Category Archives: Criminal Law

Annulment of Marriage – Concealment of Material Facts

On a careful reading of Clause (c) of Section 12(1) of the Hindu Marriage Act, 1955, it will appear that both the parties, in case of adult, are obliged to divulge mutually and unequivocally the material fact or circumstances to each other before or at least at the time of marriage so much so that element of deception is ruled out. The words material facts or circumstances have not been defined or specified. It varies from one family to another, according to culture, ethos and social system in ages and situation. For example in a conservative family having attachment with puritan society in a marriage inevitable and unerring expectation is that both the bride and the groom must not have any record of prior marriage in any sense nor will have any marriage in any sense, not even any premarital affairs with other boy or girl (as the case may be). They cannot think of even marrying outside their caste and community, conversely , a family with liberal and cosmopolitan approach, thought, particularly in urban area will not mind in case of marriage even having knowledge of background of prior marriage or premarital affair with other counter sex outside their caste and community. In case of former, concealment of caste, community or background of prior marriage or premarital affairs before or at the time of marriage is obviously extremely material and it amounts to fraud in obtaining consent.

            In the case of Saswati Chattopadhyay v. Avik Chattopadhyay, (2011) 3 ICC 51, the husband was not informed about the earlier marriage at the time of negotiation or at the time of solemnization of the marriage. On inquiry, the husband came to know that there had been previous marriage of the appellant with one Sudip and it was also discovered that the earlier marriage was dissolved by consent. When the matter reached to the Family Court, it came to the conclusion that there has been suppression of the relevant fact with regard to the premarital status of the appellant and such relevant fact goes to the root of the matrimonial relationship. On an appeal, the Calcutta High court endorsed the view taken by the trial court and observed that premarital status of a party is a material fact which the other party must know before imparting consent for marriage. Pradeep Kumar Maheshwari v. Smt. Anita Agarwal, 2019 (2) AWC 1369.     

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Order for – Interim Maintenance

An order under Section 24 of the Hindu Marriage Act, 1955 does not decide in any manner rights and liabilities of the parties raised in matrimonial petition. The lis in matrimonial petition continues even after disposal of the application under Section 24 of the Act, 1955 as the object of the provision is to enable the indigent, weaker spouse to resist the action of others and to maintain himself or herself, as the case may be. The maintenance awarded under Section 24 of the Act, therefore, can only be said to be an interim maintenance, which would be payable during the continuance of the substantive proceedings under the Act. However, with the termination of the said proceedings, the order under Section 24 of the Act, will lose its efficacy. That means that the said order cannot inure after termination of petition.

       Further, that no appeal shall lie against an interlocutory order under Section 19(1) of the Family Courts Act, 1984, the appeal filed against the order under Section 24 of the Hindu Marriage Act, 1955 cannot be said to be in continuation of the original proceedings. Smt. Madhu Mishra v. Prem Kumar Mishra, 2019 (1) AWC 761.

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Second Marriage – When Permissible during Pendency of Appeal

Section 15 of the Hindu Marriage Act provides that it shall be lawful for either party to marry again after dissolution of a marriage, if there is no right of appeal against the decree. A second marriage by either party shall be lawful only after dismissal of an appeal against the decree of divorce, if filed. If there is no right of appeal the decree of divorce remains final and that either party to the marriage is free to marry again. In case an appeal is presented, any marriage before dismissal of the appeal shall not be lawful. The object of the provision is to provide protection to the person who has filed an appeal against the decree of dissolution of marriage and to ensure that the said appeal is not frustrated. The purpose of Section 15 of the Act is to avert complications that would arise due to a second marriage during the pendency of the appeal, in case the decree of dissolution of marriage is reversed. The protection that is afforded by Section 15 is primarily to a person who is contesting the decree of divorce.

       In case during the pendency of the appeal, there is a settlement between the husband and wife, and after entering into a settlement, he does not intend to contest the decree of divorce, his intention can be made clear by filing an application for withdrawal. In that case, he does not have to wait till a formal order is passed in the appeal or otherwise his marriage is unlawful. Following the principles of purposive construction, it was held that the restriction placed on a second marriage in Section 15 of the Hindu Marriage Act, till the dismissal of an appeal, would not apply to a case where parties have settled and decided not to pursue the appeal. Anurag Mittal v. Mrs. Shaily Mishra Mittal, 2019 (132) ALR 725.

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Cruelty – Levelling False Allegations

Cruelty can never be defined with exactitude. What is cruelty will depend upon the facts and circumstances of each case. In case the wife makes reckless, defamatory and false accusations against her husband, his family members and colleagues, which would definitely have the effect of lowering his reputation in the eyes of his peers. Mere filing of complaints is not cruelty, if there are justifiable reasons to file the complaints. Merely because no action is taken on the complaint or after trial the accused is acquitted may not be a ground to treat such accusations of the wife as cruelty within the meaning of the Hindu Marriage Act,1955. However, if it is found that the allegations are patently false, then there can be no manner of doubt that the said conduct of a spouse leveling false accusations against the other spouse would be an act of cruelty. Raj Talreja v. Kavita Talreja, 2017 (123) ALR 835.

