
stands dismissed – It is ordered accordingly.
B. Hindu Marriage Act, 1955 – Section 13(1) (ia) – Dissolution of marriage – Mental
cruelty – Result of such mental cruelty must be such that it is not possible to continue
with the matrimonial relationship – In other words, the wronged party cannot be
expected to condone such conduct and continue to live with his/her spouse – Degree of
tolerance will vary from one couple to another and the Court will have to bear in mind
the background, the level of education and also the status of the parties, in order to
determine whether the cruelty alleged is sufficient to justify dissolution of marriage, at
the instance of the wronged party.
Counsel for Appearing Parties
Mr. Gopal Sankaranarayanan, Sr. Advocate, Mr. Gaurav Goel, Advocate, Mr. Gaurav Gupta, Advocate,
Mr. Rook Ray, Advocate, Mr. Aakash Khattar, Advocate, Mr. Rajesh Kumar, Advocate, for the Appellant;
Mr. Ahmad Ibrahim, Advocate, Mr. S. K. Verma, Advocate, for the Respondent.
Cases Referred
Samar Ghosh Vs. Jaya Ghosh, (2007) 4 SCC 511
JUDGMENT
Hrishikesh Roy, J. – Heard Mr. Gopal Sankaranarayanan, the learned Senior Counsel appearing for
the appellant (Husband). Also heard Mr. Ahmad Ibrahim, learned counsel appearing for the
respondent (Wife).
2. The challenge in these appeals is to the analogous judgment and order dated 25.6.2019 in the First
Appeal No. 81 of 2017 and First Appeal No. 82 of 2017 whereby the High Court of Uttarakhand had
allowed both appeals by reversing the common order dated 4.7.2017 of the Family Court, Dehradun.
Before the Family Court, the appellant succeeded with his case for dissolution of marriage but the
respondent failed to secure a favourable verdict in her petition for restitution of conjugal rights.
3. The appellant is an Army Officer with M.Tech qualification. The respondent is holding a faculty
position in the Government P G College, Tehri with Ph.d degree. They got married on 27.9.2006 and
lived together for few months at Vishakhapatnam and at Ludhiana. But from the initial days of
married life, differences cropped up and since 15.9.2007, the couple have lived apart.
4. Following the estrangement, the appellant earlier applied for divorce from the Family Court at
Vishakhapatnam. The respondent then filed a petition against the respondent in the Dehradun Court
for restitution of conjugal rights. Later, when she learnt of the case filed by the appellant at
Vishakhapatnam, the respondent filed Transfer Petition (C) No. 1366/2011 before this Court. The
appellant appeared before the Supreme Court and stated that the case at Vishakhapatnam would be
withdrawn. This Court then recorded the following order:
“Counsel for the respondent states that the respondent would withdraw his petition pending
before the Family Court at Visakhapatnam, Andhra Pradesh and in case he has to file any
petition seeking any relief against the petitioner (his estranged wife), he will file the petition
only before the proper Court at Dehradun, Uttarakhand.
In view of the statement made at the Bar, the petitioner is left with no grievance.
The transfer petition is disposed of.
We may, however, observe that in case the respondent files a petition at Dehradun, the
Dehradun Court shall take it up and dispose it of expeditiously and without any undue loss of
time.”

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5. In the divorce proceeding, the appellant pleaded that he was subjected to numerous malicious
complaints by the respondent which have affected his career and loss of reputation, resulting in
mental cruelty. On the other hand, the respondent in her case for restitution of conjugal rights
contended that the husband without any reasonable cause had deserted her and accordingly she
pleaded for direction to the appellant, for resumption of matrimonial life.
6. The Family Court at Dehradun analogously considered both cases. The learned judge applied his
mind to the evidence led by the parties, the documents on record and the arguments advanced by the
respective counsel and gave a finding that the respondent had failed to establish her allegation of
adultery against the husband. It was further found that the respondent had subjected the appellant to
mental cruelty with her complaints to the Army and other authorities. Consequently, the Court
allowed the appellant’s suit for dissolution of marriage and simultaneously dismissed the respondent’s
petition for restitution of conjugal rights.
