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).
Tag Archives: matrimonial dispute
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)
A reading of the complaint does not show that any incident amounting to domestic abuse as defined under the Domestic Violence Act is set out against the petitioners herein after the year 2011 till such time as the petition was filed in the year 2015, which becomes a substantial ground for this Court to interfere. The complainant has also not been able to establish that there was a ‘shared household’ with the petitioners as the husband of the complainant-respondent was in a Government job and residing separately from the petitioners, which fact has not been controverted. The respondent has not been able to establish a “domestic relationship” as defined under Section 2(f) of the Domestic Violence Act of 2005 to be able to sustain a complaint against the petitioner. Hazura Singh v. Jaspreet Kaur, 2020 P & H 107.
Condonation of cruelty is a benevolent and generous act of an offended spouse forgiving the misdeeds of the offending spouse and restoring the latter to the original company. In every condonation there is an implied condition that the excused spouse will not repeat or commit matrimonial wrongs in future. No wrong is permanently wiped out by condonation; but is only hibernated. An act of cruelty once condoned could certainly revive and give rise to a cause of action for dissolution of marriage, when the offending spouse exploits and takes unfair advantage of the generosity or the benevolence shown by the wronged spouse and takes to matrimonial misdeeds over again. This principle of law could be gathered from the decision of the Hon’ble Apex Court in Dr. N.G. Dastane v. Mrs. S. Dasane (1975) 2 SCC 326, wherein it was held that ‘but condonation of a matrimonial offence is not to be likened to a full Presidential pardon under Art.72 of the Constitution which, once granted, wipes out the guilt beyond the possibility of revival.’ Santhosh Kumar S. v. Jayasree Damodran, Mat. Appeal No. 547 of 2013. (Kerala)
The rules of pleading incorporated in the C.P.C. equally apply to the proceedings before the family Courts also by virtue of Section 10 of the Family Courts Act, 1984. The general principle flowing from Order VIII Rules 3 and 5 of the C.P.C. that a defendant who proposes to deny the truth of an allegation against him/her ought to do it either specifically or necessary implication in lieu of mere general or evasive denial, applies to the family courts also. Evasive denial in the pleadings of a defendant is treated by law to be an admission of the truth of allegations made against him, unless the court in its discretion is of the opinion that the undenied fact must, nonetheless, be proved otherwise than by such deemed admission. In other words, the courts have necessary discretion to take exception to such admissions and to look for independent evidence instead of fully relying on them. The exceptional cases for such exercise of discretion ordinarily relate to decisions involving issues as to status, relationship of parties and also matters of which court cannot possibly draw inference as to the truth having regard to their evidentiality. In this context, Section 23(1) of the Hindu Marriage Act in its application to matrimonial courts dealing with cases arising under the said Act is also very relevant. The aforesaid Section mandates that in the proceedings under the Act whether defended or not, the courts are to arrive at just decisions based only on total satisfaction drawn from the entirety of materials on record apart from the deemed admission flowing from the evasive denial referable to Order VIII Rule 5 of the C.P.C. by following the guidelines mentioned in Section 23(1). This Section does not permit passing of a decree for divorce on the ground of cruelty when the wronged spouse is proved to have condoned the cruelty of the offending spouse. So also, when the spouse sues for dissolution of marriage after taking advantage of his or her own wrong or disability also, the said provision empowers the court to refuse the relief sought notwithstanding that the truth of the allegation was not denied specifically or by necessary implication. Santhosh Kumar S. v. Jayasree Damodran, Mat. Appeal No. 547 of 2013. (Kerala)
So far as interim maintenance awarded under Section 20 of Protection of Women from Domestic Violence Act is concerned, it was held that the maintenance allowance awarded under Section 125 of CrPC by the Family Court and interim maintenance under Section 20 of the Domestic Violence Act awarded by the Trial Court are of the same nature. It is not a separate amount, it is under or in addition to each other. It was further held that amount awarded by the trial court under any provisions of the Domestic Violence Act, until and unless not specifically mentioned in the order, it should be adjusted with the order for awarding maintenance under section 125 of CrPC. Arif Khan v. Ruby Khan, Cr. R. No. 4737 of 2019 (M.P.)
