Legal Reference Library

The Supreme Court, in Samir Vidyasagar Bhardwaj vs Nandita Samir Bhardwaj, has upheld an interim order by a family court in Maharashtra, which directed a husband to remove himself from his own home and not to visit there until the divorce petition under challenge is finally decided. The apex court, on an appeal by the husband, observed that Section 19(1)(b) of the Protection of Women Domestic Violence Act provides that the court may direct the husband to remove himself from the shared household. Article referred: http://www.livelaw.in/sc-upholds-family-court-order-asking-husband-vacate-home-pendency-divorce-case/

Merely because the wife is ‘capable of earning’, it is not a reason to reduce the maintenance awarded to her, the Supreme Court has held in a recent pronouncement in Shailja vs. Khobbanna. A bench comprising Justice Madan B Lokur and Justice Prafulla C Pant said whether the wife is capable of earning or whether she is actually earning are two different requirements and the high court went wrong in reducing the compensation awarded to her by the family court on the sole basis that she was ‘capable of earning’. Interestingly, the high court had rejected the contention of the husband that his wife was working as a lecturer and is earning. But observing that she is ‘capable of earning’, the high court reduced the maintenance amount of Rs.12,000. The court also observed that the income of the husband, is more than Rs.80,000 per month and he is a senior lecturer in a college, and also the owner of 26 acres of irrigated land. Article referred: http://www.livelaw.in/wifes-capability-earn-no-...

Quashing a family court verdict, the Nagpur bench of Bombay High Court allowed an Amravati woman to end her marriage by ruling that “suspecting wife’s character is cruelty to her”. The wife, an engineer, had approached the family court for divorce after 13 years of tumultuous marriage citing her husband’s supposed inferiority complex and continual ill-treatment, including bouts of physical abuse. “It is clear husband’s conduct in suspecting wife’s character, physically assaulting and harassing her, as she was coming home late from work due to nature of her job, are the facts duly established amounting to cruelty. Therefore, the wife is entitled to a decree of divorce on same ground,” a bench of Justice Vasanti Naik and Justice Indira Jain held. After entering into matrimony on March 11, 2000, the couple started residing in Wardha in a joint family. Soon cracks appeared in marriage as petitioner’s in-laws were allegedly uncomfortable with her educational qualifications. Though she op...

The Patna High Court in Rajesh Kumar vs. Pushpa Rani, considered the sustainability of a decree for judicial separation. The Bench comprising Chief Justice Iqbal Ahmed Ansari and Justice Nilu Agrawal dealt with the effect on a person, who having received a decree of judicial separation and later a divorce decree, proceeds to remarry and father children. In this case, the petitioner husband had filed for a decree of dissolution of marriage under section 13(1)(i) of the Hindu Marriage Act, 1955, which was granted to him in an ex parte proceeding against the wife who failed to attend the proceedings despite having transferred the case from Patna to Allahabad, after a year had elapsed since the decree for separation. Once the decree was granted and the limitation period for filing an appeal against the dissolution granted had expired, the petitioner remarried and fathered two children from the second marriage. The first wife (respondent herein), however, filed an application to review ...

 A professionally qualified woman should be able to take care of herself, the Delhi high court has said, denying maintenance demanded by a chartered accountant from her estranged husband. "The appellant/wife, who is a qualified chartered accountant and has been in the profession since 2003, need not be granted interim maintenance under Section 24 of the Hindu Marriage Act," a bench of Justices Pradeep Nandrajog and Pratibha Rani observed while rejecting her plea. The wife had appealed against a trial court order that awarded her Rs 22,900 a month towards maintenance of her two children but declined to award an interim maintenance to her, pointing out that she was a chartered accountant with sufficient means to maintain herself. According to the woman's petition, the duo had got married in 2005 in Delhi. The estranged husband, an electrical engineer, runs his own business. He filed for divorce owing to "differences". The wife had sought an interim maintenance...

