Research Results Based on the Query
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HCJ
Query: In a case before the High Court, there is a dispute between a husband and wife. The wife accuses the husband of domestic violence and seeks divorce based on this, as well as on grounds of living separately for the past three years. I am representing the wife.
Related Articles and Sections
I. INTRODUCTION
In the context of the case before the High Court, the wife’s allegations of domestic violence and her request for divorce based on this and the ground of living separately for three years are significant. This analysis will explore the legal framework surrounding domestic violence and divorce under Indian law, particularly focusing on the Protection of Women from Domestic Violence Act, 2005, and the Hindu Marriage Act, 1955.
II. DOMESTIC VIOLENCE ALLEGATIONS
A. Definition and Scope
Under the Protection of Women from Domestic Violence Act, 2005 (PWDVA), "domestic violence" is defined in Section 3 as any act, omission, or commission that harms or injures a woman, including physical, sexual, verbal, emotional, and economic abuse. The Act aims to provide protection to women from domestic violence and recognizes the need for a comprehensive legal framework to address such issues.
B. Filing a Complaint
The wife can file a complaint under Section 12 of the PWDVA, seeking relief from domestic violence. The complaint can be made to a Magistrate, who has the authority to issue protection orders, residence orders, and monetary relief. It is crucial to gather evidence, such as medical reports, photographs, witness statements, and any other documentation that supports the claims of domestic violence.
C. Interim Relief
While the case is pending, the wife can seek interim relief under Section 23 of the PWDVA. This may include a protection order to prevent the husband from committing further acts of violence, as well as a residence order to ensure she has a safe place to live. The court may also grant monetary relief for expenses incurred due to the domestic violence.
III. DIVORCE ON GROUNDS OF DOMESTIC VIOLENCE
A. Grounds for Divorce
Under Section 13 of the Hindu Marriage Act, 1955, a wife can seek divorce on several grounds, including cruelty, which encompasses domestic violence. The definition of cruelty includes both physical and mental harm. The wife’s allegations of domestic violence can be substantiated as a form of cruelty, providing a valid ground for divorce.
B. Living Separately for Three Years
Additionally, Section 13(1)(b) of the Hindu Marriage Act allows for divorce on the ground of living separately for a period of one year or more. Since the wife has been living separately for the past three years, this ground can be effectively utilized in her divorce petition. The requirement of living separately is satisfied, and the court may grant divorce based on this ground alone, irrespective of the domestic violence allegations.
IV. EVIDENCE AND PROOF
A. Burden of Proof
In cases of domestic violence, the burden of proof lies on the wife to establish her claims. It is essential to compile a comprehensive set of evidence that corroborates her allegations. This may include:
1. Medical Records: Documentation of injuries sustained due to domestic violence.
2. Witness Statements: Testimonies from family members, friends, or neighbors who may have witnessed the incidents.
3. Police Reports: If the wife has filed a police complaint, the FIR and subsequent investigation reports can serve as crucial evidence.
4. Text Messages/Emails: Any communication that reflects the husband’s abusive behavior.
B. Legal Strategy
The legal strategy should focus on presenting a well-documented case that highlights the pattern of domestic violence and the impact it has had on the wife’s mental and physical well-being. The evidence should be organized and presented in a manner that clearly establishes the grounds for both domestic violence and divorce.
V. CONSTITUTIONAL PROVISIONS
A. Right to Life and Personal Liberty
Article 21 of the Constitution of India guarantees the right to life and personal liberty. This provision can be invoked to argue that the wife has the right to live free from violence and in a safe environment. The courts have interpreted this right to include the right to live with dignity, which is compromised in cases of domestic violence.
B. Right to Equality
Article 14 of the Constitution ensures equality before the law and equal protection of the laws. The wife can argue that the domestic violence she has faced is a violation of her fundamental rights, and the legal system must provide her with adequate protection and relief.
VI. CONCLUSION AND RECOMMENDATIONS
In conclusion, the wife has a strong case for both domestic violence and divorce based on the grounds of cruelty and living separately for three years. The following recommendations should be considered:
1. Filing a Comprehensive Petition: The divorce petition should clearly outline the grounds for divorce, including specific instances of domestic violence and the duration of separation.
2. Seeking Protection Orders: Concurrently, a complaint under the PWDVA should be filed to seek immediate protection and relief from domestic violence.
3. Gathering Evidence: A thorough collection of evidence is crucial to substantiate the claims of domestic violence and support the divorce petition.
4. Legal Representation: Ensure that the wife is represented by a competent lawyer who specializes in family law and domestic violence cases to navigate the complexities of the legal process effectively.
5. Counseling and Support: It may also be beneficial to seek counseling for the wife to address the emotional and psychological impact of domestic violence, which can be presented as part of the evidence in court.
By following these steps, the wife can effectively pursue her legal rights and seek justice in the face of domestic violence and marital discord.
In the context of the case before the High Court, the wife’s allegations of domestic violence and her request for divorce based on this and the ground of living separately for three years are significant. This analysis will explore the legal framework surrounding domestic violence and divorce under Indian law, particularly focusing on the Protection of Women from Domestic Violence Act, 2005, and the Hindu Marriage Act, 1955.
II. DOMESTIC VIOLENCE ALLEGATIONS
A. Definition and Scope
Under the Protection of Women from Domestic Violence Act, 2005 (PWDVA), "domestic violence" is defined in Section 3 as any act, omission, or commission that harms or injures a woman, including physical, sexual, verbal, emotional, and economic abuse. The Act aims to provide protection to women from domestic violence and recognizes the need for a comprehensive legal framework to address such issues.
B. Filing a Complaint
The wife can file a complaint under Section 12 of the PWDVA, seeking relief from domestic violence. The complaint can be made to a Magistrate, who has the authority to issue protection orders, residence orders, and monetary relief. It is crucial to gather evidence, such as medical reports, photographs, witness statements, and any other documentation that supports the claims of domestic violence.
C. Interim Relief
While the case is pending, the wife can seek interim relief under Section 23 of the PWDVA. This may include a protection order to prevent the husband from committing further acts of violence, as well as a residence order to ensure she has a safe place to live. The court may also grant monetary relief for expenses incurred due to the domestic violence.
III. DIVORCE ON GROUNDS OF DOMESTIC VIOLENCE
A. Grounds for Divorce
Under Section 13 of the Hindu Marriage Act, 1955, a wife can seek divorce on several grounds, including cruelty, which encompasses domestic violence. The definition of cruelty includes both physical and mental harm. The wife’s allegations of domestic violence can be substantiated as a form of cruelty, providing a valid ground for divorce.
B. Living Separately for Three Years
Additionally, Section 13(1)(b) of the Hindu Marriage Act allows for divorce on the ground of living separately for a period of one year or more. Since the wife has been living separately for the past three years, this ground can be effectively utilized in her divorce petition. The requirement of living separately is satisfied, and the court may grant divorce based on this ground alone, irrespective of the domestic violence allegations.
IV. EVIDENCE AND PROOF
A. Burden of Proof
In cases of domestic violence, the burden of proof lies on the wife to establish her claims. It is essential to compile a comprehensive set of evidence that corroborates her allegations. This may include:
1. Medical Records: Documentation of injuries sustained due to domestic violence.
2. Witness Statements: Testimonies from family members, friends, or neighbors who may have witnessed the incidents.
3. Police Reports: If the wife has filed a police complaint, the FIR and subsequent investigation reports can serve as crucial evidence.
4. Text Messages/Emails: Any communication that reflects the husband’s abusive behavior.
B. Legal Strategy
The legal strategy should focus on presenting a well-documented case that highlights the pattern of domestic violence and the impact it has had on the wife’s mental and physical well-being. The evidence should be organized and presented in a manner that clearly establishes the grounds for both domestic violence and divorce.
V. CONSTITUTIONAL PROVISIONS
A. Right to Life and Personal Liberty
Article 21 of the Constitution of India guarantees the right to life and personal liberty. This provision can be invoked to argue that the wife has the right to live free from violence and in a safe environment. The courts have interpreted this right to include the right to live with dignity, which is compromised in cases of domestic violence.
B. Right to Equality
Article 14 of the Constitution ensures equality before the law and equal protection of the laws. The wife can argue that the domestic violence she has faced is a violation of her fundamental rights, and the legal system must provide her with adequate protection and relief.
VI. CONCLUSION AND RECOMMENDATIONS
In conclusion, the wife has a strong case for both domestic violence and divorce based on the grounds of cruelty and living separately for three years. The following recommendations should be considered:
1. Filing a Comprehensive Petition: The divorce petition should clearly outline the grounds for divorce, including specific instances of domestic violence and the duration of separation.
2. Seeking Protection Orders: Concurrently, a complaint under the PWDVA should be filed to seek immediate protection and relief from domestic violence.
3. Gathering Evidence: A thorough collection of evidence is crucial to substantiate the claims of domestic violence and support the divorce petition.
4. Legal Representation: Ensure that the wife is represented by a competent lawyer who specializes in family law and domestic violence cases to navigate the complexities of the legal process effectively.
5. Counseling and Support: It may also be beneficial to seek counseling for the wife to address the emotional and psychological impact of domestic violence, which can be presented as part of the evidence in court.
By following these steps, the wife can effectively pursue her legal rights and seek justice in the face of domestic violence and marital discord.
Likely Arguments
Analysis of Potential Arguments and Counterarguments in Domestic Violence and Divorce Case
In representing the wife in a domestic violence and divorce case, it is essential to anticipate the arguments that the opposing counsel may present and prepare effective counterarguments. Below is a comprehensive analysis of potential arguments from the husband’s side, along with counterarguments and a recommended strategy for defending your client.
Potential Arguments from Opposing Counsel
1. Denial of Domestic Violence Allegations
- The husband may argue that the allegations of domestic violence are false and fabricated to gain an advantage in divorce proceedings.
- He may present evidence of a lack of medical reports or police complaints to support his claim.
2. Counterclaims of Misconduct
- The husband may assert that the wife has engaged in misconduct, such as infidelity or neglecting household responsibilities, which could undermine her credibility.
- He may argue that her behavior contributed to the breakdown of the marriage.
3. Reconciliation Efforts
- The husband may claim that he made efforts to reconcile and that the wife’s refusal to engage in these efforts indicates her unwillingness to maintain the marriage.
- He may present evidence of attempts to communicate or attend counseling sessions.
4. Living Separately
- The husband may argue that the wife’s decision to live separately for three years was voluntary and not a result of domestic violence.
- He may claim that the separation was a mutual decision or that the wife left for personal reasons unrelated to the marriage.
5. Legal Grounds for Divorce
- The husband may argue that the grounds for divorce under Section 13 of the Hindu Marriage Act, 1955, are not met, particularly regarding the definition of cruelty and the absence of evidence supporting the claim.
Counterarguments for the Wife
1. Evidence of Domestic Violence
- Counter the denial of domestic violence by presenting evidence such as photographs of injuries, witness testimonies, or any recorded communications that demonstrate abusive behavior.
- Cite Section 3 of the Protection of Women from Domestic Violence Act, 2005, which defines domestic violence broadly, including physical, emotional, and economic abuse.
2. Credibility and Character
- Address counterclaims of misconduct by emphasizing the husband’s abusive behavior as the primary cause of the marital breakdown, rather than the wife’s alleged misconduct.
- Highlight the importance of the husband’s actions in the context of domestic violence, which can overshadow any claims of the wife’s faults.
3. Lack of Genuine Reconciliation Efforts
- Argue that any reconciliation efforts made by the husband were insincere or inadequate, and that the wife’s refusal to engage was a protective measure against further abuse.
- Present evidence of the wife’s attempts to seek help or counseling, which may have been ignored or dismissed by the husband.
4. Justification for Separation
- Emphasize that the wife’s decision to live separately was a necessary step for her safety and well-being, supported by the ongoing domestic violence.
- Cite Section 13(1)(ia) of the Hindu Marriage Act, which allows for divorce on the grounds of cruelty, reinforcing that the separation was justified.
5. Legal Grounds for Divorce
- Argue that the evidence of domestic violence constitutes cruelty under Section 13(1)(ia) of the Hindu Marriage Act, thus fulfilling the legal grounds for divorce.
- Highlight any psychological impact on the wife due to the abuse, which can further substantiate claims of cruelty.
Optimal Strategy to Defend the Client
1. Gather Comprehensive Evidence
- Collect all relevant evidence, including medical records, police reports, witness statements, and any documentation of the husband’s abusive behavior. This will strengthen the case for domestic violence and divorce.
2. Focus on Credibility
- Build a narrative that emphasizes the wife’s credibility and the husband’s abusive behavior. Use character witnesses who can attest to the wife’s integrity and the husband’s actions.
3. Highlight Legal Protections
- Utilize the provisions of the Protection of Women from Domestic Violence Act, 2005, to reinforce the wife’s right to seek protection and divorce. This includes seeking interim relief and protection orders if necessary.
