Tag Archives: Judicial Separation

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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Divorce Proceedings – Abuse of Process of Court

The intention of the legislation is at least to consider the rival contentions of the parties to matrimony and when there is sufficient material on record to show that the ingredients under Section 13 of the Hindu Marriage Act are made out, and under the given circumstances there is cruelty, the Court should either make effort to settle the dispute or relationship has to be brought to a complete end. One party to the proceeding cannot be permitted to take advantage and cannot be permitted to abuse the process of law court and on the other hand simultaneously resorting to all the process of misbehaving with the husband and harassing him. Such type of attitude by the respondent (wife) cannot be permitted coupled with the fact that the order happens to be an ex parte order because the wife has deliberately avoided participating in the proceedings, despite the notice being served by the publication which would deemed to be served under law. Anirudh Guru Pratap Singh v. Harmit Kaur, 2017 (125) ALR 358.

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Cruelty – Levelling False Allegations

Cruelty can never be defined with exactitude. What is cruelty will depend upon the facts and circumstances of each case. In case the wife makes reckless, defamatory and false accusations against her husband, his family members and colleagues, which would definitely have the effect of lowering his reputation in the eyes of his peers. Mere filing of complaints is not cruelty, if there are justifiable reasons to file the complaints. Merely because no action is taken on the complaint or after trial the accused is acquitted may not be a ground to treat such accusations of the wife as cruelty within the meaning of the Hindu Marriage Act,1955. However, if it is found that the allegations are patently false, then there can be no manner of doubt that the said conduct of a spouse leveling false accusations against the other spouse would be an act of cruelty. Raj Talreja v. Kavita Talreja, 2017 (123) ALR 835.

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Divorce by Mutual Consent – Withdrawal of Suit

The person who institutes a suit, has every right to withdraw the same. Where the parties had filed a petition for divorce by mutual consent expressing their desire to dissolve their marriage due to temperamental incompatibility and the respondent (wife) withdrew her consent before the stage of second motion. The withdrawal of consent was after a period of eighteen months of filing the petition. The respondent (wife) further submitted that she was taken by surprise when she was asked by the appellant for divorce, and had given the initial consent under mental stress and duress. She also stated that she never wanted divorce and is willing to live with the appellant (husband) as his wife. Consent should always be a free consent.

       Even if withdrawal application is filed after 18 months, the court is not bound to grant divorce decree by mutual consent. The court has to proceed with about the genuineness of the averments in the petition and also to find out whether the consent was not obtained by force, fraud or undue influence and whether marriage can be saved. The court may make such inquiry as it thinks fit including the hearing or examination of the parties for the purpose of satisfying itself whether the averments in the petition are true. Rahul Kamal v. Sudha Pandey, 2018 (131) ALR 673.

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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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Long Separation – Relevant for Dissolution of Marriage

In Smt. Arti Pandey v. Vishnu Kant Tiwari, 2012 (95) ALR 494, it was held that when the wife had shown no inclination to continue with the matrimonial bond, long separation would be a relevant ground in considering a plea for dissolution of marriage. The court can also not be oblivious of the serious allegations leveled by the husband against the wife. Whether or not allegation of adultery is established on the basis of evidence, the fact remains that the respect for each other is seriously dented. There is a clear rupture of matrimonial bond between the parties, and it would be unjust to insist upon the parties to continue with marriage, in such circumstances. Mamta Singh v. Lakshman Singh¸2018 (131) ALR 137.

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Section 10 of the Indian Divorce Act

In the plaint for divorce being filed under Section 10 of the Indian Divorce Act, it has to be established that the desertion has been for more than two years on the date of presentation of application for divorce. It is an admitted position that marriage between the parties has not completed two years on the date plaint for divorce was filed and therefore the question of desertion being for a period of more than two years on the date the application was made, does not arise.

      Further from a reading of Section 10(1)(x) of the Indian Divorce Act, it will be seen that not only cruelty is to be established, it is further to be shown that because of such cruelty, a reasonable apprehension has arisen in the mind of one of the parties that it would be harmful or injurious to live with the other party. Leonard Dass v. Prema Catherine Dass, 2018 (131) ALR 133.

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