7. The aggrieved parties then filed respective First Appeals before the Uttarakhand High Court. On
consideration of the pleadings and the issues framed by the trial Court, the High Court noted that
cruelty is the core issue in the dispute. The Court then proceeded to examine whether the wife with
her complaints to various authorities including the Army’s top brass, had treated the appellant with
cruelty to justify his plea for dissolution of marriage. While it was found that the wife did write to
various authorities commenting on the appellant’s character and conduct, the Division Bench opined
that those cannot be construed as cruelty since no court has concluded that those allegations were
false or fabricated. According to the Court, the conduct of the parties against each other would at best
be squabbles of ordinary middle class married life. Accordingly, the High Court set aside the decree
for dissolution of marriage and allowed the respondent’s suit for restitution of conjugal rights, under
the impugned judgment.
8. Challenging the High Court’s decision, Mr. Gopal Sankaranarayanan, the learned Senior Counsel
highlights that the respondent had filed a series of complaints against the appellant before the
superior officers in the Army upto the level of the Chief of Army Staff and to other authorities and
these complaints have irreparably damaged the reputation and mental peace of the appellant. The
appellant cannot therefore be compelled to resume matrimonial life with the respondent, in the face
of such unfounded allegations and cruel treatment. Moreover, matrimonial life lasted only for few
months and the couple have been separated since 15.9.2007 and after all these years, restitution
would not be justified or feasible.
9. Per contra, Mr. Ahmad Ibrahim, the learned counsel submits that the respondent is keen to resume
her matrimonial life with the appellant. According to the counsel, the respondent wrote letters and
filed complaints only to assert her legal right as the married wife of the appellant and those
communications should therefore be understood as efforts made by the wife to preserve the marital
relationship. It is further contended that only because the appellant had filed the divorce case before
the Vishakhapatnam Court and had obtained an ex-parte order, the respondent was constrained to
write to various authorities to assert her right as the legally wedded wife of the appellant.
10. For considering dissolution of marriage at the instance of a spouse who allege mental cruelty, the
result of such mental cruelty must be such that it is not possible to continue with the matrimonial
relationship. In other words, the wronged party cannot be expected to condone such conduct and
continue to live with his/her spouse. The degree of tolerance will vary from one couple to another
and the Court will have to bear in mind the background, the level of education and also the status of
the parties, in order to determine whether the cruelty alleged is sufficient to justify dissolution of
marriage, at the instance of the wronged party. In Samar Ghosh vs. Jaya Ghosh, (2007) 4 SCC 511,
this Court gave illustrative cases where inference of mental cruelty could be drawn even while
emphasizing that no uniform standard can be laid down and each case will have to be decided on its
own facts.

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11. The materials in the present case reveal that the respondent had made several defamatory
complaints to the appellant’s superiors in the Army for which, a Court of inquiry was held by the
Army authorities against the appellant. Primarily for those, the appellant’s career progress got
affected. The Respondent was also making complaints to other authorities, such as, the State
Commission for Women and has posted defamatory materials on other platforms. The net outcome of
above is that the appellant’s career and reputation had suffered.
12. When the appellant has suffered adverse consequences in his life and career on account of the
allegations made by the respondent, the legal consequences must follow and those cannot be
prevented only because, no Court has determined that the allegations were false. The High Court
however felt that without any definite finding on the credibility of the wife’s allegation, the wronged
spouse would be disentitled to relief. This is not found to be the correct way to deal with the issue.
13. Proceeding with the above understanding, the question which requires to be answered here is
whether the conduct of the respondent would fall within the realm of mental cruelty. Here the
allegations are levelled by a highly educated spouse and they do have the propensity to irreparably
damage the character and reputation of the appellant. When the reputation of the spouse is sullied
amongst his colleagues, his superiors and the society at large, it would be difficult to expect
condonation of such conduct by the affected party.
14. The explanation of the wife that she made those complaints in order to protect the matrimonial
ties would not in our view, justify the persistent effort made by her to undermine the dignity and
reputation of the appellant. In circumstances like this, the wronged party cannot be expected to
continue with the matrimonial relationship and there is enough justification for him to seek
separation.
15. Therefore, we are of the considered opinion that the High Court was in error in describing the
broken relationship as normal wear and tear of middle class married life. It is a definite case of
cruelty inflicted by the respondent against the appellant and as such enough justification is found to
set aside the impugned judgment of the High Court and to restore the order passed by the Family
Court. The appellant is accordingly held entitled to dissolution of his marriage and consequently the
respondent’s application for restitution of conjugal rights stands dismissed. It is ordered accordingly.
16. With the above order, the appeals stand disposed of leaving the parties to bear their own cost.