4. Prepare for Cross-Examination
- Anticipate the husband’s arguments and prepare the wife for cross-examination. Ensure she is confident in presenting her experiences and the impact of domestic violence on her life.
5. Seek Counseling and Support
- Encourage the wife to seek counseling and support services, which can provide emotional stability and further demonstrate her commitment to healing and moving forward.
By employing these strategies and effectively countering the opposing counsel’s arguments, you can build a strong case for your client, advocating for her rights and well-being in the face of domestic violence and marital dissolution.
In representing the wife in a domestic violence and divorce case, it is essential to anticipate the arguments that the opposing counsel may present and prepare effective counterarguments. Below is a comprehensive analysis of potential arguments from the husband’s side, along with counterarguments and a recommended strategy for defending your client.
Potential Arguments from Opposing Counsel
1. Denial of Domestic Violence Allegations
- The husband may argue that the allegations of domestic violence are false and fabricated to gain an advantage in divorce proceedings.
- He may present evidence of a lack of medical reports or police complaints to support his claim.
2. Counterclaims of Misconduct
- The husband may assert that the wife has engaged in misconduct, such as infidelity or neglecting household responsibilities, which could undermine her credibility.
- He may argue that her behavior contributed to the breakdown of the marriage.
3. Reconciliation Efforts
- The husband may claim that he made efforts to reconcile and that the wife’s refusal to engage in these efforts indicates her unwillingness to maintain the marriage.
- He may present evidence of attempts to communicate or attend counseling sessions.
4. Living Separately
- The husband may argue that the wife’s decision to live separately for three years was voluntary and not a result of domestic violence.
- He may claim that the separation was a mutual decision or that the wife left for personal reasons unrelated to the marriage.
5. Legal Grounds for Divorce
- The husband may argue that the grounds for divorce under Section 13 of the Hindu Marriage Act, 1955, are not met, particularly regarding the definition of cruelty and the absence of evidence supporting the claim.
Counterarguments for the Wife
1. Evidence of Domestic Violence
- Counter the denial of domestic violence by presenting evidence such as photographs of injuries, witness testimonies, or any recorded communications that demonstrate abusive behavior.
- Cite Section 3 of the Protection of Women from Domestic Violence Act, 2005, which defines domestic violence broadly, including physical, emotional, and economic abuse.
2. Credibility and Character
- Address counterclaims of misconduct by emphasizing the husband’s abusive behavior as the primary cause of the marital breakdown, rather than the wife’s alleged misconduct.
- Highlight the importance of the husband’s actions in the context of domestic violence, which can overshadow any claims of the wife’s faults.
3. Lack of Genuine Reconciliation Efforts
- Argue that any reconciliation efforts made by the husband were insincere or inadequate, and that the wife’s refusal to engage was a protective measure against further abuse.
- Present evidence of the wife’s attempts to seek help or counseling, which may have been ignored or dismissed by the husband.
4. Justification for Separation
- Emphasize that the wife’s decision to live separately was a necessary step for her safety and well-being, supported by the ongoing domestic violence.
- Cite Section 13(1)(ia) of the Hindu Marriage Act, which allows for divorce on the grounds of cruelty, reinforcing that the separation was justified.
5. Legal Grounds for Divorce
- Argue that the evidence of domestic violence constitutes cruelty under Section 13(1)(ia) of the Hindu Marriage Act, thus fulfilling the legal grounds for divorce.
- Highlight any psychological impact on the wife due to the abuse, which can further substantiate claims of cruelty.
Optimal Strategy to Defend the Client
1. Gather Comprehensive Evidence
- Collect all relevant evidence, including medical records, police reports, witness statements, and any documentation of the husband’s abusive behavior. This will strengthen the case for domestic violence and divorce.
2. Focus on Credibility
- Build a narrative that emphasizes the wife’s credibility and the husband’s abusive behavior. Use character witnesses who can attest to the wife’s integrity and the husband’s actions.
3. Highlight Legal Protections
- Utilize the provisions of the Protection of Women from Domestic Violence Act, 2005, to reinforce the wife’s right to seek protection and divorce. This includes seeking interim relief and protection orders if necessary.
4. Prepare for Cross-Examination
- Anticipate the husband’s arguments and prepare the wife for cross-examination. Ensure she is confident in presenting her experiences and the impact of domestic violence on her life.
5. Seek Counseling and Support
- Encourage the wife to seek counseling and support services, which can provide emotional stability and further demonstrate her commitment to healing and moving forward.
By employing these strategies and effectively countering the opposing counsel’s arguments, you can build a strong case for your client, advocating for her rights and well-being in the face of domestic violence and marital dissolution.
Relevant Supreme Court Judgments
Year From: 1950, Year To: 2024
Year From: 1950, Year To: 2024
Supreme Court of India
(ID::2010 SCP 172)
Honourable Judges Surinder Singh Nijjar, V.S. Sirpurkar
Date of Judgment: 10 Feb 2010
Segment Number (Approximate Page Number): 9
Relevancy Score: 69.32
The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made." 27. Taking into consideration the conduct of the parties over a period of time, the Trial Court as well as the Appellate Court concluded that the husband had failed to establish cruelty on the part of the wife which will be sufficient to grant a decree of divorce. 28. The Appellate Court further came to the conclusion that since both the parties made extremely serious allegations, it would be appropriate as the parties were not compelled to live together. The Appellate Court came to the conclusion that it would be more appropriate to give the couple some time to ponder over the issue especially keeping in view the welfare of their daughter. If in due course they manage to reconcile their differences the decree of judicial separation would be of no consequence. On the other hand, if the parties continued with their adamant attitudes it would be possible for either party to seek dissolution of the marriage on the basis of the aforesaid decree of judicial separation. 29. As noticed earlier the husband did not challenge the aforesaid decree of the Appellate Court, he was content to wait for one year and there after seeking decree of divorce. In fact upon the expiry of one year he has actually filed the necessary proceedings seeking decree of divorce in the Court of District Judge, Gurgaon on 9.5.2002. These proceedings are still pending. 30. On the other hand the wife had filed the Latest Patent Appeal challenging the grant of decree of judicial separation to the husband by the Appellate Court. We are of the opinion that the High Court erred in granting a decree of divorce to the husband. She had come in appeal before the Division Bench complaining that the Appellate Court had wrongly granted the decree of judicial separation even after concurring with the findings of the Trial Court that the husband had failed to establish cruelty by the wife. Therefore even if the appeal had been dismissed, the findings recorded by the Trial Court in her favour would have remained intact.
Supreme Court of India
(ID::2023 SCP 445)
Honourable Judges Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S. Oka, Vikram Nath, J.K. Maheshwari
Date of Judgment: 01 May 2023
Segment Number (Approximate Page Number): 28
Relevancy Score: 69.23
The respondent - wife was based in Canada, to where she had shifted, and was statedly taking medication for depression. The appellant - husband complained of loneliness and lack of co-habitation, causing mental and physical torture. Several attempts to mediate, and efforts made by counsellors, psychologists, the panchayat and even the courts did not yield results. In these circumstances, this Court exercised the power under Article 142(1) of the Constitution of India, recognising the futility of a completely failed 49 Explanation to Section 9 of the Hindu Marriage Act, which reads, “Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society”, partially mitigates the rigors to Section 23(1)(a) of the Hindu Marriage Act and, consequently, the fault theory. 50 (2020) 14 SCC 657. 51 2021 SCC OnLine SC 702. T.P. (C) No. 1118 of 2014 & Ors. Page 46 of 61 and broken down marriage. While observing that there was no consent of the respondent - wife for grant of divorce, the Court felt that there was no willingness on her part either to live with the appellant - husband. What was left in the marriage were bitter memories and angst, which increased with the passage of time, as the respondent - wife was reluctant to let the appellant - husband live his life by getting a decree of divorce. In view of the aforesaid position, this Court exercised the power under Article 142(1) of the Constitution of India to do ‘complete justice’ between the parties. It was also directed that the appellant - husband would continue to pay the specified amount per month to the respondent - wife, which amount could be enhanced or reduced by taking recourse to appropriate proceedings. 32. In Sivasankaran (supra), the marriage had taken place in February 2002, and after about a year, divorce proceedings were initiated and the decree of divorce was passed in 2008 under Section 13(1)(i-a) of the Hindu Marriage Act. The appellant - husband had remarried within six days of the passing of the decree of divorce. The respondent - wife filed an appeal and the dispute had remained pending till it reached this Court. Attempts to resolve the dispute through mediation and settlement between the parties bore no fruit. The respondent - wife was resistant to T.P. (C) No. 1118 of 2014 & Ors. Page 47 of 61 accept the decree of divorce, even though she was aware that the marriage was but only on paper. Observations on the difficulty faced by women in the form of social acceptance after a decree of divorce, and also the need to guarantee financial and economic security were elucidated.
Supreme Court of India
(ID::2023 SCP 408)
Honourable Judges Aniruddha Bose, Sudhanshu Dhulia
Date of Judgment: 26 Apr 2023
Segment Number (Approximate Page Number): 3
Relevancy Score: 68.74
To our mind the facts which we must take into account are: (i) that the “couple” is now living separately for the last almost 25 years, and all these years there has been no cohabitation between them. (ii) That there is no child out of the wedlock, and the couple lived together as husband and wife for barely 4 years. (iii) That repeated efforts by the Courts for reconciliation or settlement have resulted in failure. 9. At the very initial stage the Trial Court had sent the parties for mediation, which did not succeed. This Court had also sent the two for mediation, which failed. The case was again sent for settlement in the Lok Adalat but with no results. Page 6 of 17 On 11.04.2015, this Court again requested the parties to explore possibilities of living together, but nothing materialised. Then on 09.05.2015, this Court asked the parties to come to some mutual settlement, but in vain. In other words, every single effort of the Court and the mediators, towards a compromise or settlement has led to a blind alley. Even now, before giving a formal hearing to the parties we tried to gather the current situation from the parties. The appellant has unequivocally stated that there is no room for any compromise or settlement and he requests that a decision be made in this case on its merits, whereas the counsel for the respondent apprised this Court that the respondent would like to save her marriage and he prays for mediation once again. He would also submit that no ground for divorce has been made out and the wellconsidered decision of Delhi High Court should be upheld. 10. The husband and wife, who are before us have been living separately since the last 25 years. There is no child out of the wedlock. There are bitter allegations of cruelty and Page 7 of 17 desertion from both the sides and multiple litigations between the two in the last more than 25 years. This embittered relationship between the appellant and the respondent which has not witnessed any moment of peace for the last 25 years is a marital relationship only on paper. The fact is that this relationship has broken down irretrievably long back. 11. The High Court has taken a view that mere filing of criminal cases against the appellanthusband would not constitute cruelty. All the same, the number of criminal cases filed by the respondentwife against the appellanthusband are far too many which have been discussed above. All these cases have either resulted in discharge or acquittal of the appellanthusband, if not before the pronouncement of the Judgment of the Delhi High Court but definitely after the pronouncement of the Judgment of the Delhi High Court.
Supreme Court of India
(ID::2015 SCP 736)
Honourable Judges Prafulla C. Pant, Dipak Misra
Date of Judgment: 20 Nov 2015
Segment Number (Approximate Page Number): 7
Relevancy Score: 67.99
The decree however, does not sever or dissolve the marriage. It affords an opportunity for reconciliation and adjustment. Though judicial separation after a certain period may become a ground for divorce, it is not necessary and the parties are not bound to have recourse to that remedy and the parties can live keeping their status as wife and husband till their lifetime. 19. In this regard, we may fruitfully refer to the authority in Hirachand Srinivas Managaonkar v. Sunanda[7] wherein the issue that arose for determination was whether the husband who had filed a petition seeking dissolution of the marriage by a decree of divorce under Section 13(1-A)(i) of the Hindu Marriage Act, 1955 can be declined relief on the ground that he had failed to pay maintenance for his wife and daughter despite an order of the court. The husband was appellant before this Court and had filed an application under Section 10 of the Hindu Marriage Act, 1955 for seeking judicial separation on the ground of adultery on the part of the appellant. Thereafter, the appellant presented the petition for dissolution of marriage by decree of divorce on the ground that there has been no resumption of cohabitation as between the parties to the marriage for a period of more than one year after passing of the decree for judicial separation. The stand of the wife was that the appellant having failed to pay the maintenance as ordered by the court, the petition for divorce filed by the husband was liable to be rejected inasmuch he was trying to get advantage of his own wrong for getting the relief. The High Court accepted the plea of the wife and refused to grant the prayer of the appellant seeking divorce. It was contended before this Court that the only condition for getting divorce under Section 13(1-A)(i) of the Hindu Marriage Act, 1955 is that there has been no resumption of cohabitation between the parties to the marriage for a period of one year or upwards after the passing of the decree for judicial separation in a proceeding to which both the spouses are parties. It was urged that if the said condition is satisfied the court is required to pass a decree of divorce. On behalf of the wife, the said submissions were resisted on the score that the husband had been living in continuous adultery even after passing of the decree of judicial separation and had reasonably failed to maintain the wife and daughter. The Court proceeded to analyse Section 13(1- A)(i) of the Hindu Marriage Act, 1955. Analysing the provisions at length and speaking about judicial separation, it expressed that after the decree for judicial separation was passed on the petition filed by the wife it was the duty of both the spouses to do their part for cohabitation. The husband was expected to act as a dutiful husband towards the wife and the wife was to act as a devoted wife towards the husband.