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Filed under cruelty, Matrimonial Cruelty, Matrimonial Dispute

Disclosure Regarding Previous Marriage

      On a careful reading of Clause (c) ofSection 12(1) of the Hindu Marriage Act, it will appear that both the partiesin case of adult are obliged to divulge mutually and unequivocally the materialfact or circumstances to each other before or at least at the time of marriageso much so that element of deception is ruled out. The words material fact orcircumstances have not been defined or specified. It varies from one family toanother, according to culture, ethos and social system in ages and situation.For example in a conservative family having attachment with puritan society ina marriage inevitable and unerring expectation is that both the bride and groommust not have any record of prior marriage in any sense nor will have anymarriage in any sense, not even any premarital affairs with other boy or girl(as the case may be). They cannot think of even marrying outside their caste andcommunity, conversely, a family with liberal and cosmopolitan approach, thought,particularly in urban area will not mind in case of marriage even havingknowledge of background of prior marriage or premarital affair with other sexoutside their caste and community. In case of former, concealment of caste,community or background of prior marriage or premarital affairs before or atthe time of marriage is obviously extremely material and it amounts to fraud inobtaining consent.

       In the case of Saswati Chattopadhyaya v. Avik Chattopadhyaya, (2011) 3 ICC 51, the husband was not informed about the earlier marriage at the time of negotiation or at the time of solemnization of marriage. On inquiry, the husband came to know that there had been previous marriage of the appellant with one Sudip and it was also discovered that the earler marriage was dissolved by consent. When the matter reached the family court, it came to the conclusion that there has been suppression of the relevant fact with regard to the premarital status of the appellant and such relevant fact goes to the root of the matrimonial relationship. Pradeep Kumar Maheshwari v. Smt. Anita Agarwal, 2018 (131) ALR 566.

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Long Separation – Relevant for Dissolution of Marriage

In Smt. Arti Pandey v. Vishnu Kant Tiwari, 2012 (95) ALR 494, it was held that when the wife had shown no inclination to continue with the matrimonial bond, long separation would be a relevant ground in considering a plea for dissolution of marriage. The court can also not be oblivious of the serious allegations leveled by the husband against the wife. Whether or not allegation of adultery is established on the basis of evidence, the fact remains that the respect for each other is seriously dented. There is a clear rupture of matrimonial bond between the parties, and it would be unjust to insist upon the parties to continue with marriage, in such circumstances. Mamta Singh v. Lakshman Singh¸2018 (131) ALR 137.

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Anti-Suit Injunctions

Anti-suit injunctions are meant to restrain a party to a suit/proceeding from instituting or prosecuting a case in another court, including a foreign court. Simply put, an anti-suit injunction is a judicial order restraining one party from prosecuting a case in another court outside its jurisdiction. The principles governing grant of injunction are common to that of granting anti-suit injunction. The cases of injunction are basically governed by the doctrine of equity.

      It is a well settled law that the courts in India have power to issue anti-suit injunction to a party over whom it has personal jurisdiction, in an appropriate case. However, before passing the order of anti-suit injunction, courts should be very cautious and careful, and it should be granted sparingly and not as a matter of routine as such orders involve a court impinging on the jurisdiction of another court, which is not entertained very easily specially when it restrains the parties from instituting or continuing a case in a Foreign Court.

      In Modi Entertainment Network v. W.S.G. Cricket P.T.E. Ltd., (2003) 4 SCC 341, it was held that the courts in India like courts in England are courts of law and equity. The principles governing the grant of anti-suit injunction being essentially an equitable relief; the courts in India have the powers to issue anti-suit injunction to a party over whom it has personal jurisdiction in an appropriate case; this is because the courts of equity exercise jurisdiction in personam; this power has to be exercised sparingly where such an injunction is sought and if not granted, it would amount to the defeat of ends of justice and injustice would be perpetuated.

      In Vivek Rai Gupta v. Niyati Gupta, Civil Appeal No. 1123 of 2006, decided on 10.02.2016, it was held as under:

      “If the execution proceedings are filed by the respondent-wife for executing the aforesaid decree dated 18.09.2012 passed by the Court of Common Pleas. Cuyahoga Country, Ohio, U.S.A. against any other movable/immovable property in India it would be open to the appellant-husband to resist the said execution petition on any grounds available to him in law taking the position that such a decree is not executable.”

      Further, in Harmeeta Singh v. Rajat Taneja, 2003 (67) DRJ 58, the Delhi High Court considering the fact that the parties have lived together for a very short time in the United States of America had granted anti-suit injunction.

      In Y. Narasimha Rao v. Y. Venkata Lakshmi, (1991) 3 SCC 451, it was laid down as under:

      “From the aforesaid discussion the following rule can be deuced for recognizing a foreign matrimonial judgment in the country. The jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may be as follows: (i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.” Dinesh Singh Thakur v. Sonal Thakur, 2018 (5) AWC 4487.

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