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
Tag Archives: matrimonial relationship
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.
The problem arises with the meaning of phrase “at any point of time”. That does not mean that living together at any stage in the past would give right to a person to become aggrieved person to claim domestic relationship. At any point of time, indicates that the aggrieved person has been continuously living in the shared household as a matter of right, but if for some reason if the aggrieved person has to leave the house temporarily and when she returns she is not allowed to enjoy her right to live in the property. Where a family member leaves the shared household to establish his or her own household, he or she cannot claim to have a right to move an application under Section 12 of the DV Act on the basis of domestic relationship. This proposition of law came up before the Delhi High Court in the case of Vijay Verma v. State (NCT) of Delhi reported in (2010) 172 DLT 660, wherein it has been observed as under:
6. A perusal of this provision makes it clear that domestic relationship arisen in respect of an aggrieved person if the aggrieved person had lived together with the respondent in a shared household. This living together can be either soon before filing of petition or ‘at any point of time’. The problem arises with the meaning of phrase “at any point of time”. Does that mean that living together at any stage in the past would give right to a person to become aggrieved person to claim domestic relationship? I consider that “at any point of time” under the Act only means where an aggrieved person has been continuously living in the shared household as a matter of right but for some reason the aggrieved person has to leave the house temporarily and when she returns, she is not allowed to enjoy her right to live in the property. However, “at any point of time” cannot be defined as “at any point of time in the past” whether the right to live survives or not. For example if there is a joint family where father has several sons with daughters-in-law living in a house and ultimately sons, one by one or together, decide that they should live separate with their own families and they establish separate household and start living with their respective families separately at different places; can it be said that wife of each of the sons can claim a right to live in the house of father-in-law because at one point of time she along with her husband had lived in the shared household. If this meaning is given to the shared household then the whole purpose of Domestic Violence Act shall stand defeated. Where a family member leaves the shared household to establish his own household, and actually establishes his own household, he cannot claim to have a right to move an application under Section 12 of Protection of Women from Domestic Violence Act on the basis of domestic relationship. Domestic relationship comes to an end once the son along with his family moved out of the joint family and established his own household or when a daughter gets married and establishes her own household with her husband. Such son, daughter, daughter-in-law, son-in-law, if they have any right in the property say because of coparcenary or because of inheritance, such right can be claimed by an independent civil suit and an application under Protection of Women from Domestic Violence Act cannot be filed by a person who has established his separate household and ceased to have a domestic relationship. Domestic relationship continues so long as the parties live under the same roof and enjoy living together in a shared household. Only a compelled or temporarily going out by aggrieved person shall fall in phrase ‘at any point of time’, say, wife has gone to her parents house or to a relative or some other female member has gone to live with her some relative, and, all her articles and belongings remain within the same household and she has not left the household permanently, the domestic relationship continues. However, where the living together has been given up and a separate household is established and belongings are removed, domestic relationship comes to an end and a relationship of being relatives of each other survives. This is very normal in families that a person whether, a male or a female attains self sufficiency after education or otherwise and takes a job lives in some other city or country, enjoys life there, settles home there. He cannot be said to have domestic relationship with the persons whom he left behind. His relationship that of a brother and sister, father and son, father and daughter, father and daughter-in-law etc. survives but the domestic relationship of living in a joint household would not survive & comes to an end. N.S. Lellavathi v. Dr. R. Shilpa Brunda, Cri. Revision Petition No. 1146 of 2019 decided on 11.12.2019
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.
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.
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)
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.