Supreme Court of India
(ID::1993 SCP 919)
Honourable Judges B.P. Jeevan Reddy, Kuldip Singh
Date of Judgment: 19 Nov 1993
Segment Number (Approximate Page Number): 2
Relevancy Score: 67.57
The main ground is adultery. According to the husband, the wife is an incorrigible adulteress. The respondent flied the written statement denying the allegations. The written statement, it anything, is even lengthier and more voluminous than the divorce petition. She has denied the allegation in toto. According to her, the husband is like Othello a pathologically suspicious character. 4.On February 5, 1986, the petition for divorce was withdrawn and transferred to the High Court of Delhi. It was assigned to Justice H.C. Goel. The learned Judge struck out a large number of paragraphs from the petition for divorce. Against the order of the learned Judge, the petitioner approached this Court by way of an appeal which was allowed on February 19, 1987. On that occasion, this Court directed the learned Chief Justice of the Delhi High Court to nominate a learned Judge to take up the divorce petition and dispose it of as expeditiously as possible. It was directed that the matter may be heard on day-to-day basis as far as possible. 5.In May 1987, the petitioner filed an interlocutory application before the High Court for passing a decree of divorce on the basis of the averments made by the respondent in her written statement/counter. According to him, those allegations amounted to cruelty against him and furnished adequate grounds for passing a decree of divorce. He then filed an application in this Court to withdraw the said interlocutory application to the file of this Court and grant the relief prayed for by him. This Court refused to do so. The interlocutory application filed by him was dismissed by the High Court. Thereafter, he amended his petition for divorce and again filed another interlocutory application for granting divorce on the basis of the averments made by the respondent in her written statement. This application too was dismissed by the High Court. It is stated that the special leave petition filed against the same was also dismissed by this Court. The trial is in progress now. Petitioner's evidence is over and the wife's statement is being recorded. At this stage, the present application I.A. No. 1 of 1993 is filed in Civil Appeal No. 424 of 1987 (which was disposed of on February 19, 1987). The prayer in the application is to give appropriate directions for speedy disposal of the divorce petition.
Supreme Court of India
(ID::2011 SCP 1075)
Honourable Judges B.S. Chauhan, P. Sathasivam
Date of Judgment: 30 Sep 2011
Segment Number (Approximate Page Number): 2
Relevancy Score: 67.31
On 24.05.2002, the appellant-husband filed a petition under Section 13 of the Act in the District Court at Amritsar for dissolution of marriage by a decree of divorce. By order dated 29.04.2006, the Additional District Judge, Ropar, granted a decree of divorce in favour of the appellant-husband. (e) Being aggrieved by the above-said order, the respondent- wife filed FAO No. M-123 of 2006 before the High Court of Punjab & Haryana at Chandigarh. The High Court, by order dated 06.08.2009, allowed the appeal filed by the respondent- wife and set aside the judgment and decree dated 29.04.2006 passed by the Additional District Judge(Ad-hoc)-cum- Presiding Officer, Fast Track Court, Ropar. Aggrieved by the said decision, the appellant-husband has preferred this appeal before this Court by way of special leave petition. 4) Heard Mr. Nidhesh Gupta, learned senior counsel for the appellant-husband and Mr. B.K. Satija, learned counsel for the respondent-wife. Discussion: 5) It is not in dispute that the petition for dissolution of marriage for granting a decree of divorce under Section 13 of the Act came to be filed by the appellant-husband before the District Court at Amritsar. The marriage was solemnized between the parties at Amritsar on 02.10.2000. Since the case of the appellant-husband as well as the respondent-wife has already been narrated, there is no need to traverse the same once again. The fact remains that it was the appellant- husband who approached the court for a decree of divorce on the grounds of `cruelty' and `unsound mind' of the respondent- wife which is incurable, hence we have to see whether the appellant-husband has made out a case for divorce on these grounds. 6) Section 13 of the Act, which is useful for our present purpose, reads as under:- "13. Divorce (1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-- (i) xxx (i-a) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or (ib) xxx (ii) xxx (iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Explanation .--In this clause,-- (a) the expression "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;....." Section 13 specifies the grounds on which a decree of divorce may be obtained by either party to the marriage. The onus of proving that the other spouse is incurably of unsound mind or is suffering from mental disorder lies on the party alleging it. It must be proved by cogent and clear evidence.
Supreme Court of India
(ID::2023 SCP 445)
Honourable Judges Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S. Oka, Vikram Nath, J.K. Maheshwari
Date of Judgment: 01 May 2023
Segment Number (Approximate Page Number): 25
Relevancy Score: 66.91
This Court, therefore, exercised the power under Article 142(1) of the Constitution of India to grant a decree of divorce, though the conduct of the husband, it was observed, was blameworthy as he had remarried and conceived a child during the pendency of the proceedings. This decree of divorce by mutual consent was made conditional on payment of Rs.10,00,000/- by the husband to the wife. Only on payment or deposit of the amount in the Court, all proceedings, including those under Section 494 of the I.P.C., were to stand terminated. 28. In Naveen Kohli v. Neelu Kohli45, a three judges’ bench of this Court referred to the opinion of Lord Denning, L.J. in Kaslefsky v. Kaslefsky46 that if the door of cruelty were opened too wide, the 45 (2006) 4 SCC 558. 46 (1950) 2 All ER 398. T.P. (C) No. 1118 of 2014 & Ors. Page 40 of 61 courts would be granting divorce for incompatibility of temperament, but this temptation must be resisted, lest the institution of marriage is imperilled. At the same time, the bench felt that the concept of legal cruelty has changed according to the advancement of social concepts and standards of living. Continuous ill-treatment, cessation of marital intercourse, studied neglect, indifference on the part of the spouse and allegation of unchastity are all factors that lead to mental or legal cruelty. While doing so, this Court affirmed that a set of facts stigmatized as cruelty in one case may not be so in another, as cruelty largely depends on the kind of lifestyle the parties are accustomed to or their social and economic conditions. Similarly, intention, it was observed, was immaterial as there can be cruelty even by unintentional conduct. Moreover, mental cruelty is difficult to establish by direct evidence and is to be deciphered by attending to the facts and circumstances in which the two partners in matrimony had been living. On the question of irretrievable breakdown of marriage, which is not a ground for divorce under the Hindu Marriage Act, reference was made to the fault theory, which is hinged on an accusatorial principle of divorce. Excessive reliance on fault as a ground for divorce, the judges’ opined, encourages matrimonial offences, increases bitterness and T.P. (C) No. 1118 of 2014 & Ors. Page 41 of 61 widens the ongoing rift between the parties. Once serious endeavours for reconciliation have been made, but it is found that the separation is inevitable and the damage is irreparable, divorce should not be withheld. An unworkable marriage, which has ceased to be effective, is futile and bound to be a source of greater misery for the parties. The law of divorce built predominantly on assigning fault fails to serve broken marriages. Under the fault theory, guilt has to be proven, and therefore, the courts have to be presented with concrete instances of adverse human behaviour, thereby maligning the institution of marriage.
Supreme Court of India
(ID::2006 SCP 1203)
Honourable Judges G.P. Mathur, A.K. Mathur
Date of Judgment: 13 Dec 2006
Segment Number (Approximate Page Number): 2
Relevancy Score: 66.89
The trial court as well as appellate court have rightly found that the wife was guilty of conduct amounting to cruelty. Here as rightly submitted by Mr. Dixit learned counsel for the respondent, the act of cruelty was pertinent and grave on account of police complaints lodged against the appellant and his father and that too during the period when the marriage of respondents brother was settled. It was in that background that the wife voluntarily left the matrimonial home and desertion on her part stood confirmed by the fact that she lived separately for over two years and did not make any efforts to come back to matrimonial home for cohabitation. The wife having failed to establish the alleged acts of cruelty on the part of the husband, it is needless to say that her leaving the matrimonial home and cause separation was without sufficient cause. ......... ........................................................................................... As against that, one cannot lose sight of the fact that wife, even after having lodged complaint against the husband in police station, left the matrimonial home happily without there being any remorse or repentance and that too carrying all her belongings with her and admittedly she did not return though a period of two years lapsed and the husband issued notice seeking divorce. Therefore, the appellate court was right in observing in his judgment that there was no condonation of cruelty on the part of the husband and that there was no reconciliation between the parties and that the husband is not taking undue advantage of his own wrong." Holding as above the High Court dismissed the second appeals filed by the appellant and affirmed the decree of divorce passed by the learned District Judge. 6. Sub-section (1) of Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred as 'the Act') lays down the grounds on which a marriage may be dissolved by a decree of divorce. This sub-section has several clauses and under clause (i-a) cruelty and under clause (i-b) desertion for a continuous period of not less than two years immediately preceding the presentation of the petition, are grounds for granting a decree of divorce. The following observation made by this Court in Reynolds Rajamani vs. Union of India AIR 1982 SC 1261, which is a case under Section 10 of the Divorce Act, throw considerable light on the approach which should be adopted in dealing with a provision relating to divorce: - "The history of all matrimonial legislation will show that at the outset, conservative attitude influenced the grounds on which separation or divorce could be granted. Over the decades a more liberal attitude has been adopted, fostered by a recognition of the need for individual happiness of the adult parties directly involved. But although the grounds for divorce have been liberalized, they nevertheless continue to form an exception to the general principles favouring the continuation of the marital tie.
Supreme Court of India
(ID::2015 SCP 736)
Honourable Judges Prafulla C. Pant, Dipak Misra
Date of Judgment: 20 Nov 2015
Segment Number (Approximate Page Number): 8
Relevancy Score: 66.59
Thereby he committed a “wrong” within the meaning of Section 23 of the Act. Therefore, the High Court was justified in declining to allow the prayer of the husband for dissolution of the marriage by divorce under Section 13(1- A) of the Act. 20. And, the Court further stated thus:- “... The effect of the decree is that certain mutual rights and obligations arising from the marriage are as it were suspended and the rights and duties prescribed in the decree are substituted therefor. The decree for judicial separation does not sever or dissolve the marriage tie which continues to subsist. It affords an opportunity to the spouse for reconciliation and readjustment. The decree may fall by a conciliation of the parties in which case the rights of the respective parties which float from the marriage and were suspended are restored. Therefore the impression that Section 10(2) vests a right in the petitioner to get the decree of divorce notwithstanding the fact that he has not made any attempt for cohabitation with the respondent and has even acted in a manner to thwart any move for cohabitation does not flow from a reasonable interpretation of the statutory provisions. At the cost of repetition it may be stated here that the object and purpose of the Act is to maintain the marital relationship between the spouses and not to encourage snapping of such relationship.” 21. It is interesting to note that an issue arose whether matrimonial offence of adultery had exhausted itself when the decree for judicial separation was granted and, therefore, it cannot be said that it is a new fact or circumstance amounting to wrong which will stand as an obstacle in the way of the husband to obtain the relief which he claims in the divorce proceedings. Be it stated that reliance was placed on the decision of Gujarat High Court in Bai Mani v. Jayantilal Dahyabhai[8]. This Court did not accept the contention by holding that living in adultery on the part of the husband is a continuing matrimonial offence, and it does not get frozen or wiped out merely on passing of a decree for judicial separation which merely suspends certain duties and obligations of the spouses in connection with their marriage and does not snap the matrimonial tie. The Court ruled that the decision of the Gujarat High Court does not lay down the correct position of law. The Court approved the principle stated by the Madras High Court in the case of Soundarammal v. Sundara Mahalinga Nadar[9] in which a Single Judge had taken the view that the husband who continued to live in adultery even after decree at the instance of the wife could not succeed in a petition seeking decree for divorce and that Section 23(1)(a) barred the relief.
