Monthly Archives: December 2016

Divorce by Mutual Consent – Procedure therefor

Sub-section (2) of Section 13-B of the Hindu Marriage Act apparently is procedural in nature which provides that in case any such application by both the parties is made under Section 13-B(1) and the petition is not withdrawn not earlier than six months after the date of presentation of such petition and not later than 18 months after the said date, the court shall pass a decree of divorce declaring the marriage to be dissolved. However, the court while passing such a decree has to be satisfied, after hearing the parties and after making such inquiry as it thinks fit, as to fact that marriage has been solemnized and that the averments in the petition for divorce by mutual consent are correct. To conduct the inquiry for the purposes of finding the averments made in the application to be correct, Section 13-B (2) provides that the parties are to be heard by the court.
The relevant phrase occurring in sub-section (2) of Section 13-B is after hearing the parties. Since the provisions of Section 13-B relate to separation by divorce by mutual consent, as such in all such matters, ordinarily ‘hearing the parties’ would mean hearing the parties in person. In other words while making inquiry as contemplated in sub-section (2) of Section 13-B, the court concerned has to personally interact with the parties which makes it almost mandatory for the parties to be personally present before the court. Kanwaljeet Sachdev v. State of U.P., 2016 (119) ALR 600.

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Impossibility of – Consummation of Marriage

In Yuvraj Digvijay Sinhji v. Yuvrani Pratap Kumari, (1969) 2 SCC 279, the Hon’ble Apex Court held as under:
“A party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility. The condition must be one, according to the statute, which existed at the time of the marriage and continued to be so until the institution of the proceedings. In order to entitle the appellant to obtain a decree of nullity, he will have to establish that his wife, was impotent at the time of marriage and continued to be so until the institution of the proceedings.”Smt. Sulekha v. Ashok Kumar, 2016 (119) ALR 555.

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Fraud – Arbitrability of

“Fraud” is a knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his detriment. Fraud can be of different forms and hues. Its ingredients are an intention to deceive, use of unfair means, deliberated concealment of material facts, or abuse of position of confidence. The Black’s Law Dictionary defines “fraud” as a concealment or false representation through a statement or conduct that injures another who relies on it.

The issue of arbitrability of fraud has arisen on numerous occasions and there exist conflicting decisions of the Apex Court on this issue. While it has been held in Bharat Rasiklal Ashra v. Gautam Rasiklal Ashra, (2012) 2 SCC 144 that when fraud is of such a nature that it vitiates the arbitration agreement, it is for the court to decide on the validity of the arbitration agreement by determining the issue of fraud, there exists two parallel lines of judgments on the issue of whether an issue of fraud is arbitrable. In this context, a two Judge Bench of the Supreme Court while adjudicating on an application under section 8 of the Arbitration and Conciliation Act, 1996 in N. Radhakrishnan v. Maestro Engineers, (2010) 1 SCC 72, held that an issue of fraud is not arbitrable. The decision was ostensibly based on the decision of the three Judge Bench of the Supreme Court in Abdul Kadir Shamsuddin Bubere v. Madhav Prabhakar Oak, AIR 1962 SC 406. However, the said three Judge Bench decision (which was based on the finding in Russel v. Russel, (1880) LR 14 Ch D 471) is only an authority for the proposition that a party against whom an allegation of fraud is made in a public forum, has a right to defend himself in that public forum.

A distinction has also been made by certain High Courts between a serious issue of fraud and a mere allegation of fraud and the former has been held to be not arbitrable. The Supreme Court in Meguin GmbH v. Nandan Petrochem Ltd., (2016) 10 SCC 422 in the context of an application filed under Section 11 has gone ahead and appointed an arbitrator even though issues of fraud were involved. A. Ayyasamy v. A. Parmasivam, (2016) 10 SCC 386.

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