Tag Archives: Husband & Wife

Cruelty Under Section 498-A – Prosecution Has to Prove Wilful Conduct

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.

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Major Boy and Girl Living With Their Free Will – Nobody Has a Right to Interfere

The Hon’ble Supreme Court in a long line of decisions has settled the law that where a boy and a girl are major and they are living with their free will, then, nobody including their parents, has authority to interfere with their living together. Reference may be made to the judgments of the Hon’ble Supreme Court in Gian Devi v. Superintendent, Nari Niketan, (1976) 3 SCC 234; Lata Singh v. State of U.P., (2006) 5 SCC 475; Bhagwan Dass v. State, (2011) 6 SCC 396, which have consistently been followed by the Hon’ble Supreme Court and the Hon’ble Allahabad High Court in Deepika v. State of U.P., 2013 (9) ADJ 534. The Hon’ble Supreme Court in Gian Devi v. Superintendent, Nari Niketan, (1976) 3 SCC 234 has held as under:

        “Whatever may be the date of birth of the petitioner, the fact remains that she is at present more than 18 years of age. As the petitioner is Sui Juris no fetters can be placed upon her choice of the person with whom she is to stay, nor can any restriction be imposed regarding the place where she should stay. The Court or the relatives of the petitioner can also not substitute their opinion or preference for that of the petitioner in such a matter.” Hasina Bano v. State of U.P., 2018 (6) AWC 5599.

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Jurisdiction of State – Which has most intimate contact with the issues arising in the case

 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.

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Section 125 CrPC – Is a Measure of Social Justice

It is pertinent to mention that Section 125 CrPC is a measure of social justice and it is intended to protect the wife and her children who has no means to maintain herself. It has been held in Bhagwandutt v. Kamla Devi, AIR 1975 SC 83, that while assessing the amount of maintenance under Section 125 CrPC, the Magistrate is required to consider the standard of living and background of the wife alongwith the status of her family. The needs and requirements of the wife should be in consonance with her own income, if any, and the earning of the husband and his commitment as husband. It is also pertinent to mention that Section 125 CrPC is to prevent destitution in wife who may have been even divorced. The husband is under obligation to give maintenance to the divorced wife who by herself is not able to maintain herself. It is husband’s moral obligation which he owes to the society in respect of his wife and children, so that they are not left beggared and to prevent destitution as without financial support she may be driven to a life of vagrancy, immorality and crime for her subsistence. Major Ankur Gupta v. State of U.P., 2020 (138) ALR 52.

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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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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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Permanent Alimony – After Passing of Divorce Decree

In the event permanent alimony has not been granted probably for the reason that no such application was moved and pressed for, the same can be applied even after passing of the decree. Section 25 of the Hindu Marriage Act itself envisages that the wife can initiate proceedings for grant of permanent alimony even after the decree of divorce. Therefore, the court does not become functus officio with the passing of the decree and continues to have jurisdiction to award alimony thereafter. Smt. Poonam Sharma v. Vishnu Kumar, 2018 (130) ALR 490.

 

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