Supreme Court of India
(ID::2022 SCP 521)
Honourable Judges M.R. Shah, B.V. Nagarathna
Date of Judgment: 12 May 2022
Segment Number (Approximate Page Number): 14
Relevancy Score: 66.36
Further, Section 2(f) of the D.V. Act states that a person aggrieved (widow herein) who, at any point of time has lived together with the husband in a shared household is covered by the meaning of domestic relationship. Also, Section 2(s) of the D.V. Act states that if the person aggrieved at any stage has lived in a domestic relationship with the respondent in a house, can claim a right in a shared household. After analysing the relevant provisions of the D.V. Act, this Court while referring to V.D. Bhanot vs. Savita Bhanot – [(2012) 3 SCC 183], held that the conduct of the parties even prior to coming into force of the D.V. Act could be taken into consideration while passing an order under Sections 18, 19 and 20 thereof. The wife who had shared a household in the past but was no longer residing with her husband can file a petition under section 12 if subjected to domestic violence. It was further observed that where an act of domestic violence is once committed, then a subsequent decree of divorce will not absolve the liability of the respondent from the offence committed or to deny the benefit to which the aggrieved person is entitled to. b) In the case of Krishna Bhattacharjee vs. Sarathi Choudhury and Another - [(2016) 2 SCC 705], this Court held that a claim for recovery of Stridhana, two years after a decree of judicial separation is maintainable. The Court held that judicial separation does not change the status of a wife as an aggrieved person under Section 2(a) read with Section 12 of the D.V. Act and does not end the domestic relationship under Section 2(f) of the D.V. Act. It was further held that a judicial separation was a mere suspension of husband-wife relationship and not a complete severance of relationship as in the case of a divorce. Moreover, an application filed under section 12 of the D.V. Act by the wife is not barred by any limitation. In the said case, this Court referred to Saraswathy vs. Babu – [(2014) 3 SCC 712]. Further, Dipak Misra J. (as His Lordship then was) while speaking for the Two-Judge Bench held that the definition of domestic relationship under Section 2 (f) of the D.V. Act is very wide and protection under the said provision would be given to a wife even if she is judicially separated, by observing thus : “18. The core issue that is requisite to be addressed is whether the Appellant has ceased to be an ‘aggrieved person’ because of the decree of judicial separation. Once the decree of divorce is passed, the status of the parties becomes different, but that is not so when there is a decree for judicial separation. A three-Judge Bench in Jeet Singh and Ors. v. State of U.P. and Ors. (1993) 1 SCC 325 though in a different context, adverted to the concept of judicial separation and ruled that the judicial separation creates rights and obligations. A decree or an order for judicial separation permits the parties to live apart. There would be no obligation for either party to cohabit with the other.
Supreme Court of India
(ID::2010 SCP 172)
Honourable Judges Surinder Singh Nijjar, V.S. Sirpurkar
Date of Judgment: 10 Feb 2010
Segment Number (Approximate Page Number): 7
Relevancy Score: 66.01
19. The Trial Court also observed that the allegations made in paragraph 31 of the Statutory Complaint about unnatural sex cannot be equated with sodomy. The Trial Court also came to the conclusion that it is a case of broken marriage. However, in the absence of a ground under Section 13 of the Hindu Marriage Act where a decree of divorce can be founded on the proof of irretrievable broken marriage, it would not be a ground to dissolve the marriage. It is also pointed out that these findings were not rejected by the Appellate Court. According to the learned counsel on this short ground the judgment of the Division Bench is liable to be set aside. 20. On the other hand, Mr. Rajender Kumar, appearing for the husband submitted that the High Court possibly could not have granted the decree on the basis of irretrievable break down of marriage. However, the High Court has granted the decree of divorce upon re- appreciation of the evidence and recording an independent finding that the conduct of the wife amounts to cruelty which would entitle the husband to a decree of divorce. According to the learned counsel substantial justice has been done between the parties and the judgment does not call for any interference. It has also been pointed out by the learned counsel that, a petition was filed for divorce on the basis of the decree of judicial separation which had been granted by the learned Single Judge. However proceedings in the aforesaid case have been kept in abeyance due to the pendency of the appeals in the High Court and this Court. Learned counsel submitted that there is absolutely no room for reconciliation between the parties. Therefore, the judgment of the High Court need not be reversed at this stage. 21. We have considered the submissions made by the learned counsel. The Trial Court as well as the Appellate Court have both concluded that the behaviour of the husband as well as the wife falls short of the standard required to establish mental cruelty in terms of Section 13(1) (i-a). 22. At this stage we may notice the observations made by this Court in the case of Naveen Kohli vs. Neelu Kohli (2006) 4 SCC 558. In this case the Court examined the development and evolution of the concept of mental cruelty in matrimonial causes. In paragraph 35 it is observed as follows: "35. The petition for divorce was filed primarily on the ground of cruelty. It may be pertinent to note that, prior to 1976 amendment in the Hindu Marriage Act, 1955 cruelly was not a ground for claiming divorce under the Hindu Marriage Act. It was only a ground for claiming judicial separation under Section 10 of the Act. By the 1976 amendment, cruelty was made a ground for divorce and the words which have been omitted from Section 10 are "as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party".
Supreme Court of India
(ID::2013 SCP 989)
Honourable Judges V. Gopala Gowda, Sudhansu Jyoti Mukhopadhaya
Date of Judgment: 25 Nov 2013
Segment Number (Approximate Page Number): 6
Relevancy Score: 65.8
12. Section 2 (g) of PWD Act, 2005 states that “domestic violence” has the same meaning as assigned to it in Section 3 of PWD Act, 2005. Section 3 is the definition of domestic violence. Clause (iv) of Section 3 relates to “economic abuse” which includes prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household as evident from clause (c) of Section 3(iv). 13. In the present case, in view of the fact that even after the order passed by the Subordinate Judge the respondent-husband has not allowed the appellant-wife to reside in the shared household matrimonial house, we hold that there is a continuance of domestic violence committed by the respondent-husband against the appellant-wife. In view of the such continued domestic violence, it is not necessary for the courts below to decide whether the domestic violence is committed prior to the coming into force of the Protection of Women from Domestic Violence Act, 2005 and whether such act falls within the definition of the term ‘Domestic Violence’ as defined under Section 3 of the PWD Act, 2005. 14. The other issue that whether the conduct of the parties even prior to the commencement of the PWD Act, 2005 could be taken into consideration while passing an order under Sections 18, 19 and 20 fell for consideration before this Court in V.D. Bhanot v. Savita Bhanot (2012) 3 SCC 183. In the said case, this Court held as follows: “12. We agree with the view expressed by the High Court that in looking into a complaint under Section 12 of the PWD Act, 2005, the conduct of the parties even prior to the coming into force of the PWD Act, could be taken into consideration while passing an order under Section 18, 19 and 20 thereof. In our view, the Delhi High Court has also rightly held that even if a wife, who had shared a household in the past, but was no longer doing so when the Act came into force, would still be entitled to the protection of the PWD Act, 2005,” 15. We are of the view that the act of the respondent-husband squarely comes within the ambit of Section 3 of the PWD Act, 2005, which defines “domestic violence” in wide term. The High Court made an apparent error in holding that the conduct of the parties prior to the coming into force PWD Act, 2005 cannot be taken into consideration while passing an order. This is a case where the respondent-husband has not complied with the order and direction passed by the Trial Court and the Appellate Court. He also misleads the Court by giving wrong statement before the High Court in the contempt petition filed by the appellant-wife.
Supreme Court of India
(ID::2015 SCP 736)
Honourable Judges Prafulla C. Pant, Dipak Misra
Date of Judgment: 20 Nov 2015
Segment Number (Approximate Page Number): 3
Relevancy Score: 65.56
7. The aggrieved wife preferred criminal appeal No. 6(1) of 2014 which has been decided by the learned Additional Sessions Judge, Agartala holding, inter alia, that the object of the 2005 Act is primarily to give immediate relief to the victims; that as per the decision of this Court in Inderjit Singh Grewal v. State of Punjab[1] that Section 468 of the Code of Criminal Procedure applies to the proceedings under the 2005 Act and, therefore, her application was barred by time. Being of this view, the appellate court dismissed the appeal. 8. On a revision being preferred, the High Court, as is demonstrable from the impugned order, after referring to the decision in Inderjit Singh Grewal (supra), has stated that the wife had filed a criminal case under Section 498(A) IPC in the year 2006 and the husband had obtained a decree of judicial separation in 2008, and hence, the proceedings under the 2005 Act was barred by limitation. That apart, it has also in a way expressed the view that the proceedings under the 2005 Act was not maintainable. 9. In our prefatory note, we have stated about the need of sensitive approach to these kinds of cases. There can be erroneous perception of law, but as we find, neither the learned Magistrate nor the appellate court nor the High Court has made any effort to understand and appreciate the stand of the appellant. Such type of cases and at such stage should not travel to this Court. We are compelled to say so as we are of the considered opinion that had the appellate court and the High Court been more vigilant, in all possibility, there could have been adjudication on merits. Be that as it may. 10. The facts that we have enumerated as regards the “status of the parties”, “judicial separation” and “the claim for Stridhan” are not in dispute. Regard being had to the undisputed facts, it is necessary to appreciate the scheme of the 2005 Act. Section 2(a) defines “aggrieved person” which means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent. Section 2(f) defines “domestic relationship” which means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. Section 2(g) defines the term “domestic violence” which has been assigned and given the same meaning as in Section 3. Sub- section (iv) of Section 3 deals with “economic abuse”.
Supreme Court of India
(ID::2013 SCP 993)
Honourable Judges Pinaki Chandra Ghose, K.S. Radhakrishnan
Date of Judgment: 26 Nov 2013
Segment Number (Approximate Page Number): 4
Relevancy Score: 64.61
Learned amicus curiae submitted that the Act is intended to provide for protection of rights of women who are victims of violence of any type occurring in the family. Learned amicus curiae also submitted that the various provisions of the DV Act are intended to achieve the constitutional principles laid down in Article 15(3), reinforced vide Article 39 of the Constitution of India. Learned amicus curiae also made reference to the Malimath Committee report and submitted that a man who marries a second wife, during the subsistence of the first wife, should not escape his liability to maintain his second wife, even under Section 125 CrPC. Learned amicus curiae also referred to a recent judgment of this Court in Deoki Panjhiyara v. Shashi Bhushan Narayan Azad and Another (2013) 2 SCC 137 in support of her contention. 11. Mr. Nikhil Majithia, learned counsel appearing for the respondent, made extensive research on the subject and made available valuable materials. Learned counsel referred to several judgments of the Constitutional Courts of South Africa, Australia, New Zealand, Canada, etc. and also referred to parallel legislations on the subject in other countries. Learned counsel submitted that the principle laid down in Velusamy case (supra) has been correctly applied by the High Court and, on facts, appellant could not establish that their relationship is a “relationship in the nature of marriage” so as to fall within Section 2(f) of the DV Act. Learned counsel also submitted that the parties were not qualified to enter into a legal marriage and the appellant knew that the respondent was a married person. Further, the appellant was not a victim of any fraudulent or bigamous marriage and it was a live-in relationship for mutual benefits, consequently, the High Court was right in holding that there has not been any domestic violence, within the scope of Section 3 of the DV Act entitling the appellant to claim maintenance. 12. We have to examine whether the non maintenance of the appellant in a broken live-in-relationship, which is stated to be a relationship not in the nature of a marriage, will amount to “domestic violence” within the definition of Section 3 of the DV Act, enabling the appellant to seek one or more reliefs provided under Section 12 of the DV Act. 13. Before examining the various issues raised in this appeal, which have far reaching consequences with regard to the rights and liabilities of parties indulging in live-in relationship, let us examine the relevant provisions of the DV Act and the impact of those provisions on such relationships. D.V. ACT 14. The D.V. Act has been enacted to provide a remedy in Civil Law for protection of women from being victims of domestic violence and to prevent occurrence of domestic violence in the society.
Supreme Court of India
(ID::2007 SCP 408)
Honourable Judges B.N. Agrawal, P.P. Naolekar, Dalveer Bhandari
Date of Judgment: 26 Mar 2007
Segment Number (Approximate Page Number): 15
Relevancy Score: 63.94
This Court observed that under such circumstances, the High Court was not justified in refusing to exercise its jurisdiction in favour of the appellant who sought divorce from the Court. "Mental cruelty" is a problem of human behaviour. This human problem unfortunately exists all over the world. Existence of similar problem and its adjudication by different courts of other countries would be of great relevance, therefore, we deem it appropriate to examine similar cases decided by the Courts of other jurisdictions. We must try to derive benefit of wisdom and light received from any quarter. ENGLISH CASES: William Latey, in his celebrated book 'The Law and Practice in Divorce and Matrimonial Causes' (15th Edition) has stated that there is no essential difference between the definitions of the ecclesiastical courts and the post- 1857 matrimonial courts of legal cruelty in the marital sense. The authorities were fully considered by the Court of Appeal and the House of Lords in Russell v. Russell (1897) AC 395 and the principle prevailing in the Divorce Court (until the Divorce Reform Act, 1969 came in force), was as follows: Conduct of such a character as to have caused danger to life, limb, or health, bodily or mental, or as to give rise to a reasonable apprehension of such danger. {see: Russell v. Russell (1895) P. 315 (CA)}. In England, the Divorce Reform Act, 1969 came into operation on January 1, 1971. Thereafter the distinction between the sexes is abolished, and there is only one ground of divorce, namely that the marriage has broken down irretrievably. The Divorce Reform Act, 1969 was repealed by the Matrimonial Causes Act, 1973, which came into force on January 1, 1974. The sole ground on which a petition for divorce may be presented to the court by either party to a marriage is that the marriage has broken down irretrievably. Lord Stowell's proposition in Evans v. Evans (1790) 1 Hagg Con 35 was approved by the House of Lords and may be put thus: before the court can find a husband guilty of legal cruelty towards his wife, it is necessary to show that he has either inflicted bodily injury upon her, or has so conducted himself towards her as to render future cohabitation more or less dangerous to life, or limb, or mental or bodily health. He was careful to avoid any definition of cruelty, but he did add: 'The causes must be grave and weighty, and such as to show an absolute impossibility that the duties of married life can be discharged'. But the majority of their Lordships in Russell v. Russell (1897) (supra) declined to go beyond the definition set out above.
