Tag Archives: divorce

Making a Daughter in Law Do Domestic Work – Is Not Unusual

No family is totally devoid of clashes among members constituting it. It is common for elders to scold and sometimes abuse youngsters. Making a daughter in law to do the house hold/domestic work is also not something unusual.

In Narendra v. K. Meena, 2016 (5) KHC 180, it was held as under: “In a Hindu society, it is a pious obligation of the son to maintain the parents. If a wife makes an attempt to deviate from the normal practice and normal custom of the society, she must have some justifiable reason for that and in this case, we do not find any justifiable reason, except monetary consideration of the respondent wife. In our opinion, normally, no husband would tolerate this and no son would like to be separated from his old parents and other family members, who are also dependent upon his income. The persistent effort of the respondent wife to constrain the appellant to be separated from the family would be torturous for the husband and in our opinion, the trial court was right when it came to be conclusion that this constitutes an act of ‘cruelty’.” Ranjith P.C. V. Asha Nair P., Mat. Appl. No. 137 of 2014, decided on May 20, 2020

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‘Capable of Earning’ and ‘Actual Earning’ – Difference Between

In Arun Vats v. Pallavi Sharma, reported as 2019 SCC OnLine Del 11817 and Niharika Yadav v. Manish Kumar Yadav in Crl. Rev. Petition 755/201, decided on 18.12.2019 where, while relying upon the decision rendered in the case of Shalija v. Khobbana reported as (2018) 12 SCC 199, it was held that ‘capable of earning’ and ‘actual earning’ are entirely two different things. Merely because the wife is ‘capable of earning’ is not a sufficient reason to deny her the maintenance. It was also stated that the petitioner has qualified CTET test and is now more qualified to earn. In Swapan Kumar Banerjee v. The State of West Bengal, reported as 2019 SCC OnLine SC 1263, the Hon’ble Supreme Court observed as follows:“The next issue raised was that the wife being a qualified architect from a reputed university i.e. Jadavpur University, Calcutta would be presumed to have sufficient income. It is pertinent to mention that as far as the husband is concerned, his income through taxable returns has been brought on record which shows that he was earning a substantial amount of Rs. 13,16,585/- per year and on that basis Rs. 10,000/- per month has been awarded as monthly maintenance to the wife. No evidence has been led to show what is the income of the wife or where the wife is working. It was for the husband to lead such evidence. In the absence of any such evidence no presumption can be raised that the wife is earning sufficient amount to support herself.”  Anita v. Amit, Crl. Rev. P. 515/2018, decided on 24.02.2020

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Alteration of Order – In View of Changed Circumstances

Sub-Section 2 of Section 25 of Protection of Women from Domestic Violence Act provides that the aggrieved person or the respondent may approach before the Magistrate by filing an application for alteration, modification or revocation of any order made under this Act. If any such application is filed before the Magistrate praying for alteration, modification or revocation of any order made under this Act either by the aggrieved person or by the respondent then the Magistrate may for reasons to be recorded in writing pass order, as he may deem appropriate. Sub-Section 2 of Section 25 of Protection of Women from Domestic Violence Act has conferred right both on the aggrieved person and the respondent to approach before the Magistrate for alteration, modification or revocation of any order made under this Act. Sub-Section 1 of Section 25 is restricted only to the protection orders under Section 18 of the Protection of Women from Domestic Violence Act. The recourse under Sub-Section 1 of Section 25 can be availed of only by the aggrieved person not by the respondent. Whereas, Sub-Section 2 of Section 25 deals with the alteration, modification and revocation of any order made under the Act and recourse can be taken both by the aggrieved person and the respondent. The scope of application of Sub-Section 2 of Section 25 is much wider than Sub-Section 1 of Section 25. In view of the provision as contained in Sub-Section 2 of Section 25, it can be presumed that the order passed under the Act is not perpetual in nature and the order passed under this Act may be altered, modified or revoked, if there is a change in the circumstances and for that purpose the aggrieved person or the respondent may approach before the Magistrate under the Act. If such prayer is made the Magistrate may for reasons to be recorded in writing pass such order, as he may deem appropriate. Krishnendu Das Thakur v. State of West Bengal, (2019) 3 HLR 114.

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Provisions Under Maintenance of Parents and Senior Citizens Act and Domestic Violence Act

Some broad guidelines as set out below, can be followed by Courts in order to strike a balance between the PSC Act and the DV Act:

1. The court/tribunal has to first ascertain the nature of the relationship between the parties and the son’s/daughter’s family.

2. If the case involves eviction of a daughter in law, the court has to also ascertain whether the daughter-in-law was living as part of a joint family.

3. If the relationship is acrimonious, then the parents ought to be permitted to seek eviction of the son/daughter-in-law or daughter/son-in-law from their premises. In such circumstances, the obligation of the husband to maintain the wife would continue in terms of the principles under the DV Act.

4. If the relationship between the parents and the son are peaceful or if the parents are seen colluding with their son, then, an obligation to maintain and to provide for the shelter for the daughter-in-law would remain both upon the in-laws and the husband especially if they were living as part of a joint family. In such a situation, while parents would be entitled to seek eviction of the daughter-in-law from their property, an alternative reasonable accommodation would have to be provided to her.

5. In case the son or his family is ill-treating the parents then the parents would be entitled to seek unconditional eviction from their property so that they can live a peaceful life and also put the property to use for their generating income and for their own expenses for daily living.

