Divorce by Mutual Consent – Maintainability of Appeal

The first part of Section 13-B of the Hindu Marriage Act contemplates for presentation of petition for dissolution of marriage by mutual consent by both the parties to the marriage, if they are living separately for a period of one year or more and have agreed to the dissolution of the marriage. The second part of Section 13-B of the Hindu Marriage Act has two sub – parts. The first sub-part provides for moving a motion by both the parties not earlier than six months from the date of presentation of the divorce petition and not later than eighteen months of the said date. In other words, it contemplates initiation of the second motion by both the parties after expiry of six months but before the expiry of eighteen months from the date of presenting petition for divorce.

The second sub-part contemplates that if the petition is not withdrawn in the meantime, the court shall, on being satisfied after hearing the parties and after making inquiries that the averments in the petition are true, pass a decree for divorce.

In the case of Hitesh Bhatnagar v. Deepa Bhatnagar, 2011 (86) ALR 491, the Hon’ble Supreme Court has held that if the second motion is not made within period of eighteen months of the first motion petition, then court is not bound to pass a decree of divorce by mutual consent. The aforesaid time limit is not for withdrawal of the petition or consent, rather consent can be withdrawn at any t ime before a decree of divorce is passed.

In the case of Smt. Sureshta Devi v. Om Prakash, 1991 (17) ALR 263, it has been laid down that on the joint motion of the parties to grant divorce by mutual consent the Court is supposed to make an inquiry, hear and examine both the parties to ascertain that the consent of the parties has not been obtained by force, fraud or undue influence.

Section 23(1)(bb) of the Hindu Marriage Act also casts an obligation upon the courts in the matter of divorce by mutual consent to satisfy itself that the consent has not been obtained by force, fraud or undue influence. Thus , the court is obliged to make requisite inquiry in the matter before proceeding to pass a decree of divorce by mutual consent.

It means that for a decree of divorce by mutual consent joint petition is mandatory and that the second motion has to be made by the parties after six months but before expiry of eighteen months of the first motion petition and that the parties are free to withdraw the petition anytime before the passing of the decree. The decree has to be passed after making due inquiry as to the genuineness and bona fide of the parties to the petition.

Section 28 of the Hindu Marriage Act which permitted filing of appeal against the decrees and orders passed under the Act placed no rider on filing appeal even against a consent decree. It permitted appeal against all decrees made by the court in any proceedings under the Act, except those relating to award of costs. Thus, by necessary implication, even consent or compromise decree, if passed under the Hindu Marriage Act are open to appeal.

In Smt. Krishna Khetrapal v. Satish Lal, AIR 1987 P&H 191, it has been held that against the decree of divorce by mutual consent appeal is maintainable under Section 28 of the Hindu Marriage Act. Smt. Pooja v. Vijay Chaitanya, 2018 (129) ALR 711.

 

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Interest – Meaning of

In Halsbury’s Laws of England, 4th Edition, Vol. 32, “interest” has been defined as follows:

“127. Interest in General.—Interest is the return or compensation for the use or retention by one person of a sum of money belonging to or owed to another. Interest accrues from day to day even if payable only at intervals, and is, therefore, apportionable in respect of time between persons entitled in succession to the principal.”

 

According to Law Lexicon, by P.Ramanatha Aiyar, 3rd Edition (2005) Vol. 2:

“Interest” means the time value of the funds or money involved, which unless otherwise agreed, is calculated at the rate and on the basis customarily accepted by the banking community for the funds of money involved.”

 

In Words and Phrases Permanent Edition, Vol. 22, P. 148, “interest” means:

(i) “Interest” is compensation for loss of use of principal. Jersey City v. Zink, 44 A 2d 825 : 133 NJ Law 437 (1945).

(ii) “Interest” means compensation for the use or forbearance of money. Commr. of Internal Revenue v. Meyer, 139 F 2d 256 (6th Cir 1943).

 

Black’s Law Dictionary, 6th Edition. (p. 812) defines “interest” as:

For use of money.—Interest is the compensation allowed by law or fixed by the parties for the use or forbearance of borrowed money. Jones v. Kansas Gas and Electric Company, 222 Kan 390 : 565 P 2d 597 (1977).

