Category Archives: Family Law

Appeal from Decree of Divorce – Filed beyond expiry of period of Limitation

As held by the Hon’ble Supreme  Court in Anurag Mittal v. Shaily Mishra Mittal reported in (2018) 9 SCC 691, the object of Section 15 of Hindu Marriage Act is to provide protection to the person who had filed an appeal against the decree of dissolution of marriage and to ensure that such appeal was not frustrated. The protection afforded by Section 15 is primarily to a person contesting the decree of divorce. It was held as under:—

“It is necessary to state how the question before us has already been settled by the decision in Lila Gupta v. Laxmi Narain, (1978) 3 SCC 258. Even when the words of the proviso were found to be prohibitory in clear negative terms — “it shall not be lawful”, etc., the Hon’ble Court held that the incapacity to marry imposed by the proviso did not lead to an inference of nullity, vide para 9 of  Lila Gupta v. Laxmi Narain, (1978) 3 SCC 258. It is all the more difficult to infer nullity when there is no prohibition; where there are no negative words but on the other hand positive words like “it shall be lawful”. Assuming that a marriage contracted before it became lawful to do so was unlawful and the words create a disability, it is not possible to infer a nullity or voidness vide paras 9 and 10 of Lila Gupta case…

“………. What is held in essence is that if a provision of law prescribes an incapacity to marry and yet the person marries while under that incapacity, the marriage would not be void in the absence of an express provision that declares nullity. Quae incapacity imposed by statute, there is no difference between an incapacity imposed by negative language such as “it shall not be lawful” or an incapacity imposed by positive language like “it shall be lawful (in certain conditions, in the absence of which it is impliedly unlawful)”. It would thus appear that the law is already settled by the Court that a marriage contracted during a prescribed period will not be void because it was contracted under an incapacity. Obviously, this would have no bearing on the other conditions of a valid marriage.”

In Leela Gupta v. Laxmi Narain reported in (1978) 3 SCC 258, it was held thus:

“…..the interdict of law is that it shall not be lawful for a certain party to do a certain thing which would mean that if that act is done it would be unlawful. But whenever a statute prohibits a certain thing being done thereby making it unlawful, without providing consequence for the breach, it is not legitimate to say that such a thing when done is void because that would tantamount to saying that every unlawful act is void.”

“….Merely because each one of them is prohibited from contracting a second marriage for a certain period, it could not be said that despite there being a decree of divorce for certain purposes the first marriage subsists or is presumed to subsist…….. An incapacity for second marriage for a certain period does not have effect of treating the former marriage as subsisting…..”

“Thus, examining the matter from all possible angles and keeping in view the fact that the scheme of the Act provides for treating certain marriages void and simultaneously some marriages which are made punishable yet not void and no consequences having been provided for in respect of the marriage in contravention of the proviso to Section 15, it cannot be said that such marriage would be void”

In any case, the bar of Section 15 of Hindu Marriage act is not at all attracted where the appeal from the decree of divorce had been filed almost a year after expiry of the period of limitation for filing an appeal. Section 15 permits a marriage after dissolution of a marriage if there is no right of appeal against the decree, or even if there is such a right to appeal, the time of appealing has expired without an appeal having been presented, or the appeal has been presented but has been dismissed. The bar, if any, under Section 15 of the Hindu Marriage Act applies only if there is an appeal filed within the period of limitation, and not afterwards upon condonation of delay in filing an appeal unless of course, the decree of divorce is stayed or there is an interim order of Court, restraining the parties or any of them from remarrying during the pendency of the appeal. Krishnaveni Rai v. Pankaj Rai, Cr. Appeal No. 321 of 2020 (Arising Out of SLP (Cri) No. 7903 of 2019).

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Family Settlement – Should Be Enforced

Hon’ble Supreme Court in the case of Kale v. DDC, 1976 RD 355 (SC), has observed that family settlements or arrangements are governed by a special equity and should be enforced if they are honestly made. It has further been observed that ordinarily the courts would lean in favour of family arrangements and technical or trivial grounds are to be overlooked and further that Rule of estoppel is to be pressed into service to prevent unsettling of a settled dispute. The said observations have been made by the Hon’ble Supreme Court by recognizing the virtue of family settlement amongst members of a family descending from a common ancestor as such members by entering into family settlement make an attempt to bury their differences and resolve the conflicts or claims or disputes in titles once for all in order to buy peace of mind and to bring harmony and goodwill in the family. In Bhagwan Krishan Gupta (2) v. Prabha Gupta, 2009 (107) RD 66, wherein it has been held that when there is a family settlement, evidently, technicalities in the matter of construction should not be insisted upon. Ram Asrey v. DDC, 2020 (146) RD 32.

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Daughter – Coparcener by Birth

The law relating to a Joint Hindu Family governed by the Mitakshara law has undergone unprecedented changes. The said changes have been brought forward to address the growing need to merit equal treatment to the nearest female relatives, namely, daughters of a coparcener. The section stipulates that a daughter would be a coparcener from her birth, and would have the same rights and liabilities as that of a son. The daughter would hold property to which she is entitled as a coparcenary property, which would be construed as property being capable of being disposed of by her either by a will or any other testamentary disposition. These changes have been sought to be made on the touchstone of equality, thus seeking to remove the perceived disability and prejudice to which a daughter was subjected. The fundamental changes brought forward about in the Hindu Succession Act, 1956 by amending it in 2005, are perhaps a realisation of the immortal words of Roscoe Pound as appearing in his celebrated treaties, The Ideal Element in Law, that “the law must be stable and yet it cannot stand still. Hence all thinking about law has struggled to reconcile the conflicting demands of the need of stability and the need of change”.