Dismissing wife's plea for restitution of conjugal rights, Nagpur bench of Bombay High Court ruled that allegations of impotency against husband amounts to cruelty and he is entitled for divorce. "No husband would like to hear that he was impotent for about six to seven months after the marriage. If that was not true, allegations would surely hurt a man's ego. Before levelling them against the husband, the wife should have given some thought," a division bench comprising Justice Vasanti Naik and Justice Swapna Joshi stated. The couple entered into matrimony on September 27, 2007, but problems started as they used to reside in a joint family. After honeymoon period, the wife started disrespecting her in-laws and abusing them. She also pressurized the husband to live separately and refused to do household daily chores. She used to threaten husband to implicate him and in-laws under false charges and made a startling allegation that he was impotent during initial period...

Delhi High Court has recently re-iterated the factors to be considered by the Court while deciding an application for interim Maintenance. A Division Bench of Justices Pradeep Nandrajog and Pratibha Rani has observed that the object behind Section 24 of the Hindu Marriage Act, 1955 is to provide for maintenance, pendente-lite, to a spouse in matrimonial proceedings so that during the pendency of the proceedings the spouse can maintain herself/himself and also have sufficient funds to carry on the litigation so that the spouse does not unduly suffer in the conduct of the case for want of fund. The Bench further stated that the provisions of Section 24 are beneficent in nature and the power is exercised by the Court not only out of compassion but also by way of judicial duty so that the indigent spouse may not suffer at the instance of the affluent spouse. The legislature, in its discretion, has not fixed any guideline regarding ceiling limit of maintenance, pendente-lite, as in the case...

There is nothing wrong in a woman expecting to maintain the same lifestyle in the society in which she lived with her estranged husband, the Bombay high court said, and in a partial relief to a man from a royal family, ordered him to deposit 75% of the Rs11-crore permanent alimony. A division bench of Justice Naresh Patil and Justice Prakash Naik asked Ranjeet Nabha to deposit with the high court registry within three months 75% of the permanent alimony awarded by the Bandra family court — Rs6 crore for his former wife Udita and Rs5 crore for their minor daughter. The estranged couple had tied the knot in March 1995 at Dadri in Uttar Pradesh, and stayed in New York till 2006. They returned to Mumbai where Udita approached the family court seeking dissolution of marriage on the ground of objectionable conduct and behaviour of her husband. In September 2015, the Bandra court dissolved the marriage and directed Nabha to pay Rs11 crore as permanent alimony to Udita and their daughter. H...

If a married couple wants divorce by mutual consent, it is not a court's business to deny them judicial separation by insisting on knowing the reason for their decision, the Madras high court has said. Noting that a court could not act like a fact-finding authority, a division of Justice K K Sasidharan and Justice N Gokuldas said: "In case the marriage is a failure and the parties wanted to put an end to the marital bond, the court should respect the sentiments and grant divorce+ . It is not the intention of the legislature to deny divorce in spite of the parties taking a conscious decision to part ways." Article referred: http://timesofindia.indiatimes.com/If-couple-wants-divorce-courts-cannot-ask-for-reasons-says-HC/articleshow/53644037.cmsZ

The Punjab and Haryana High Court has made it clear that an estranged wife capable of earning is also entitled to maintenance. The ruling came in a case where the husband claimed the wife was not entitled to maintenance as she was capable of earning. Justice Daya Chaudhary ruled that it was neither stated in the reply nor argued on the husband’s behalf that the respondent wife was earning. It was simply stated that the respondent wife possessed professional qualifications and could earn her livelihood. As such, directions by a Chief Judicial Magistrate to the husband for paying interim maintenance could not be faulted with. The petitioner husband had earlier moved the court against the grant of maintenance to the respondent wife primarily on the ground that it was on the higher side and the respondent wife being professionally qualified was in a position to earn her livelihood. Justice Chaudhary referred to Section 125 of the CrPC on maintenance of wives, children and parents, which...