6. If the son has abandoned both the parents and his own wife/children, then if the son’s family was living as part of a joint family prior to the breakdown of relationships, the parents would be entitled to seek possession from their daughter-in-law, however, for a reasonable period they would have to provide some shelter to the daughter-in-law during which time she is able to seek her remedies against her husband. Vinay Varma v. Kanika Pasricha, (2020) 1 DMC 180.

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Cruelty Under Section 498-A – Prosecution Has to Prove Wilful Conduct

Cruelty under Section 498A means any willful conduct which is of such nature as is likely to drive the woman to commit suicide. It also means harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. Therefore, the prosecution has to prove a willful conduct, which is of such nature as is likely to drive the woman to commit suicide. No such willful conduct has been established because none of the witnesses have given evidence to have seen the Accused indulging in such willful conduct that could drive a woman to commit suicide. Moreover, if a woman is harassed, that harassment should be with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security, or is on account of failure by her or any person related to her to meet such demand. Therefore, the prosecution has to prove that there was any unlawful demand for any property or valuable security by the Accused. None of the witnesses have stated that there was any such demand by the Accused. Therefore, the charge under Section 498A cannot stick. State of Maharashtra v. Anil Kurkotti, (2019) 3 HLR 823.

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Voluntary Presents of Traditional Nature – Are Not Dowry

 The definition of the expression “dowry” contained in Section 2 of the Dowry Prohibition Act cannot be confined merely to be “demand” of money, property or valuable security made at or after the performance of marriage. The legislature has in its wisdom while providing for the definition of “dowry” emphasized that any money, property or valuable security given, as a consideration for marriage, “before, at or after” the marriage would be covered by the expression “dowry” and this definition as contained in Section 2 has to be read wherever the expression “dowry” occurs in the Dowry Prohibition Act. Meaning of the expression “dowry” as commonly used and understood is different than the peculiar definition thereof under the Dowry Prohibition Act. Under Section 4, mere demand of “dowry” is sufficient to bring home the offence to an accused. Thus, any “demand” of money, property or valuable security made from the bride or her parents or other relatives by the bridegroom or his parents or other relatives or vice versa would fall within the mischief of “dowry” under the Dowry Prohibition Act where such demand is not properly referable to any legally recognized claim and is relatable only to the consideration of marriage. Marriage in this context would include a proposed marriage also, more particularly where the non-fulfilment of the “demand of dowry” leads to the ugly consequence of the marriage not taking place at all. The expression “dowry” under the Dowry Prohibition Act has to be interpreted in the sense which the statute wishes to attribute to it. The definition given in the statute is the determinative factor. The Dowry Prohibition Act is a piece of social legislation which aims to check the growing menace of the social evil of dowry and it makes punishable not only the actual receiving of dowry but also the very demand of dowry made before or at the time or after the marriage where such demand is referable to the consideration of marriage. Dowry as a quid pro quo for marriage is prohibited and not the giving of traditional presents to the bride or the bridegroom by friends and relatives. Thus, voluntary presents given at or before or after the marriage to the bride or the bridegroom, as the case may be, of a traditional nature, which are given not as a consideration for marriage but out of love, affection or regard, would not fall within the mischief of the expression “dowry” made punishable under the Dowry Prohibition Act. Reema Aggarwal v. Anupam, (2004) 3 SCC 199

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Marriage Between Persons within Prohibited Degree of Relationship – Null and Void

The marriage between persons within prohibited degrees is declared null and void by operation of law. In respect of such a null and void marriage, an option has been left to the parties to the marriage to initiate proceedings for a declaration being made under Section 24 of the Special Marriage Act, 1954. Even in the absence of the declaration by the Court, the marriage would continue to be void in the eyes of law.        

Section 25 of the Special Marriage Act provides for a decree of nullity being made in respect of voidable marriage and for the purpose it has been provided that the Court shall not grant such a decree unless the proceedings are initiated within one year from the date of the marriage. Smt. Mausmi Sarma v. Himanshu Sharma, 2018 (126) ALR 642.

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Result of – DNA Test

It is clear that once the order for DNA Test has been passed and DNA Test has been conducted, the result of DNA Test cannot be brushed aside. The same will have to be given effect to, even if the circumstances justifying attraction of presumption as contemplated under Section 112 of Indian Evidence Act exists. Rajesh Kumar Chaudhary v. Smt. Sarita, 2020 (1) AWC 531.

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Mental Cruelty – Can Cause More Grievous Injury

Section 13(1)(i-a) of the Hindu Marriage Act is comprehensive enough to include cases of physical as well as mental cruelty. Modern view has been that mental cruelty can even cause more grievous injury and create in the mind of the injured spouse reasonable apprehension that it will be harmful or unsafe to live with the other party. The principle that cruelty may be inferred from the whole facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence is of greater cogency in cases falling under the head of mental cruelty. Thus mental cruelty has to be ascertained from the facts. Though no uniform standard can be laid down for the guidance, yet certain instances of human behavior may be relevant in dealing the cases of ‘mental cruelty.’ Vinay Kumar Pathak v. Annapurna Awasthi, 2017 (125) ALR 453.

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Statement of Child – In Custody of Complainant

It is no doubt true that the child has given statement implicating the petitioner. But the Court has to keep in mind, by that time the child was in the custody of the complainant for a considerable period of time. Therefore, whether the statement was an outcome of any tutoring, undue influence or independent, has to be examined at the time of trial. If ultimately prosecution succeeds, petitioner will be punished, if not, condition becomes irreversible for the petitioner. Chinappa B.K. v. State of Karnataka, Criminal Petition No. 488 of 2020 (Kar HC).

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