Supreme Court of India
(ID::2015 SCP 761)
Honourable Judges M.Y. Eqbal, C. Nagappan
Date of Judgment: 02 Dec 2015
Segment Number (Approximate Page Number): 1
Relevancy Score: 63.77
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION TRANSFER PETITION (CIVIL) NO. 702 OF 2015 Vennangot Anuradha Samir …..Petitioner versus Vennangot Mohandas Samir …Respondent O R D E R M.Y. EQBAL, J. Heard learned counsel appearing for the parties and perused the records along with the affidavits and petitions. 2. Admittedly, the marriage of the petitioner with the respondent was solemnized in April, 2010 according to Hindu Vedic Rites. At the time of marriage, the respondent-husband was a bachelor and the petitioner-wife was a divorcee. It was a love marriage after both of them came in contact with each other in October, 2006. In 2013, some misunderstanding developed between the petitioner and the respondent as a result of which the petitioner left the house. 3. In 2015, the respondent-husband filed a suit for dissolution of marriage by a decree of divorce under Section 13(1)(1a) of the Hindu Marriage Act on the ground that the petitioner-wife after solemnization of the marriage had committed various acts of cruelty. Admittedly, the petitioner is living in Hyderabad with her parents. The petitioner, therefore, moved an application before this Court for transfer of divorce suit pending before the Family Court Bombay to the Family Court at Hyderabad. 4. The transfer petition was listed before this Court on 28.08.2015, when, at the request of the counsel for the parties, the matter was referred to Supreme Court Mediation Centre for amicable settlement. Before the Mediation Centre, a Settlement Agreement was filed on 26.10.2015. In terms of the said Settlement Agreement, the respondent-husband agreed to pay Rs.12,50,000/- (Twelve Lakhs Fifty Thousand only) towards full and final settlement as alimony, maintenance for past and future or any other claim of the petitioner. The respondent-husband had agreed to pay the said amount of Rs.12,50,000/- (Twelve Lakhs Fifty Thousand only), by way of Bank draft in the name of the Registrar, Supreme Court, which shall be paid to the petitioner-wife at the time of passing of decree of divorce by mutual consent. 5. On 6th November, 2015, the case was again listed along with the office report and Settlement Agreement. The matter was adjourned to enable the parties to file appropriate application. 6. Consequently, an application was filed purported to be under Section 13B of the Hindu Marriage Act with a prayer to treat the divorce petition pending before the Family Court, Bombay as an application under Section 13B of the Act and treat the present application as second motion and grant divorce by way of mutual consent. 7. In the said application it was mentioned that petitioner-wife is suffering life threatening disease and urgently requires funds for her medical treatment and also that she has to depend on herself for proper care.
Supreme Court of India
(ID::1956 SCP 83)
Honourable Judges Sinha, Bhuvneshwar P.
Date of Judgment: 19 Oct 1956
Segment Number (Approximate Page Number): 11
Relevancy Score: 63.56
Hence according to strict Hindu law as given by the Samhitas and as developed by the commentators, a Hindu marriage could not be dissolved on any-ground whatsoever, even on account of degradation in the hierarchy of castes or apostacy. But custom', particularly amongst the tribal and what used to be called the lower castes recognised divorce on rather easy terms. Such customs of divorce on easy terms have been in some instances held by the courts to be against public policy. The Act in section 3 sets out the grounds of divorce. It is noticeable that the Act does not recognise adultery simpliciter as one of the grounds of divorce, though cl. (f) renders the fact that a husband "has any other woman as a concubine" and that a wife "is a concubine of any other man or leads the life of a prostitute" a ground of divorce. In the present case we are immediately concerned with the provisions of s. 3(1)(d), which are in these terms:- 3. (1) A husband or wife may sue for divorce on any of the following grounds, namely:- ............................................ (d) that the defendant has deserted the plaintiff for a continuous period of four years". "Desertion" has been defined in section 2(b) in these terms:- 'Desert' means to desert without reasonable cause and without the consent or against the will of the spouse". It will be seen that the definition is tautological and not very helpful and leads us to the Common Law of England where in spite of repeated legislation on the subject of matrimonial law, no attempt has been made to define "desertion". Hence a large body of case law has developed round the legal significance of "desertion". "Marriage" under the Act means "a marriage between Hindus whether contracted before or after the coming into operation of this Act". "Husband" means a Hindu husband and "wife" means a Hindu wife. In England until 1858 the only remedy for desertion was a suit for restitution of conjugal rights. But by the Matrimonial Causes Act of 1857, desertion without cause for two years and upwards was made a ground for a suit for judicial separation. It was not till 1937 that by the Matrimonial Causes Act, 1937, desertion without cause for a period of three years immediately preceding the institution of proceedings was made a ground for divorce. The law has now been consolidated in the Matrimonial Causes Act, 1950 (14 Geo. VI, c. 25 ).
Supreme Court of India
(ID::2001 SCP 327)
Honourable Judges D.P. Mohapatra, Doraiswamy Raju
Date of Judgment: 20 Mar 2001
Segment Number (Approximate Page Number): 4
Relevancy Score: 63.43
Section 23(1)(a) provides as follows : 23. Decree in Proceedings (1) In any proceeding under this Act whether defended or not, if the court is satisfied that (a) any of the grounds for granting relief exists and the petitioner except in cases where the relief is sought by him on the ground specified in sub-clause (a), sub- clause(b) or sub-clause(c) of clause (ii) of section 5 is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief. Originally nine different grounds were available to a husband or wife for obtaining a decree of divorce under sub- section (1) of Section 13. Under clause (viii) of the sub-section a marriage could be dissolved by a decree of divorce on a petition presented by the husband or the wife on the ground that the other party has not resumed cohabitation for a period of two years or upwards after the passing of a decree for judicial separation against that party. Under clause (ix) of the sub- section, a marriage could be dissolved by a decree of divorce on a petition presented by the husband or the wife on the ground that the other party had failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the passing of a decree of restitution against that party. Amending Act No.44 of 1964, which came into force on the 20th of December, 1964, effected two significant changes. Clauses (viii) and (ix) which constituted two of the nine grounds on which a marriage could be dissolved by a decree of divorce were deleted from sub-section (1) and secondly, a new sub- section i.e. sub-section (1-A) was added to Section 13. It is clear from these amendments introduced by the Act No.44 of 1964 that whereas prior to the amendment a petition for divorce could be filed only by a party which had obtained a decree for judicial separation or for restitution of conjugal rights, this right is now available to either party to the marriage irrespective of whether the party presenting the petition for divorce is a decree holder or a judgment debtor under the decree for judicial separation or the decree for restitution of conjugal rights, as the case may be. This position is incontrovertible.
Supreme Court of India
(ID::2002 SCP 993)
Honourable Judges R.C. Lahoti, P.Venkatarama Reddi
Date of Judgment: 01 Oct 2002
Segment Number (Approximate Page Number): 3
Relevancy Score: 63.27
As the divorce becomes effective for purposes of dower only when communicated to the wife, limitation under Art. 104 for the wife's suit for deferred dower ran from the time when the divorce comes to her notice (l), under the Act of 1908. See also the Limitation Act, 1963. Words of divorce.__ The words of divorce must indicate an intention to dissolve the marriage. If they are express (saheeh), e.g., "Thou art divorced," "I have divorced thee," or "I divorce my wife for ever and render her haram from me" [Rashid Ahmad v. Anisa Khatun (1932) 59 I.A. 21], they clearly indicate an intention to dissolve the marriage and no proof of intention is necessary. But if they are ambiguous (kinayat), e.g., "Thou art my cousin, the daughter of my uncle, if thou goest" [Hamid Ali v. Imtiazan (1878) 2 All.71] or "I give up all relations and would have no connection of any sort with you" [Wajid Ali v. Jafar Husain (1932) 7 Luck, 430, 136 I.C. 209, ('32) A.O.34], the intention must be proved. Pronouncement of the word talak in the presence of the wife or when the knowledge of such pronouncement comes to the knowledge of the wife, results in the dissolution of the marriage. The intention of the husband is inconsequential. Ghansi Bibi v. Ghulam Dastagir (1968) 1 Mys. L.J. 566. If a man says to his wife that she has been divorced yesterday or earlier, it leads to a divorce between them, even if there be no proof of a divorce on the previous day or earlier." [(f) Ma Mi v. Kallander Ammal, supra; Ahmad Kasim v. Khatoon Bibi (1932) 59 Cal. 833, 141 I.C. 689, ('33) A.C. 27; Fulchand v. Nazib Ali (1909) 36 Cal. 184, 1 I.C. 740; Sarabai v. Rabiabai (1905) 30 Bom. 536 (obiter). (g) Furzund Hussein v. Janu Bibee (1878) 4 Cal. 588. (h) Rashid Ahmad v. Anisa Khatoon (1932) 59 I.A. 21, 54 All.46, 135 I.C. 762, ('32) A.P.C. 25. (i) Asha Bibi v. Kadir, supra. (j) Fulchand v. Nazib Ali, supra. (k) Ma Mi v. Kallandar Ammal, supra; Abdul Khader v. Azeeza Bee (1944) 1 M.L.J. 17, 214 I.C. 38, ('44) A.M. 227. (l) Kathiyumma v. Urathel Marakkar (1931) 133 I.C. 375, ('31) A.M. 647.] The statement of law by Mulla as contained in para 310 and footnotes thereunder is based on certain rulings of Privy Council and the High Courts. The decision of A.P. High Court in (1975) 1 APLJ 20 has also been cited by Mulla in support of the proposition that the statement by husband in pleadings filed in answer to petition for maintenance by wife that he had already divorced the petitioner (wife) long ago operates as divorce. We will offer our comments on this a little later. Immediately we proceed to notice a few other authorities. In Dr. Tahir Mahmood's 'The Muslim Law of India' (Second Edition, at pp.113119), the basic rule stated is that a Muslim husband under all schools of Muslim Law can divorce his wife by his unilateral action and without the intervention of the Court. This power is known as the power to pronounce a talaq.
Supreme Court of India
(ID::2013 SCP 993)
Honourable Judges Pinaki Chandra Ghose, K.S. Radhakrishnan
Date of Judgment: 26 Nov 2013
Segment Number (Approximate Page Number): 8
Relevancy Score: 63.01
Explanation II.- For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes" domestic violence" under this section, the overall facts and circumstances of the case shall be taken into consideration.” 19. In order to examine as to whether there has been any act, omission, or commission or conduct so as to constitute domestic violence, it is necessary to examine some of the definition clauses under Section 2 of the DV Act. Section 2(a) of the DV Act defines the expression “aggrieved person” as follows: “2(a). “Aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.” Section 2(f) defines the expression “domestic relationship” as follows: “2(f). “Domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.” Section 2(q) defines the expression “respondent” as follows: “2(q). “Respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.” Section 2(s) defines the expression “shared household” and reads as follows: “2(s). “shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.” 20. We are, in this case, concerned with a “live-in relationship” which, according to the aggrieved person, is a “relationship in the nature of marriage” and it is that relationship which has been disrupted in the sense that the respondent failed to maintain the aggrieved person, which, according to the appellant, amounts to “domestic violence”.
Supreme Court of India
(ID::2015 SCP 736)
Honourable Judges Prafulla C. Pant, Dipak Misra
Date of Judgment: 20 Nov 2015
Segment Number (Approximate Page Number): 2
Relevancy Score: 63.0
Before throwing a petition at the threshold, it is obligatory to see that the person aggrieved under such a legislation is not faced with a situation of non-adjudication, for the 2005 Act as we have stated is a beneficial as well as assertively affirmative enactment for the realisation of the constitutional rights of women and to ensure that they do not become victims of any kind of domestic violence. 5. Presently to the narration of the facts. The marriage between the appellant and the respondent No. 1 was solemnised on 27.11.2005 and they lived as husband and wife. As the allegations proceed, there was demand of dowry by the husband including his relatives and, demands not being satisfied, the appellant was driven out from the matrimonial home. However, due to intervention of the elderly people of the locality, there was some kind of conciliation as a consequence of which both the husband and the wife stayed in a rented house for two months. With the efflux of time, the husband filed a petition seeking judicial separation before the Family Court and eventually the said prayer was granted by the learned Judge, Family Court. After the judicial separation, on 22.5.2010 the appellant filed an application under Section 12 of the 2005 Act before the Child Development Protection Officer (CDPO), O/O the District Inspector, Social Welfare & Social Education, A.D. Nagar, Agartala, Tripura West seeking necessary help as per the provisions contained in the 2005 Act. She sought seizure of Stridhan articles from the possession of the husband. The application which was made before the CDPO was forwarded by the said authority to the learned Chief Judicial Magistrate, Agartala Sadar, West Tripura by letter dated 1.6.2010. The learned Magistrate issued notice to the respondent who filed his written objections on 14.2.2011. 6. Before the learned Magistrate it was contended by the respondent that the application preferred by the wife was barred by limitation and that she could not have raised claim as regards Stridhan after the decree of judicial separation passed by the competent court. The learned Magistrate taking into consideration the admitted fact that respondent and the appellant had entered into wedlock treated her as an “aggrieved person”, but opined that no “domestic relationship” as defined under Section 2(f) of the 2005 Act existed between the parties and, therefore, wife was not entitled to file the application under Section 12 of the 2005 Act. The learned Magistrate came to hold that though the parties had not been divorced but the decree of judicial separation would be an impediment for entertaining the application and being of this view, he opined that no domestic relationship subsisted under the 2005 Act and hence, no relief could be granted.
