The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. The amendment was inspired by the thought that forcible perpetuation of status of matrimony between unwilling partners did not serve any purpose. The object of the cooling off period is a safeguard against a hasty decision if there was otherwise possibility of differences being reconciled. The object is not to perpetuate a purposeless marriage or to prolong the agony of the parties when there is no chance of reconciliation. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the court should not be powerless in enabling the parties to have a better opinion. Prabhat Singh v. Smt. Sweta Yadav, 2020 (3) AWC 2556.
Tag Archives: matrimonial dispute
As regards Section 17(1) of the Protection of Women from Domestic Violence Act, 2005, the wife is only entitled to claim a right to residence in a shared household and a ‘shared household’ would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. The property belonging to the mother of the husband cannot be called a ‘shared household’ in as much as it is not owned by the husband or taken on rent by him. Smt. Sujata Gandhi v. S.B. Gandhi, 2020 (4) AWC 3646.
A wife is not entitled to any Maintenance Allowance from her husband if she is living in adultery or if she has refused to live with her husband without any sufficient reason or if they are living separately by mutual consent. Thus, all the circumstances contemplated by sub-section (4) of section 125, Cr. P.C. presuppose the existence of matrimonial relations. The provision would be applicable where the marriage between the parties subsists and not where it has come to an end. Taking the three circumstances individually, it will be noticed that the first circumstance on account of which a wife is not entitled to claim Maintenance Allowance from her husband is that she is living in adultery. Now, adultery is the sexual intercourse of two persons, either of whom is married to a third person. This clearly supposes the subsistence of marriage between the husband and wife and if during the subsistence of marriage, the wife lives in adultery, she cannot claim Maintenance Allowance under Section 125 of the Code of Criminal Procedure. Ashwani K. Lal v. Deepa Kumari Chauhan, Cr.MMO No. 358 of 2016, decided on October 31, 2019
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
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.
In Shumita Didi Sandhu v. Sanjay Singh Sandhu, (2010) 174 DLT 79 (DB), the ld. Division Bench was considering a judgment of the Single Judge which had followed S.R. Batra v. Taruna Batra, (2007) 3 SCC 169 and held that the in-laws home cannot be a ‘shared household’ or the ‘matrimonial home’ and hence the daughter in law has no legal right to stay in the house belonging to her parents in law. The ld. Division then approved the view of the Single Judge and followed S.R. Batra v. Taruna Batra, (2007) 3 SCC 169. It concluded that the right of residence of the wife does not mean the right to reside in a particular property but would mean the right to reside in a commensurate property. The right of residence is not the same thing as a right to reside in a particular property which the appellant refers to as her ‘matrimonial home’. The Single Judge’s judgment was upheld and it was observed that the learned single Judge had amply protected the plaintiff by directing that she would not be evicted from the premises in question without following the due process of law. Vinay Varma v. Kanika Pasricha, (2020) 1 DMC 180.
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.
The word “cruelty” and the kind or degree of “cruelty” necessary which may amount to a matrimonial offence has not been defined in the Act. What is cruel treatment is to a large extent a question of fact or a mixed question of law and fact and no dogmatic answer can be given to the variety of problems that arise before the court in these kinds of cases. The law has no standard by which to measure the nature and degree of cruel treatment that may satisfy the test. It may consist of a display of temperament, emotion or perversion whereby one gives vent to his or her feelings, without intending to injure the other. It need not consist of direct action against the other but may be misconduct indirectly affecting the other spouse even though it is not aimed at that spouse. It is necessary to weigh all the incidents and quarrels between the parties keeping in view the impact of the personality and conduct of one spouse upon the mind of the other. Cruelty may be inferred from the facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence and inference on the said point can only be drawn after all the facts have been taken into consideration. Where there is proof of a deliberate course of conduct on the part of one, intended to hurt and humiliate the other spouse, and such a conduct is persisted cruelty can easily be inferred. Neither actual nor presumed intention to hurt the other spouse is a necessary element in cruelty. Sujata Uday Patil v. Uday Madhukar Patil, (2006) 13 SCC 272
Section 320 of the Code articulates public policy with regard to the compounding of offences. It catalogues the offences punishable under IPC which may be compounded by the parties without permission of the Court and the composition of certain offences with the permission of the court. The offences punishable under the special statutes are not covered by Section 320. When an offence is compoundable under Section 320, abatement of such offence or an attempt to commit such offence or where the accused is liable under Section 34 or 149 of the IPC can also be compounded in the same manner. A person who is under 18 years of age or is an idiot or a lunatic is not competent to contract compounding of offence but the same can be done on his behalf with the permission of the court. If a person is otherwise competent to compound an offence is dead, his legal representatives may also compound the offence with the permission of the court. Where the accused has been committed for trial or he has been convicted and the appeal is pending, composition can only be done with the leave of the court to which he has been committed or with the leave of the appeal court, as the case may be. The revisional court is also competent to allow any person to compound any offence who is competent to compound. The consequence of the composition of an offence is acquittal of the accused. Sub-section (9) of Section 320 mandates that no offence shall be compounded except as provided by this Section. Obviously, in view thereof the composition of an offence has to be in accord with Section 320 and in no other manner. Compounding of offence, as has been given by Legislature in Section 320 Cr.P.C., has given first table, wherein few of offences are to be compounded, upon the consent and option of victims. In the second table, offences are compoundable on the option of victim with permission of Court concerned. Those offences are of grave nature, but with permission of Court, offence given in second table, may be compounded. Regarding those offences, which have not been compoundable, under provision of Legislature, this law has been developed by apex court that where union of family seems to be probable and the dispute is of matrimonial nature and they are not of heinous offence, then in the interest of justice, with a view to avoid children from any ruin, out of dispute in between parents, the offence punishable under Section 498-A I.P.C. or likewise, which are not of grave consequences and effect into society, may be quashed, in exercise of inherent jurisdiction of High Court acknowledged under Section 482 Cr.P.C. Under this provision of law, developed by Hon’ble Apex Court, quashing of proceeding for offence of dowry demand and cruelty etc., where compromise has been entered in between, are being made by High Court, though it is not within domain of trial court Magistrate or Sessions Judge. Munish Jain v. State of U.P., Application U/s 482 CrPC No. 5330 of 2012.