Allahabad High Court has recently held that allowing Divorce on the ground of irretrievable breakdown of marriage is exclusive within jurisdiction of Supreme Court and is beyond jurisdiction of any other Court in India. The Court has also directed the Law Commission of the State to take appropriate steps to consider for incorporating the ground of ”irretrievable breakdown of marriage’ as grounds of divorce in Section 13 of the Hindu Marriage Act. The Court was considering an Appeal filed by Wife against the Judgment of IIIrd Additional Civil Judge, Senior Division (/ACJM), Gautam Buddha Nagar granting divorce to the Husband. In the judgment, the trial court had given finding that petitioner/husband had proved his case, and it is proved from the evidences that his Wife had treated the petitioner with cruelty in form of screaming and insulting before others, hurting and complaining in police. Trial court had also found there is evidence to the effect that that before filing of the petiti...

Recently Punjab and Haryana High Court has examined the question whether name of a step-father, on the asking of his step-son, can be entered in the Birth Certificate, replacing the name of the biological father, in terms of Section 15 of the Registration of Births and Deaths Act, 1969? The word “biological father” is defined in the Black’s Law Dictionary as “the man whose sperm impregnated the child’s biological mother”. Even otherwise, in the same dictionary, “biological parents” is provided as “the woman who provide the egg or the man who provides the sperm to form the zygote that grows into an embryo” which is also termed as “genetic parents”. On the other hand, the step- father is defined in the Concise Oxford English Dictionary as “a man who is married to one’s mother after the divorce of one’s parents or the death of one’s father”. Justice Rakesh Kumar Jain examined the question is as to whether Section 15 of the Act can be invoked by the petitioner for correction of the entry i...

Invoking Article 142 of the Constitution of India to do ‘complete justice’ to a couple who had decided to part with each other after living separately for last five years, the Supreme Court has waived statutory cool-off period of six months and granted them divorce. The couple who approached the Family court were told to wait till October to formally end the marriage. The Husband approached the Apex Court through a Special Leave Petition and the Wife submitted before the Bench headed by Justice Kurian Joseph that she needs a change in environment and thus, she has  proposed  to  move  to  NewYork and it would be difficult for her  to  get  back  to  India  after  sixmonths or even in the near future. The Couple, both of them graduates, were married in 2011. They submitted before the bench that both  of  themhave realized the consequences of their decision and  they  have  taken  thedecision out ...

A Suit or a proceeding for a declaration as to the validity of both marriage and matrimonial status of a person is within the exclusive jurisdiction of the Family Court, the Supreme Court has held in BALRAM YADAV VS. FULMANIYA YADAV. Division Bench comprising of Justices Kurian Joseph and R.F. Nariman set aside Chattisgarh High Court judgment which had held that a negative declaration with respect to matrimonial status was outside the jurisdiction of the Family Court. The Referring to relevant provisions of Family Courts Act, Hindu Marriage Act and the Code of Civil Procedure, the Bench held “Under Section 7(1) Explanation (b), a Suit or a proceeding for a declaration as to the validity of both marriage and matrimonial status of a person is within the exclusive jurisdiction of the Family Court, since under Section 8, all those jurisdictions covered under Section 7 are excluded from the purview of the jurisdiction of the Civil Courts. In case, there is a dispute on the matrimonial sta...

In Krishna Bhattacharjee V.  Sarathi Choudhury, 2015 scc 1229, 2015 while dealing with a question whether the retention of stridhan by the husband or any other family members is a continuing offence or not, the division bench comprising of Dipak Misra and Prafulla C. Pant, JJ held that the concept of “continuing offence” gets attracted from the date of deprivation of stridhan, for neither the husband nor any other family members can have any right over the stridhan and they remain the custodians The respondent contended before the Magistrate that the claim is barred by time and that she should have claimed it prior to their judicial separation. The Magistrate admitted the fact that the respondent and the appellant had entered into the wedlock. The magistrate treated her as an aggrieved person. But concluded that no domestic relationship existed between the parties and hence she is not entitled to file the application under Sec 12 of the 2005 Act. The Court taking reference of vario...