Section 11 of the Hindu Marriage Act provides for void marriages which may be declared as a nullity and lays down that void marriages are those marriages which are solemnized in contravention of Clauses (i), (iv) and (v) of Section 5 of the Hindu Marriage Act.
Section 12 of the Hindu Marriage Act provides for voidable marriages and that a marriage performed in contravention of the Clause (ii) of Section 5 to be declared as void. The marriages performed in violation of the Clauses (i), (ii), (iv) and (v) of Section 5 alone are void or voidable and can be declared a nullity, but not the marriages solemnized in contravention of Clause (iii) of Section 5 of the Act. Therefore, a marriage solemnized in contravention of Clause (iii) of Section 5 of the Hindu Marriage Act, i.e., before the parties attain the marriageable age, is neither void nor voidable and cannot be declared a nullity. Kamlesh Yadav v. Surmila, 2018 (151) ALR 132.
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.
The Hon’ble Apex Court in Surinder Kaur Sandhu v. Harbax Singh Sandhu, (1984) 3 SCC 698 was concerned with the custody of a child who was British citizen by birth whose parents had been settled in England after their marriage. The child was removed by the husband from the house and was brought to India. The wife obtained a judicial order from the UK court whereby the husband was directed to hand over the custody of the child to her. The said order was later confirmed by the court of England and thereafter the wife came to India and filed a writ petition in the High Court of Punjab and Haryana praying for custody and production of the child which came to be dismissed against which the wife appealed to the Apex Court. The Apex Court keeping in view the “welfare of the child”, “comity of courts” and “jurisdiction of the State which has most intimate contact with the issues arising in the case” held thus:
“We may add that the spouses had set up their matrimonial home in England where the wife was working as a clerk and the husband as a bus driver. The boy is a British citizen, having been born in England, and he holds a British passport. It cannot be controverted that, in these circumstances, the English Court had jurisdiction to decide the question of his custody. The modern theory of Conflict of Laws recognises and, in any event, prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case. Jurisdiction is not attracted by the operation or creation of fortuitous circumstances such as the circumstance as to where the child, whose custody is in issue, is brought or for the time being lodged. To allow the assumption of jurisdiction by another State in such circumstances will only result in encouraging forum-shopping. Ordinarily, jurisdiction must follow upon functional lines. That is to say, for example, that in matters relating to matrimony and custody, the law of that place must govern which has the closest concern with the well-being of the spouses and the welfare of the offspring of marriage. The spouses in this case had made England their home where this boy was born to them. The father cannot deprive the English Court of its jurisdiction to decide upon his custody by removing him to India, not in the normal movement of the matrimonial home but, by an act which was gravely detrimental to the peace of that home. The fact that the matrimonial home of the spouses was in England, establishes sufficient contacts or ties with that State in order to make it reasonable and just for the courts of that State to assume jurisdiction to enforce obligations which were incurred therein by the spouses. (See International Shoe Co. v. State of Washington 90 L Ed 95 : 326 US 310 (1945) , which was not a matrimonial case but which is regarded as the fountainhead of the subsequent developments of jurisdictional issues.) It is our duty and function to protect the wife against the burden of litigating in an inconvenient forum which she and her husband had left voluntarily in order to make their living in England, where they gave birth to this unfortunate boy.” In Elizabeth Dinshaw v. Arvand M. Dinshaw, (1987) 1 SCC 42, the Hon’ble Supreme Court held that it is the duty of courts in all countries to see that a parent doing wrong by removing children out of the country does not gain any advantage by his or her wrongdoing and was guided by the factors such as the longer time spent by the child in the US in which the child was born and became US citizen and also the fact that the child has not taken roots in India and was still not accustomed and acclimatised to the conditions and environment obtaining in the place of his origin in the United States of America. The Court took note of the fact that the child’s presence in India is the result of an illegal act of abduction and the father who is guilty of the said act cannot claim any advantage by stating that he has already put the child in some school in Pune. Lahari Sakhamuri v. Sobhan Kodali, (2019) 7 SCC 311.