Supreme Court of India
(ID::2020 SCP 576)
Honourable Judges Ashok Bhushan, R. Subhash Reddy, M.R. Shah
Date of Judgment: 15 Oct 2020
Segment Number (Approximate Page Number): 10
Relevancy Score: 62.9
Ms. Luthra relies on the judgment of Delhi Court in Eveneet Singh Vs. Prashant Chaudhri, 2010 SCC online Delhi 4507, Division Bench judgment of Delhi High Court in Eveneet Singh Vs. Prashant Chaudhari, 2011 SCC online Delhi 4651 and Division Bench judgment of the Delhi High Court in Preeti Satija Vs. Raj Kumari and Anr., 2014 SCC online Delhi 188. 26. Learned counsel for the parties have also referred to various judgments of this Court and Delhi High Court which we will consider while considering the submissions of the parties in detail. 27. From the submissions of the learned counsel for the parties following questions arise for determination in this appeal: (1) Whether definition of shared household under Section 2(s) of the Protection of Women from Domestic Violence Act, 2005 has to be read to mean that shared household can only be that household which is household of joint family or in which husband of the aggrieved person has a share? (2) Whether judgment of this Court in S.R. Batra and Anr. Vs. Taruna Batra, (2007) 3 SCC 169 has not correctly interpreted the provision of Section 2(s) of Protection of Women from Domestic Violence Act, 2005 and does not lay down a correct law? (3) Whether the High Court has rightly come to the conclusion that suit filed by the appellant could not have been decreed under Order XII Rule 6 CPC? (4) Whether, when the defendant in her written statement pleaded that suit property is her shared household and she has right to residence therein, the Trial Court could have decreed the suit of the plaintiff without deciding such claim of defendant which was permissible to be decided as per Section 26 of the Act, 2005? (5) Whether the plaintiff in the suit giving rise to this appeal can be said to be the respondent as per definition of Section 2(q) of Act, 2005 ? (6) What is the meaning and extent of the expression “save in accordance with the procedure established by law” as occurring in Section 17(2) of Act, 2005 ? (7) Whether the husband of aggrieved party (defendant) is necessary party in the suit filed by the plaintiff against the defendant? (8) What is the effect of orders passed under Section 19 of the Act, 2005 whether interim or final passed in the proceedings initiated in a civil court of competent jurisdiction? 28. Before we consider the questions as noted above, we need to notice the Statutory Scheme of the Protection of Women from Domestic Violence Act, 2005. 29. The progress of any society depends on its ability to protect and promote the rights of its women. Guaranteeing equal rights and privileges to women by the Constitution of India had marked the step towards the transformation of the status of the women in this country. 30. The domestic violence in this country is rampant and several women encounter violence in some form or the other or almost every day, however, it is the least reported form of cruel behavior.
Supreme Court of India
(ID::2017 SCP 493)
Honourable Judges S. Abdul Nazeer, Uday Umesh Lalit, Rohinton Fali Nariman, Kurian Joseph, Jagdish Singh Khehar
Date of Judgment: 22 Aug 2017
Segment Number (Approximate Page Number): 20
Relevancy Score: 62.89
Article 31. A divorce shall be effective only if pronounced in clear words showing intention to dissolve the marriage. Symbolic or metaphorical expression will not dissolve the marriage. Article 32. A divorce pronounced by a minor or insane person, or if pronounced under coercion, or with no clear intention to dissolve the marriage, shall have no legal effect. Article 33. (1) A divorce meant to be effect on some action or omission of the wife shall have no legal effect. (2) A divorce given with a view to binding the wife to an oath or restrain her from doing something shall have no legal effect. (3) A divorce to which a number is attached, by express words or a gesture, shall effect only a single revocable divorce, except when it is pronounced for the third time. xxx xxx xxx Article 35. The marriage may be dissolved by mutual consent of the parties. Such a divorce must be registered with the court. If the parties cannot agree on the terms of such a divorce, they shall approach the court and it will appoint arbitrators to settle the matter or reconcile them. xxx xxx xxx Article 47. A divorce must be pronounced in a court and in the presence of the other party or his or her representative. The court shall before giving effect to a divorce exhaust all possibilities of reconciliation.” ((viii) Morocco: Is a theocratic State, which declares Islam to be its official religion. Muslims of the Sunni sect constitute its majority. On the issue in hand, it has enacted the following legislation: Code of Personal Status 2004 Law 70.03 of 2004 Article 79. Whoever divorces his wife by Talaq must petition the court for permission to register it with the Public Notaries of the area where the matrimonial home is situate, or where the wife resides, or where the marriage took place. Article 80. The petition will mention the identity of spouses, their professions, addresses, number of children, if any, with their age, health condition and educational status. It must be supported by a copy of the marriage agreement and a document stating the husband’s social status and financial obligations. Article 81. The court shall summon the spouses and attempt reconciliation. If the husband deliberately abstains, this will be deemed to be withdrawal of the petition. If the wife abstains, the court will notify her that if she does not present herself the petition may be decided in her absence. If the husband has fraudulently given a wrong address for the wife, he may be prosecuted at her instance. Article 82. The court will hear the parties and their witnesses in camera and take all possible steps to reconcile them, including appointment of arbitrators or a family reconciliation council, and if there are children such efforts shall be exhausted within thirty days. If reconciliation takes place, a report will be filed with the court.
Supreme Court of India
(ID::2017 SCP 493)
Honourable Judges S. Abdul Nazeer, Uday Umesh Lalit, Rohinton Fali Nariman, Kurian Joseph, Jagdish Singh Khehar
Date of Judgment: 22 Aug 2017
Segment Number (Approximate Page Number): 32
Relevancy Score: 62.87
At first sight it may look like giving too much latitude to the parties to allow them to end the marriage contract thus, even if there is no reason except incompatibility of temperament, but this much is certain that if there is such disagreement that the husband and the wife cannot pull together, it is better for themselves, for their offspring and for society in general that they should be separated than that they should be compelled to live together. No home is worth the name wherein instead of peace there is wrangling; and marriage is meaningless if there is no spark of love left between the husband and the wife. It is an error to suppose that such latitude tends to destroy the stability of marriage, because marriage is entered into as a permanent and sacred relation based on love between a man and a woman, and divorce is only a remedy when marriage fails to fulfill its object.'' With regard to the husband's right of pronouncing divorce the learned author has found; "Though the Holy Quran speaks of the divorce being pronounced by the husband, yet a limitation is placed upon the exercise of this right." He then refers to the procedure laid down in Sura IV Verse 35 quoted above, and says : "It will be seen that in all disputes between the husband and the wife, which it is feared will lead to a breach, two judges are to be appointed from the respective people of the two parties. These judges are required first to try to reconcile the parties to each other, failing which divorce is to be effected. Therefore, though it is the husband who pronounces the divorce, he is as much bound by the decision of the judges, as is the wife. This shows that the husband cannot repudiate the marriage at will. The case must first be referred to two judges and their decision is binding......The Holy Prophet is reported to have interfered and disallowed a divorce pronounced by a husband, restoring the marital relations (Bu. 68: 2). It was no doubt matter of procedure, but it shows that the authority constituted by law has the right to interfere in matters of divorce." The learned author has further observed: "Divorce may be given orally, or in writing, but it must take place in the presence of witnesses.” (iv) The conclusion: Based on the Quranic verses referred to above, the High Court concluded as under: “13. A perusal of the Quranic verses quoted above and the commentaries thereon by well-recognized Scholars of great eminence like Mahammad Ali and Yusuf Ali and the pronouncements of great jurists like Ameer Ali and Fyzee completely rule out the observation of Macnaghten that "there is no occasion for any particular cause for divorce, and mere whim is sufficient", and the observation of Batchelor, J. (ILR 30 Bom. 537) that "the whimsical and capricious divorce by the husband is good in law, though bad in theology". These observations have been based on the concept that women were chattal belonging to men, which the Holy Quran does not brook.
Supreme Court of India
(ID::1985 SCP 193)
Honourable Judges O. Chinnappa Reddy, R.B. Misra
Date of Judgment: 10 May 1985
Segment Number (Approximate Page Number): 11
Relevancy Score: 62.73
Sec.32 provides grounds for divorce: "(a) that the marriage has not been consummated within one year after its solemnization owing to the wilful refusal of the defendant to consummate it; (b) that the defendant at the time of the marriage was of unsound mind and has been habitually so up to the date of the suit; (Proviso has been omitted) (c) that the defendant was at the time of marriage pregnant by some person other than the plaintiff; (Proviso has been omitted) (d) that the defendant has since the marriage committed adultery or fornication or bigamy or rape or an unnatural offence; (Proviso has been omitted) (e) that the defendant has since the marriage voluntarily caused grievous hurt to the plaintiff or has infected the plaintiff with venereal disease, or, where the defendant is the husband, has compelled the wife to submit herself to prostitution; (The proviso has been omitted) (f) that the defendant is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code; (The proviso has been omitted) (g) that the defendant the deserted the plaintiff for at least three years; (h) that a decree or order for judicial separation has been passed against the defendant, or an order has been passed against the defendant by a Magistrate awarding separate maintenance to the plaintiff, and the parties have not had marital intercourse for three years or more since such decree or order; (i) that the defendant has failed to comply with a decree for restitution of conjugal rights for a year or more; and (j) that the defendant has ceased to be a Parsi." (Proviso has been omitted) Section 34 provides for judicial separation on any of the grounds on which divorce could be sought; or on the ground that the defendant has been guilty of such cruelty to him or her or to her children or has used such personal violence, or has behaved in such a way as to render it in the judgment of the court improper to compel him or her to live with the defendant. It will be noticed here that under the Parsi Marriage and Divorce Act also, mutual consent and irretrievable break down of marriage are not grounds of divorce though a decree for judicial separation may be followed by a decree of divorce if the parties have not had marital intercourse for three years or more since such decree or order.
Supreme Court of India
(ID::2006 SCP 206)
Honourable Judges B.N. Agrawal, A.K. Mathur, Dalveer Bhandari
Date of Judgment: 21 Mar 2006
Segment Number (Approximate Page Number): 15
Relevancy Score: 62.59
The Courts do not have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court. In Durga P.Tripathy v. Arundhati Tripathy, (2005) 7 SCC 353, this Court further observed that Marriages are made in heaven. Both parties have crossed the point of no return. A workable solution is certainly not possible. Parties cannot at this stage reconcile themselves and live together forgetting their past as a bad dream. We, therefore, have no other option except to allow the appeal and set aside the judgment of the High Court and affirming the order of the Family Court granting decree for divorce. In Lalitha v. Manickswamy, I (2001) DMC 679 SC that the had cautioned in that case that unusual step of granting the divorce was being taken only to clear up the insoluble mess when the Court finds it in the interests of both the parties. Irretrievable Breakdown of Marriage Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. Because of the change of circumstances and for covering a large number of cases where the marriages are virtually dead and unless this concept is pressed into services, the divorce cannot be granted. Ultimately, it is for the Legislature whether to include irretrievable breakdown of marriage as a ground of divorce or not but in our considered opinion the Legislature must consider irretrievable breakdown of marriage as a ground for grant of divorce under the Hindu Marriage Act, 1955. The 71st Report of the Law Commission of India briefly dealt with the concept of Irretrievable breakdown of marriage. This Report was submitted to the Government on 7th April, 1978. We deem it appropriate to recapitulate the recommendation extensively. In this Report, it is mentioned that during last 20 years or so, and now it would around 50 years, a very important question has engaged the attention of lawyers, social scientists and men of affairs, namely, should the grant of divorce be based on the fault of the party, or should it be based on the breakdown of the marriage? The former is known as the matrimonial offence theory or fault theory. The latter has come to be known as the breakdown theory. In the Report, it is mentioned that the germ of the breakdown theory, so far as Commonwealth countries are concerned, may be found in the legislative and judicial developments during a much earlier period. The (New Zealand) Divorce and Matrimonial Causes Amendment Act, 1920, included for the first time the provision that a separation agreement for three years or more was a ground for making a petition to the court for divorce and the court was given a discretion (without guidelines) whether to grant the divorce or not.