 

There is no manner of doubt that normally a person would be entitled to interest for the period he is deprived of the use of money and the same is used by the person with whom the money is lying. State of Karnataka v. Karnataka Pawn Brokers Association, (2018) 6 SCC 363.

   

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Misconduct – Possession of Pecuniary Resources

A public servant charged of criminal misconduct thereunder has to be proved by the prosecution to be in possession of pecuniary resources or property disproportionate to his known sources of income, at any time during the period of his office. Such possession of pecuniary resources or property disproportionate to his known sources of income maybe his or of anyone on his behalf as the case may be. Further, he would be held to be guilty of such offence of criminal misconduct, if he cannot satisfactorily account for such disproportionate pecuniary resources or property. The Explanation to Section 13(1)(e) of the Prevention of Corruption Act elucidates the words “known sources of income” to mean income received from any lawful source and that such receipt has been intimated in accordance with the provisions of law, rules, orders for the time being applicable to a public servant.

From the design and purport of clause (e) of sub-section (1) to Section 13, it is apparent that the primary burden to bring home the charge of criminal misconduct thereunder would be indubitably on the prosecution to establish beyond reasonable doubt that the public servant either himself or through anyone else had at anytime during period of his office been in possession of pecuniary resources or property disproportionate to his known sources of income and it is only on the discharge of such burden by the prosecution, if he fails to satisfactorily account for the same, he would be in law held guilty of such offence. In other words, in case the prosecution fails to prove that the public servant either by himself or through anyone else had at any time during the period of his office been in possession of pecuniary resources or property disproportionate to his known sources of income, he would not be required in law to offer any explanation to satisfactorily account therefor. A public servant facing such charge, cannot be comprehended to furnish any explanation in the absence of the proof of the allegation of being in possession by himself or through someone else, of pecuniary else, of pecuniary resources of property disproportionate to his known sources of income. Vasant Rao Guhe v. State of M.P., (2017) 14 SCC 442.

 

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Food Adulteration – Compliance of Mandatory Provisions

The provisions of Section 10 (7) of the Prevention of Food Adulteration Act (similar to Section 38(7) of the Food Safety and Standards Act) are mandatory. It is obligatory under Section 10 (7) of the PFA to call for one or more independent witnesses. Only if the independent witnesses are not ready to corroborate the version of the Food Inspector will he be relieved from the compliance of the mandatory provision of Section 10 (7) of the PFA. Radhey Shyam v. State of U.P., 2018 (104) ACC 70.

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Term “Interlocutory Order” – Meaning of

In Mohan Lal Magan Lal Thacker v. State of Gujarat, AIR 1968 SC 733 it was held as under:

“The term interlocutory order is a term of well known legal significance and does not present any serious difficulty. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts and other like Statutes. In Webster’s New World Dictionary “interlocutory” has been defined as an order other than final decision. Decided cases have laid down that interlocutory orders to be appealable must be those which decide the right and liabilities of the parties concerning a particular aspect. The term interlocutory order in Section 397 (2) of the CRPC has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the rights of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order. Yogish Arora v. Smt. Jennette Yogish Arora, 2018 (129) ALR 339.

 

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“Next Friend” and “Guardian ad litem” – Difference Between

 

The only practical difference between a “next friend” and a “guardian ad litem” that the next friend is a person who represents a minor who commences a lawsuit; guardian ad litem is a person appointed by the court to represent a minor who has been a defendant in the suit. Before a minor commences suit, a conscious decision is made concerning the deserving adult (next friend) through whom the suit will be instituted. The guardian ad litem is appointed by court and whereas the next friend is not. The next friend and guardian ad litem possess similar powers and responsibilities. Both are subject to control by the Court and may be removed by the Court if the best interest of the minor so requires. Nagaiah v. Smt. Chowdamma, 2018 (129) ALR 285.

 

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Appointment Obtained – Fraudulently

Fraudulently obtained order of appointment or approval can be recalled by the authority concerned. In such cases, merely because the employee continued in service for a number of years, on the basis of fraudulently obtained order, cannot get any equity in his favour or any estoppels against the employer/authority. When appointment or approval has been obtained by a person on the basis of forged documents, it would amount to misrepresentation and fraud on the employer. It would create no equity in his favour or any estoppel against the employer to cancel such appointment or approval since “Fraud and justice never dwell together.” Committee of Management v. State of U.P., (2018) 1 UPLBEC 610.

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