Tag Archives: matrimonial dispute

Wife Living In Adultery – Not Entitled to Maintenance

 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

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‘Capable of Earning’ and ‘Actual Earning’ – Difference Between

In Arun Vats v. Pallavi Sharma, reported as 2019 SCC OnLine Del 11817 and Niharika Yadav v. Manish Kumar Yadav in Crl. Rev. Petition 755/201, decided on 18.12.2019 where, while relying upon the decision rendered in the case of Shalija v. Khobbana reported as (2018) 12 SCC 199, it was held that ‘capable of earning’ and ‘actual earning’ are entirely two different things. Merely because the wife is ‘capable of earning’ is not a sufficient reason to deny her the maintenance. It was also stated that the petitioner has qualified CTET test and is now more qualified to earn. In Swapan Kumar Banerjee v. The State of West Bengal, reported as 2019 SCC OnLine SC 1263, the Hon’ble Supreme Court observed as follows:“The next issue raised was that the wife being a qualified architect from a reputed university i.e. Jadavpur University, Calcutta would be presumed to have sufficient income. It is pertinent to mention that as far as the husband is concerned, his income through taxable returns has been brought on record which shows that he was earning a substantial amount of Rs. 13,16,585/- per year and on that basis Rs. 10,000/- per month has been awarded as monthly maintenance to the wife. No evidence has been led to show what is the income of the wife or where the wife is working. It was for the husband to lead such evidence. In the absence of any such evidence no presumption can be raised that the wife is earning sufficient amount to support herself.”  Anita v. Amit, Crl. Rev. P. 515/2018, decided on 24.02.2020

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Alteration of Order – In View of Changed Circumstances

Sub-Section 2 of Section 25 of Protection of Women from Domestic Violence Act provides that the aggrieved person or the respondent may approach before the Magistrate by filing an application for alteration, modification or revocation of any order made under this Act. If any such application is filed before the Magistrate praying for alteration, modification or revocation of any order made under this Act either by the aggrieved person or by the respondent then the Magistrate may for reasons to be recorded in writing pass order, as he may deem appropriate. Sub-Section 2 of Section 25 of Protection of Women from Domestic Violence Act has conferred right both on the aggrieved person and the respondent to approach before the Magistrate for alteration, modification or revocation of any order made under this Act. Sub-Section 1 of Section 25 is restricted only to the protection orders under Section 18 of the Protection of Women from Domestic Violence Act. The recourse under Sub-Section 1 of Section 25 can be availed of only by the aggrieved person not by the respondent. Whereas, Sub-Section 2 of Section 25 deals with the alteration, modification and revocation of any order made under the Act and recourse can be taken both by the aggrieved person and the respondent. The scope of application of Sub-Section 2 of Section 25 is much wider than Sub-Section 1 of Section 25. In view of the provision as contained in Sub-Section 2 of Section 25, it can be presumed that the order passed under the Act is not perpetual in nature and the order passed under this Act may be altered, modified or revoked, if there is a change in the circumstances and for that purpose the aggrieved person or the respondent may approach before the Magistrate under the Act. If such prayer is made the Magistrate may for reasons to be recorded in writing pass such order, as he may deem appropriate. Krishnendu Das Thakur v. State of West Bengal, (2019) 3 HLR 114.

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In-Laws Home – Cannot Be A ‘Shared Household’

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.

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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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Neither Actual Nor Presumed Intention to Hurt – Is A Necessary Element in Cruelty

The word “cruelty” and the kind or degree of “cruelty” necessary which may amount to a matrimonial offence has not been defined in the Act. What is cruel treatment is to a large extent a question of fact or a mixed question of law and fact and no dogmatic answer can be given to the variety of problems that arise before the court in these kinds of cases. The law has no standard by which to measure the nature and degree of cruel treatment that may satisfy the test. It may consist of a display of temperament, emotion or perversion whereby one gives vent to his or her feelings, without intending to injure the other. It need not consist of direct action against the other but may be misconduct indirectly affecting the other spouse even though it is not aimed at that spouse. It is necessary to weigh all the incidents and quarrels between the parties keeping in view the impact of the personality and conduct of one spouse upon the mind of the other. Cruelty may be inferred from the facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence and inference on the said point can only be drawn after all the facts have been taken into consideration. Where there is proof of a deliberate course of conduct on the part of one, intended to hurt and humiliate the other spouse, and such a conduct is persisted cruelty can easily be inferred. Neither actual nor presumed intention to hurt the other spouse is a necessary element in cruelty. Sujata Uday Patil v. Uday Madhukar Patil, (2006) 13 SCC 272 

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Right to Reside in Matrimonial Home – No Liability of Builder

A married woman is entitled to live, subsequent to her marriage, with rest of her family members on the husband’s side, in case it is a joint-property. If she resides in an accommodation as an independent family unit with her husband and children, the matrimonial home would be that residential unit. This right is embedded in her right as a wife. It is implicit under the provisions of Section 18 of the Hindu Adoption and Maintenance Act, 1956 in situations that statute is applicable. The Protection of Women from Domestic Violence Act, 2005 has recognised the concept of “shared household” in terms of Section 2(s) of this statute. Alienating an immovable asset to defeat the right of a victim lady under the said Act can constitute domestic violence, coming, inter-alia, within the ambit of the expression “economic abuse” under Section 3(iv) of 2005 Act. A Magistrate having jurisdiction under Section 19 of the Protection of Women from Domestic Violence Act is empowered to pass a residence order to protect a victim of domestic violence from being removed from her shared household. But for a husband to compel his wife to live in a separate household, which is not her matrimonial home, an order from appropriate legal forum would be necessary. There cannot be forcible dishousing of a wife from her matrimonial home.

When a builder has discharged his obligation by accommodating the original owners in the redeveloped portion as per a scheme, a lady married into that family would not be entitled to invoke the writ jurisdiction of the High Court to enforce her right to matrimonial home citing the provisions of the said statute, if her husband does not permit her to reside in the allocated portion. She does not have any independent claim on title or interest to that property having its genesis in that statute. Her claim of right to reside in her matrimonial home is sought to be projected by her as collateral to the statutory right of her husband to be rehoused or rehabilitated in the new building. But her right to reside in her matrimonial home stands detached from and is independent of the statutory scheme under the Maharashtra Housing and Area Development Act. Neither MHADA, nor the builder can have any further legal obligation to rehouse her. She was an occupier under Section 2 (25) of the MHADA Act, 1976 but such occupier status was dependent upon her husband’s independent right as part owner of the property. Her right flowing from her matrimonial status cannot get diffused with her right of rehousing or rehabilitation under the statutory scheme. Her right to reside in her matrimonial home does not flow from the 1976 Act. Aishwarya Atul Pusalkar v. Maharashtra Housing and Area Development Authority, Civil Appeal No. 7231 of 2012 (SC).

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