Tag Archives: Separation

Desertion vis-à-vis Wilful Separation

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.

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Filed under Matrimonial Dispute, Wilful Separation

Custody of Child – Welfare Priciple

The Hon’ble Apex Court in Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42, stated in detail the law relating to custody in England and America and pointed that even in those jurisdictions, welfare of the minor child is the first and paramount consideration and in order to determine child custody, the jurisdiction exercised by the court rests on its own inherent equality powers where the court acts as “parens patriae”.
The word welfare used in Section 13 of the Hindu Minority and Guardianship Act, 1956 has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the court as well as its physical well being. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising its parens patriae jurisdiction arising in such cases.
Second justification behind the “welfare” principle is the public interest that stand served with the optimal growth of the children. It is well recognized that children are the supreme asset of the nation. Rightful place of the child in the sizeable fabric has been recognized in many international covenants, which are adopted in this country as well. Child – centric human rights jurisprudence that has been evolved over a period of time is founded on the principle that public good demands proper growth of the child, who are the future of the nation. Vivek Singh v. Romani Singh, (2017) 3 SCC 231.

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Filed under Custody of Child, Family Law

Separability of Arbitration Clause from underlying contract

The concept of separability of the arbitration clause/agreement from the underlying contract is a necessity to ensure that the intention of the parties to resolve the disputes by arbitration does not evaporate into thin air with every challenge to the legality, validity, finality or breach of the underlying contract. The Indian Arbitration Act, 1996 under Section 16 accepts the concept that the main contract and the arbitration agreement form two independent contracts. Commercial rights and obligations are contained in the underlying, substantive or the main contract. It is followed by a second contract, which expresses the agreement and the intention of the parties to resolve the disputes relating to the underlying contract through arbitration. A remedy is elected by parties outside the normal civil court remedy. It is true that support of the national courts would be required to ensure the success of arbitration, but this would not detract from the legitimacy or independence of the collateral arbitration agreement, even if it is contained in a contract, which is claimed to be void or voidable or unconcluded by one of the parties.
The scope and ambit of the provision contained in Section 16 of the Indian Arbitration Act has been clearly explained in Reva Electric Car Company (P) Ltd. V. Green Mobil, (2012) 2 SCC 93, wherein it was inter alia observed as follows:
“Under Section 16(1), the Legislature makes it clear that while considering any objection with respect to the existence or validity of the arbitration agreement, the arbitration clause which formed part of the contract, has to be treated as an agreement independent of the other terms of the contract. To ensure that there is no misunderstanding, Section 16(1)(b) further provides that even if the Arbitral Tribunal concludes that the contract is null and void, it should not result, as a matter of law, in an automatic invalidation of the arbitration clause. Section 16(1)(a) presumes the existence of a valid arbitration clause and mandates the same to be treated as an agreement independent of the other terms of the contract. By virtue of Section 16(1)(b), it continues to be enforceable notwithstanding a declaration of the contract being null and void.
In Today Homes and Infrastructure (P) Ltd. V. Ludhiana Improvement Trust, (2014) 5 SCC 68, it was held as under:
“The Legislature makes it clear that while considering any objection with regard to the existence or validity of the arbitration agreement, the arbitration clause which formed part of the contract, had to be treated as an agreement independent of the other terms of the contract. Enercon (India) Ltd. V. Enercon GMBH and others, (2014) 5 SCC 1.

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Filed under Arbitration, Separation of arbitration clause from contract