Supreme Court of India
(ID::2020 SCP 576)
Honourable Judges Ashok Bhushan, R. Subhash Reddy, M.R. Shah
Date of Judgment: 15 Oct 2020
Segment Number (Approximate Page Number): 15
Relevancy Score: 62.34
In paragraph 15, following was observed:- “15. A reading of the aforesaid provisions shows that it creates an entitlement in favour of the woman of the right of residence under the "shared household" irrespective of her having any legal interests in the same. The direction, inter alia, can include an order restraining dispossession or a direction to remove himself on being satisfied that domestic violence had taken place.” 41. Now, we proceed to notice certain provisions of Act, 2005, which are relevant for determination of the issues as arisen in the present appeal. According to Section 2(a) ”aggrieved person” means any person, who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent. “Domestic Relationship” has been defined in Section 2(f) in following words:- “(f) "domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;” 42. The expression “respondent” is defined in Section 2 (q) in following words:- “(q) "respondent" means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner;” 43. The words “adult male” as occurring in Section 2(q) has been struck down by this Court in Hiral P. Harsora and Ors. Vs. Kusum narottamdas Harsora and Ors., (2016) 10 SCC 165. Consequently, the respondent can also be a female in domestic relationship with the aggrieved person. The next definition, which is relevant to be noticed is Section 2(s), which defines shared household. Shared household is defined in following words:- “(s) "shared household" means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household;” 44. Section 3 defines “domestic violence”. Sections 4 to 11 occurring in Chapter III deals with powers and duties of protection officers, service providers etc.
Supreme Court of India
(ID::2022 SCP 131)
Honourable Judges K.M. Joseph, Hrishikesh Roy
Date of Judgment: 03 Feb 2022
Segment Number (Approximate Page Number): 16
Relevancy Score: 62.25
This angst has got extended in the case of the respondent to somehow not permit the appellant to get a decree of divorce and “live his life”, forgetting that both parties would be able to live their lives in a better manner, separately, as both parties suffer from an obsession with legal proceedings, as reflected from the submissions before us.” 31. We may also notice the judgment of this Court reported in Sivasankaran v. Santhimeenal7 which reads as under: “19. We are, thus, faced with a marriage which never took of from the first day. The marriage was never consummated and the parties have been living separately from the date of marriage for almost 20 years. The (2020) 14 SCC 657 2021 SCC Online SC 702 appellant remarried after 6 years of the marriage, 5 years of which were spent in Trial Court proceedings. The marriage took place soon after the decree of divorce was granted. All mediation efforts have failed. 20. In view of the legal position which we have referred to aforesaid, these continuing acts of the respondent would amount to cruelty even if the same had not arisen as a cause prior to the institution of the petition, as was found by the Trial Court. This conduct shows disintegration of marital unity and thus disintegration of the marriage. In fact, there was no initial integration itself which would allow disintegration afterwards. The fact that there have been continued allegations and litigative proceedings and that can amount to cruelty is an aspect taken note of by this court. The marriage having not taken of from its inception and 5 years having been spent in the Trial Court, it is difficult to accept that the marriage soon after the decree of divorce, within 6 days, albeit 6 years after the initial inception of marriage, amounts to conduct which can be held against the appellant. 21. In the conspectus of all the aforesaid facts, this is one case where both the ground of irretrievable breakdown of marriage and the ground of cruelty on account of subsequent facts would favour the grant of decree of divorce in favour of the appellant. 22. We are, thus, of the view that a decree of divorce dissolving the marriage between the parties be passed not only in exercise of powers under Article 142 of the Constitution of India on account of irretrievable breakdown of marriage, but also on account of cruelty under Section 13(1)(i-a) of the Act in light of the subsequent conduct of the respondent during the pendency of judicial proceedings at various stages.” 32. Having found that consent of the parties is not necessary to declare a marriage dissolved, we cannot be unmindful of the facts as they exist in reality. There has been a marriage which took place on 31.10.2004. There is a child born in the said marriage. No doubt being in contravention of Section 15, it becomes a fait accompli but at the same time we do not reasonably perceive any possibility of the appellant and the respondent cohabiting as husband and wife.
Supreme Court of India
(ID::2015 SCP 736)
Honourable Judges Prafulla C. Pant, Dipak Misra
Date of Judgment: 20 Nov 2015
Segment Number (Approximate Page Number): 6
Relevancy Score: 62.15
The said judgments were distinguished on facts as those cases related to live-in relationship without marriage. The Court opined that the parties therein had got married and the decree of the civil court for divorce subsisted and that apart a suit to declare the said judgment and decree as a nullity was still pending consideration before the competent court. In that background, the Court ruled that:- “In the facts and circumstances of the case, the submission made on behalf of Respondent 2 that the judgment and decree of a civil court granting divorce is null and void and they continued to be the husband and wife, cannot be taken note of at this stage unless the suit filed by Respondent 2 to declare the said judgment and decree dated 20-3-2008 is decided in her favour. In view thereof, the evidence adduced by her particularly the record of the telephone calls, photographs attending a wedding together and her signatures in school diary of the child cannot be taken into consideration so long as the judgment and decree of the civil court subsists. On a similar footing, the contention advanced by her counsel that even after the decree of divorce, they continued to live together as husband and wife and therefore the complaint under the 2005 Act is maintainable, is not worth acceptance at this stage.” [Emphasis supplied] 16. It may be noted that a submission was advanced by the wife with regard to the applicability of Section 468 CrPC. While dealing with the submission on the issue of limitation, the Court opined:- “...... in view of the provisions of Section 468 CrPC, that the complaint could be filed only within a period of one year from the date of the incident seem to be preponderous in view of the provisions of Sections 28 and 32 of the 2005 Act read with Rule 15(6) of the Protection of Women from Domestic Violence Rules, 2006 which make the provisions of CrPC applicable and stand fortified by the judgments of this Court in Japani Sahoo v. Chandra Sekhar Mohanty, (2007) 7 SCC 394, and NOIDA Entrepreneurs Assn. v. NOIDA, (2011) 6 SCC 508.” 17. As it appears, the High Court has referred to the same but the same has really not been adverted. In fact, it is not necessary to advert to the said aspect in the present case. 18. The core issue that is requisite to be addressed is whether the appellant has ceased to be an “aggrieved person” because of the decree of judicial separation. Once the decree of divorce is passed, the status of the parties becomes different, but that is not so when there is a decree for judicial separation. A three-Judge Bench in Jeet Singh and Others Vs. State of U.P. and Others[6] though in a different context, adverted to the concept of judicial separation and ruled that the judicial separation creates rights and obligations. A decree or an order for judicial separation permits the parties to live apart. There would be no obligation for either party to cohabit with the other.
Supreme Court of India
(ID::2021 SCP 407)
Honourable Judges Sanjay Kishan Kaul, M.M. Sundresh
Date of Judgment: 13 Sep 2021
Segment Number (Approximate Page Number): 2
Relevancy Score: 61.91
The respondent filed a review petition inter alia on the ground that it was not within the jurisdiction of the High Court or the trial court to grant a decree of divorce on the ground of irretrievable breakdown of marriage. The High Court noticed some aspects of alleged cruelty and dissolved the marriage by passing a decree of divorce on the ground of irretrievable breakdown of marriage. Thus, the review petition was allowed by the impugned order dated 25.2.2019, which has been assailed in the present appeal. 2. The endeavour to find a solution through mediation or any acceptable solution between the parties did not succeed. According to the learned counsel for the parties, the respondent was not willing to concede the decree of divorce on any terms even though both the parties are educated and living their separate lives now for almost two decades. In fact, learned counsel for the respondent even stated that she was not disturbed by nor wanted to afect the status of the second marriage; but was unwilling to concede to a scenario where her marriage with the appellant came to an end even though in view of the financial status of the parties no maintenance was being claimed. In these circumstances, we are called upon to take a view of the matter in the given factual scenario and the subsequent developments, which are material, during the pendency of the proceedings at various stages of the judicial process. 3. We have examined the rival contentions of the parties and we have little doubt that this is one marriage which has not worked and cannot work. This is not only on account of the fact that the appellant has married a second time but also because the parties are so troubled by each other that they are not willing to even think of living together. This, despite the fact that the respondent keeps on claiming that she is and was always willing to live with him. 4. Insofar as irretrievable breakdown of marriage is concerned, no doubt, it does not exist as a ground of divorce under the Act. The issue has been debated by the Law Commission in its various reports. Breakdown of marriage was incidentally considered by the Law Commission in its 59 th report (1974), but the Commission made no specific recommendations in this regard. Thereafter in its 71st report (1978), the Law Commission departed from the fault theory of divorce to recognise situations where a marriage has completely broken down and there is no possibility of reconciliation. Neither party need individually be at fault for such a breakdown of the marriage – it may be the result of prolonged separation, clash of personalities, or incompatibility of the couple. As the Law Commission pithily noted, such marriages are ‘merely a shell out of which the substance is gone’. For such situations, the Commission recommended that the law be amended to provide for ‘irretrievable breakdown of marriage’ as an additional ground of divorce.
Relevant High Court Judgments
Year From: 1950, Year To: 2024
Year From: 1950, Year To: 2024
Andhra High Court
(ID::2014 HANHP 61)
A.Ashok Vardhan Reddy vs Smt.P. Saritha,And 2 Others
Honourable Judges K.G. Shankar
Date of Judgment: 15 April 2014
Segment Number (Approximate Page Number): 4
Relevancy Score: 71.25
Only a compelled or temporarily going out by aggrieved person shall fall in phrase at any point of time, say, wife has gone to her parents house or to a relative or some other female member has gone to live with her some relative, and, all her articles and belongings remain within the same household and she has not left the household permanently, the domestic relationship continues. .. On the basis of these two decisions, it is urged by the learned counsel for the husband that the very claim is not maintainable. 12. Sri P. Krishna Reddy, learned counsel for the wife placed reliance upon A. Ashok Vardhan Reddy v. Smt. P. Savitha . When the wife herein filed C.C.No.48 of 2008 on the file of the II Metropolitan Magistrate, Cyberabad at L.B. Nagar against the husband and the parents of the husband, a petition was filed by the husband and his parents seeking for quashment of C.C.No.48 of 2008. After an elaborate judgment, the Criminal Petition was dismissed. As the case was between the same parties, the learned counsel for the wife is placing heavy reliance upon this decision. He pointed out that the Court concluded that the divorced wife is entitled to maintenance under the provisions of DV Act so long as she did not contact another marriage. It was noted that the existence of any jural relationship of man and his wife between the petitioner-husband and the respondent-wife is not a sine qua non for maintaining a domestic violence case. Referring to grant of divorce by a Foreign Court, the Court observed that the cases under the provisions of DV Act would still operate if allegations are made out or otherwise proved. 13. The learned senior counsel for the husband contended that the allegations made by PWs.1 to 3 are bald, sweeping and general. He contended that there was no incidence of physical or mental cruelty. 14. Where divorce was already granted by a Foreign Court and where this revision is not for grant of maintenance as such, I consider that the Court need not go into the question of the merits of this revision. The trial Court and the appellate Court held that the domestic violence is made out. I go by the assumption that the DV Act has been made out. What should be the relief in such an event is the only question. 15. So far as granting of Rs.5 lakhs as compensation is concerned, there is no counter attack from the husband.
Bombay High Court
(ID::2017 HBOMP 112)
Kishor S/O Shrirampant Kale vs Shalini Kishor Kale
Honourable Judges Vasanti A. Naik, V.M.Deshpande
Date of Judgment: 14 February 2017
Segment Number (Approximate Page Number): 1
Relevancy Score: 69.91
The appellant challenges the judgment of the Family Court dated 22nd July, 2013 dismissing the petition filed by the appellant under Section 13 of the Hindu Marriage Act, 1955. The appellant-husband (hereinafter referred to as, "the husband" for the sake of convenience) and the respondent-wife (hereinafter referred to as, "the wife") were married on 8.5.1990, at Amravati, according to Hindu rites and customs. At the relevant time, the husband was residing at Dharni, as he was serving there. A son was born from the wedlock on 24 th February, 1991. The parties separated on 7.11.1992 and have not resided together since then. The wife filed proceedings under Section 125 of the Code of Criminal Procedure after she separated from the husband. The husband filed a petition against the wife for grant of a decree of divorce bearing Hindu Marriage Petition No.45/1995 on the ground of desertion. The petition was dismissed by the judgment dated 21.2.1997. The husband filed an appeal against the said judgment, but his appeal was also dismissed. Thereafter, the wife filed proceedings against the husband under the provisions of the Protection of Women from Domestic Violence Act, 2005 and sought an order of residence and maintenance. After the wife filed the proceedings under the provisions of the Protection of Women from Domestic Violence Act, 2005 and an order was passed in favour of the wife in the said proceedings, the husband filed the present petition in the year 2008 for a decree of divorce on the ground of cruelty. It was pleaded by the husband in the said petition that after the earlier petition filed by him was dismissed, the wife had filed proceedings against him under the provisions of the Protection of Women from Domestic Violence Act, 2005. The husband pleaded that the wife was instrumental in getting some news items published against the husband that adversely affected him. It was pleaded that news items were published by the wife in several newspapers only with a view to malign the image of the husband in the eyes of the society, when he was working as a Lecturer in the college. According to the husband, the marriage between the parties was irretrievably broken and hence a decree of divorce should be passed in favour of the husband. The wife filed the written statement and denied the claim of the husband.
