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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Section 12(1) of the Protection of Women from Domestic Violence Act provides that an aggrieved person may present an application to the Magistrate seeking one or more reliefs under the Act. Under the provisions of Section 20(1) of the Domestic Violence Act, the Magistrate while dealing with an application under sub-section(1) of Section 12 is empowered to direct the respondent(s ) to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of domestic violence. This may include but is not limited to an order for maintenance of the aggrieved person as well as her children, if any, including an order under or in addition to an order for maintenance under Section 125 CrPC or any other law for the time being in force. Ajay Kumar v. Lata, (2019) 15 SCC 352.
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.
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.
The state of law as approved in Nithya Anand Raghavan v. State¸(2017) 8 SCC 454 is that if a child is brought from a foreign country, being its native country to India, the Court in India may conduct (a) summary enquiry, or (b) an elaborate enquiry on the question of custody, if called for. In the case of a summary enquiry, the court may deem fit to order the return of the child to the country from where he/she has been removed unless such return is shown to be harmful to the child. Aximoatically thus, even in case of a summary enquiry, it is open to the court to decline the relief of return of the child to the country from where he/she has been removed irrespective of a pre-existing order of return of a child by a foreign court, in case it transpires that its repatriation would be harmful to it. On the other hand, in case of an elaborate enquiry, the court is obligated to examine the merits as to where the paramount interest and welfare of the child lay and take note of the pre-existing order of the foreign court for the return of the child as only one of the circumstances. As a corollary, in both the eventualities whether the enquiry is summary or elaborate, the court would be guided by the pre-dominant consideration of welfare of the child assuredly on an overall consideration on all attendant facts and circumstances.
In Surya Vadanan v. State of T.N., (2015) 5 SCC 450, two minor girls aged 10 years and 6 years respectively were British citizens by birth. Following intense matrimonial discords, the mother had left UK and had come to India with her two daughters. She also instituted a proceeding in the family court at Coimbatore seeking dissolution of marriage. It was held as under:
“However, if there is a pre-existing order of a foreign court of competent jurisdiction and the domestic court decides to conduct an elaborate enquiry, it must have special reasons to do so. An elaborate enquiry (as against a summary enquiry), it must have special reasons to do so. An elaborate enquiry should not be ordered as a matter of course. While deciding whether a summary or an elaborate enquiry should be conducted, the domestic court must take into consideration:
- The nature and effect of the interim or interlocutory order passed by the foreign court.
- The existence of special reasons for repatriating or not repatriating the child to the jurisdiction of the foreign court.
- The repatriation of the child does not cause any moral or physical or social or cultural or psychological harm to the child, nor should it cause any legal harm to the parent with whom the child is in India. There are instances where the order of the foreign court may result in the arrest of the parent on his or her return to the foreign country. In such cases, the domestic court is also obliged to ensure the physical safety of the parent.
- The alacrity with which the parent moves the foreign court concerned or the domestic court concerned, is also relevant. If the time gap is unusually large and is not reasonably explainable and the child has developed firm roots in India, the domestic court may be well advised to conduct an elaborate enquiry.”
Vis-à-vis the renditions in V. Ravi Chandran v. Union of India, (2010) 1 SCC 174, Shilpa Aggarwal v. Aviral Mittal, (2010) 1 SCC 591 and Arathi Bandi v. Bandi Jagadrakshaka Rao, (2013) 15 SCC 790, the Hon’ble Apex Court in Nithya Anand Raghavan v. State, (2017) 8 SCC 454, distinguished the facts involved therein from the one under its scrutiny. While underlining that the considerations which impelled the court to adopt its summary approach/jurisdiction in directing the return of the child to its native country, did not in any way discount or undermine the predominant criterion of welfare and interest of the child even to outweigh neuter or offset the principle of comity of courts, if disapproved the primacy sought to be accorded to the order of the foreign court on this issue of custody of minor in Surya Vadanan v. State of T.N., (2015) 5 SCC 450 though negated earlier in Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112 and reiterated that whether it was a case of summary enquiry or an elaborate enquiry, the paramount consideration was the interest and welfare of the child so much so that the pre-existing order of a foreign court could be taken note of only as one of the factors. The alacrity or the expedition with which the applicant/parent moves the foreign court or the domestic court concerned, for custody as a relevant factor was also not accepted to be of any definitive bearing. This notion of “first strike principle” was not subscribed to and further the extrapolation of that principle to the courts in India as predicated in Surya Vadanan v. State of T.N., (2015) 5 SCC 450 was also held to be in-apposite by adverting inter alia to Section 14 of the Guardian and Wards Act, 1890 and Section 10 of Civil Procedure Code.
In Nithya Anand Raghavan v. State, (2017) 8 SCC 454, while maintaining the custody of the child in favour of the mother in preference to the applicant father had required the mother to participate in the proceeding before the foreign court initiated by the respondent father therein. It was observed that the custody would remain with the respondent mother till it attained majority, leaving it at liberty then to choose its parent to reside with. Prateek Gupta v. Shilpi Gupta, (2018) 2 SCC 309.
In the case of Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women, (2010) 8 SCC 633, it was observed by the Hon’ble Apex Court that in a matter where paternity of a child is in issue before the Court, the use of DNA Test is an extremely delicate and sensitive aspect. It should not be directed by the court as a matter of course, or in a routine manner. Whenever such a request is made, the court has to consider diverse aspects including presumption under Section 112 of the Evidence Act; pros and cons of such order and the test of “eminent need”. Whether it is not possible for the Court to reach the truth without use of such test. Any order for DNA test can be given by the Court only if a strong prima facie case is made out for such a course. Satya Pal Yadav v. Smt. Sandhya Yadav, 2017 (123) ALR 860.
Hindu Marriage is a sacred and holy union of husband and wife by virtue of which the wife is completely transplanted in the household of her husband and takes a new birth. It is a combination of bone to bone and flesh to flesh. To a Hindu wife her husband is God and her life becomes one of the selfless service and profound dedication to her husband. She not only shares the life and love, but the joys and sorrows, the troubles and tribulation of her husband and becomes an integral part of her husband’s life and activities. Colebrooke in his book Digest of Hindu Law, Vol.II, described the status of wife thus:
“A wife is considered as half the body of her husband, equally sharing the fruit of pure and impure acts: whether she ascends the pile after him or survives for the benefit of her husband, she is a faithful wife.”
Further Colebrooke in his book Digest of Hindu Law, Vol. II quoted the Mahabharata at page 121 thus:
“Where females are honoured, there the deities are pleased; but where they are unhonoured there all religious acts become fruitless.” Anuradha Samir Vennangot v. Mohandas Samir Vennangot, (2015) 16 SCC 596.
The offence of desertion is a course of conduct which exists independently of its duration, but as a ground for divorce it must exist for a period of at least three years immediately pending the presentation of the petition where the offence appears as a cross-charge, of the answer. Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding the cause of action of desertion is not complete, but is inchoate, until the suit is constituted. Desertion is a continuing offence.
The quality of permanence is one of the essential elements which differentiates desertion from willful separation. If a spouse abandons the other spouse in a state of temporary passion, for example anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) the absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. Mohan Singh Mawri v. Haripriya, 2017 (121) ALR 533.