Section 6 of the Hindu Succession Act, as amended, stipulates that on and from the commencement of the amended Act, 2005, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. It is apparent that the status conferred upon sons under the old section and the old Hindu Law was to treat them as coparceners since birth. The amended provision now statutorily recognises the rights of coparceners of daughters as well since birth. The section uses the words in the same manner as the son. It should therefore be apparent that both the sons and the daughters of a coparcener have been conferred the right of becoming coparceners by birth. It is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener become coparceners by virtue of birth. Devolution of coparcenary property is the later stage of and a consequence of death of a coparcener. The first stage of a coparcenary is obviously its creation and is well recognised. One of the incidents of coparcenary is the right of a coparcener to seek a severance of status. Hence, the rights of coparceners emanate and flow from birth (now including daughters) as is evident from sub-sections (1)(a) and (b). Danamma v. Amar, (2018) 3 SCC 343

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Divorce Proceedings – Abuse of Process of Court

The intention of the legislation is at least to consider the rival contentions of the parties to matrimony and when there is sufficient material on record to show that the ingredients under Section 13 of the Hindu Marriage Act are made out, and under the given circumstances there is cruelty, the Court should either make effort to settle the dispute or relationship has to be brought to a complete end. One party to the proceeding cannot be permitted to take advantage and cannot be permitted to abuse the process of law court and on the other hand simultaneously resorting to all the process of misbehaving with the husband and harassing him. Such type of attitude by the respondent (wife) cannot be permitted coupled with the fact that the order happens to be an ex parte order because the wife has deliberately avoided participating in the proceedings, despite the notice being served by the publication which would deemed to be served under law. Anirudh Guru Pratap Singh v. Harmit Kaur, 2017 (125) ALR 358.

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Ancestral Property – According to Mitakshara Law

It is settled that the property inherited by a male Hindu from his father, father’s father or father’s father’s father is an ancestral property. The essential feature of ancestral property, according to Mitakshara Law, is that the sons, grandsons, and great grandsons of the person who inherits it, acquire an interest and the rights attached to such property at the moment of their birth. The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. After partition, the property in the hands of the son will continue to be the ancestral property and the natural or adopted son of that son will take interest in it and is entitled to it by survivorship. Shyam Narayan Prasad v. Krishna Prasad¸ (2018) 7 SCC 646.

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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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Family Arrangement – Object of

In Kale v. Director of Consolidation, (1976) 3 SCC 119, it was held as under:
“By virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family. The family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made.
The object of the arrangement is to protect the family from long drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice. That is why the term ‘family’ has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have spes successionis so that future disputes are sealed forever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. Rajni Sanghi v. Western India State Motors Ltd., (2015) 16 SCC 631.

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HUF – Manager has a distinct role from Karta

While there can be no doubt that a Hindu Widow is not a coparcener in the HUF of her husband and, therefore, cannot act as a karta of the HUF after the death of her husband, the two expressions i.e. karta and manager may be understood to be not synonymous and the expression “manager” may be understood as denoting a role distinct from that of karta. Hypothetically, we may not take the case of HUF where the male adult coparcener has died and there is no male coparcener surviving or where the sole male coparcener is a minor. In such a situation obviously the HUF does not come to an end. The mother of the male coparcener can act as the legal guardian of the minor and also look after his role as the karta in her capacity as his legal guardian. Such a situation has been found to be consistent with the law by the Calcutta High Court in Sushila Devi Rampuria v. ITO, (1960) 38 ITR 316 rendered in the context of the provisions of the Income Tax Act and while determining the liability of such an HUF to assessment under the Act.
A similar proposition of law is also to be found in Dhujram v. Chandansingh, 1974 MPLJ 554 though, again, in a littled different context. The High court had expressed the view that the word “manager” would be consistent with the law if understood with reference to the mother as the natural guardian and not as the karta of the HUF. Shreya Vidyarthi v. Ashok Vidyarthi, (2015) 16 SCC 46.

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Custody of Child – Welfare Priciple

The Hon’ble Apex Court in Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42, stated in detail the law relating to custody in England and America and pointed that even in those jurisdictions, welfare of the minor child is the first and paramount consideration and in order to determine child custody, the jurisdiction exercised by the court rests on its own inherent equality powers where the court acts as “parens patriae”.
The word welfare used in Section 13 of the Hindu Minority and Guardianship Act, 1956 has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the court as well as its physical well being. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising its parens patriae jurisdiction arising in such cases.
Second justification behind the “welfare” principle is the public interest that stand served with the optimal growth of the children. It is well recognized that children are the supreme asset of the nation. Rightful place of the child in the sizeable fabric has been recognized in many international covenants, which are adopted in this country as well. Child – centric human rights jurisprudence that has been evolved over a period of time is founded on the principle that public good demands proper growth of the child, who are the future of the nation. Vivek Singh v. Romani Singh, (2017) 3 SCC 231.

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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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