The Supreme Court in Prakash Nagardas Dubal Shaha vs. Sou Meena Prakash Dubal Shahhas has held that unsuccessful divorce proceedings cannot adversely affect the maintainability of application filed under the Domestic Violence Act. Division Bench comprising of Justices Dipak Misra and Shiva Kirti Singh made this observation in an appeal filed by the Husband against the order of High Court which had held that his wife was entitled to seek maintenance from him. By way of maintenance the Magistrate had fixed Rs. 5,000/- per month for the wife, same amount for the daughter and Rs. 4,000/- for the minor son, which was later upheld by the High Court. The order of Sessions Court reversing the findings of the Magistrate on the ground that the wife had initiated divorce proceedings at an earlier point of time, the Protection of Women from Domestic Violence Act which came into force only later in 2005 was wrongly invoked by the wife, was also set aside by the High Court. Supreme Court said that i...

Allahabad High Court recently held that parties may withdraw their consent once granted for Divorce by mutual consent, at any time before the passing of the decree. Hindu Marriage Act, 1955 provides two modes for divorce namely (i) on the grounds mentioned under Section 13 of the Act or (ii) on mutual consent for which a petition has to be presented by both the parties to the marriage and after interregnum period of six months they again attorn their consent before the Court. The Court has considered the issue as to whether consent given at the initial stage for divorce can be withdrawn at the later. Relying on various Supreme Court Judgments, Justice Ram Surat Ram (Maurya) held that if petition for divorce is not formally withdrawn and is kept pending then on the date when the court grants the decree, the court has a statutory obligation to hear the parties to ascertain their consent. From the absence of one of the parties for two to three days, the court cannot presume his/her co...

The Punjab and Haryana high court has held that mutual consent divorce orders passed by the court cannot be annulled by an assertion of any party later that the decree was meant to be a sham for facilitating employment in a foreign country. Dismissing a petition filed by a woman from Sonipat district in Haryana, Justice K Kannan of the HC held that marriage was the only contract that couldn't be annulled by mere wish of parties outside the court. The woman had claimed that she had agreed for a divorce by mutual consent after her husband convinced her that by dissolving the marriage, his prospects of going abroad and securing necessary travel documents would brighten. She never believed that the decree of the court was 'really' meant to end her matrimonial relationship. She had approached the court to quash the divorce orders issued by the lower court. Hearing the plea, the HC on January 21 observed that proceedings of court cannot be brought under thick clouds of irrev...

The Bombay High Court in Shakil Ahmad Jalaluddin Shaikh vs. Vahida Shakil Shaikh has held that, mere existence of a document like talaqnama, is not sufficient to render a valid Talaq. Justice M.S. Sonak held that, for a valid Talaq, it is not sufficient that the prescribed expressions are pronounced thrice but the stages it is preceded by, are required to be pleaded and proved before the Court, if disputed by wife. Bombay High Court IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO. 2201 OF 2007 Shakil Ahmad Jalaluddin Shaikh .. Petitioner vs. Vahida Shakil Shaikh & Anr. .. Respondents Mr. R. S. Khadapkar for Petitioner. Ms Tejasweeta Bhosale h/f. Mr. R. S. Kate for Respondent No. 1 CORAM : M. S. SONAK, J.  Date of Reserving the Judgment : 15 January 2016  Date of Pronouncing the Judgment : 20 January 2016

Bombay High Court: While deciding the appeal preferred against the judgement of the Sessions Court, which denied the maintenance granted by the Judicial Magistrate First Class, Karad,  M.S. Sonak J. modified the order of the Judicial Magistrate First Class and directed the respondent to pay  maintenance on monthly basis to the applicant with effect from 1 January 2015 thereby setting aside the order of the Sessions Court. In the present case Mr. Sawant, learned counsel for the petitioner contended that the evidence on record does establish that the applicant was harassed and therefore compelled to live away from the respondent and the Additional Sessions Judge exceeded the bounds of revisional jurisdiction in interfering with the well reasoned decision of the Judicial Magistrate First Class. On the contrary counsel for the respondent Ms. Bhosale submitted that the Additional Sessions Judge, upon proper appreciation of the material on record has rightly held that the Applicant...