Tag Archives: Judicial Separation

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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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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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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False Criminal Cases filed by Wife – Amounts to Cruelty

There is no quarrel to the proposition that initiation of the criminal case by the wife would not automatically lead to passing a decree of divorce on the ground of cruelty. There is, also, no denial that irretrievable breakdown of marriage is no ground for divorce. No decree for divorce could be granted on the ground of ordinary quarrels that is to say, the cruelty simplicitor is not enough, and the husband is to prove that cruelty is of a nature as to give rise to a reasonable appreciation in his mind that it will be harmful for him to live with his wife.

On the complaint of the wife under Sections 498A, 406 and 313 of the Indian Penal Code, 1860, not only the husband but also his parents, his elder brother and his sisters-in-law were implicated and charge sheeted. The husband and his parents were arrested. The husband and his father remained in police custody for nine days. On trial, all the accused persons were acquitted as the criminal Court disbelieved the evidence of the prosecution. Rather it was proved that respondent/wife was conceived and on 17.06.2007 she got aborted in one Nursing Home out of her own volition. The respondent/wife had no intention of living with the husband as would appear from the facts and circumstances of the case and respondent/wife deliberately made wild allegations against the husband and his relatives. Inference can be drawn that the wife had no intention to reside with the husband and her intention was to terminate the matrimonial relationship. Hence such acts of the respondent/wife, specially filing a criminal case and for which her husband and father-in- law languished in the custody amounts to cruelty so as to create an apprehension about life and, thus, it amounts to ground of divorce. Suchitra Kumar Singha Roy v. Arpita Singha Roy, F.A. No. 135 of 2014, decided on 20.03.2020 (Cal HC)

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Khula – Mode of Dissolution of Marriage

khula” is a mode of dissolution of marriage when the wife does not want to continue with the marital tie. To settle the matter privately, the wife need only to consult a Mufti (juris consult) of her school. The Mufti gives his fatwa or advisory decision based on the Shariat of his school. Further, if the wife does not want to continue with marital tie and takes mode of “khula” for dissolution of marriage, she is required to propose her husband for dissolution of marriage. This may or may not accompany her offer to give something in return. The wife may offer to give up her claim to Mahr (dower). The “khula” is a mode of divorce which proceeds from the wife, the husband cannot refuse subject only to reasonable negotiation with regard to what the wife has offered to give him in return. The Mufti gives his fatwa or advisory decision based on the Shariat of his school. However, if the matter is carried to the point of litigation and cannot be settled privately then the Qazi (Judge) is required to deliver a qaza (judgment) based upon the Shariat. Juveria Abdul Majid Patni v. Atif Iqbal Mansoori, (2014) 10 SCC 736

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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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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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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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Divorce by Mutual Consent – Withdrawal of Suit

The person who institutes a suit, has every right to withdraw the same. Where the parties had filed a petition for divorce by mutual consent expressing their desire to dissolve their marriage due to temperamental incompatibility and the respondent (wife) withdrew her consent before the stage of second motion. The withdrawal of consent was after a period of eighteen months of filing the petition. The respondent (wife) further submitted that she was taken by surprise when she was asked by the appellant for divorce, and had given the initial consent under mental stress and duress. She also stated that she never wanted divorce and is willing to live with the appellant (husband) as his wife. Consent should always be a free consent.

       Even if withdrawal application is filed after 18 months, the court is not bound to grant divorce decree by mutual consent. The court has to proceed with about the genuineness of the averments in the petition and also to find out whether the consent was not obtained by force, fraud or undue influence and whether marriage can be saved. The court may make such inquiry as it thinks fit including the hearing or examination of the parties for the purpose of satisfying itself whether the averments in the petition are true. Rahul Kamal v. Sudha Pandey, 2018 (131) ALR 673.

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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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