Bombay High Court
(ID::2017 HBOMP 112)
Kishor S/O Shrirampant Kale vs Shalini Kishor Kale
Honourable Judges Vasanti A. Naik, V.M.Deshpande
Date of Judgment: 14 February 2017
Segment Number (Approximate Page Number): 4
Relevancy Score: 69.02
It is submitted that a finding recorded in the earlier proceedings that the wife had not deserted the husband without any just or reasonable excuse has attained finality and hence the husband cannot be permitted to canvas that the wife has left the matrimonial home without any just or reasonable excuse. It is submitted that the Family Court has rightly held that the husband cannot take advantage of his own wrong. It is submitted that even assuming that the parties are not residing together for nearly 25 years, that cannot be a ground for granting a decree of divorce, under Section 13 of the Hindu Marriage Act. The learned counsel sought for the dismissal of the appeal. On hearing the learned counsel for the parties and on a perusal of the record and proceedings, it appears that the following points arise for determination in this Family Court Appeal : (i) Whether the husband has proved that the wife has treated him with cruelty ? (ii) Whether the husband is entitled to a decree of divorce ? (iii) What order ? To answer the aforesaid points for determination, it would be necessary to consider the pleadings in the petition filed by the husband for a decree of divorce. It would also be necessary to consider the evidence tendered by the parties. The husband had admittedly filed a petition against the wife for a decree of divorce in the year 1995. The husband had sought a decree of divorce on the ground of desertion. The said petition was dismissed in the year 1997 and an appeal filed by the husband against the said judgment was also dismissed. It was held by the Court in the judgment in the said petition that the wife had not left the company of the husband without any just or reasonable excuse. In the instant petition, it is the case of the husband that after the earlier petition was dismissed and the Protection of Women from Domestic Violence Act, 2005 was brought into force, the wife has filed proceedings against the husband under the provisions of the said Act and has caused harassment to the husband. We have perused the orders passed in the said proceedings. The wife had merely sought a direction against the husband to permit her to reside in the matrimonial home and to pay some amount to her towards maintenance.
Punjab-Haryana High Court
(ID::2018 HPHCP 22)
Vikas And Ors vs Usha Rani And Ors
Honourable Judges Jaishree Thakur
Date of Judgment: 17 April 2018
Segment Number (Approximate Page Number): 7
Relevancy Score: 68.94
The parties in that case had appeared again before the Courts on 20.3.2008 and got recorded their statements affirming that they could not reside together and, thereafter the District Judge, Ludhiana, allowed the said petition and dissolved their marriage. Thereafter, the wife 8 of 19 filed a complaint under the provisions of the Domestic Violence Act before the Senior Superintendent of Police, Ludhiana, alleging that the divorce was a sham transaction and even after getting the divorce they are residing as husband and wife. She has been forced to leave the matrimonial home and, therefore, she should be allowed interim protection as provided under the Domestic Violence Act. Eventually, the wife filed a complaint under the Domestic Violence Act and summons were issued, while also filing a Civil Suit seeking declaration that the decree of divorce was null and void. She also lodged FIR under Sections 406, 498-A, 376, 120-B IPC. Under the circumstances, the husband filed a criminal petition before the High Court for quashing of the complaint filed by the wife under Section 12 of the Domestic Violence Act. The High Court dismissed the petition of the husband, which led to filing Criminal Appeal before the Supreme Court. It is in this background, the Supreme Court held that the complaint filed by the wife under the Domestic Violence Act would not be sustainable, in view of the fact that the decree of divorce subsisted and that the complaint had been filed beyond the period of one year from the date of incident. 13. However, in a subsequent judgment rendered in Shalini's case (supra), the Supreme Court clearly allowed the complaint filed under the Domestic Violence Act at the behest of the wife holding that a wife can claim residence in a shared house, even though she had been living separately for the past 15 years, while interpreting the term "domestic relationship". 14. Later in Krishna Bhatacharjee Versus Sarathi Choudhury 9 of 19 and another 2016 (2) SCC 705, the question of limitation arose before the Supreme Court wherein the wife was seeking return of her Istridhan back from her husband. In Krishna Bhatacharjee's case (supra), a matrimonial dispute arose and the wife was driven out of her matrimonial home. Conciliation was arrived at between the parties and both started living in a rented house.
Karnataka High Court
(ID::2022 HKARP 139)
Smt.J.H.Veronica @ J.H. Manila vs Mr.D.Anil Kumar Son Of Late Doreraja
Honourable Judges S. Sunil Dutt Yadav
Date of Judgment: 24 March 2022
Segment Number (Approximate Page Number): 2
Relevancy Score: 68.74
4. The husband appeared and filed his objections admitting the marriage and the birth of the child. It is however contended that the wife herself is avoiding the marital relationship with the husband without any reasonable cause and though the husband is providing all the luxuries of the matrimonial home, wife is refusing to stay with the husband. It is further contended that the matrimonial dispute between the husband and wife arose due to the instigation of her parents, who were not allowing her to live with her husband and for one or the other reason always took the wife to their house. It is further averred that the wife is not happy with her husband as he was doing coolie job and the status between them did not match. It is further averred that inspite of all this, husband is ready to take back his wife and the child and live happy marital life. 5. The Family Court on the basis of the pleadings framed following points for consideration; POINTS 1. Whether the petitioner/ wife proves that the respondent/ husband has treated her with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with respondent ? 2. Whether the petitioner is entitled for decree of divorce as prayed for? 3. What Order ? 6. The wife in order to substantiate her case examined herself as PW.1 and one witness as PW.2 and got marked 22 documents at Ex.P.1 to 22. On the other hand, the respondent examined himself as RW.1 and one witness as RW.2 and got marked Ex.R.1. 7. The Family Court by its judgment held that the wife has failed to prove that the husband assaulted her and caused grievous injuries to her and the ground of cruelty urged by the wife to seek divorce is not proved by the wife, accordingly, the Family Court dismissed the petition filed by the wife under Section 10(X) of the Act. Aggrieved by the dismissal of the petition, the wife has preferred this appeal. 8. Though the respondent-husband was served with the notice in this appeal, he has remained absent and unrepresented. 9. Hence, heard the learned counsel for the appellant Smt. Aruna Deshpande and perused the original records.
Allahabad High Court
(ID::2013 HALHP 29)
Smt. Sarita Mishra vs Shashi Dhar Mishra
Honourable Judges Ashok Bhushan, Surya Prakash Kesarwani
Date of Judgment: 24 May 2013
Segment Number (Approximate Page Number): 16
Relevancy Score: 68.51
The High Court held that it was not satisfied that the appellant had been treated with cruelty. An appeal was filed by the husband in the Apex Court. In the above case, the Apex Court made observations, as noticed above. The parties lived separately in the above case for 14 years. In the above background, the Court directed the matrimonial ties be broken. The said case is clearly distinguishable from the facts of the present case. In the present case, the wife is living in the village home of the husband and has not left her husband. It is the husband who is working at Mumbai who has not taken the wife to Mumbai which fact has come on the record. The husband in his statement has stated that the wife asked him to take her to Mumbai, but it was the husband who told her that his job is temporary in nature and at present it is not possible to take the wife to Mumbai. When no allegations of cruelty has been found proved against the wife, we are of the view that merely because the husband does not wish to live with the wife is not a good ground to grant divorce. Granting divorce in such cases will be nothing but putting premium to such conduct of the husband under which he is not fulfilling his matrimonial obligations. Marriage is not only a social relation, but it is an institution which is to be respected by both the spouse and conduct of the spouse has to be towards nurturing and saving the institution. The wife's stand that she treats the plaintiff as her husband and she will live in the plaintiff's house till her death has to be given respect and sanctity. Wife in her written statement and oral statement has not made any allegation against the husband, rather she stated that her husband is a "Gentlemen" and it is at the instance of the plaintiff's sister's husband that he had distanced himself from his wife. The Principal, Judge, Family Court has not adverted to the evidence nor has properly marshalled the evidence and has delivered a cryptic judgment granting decree and refusing the restitution of conjugal rights. We are of the view that the wife has made out a case for restitution of conjugal rights and the petition filed by the wife being Petition No.769/2006 under Section 9 of the Hindu Marriage Act for restitution of conjugal rights deserves to be allowed and is hereby allowed. No case has been made out to grant divorce to the husband.
Punjab-Haryana High Court
(ID::2011 HPHCP 18)
Mrs. Nidhi Kakkar vs Munish Kakkar
Honourable Judges K. Kannan
Date of Judgment: 10 February 2011
Segment Number (Approximate Page Number): 1
Relevancy Score: 67.77
I. Grounds for divorce by husband that found acceptance 1. The appeal is at the instance of the wife against the decree of divorce granted in favour of the husband. The husband had at least 6 reasons to give for justifying his plea for dissolution of marriage: (i) the wife, who was a Canadian citizen had immediate close relatives living abroad, and had after the marriage left for Canada without the consent of the husband; (ii) she had been taking anti-depression drugs and was suffering from some ailments which were not disclosed to him; (iii) she had forced a separate residence from his parents after her return to India and caused mental cruelty to him; (iv) she had caused physical assaults on him on 15.04.2003 that required medical treatment with the doctor; (v) she had indulged in character assassination of the husband by falsely insinuating that he had extra marital relationship and was particularly proximate to a colleague in office by name Rajni Mahajan; and (vi) she had taken away the articles from the house suggesting that she was no longer interested in leaving with the company of the husband and exhibiting the intention to desert the husband. 2. There were denials to each one of the aspects by the wife and she had a justification or explanation to the grounds urged by the husband. The trial Court, however, rejected the evidence and found the grounds urged by the husband to be fully established and granted a divorce in the manner sought for. II. The predominant grounds for immediate consideration 3. The appellant, who had the benefit of counsel presented her case in person with vehemence that each one of the vital considerations wrought by the trial Court were deflected away from appropriate legal reasoning and betrayed a lopsided approach without sifting the evidence in the light of the details brought through documents produced at the trial by the wife. Of the allegations, the issue relating to the wife taking anti- depression drugs or that she had taken away the articles from the house or even the suggestion that she had left for Canada without the consent of the husband, even if they were taken as established would not prove any form of cruelty except that they might be taken up with other factors for inference of the general deteriorating relationship between parties.
Bombay High Court
(ID::2017 HBOMP 112)
Kishor S/O Shrirampant Kale vs Shalini Kishor Kale
Honourable Judges Vasanti A. Naik, V.M.Deshpande
Date of Judgment: 14 February 2017
Segment Number (Approximate Page Number): 2
Relevancy Score: 67.71
The wife admitted that a son was born from the wedlock and the parties separated on 7.11.1992. The wife pleaded that there was sufficient cause for the wife to stay away from the husband. It was pleaded that the husband was harassing the wife in the house and was also demanding dowry from her parents. It was pleaded that due to the harassment by the husband, she was compelled to leave the matrimonial home. The wife pleaded that the earlier petition filed by the husband was dismissed and a finding was recorded in the said petition that the wife had not left the company of the husband without just or reasonable excuse. It was pleaded that after coming into force of the Protection of Women from Domestic Violence Act, 2005 the wife had filed the proceedings under the said Act with a view to reside in the matrimonial house and seek maintenance from the husband. It is stated that filing of proceedings under the provisions of the said Act for seeking a right of residence and for grant of maintenance would not tantamount to cruelty. It was pleaded that the news items were not published by the wife, but since the wife was thrown out of the house after an order was passed in her favour in the proceedings under the said Act, the news items might have been published. The wife sought for the dismissal of the petition. The wife filed the counter claim for a decree for restitution of conjugal rights. From the aforesaid pleadings of the parties, the Family Court framed several issues and on an appreciation of the material evidence on record held that the husband had not been successful in proving that the wife had treated him with cruelty. The Family Court held that a decree of divorce cannot be granted in favour of the husband on the ground that the marriage had been irretrievably broken and that ground is not included as a ground for granting a decree of divorce, in the provisions of Section 13 of the Hindu Marriage Act. The Family Court further held that the husband cannot be permitted to take advantage of his own wrong, as he has admitted in his evidence that he was staying with another lady named Mamta and he had a daughter named Archana from the said relationship and Archana was 11 years of age at the time of tendering the evidence.
Chattisgarh High Court
(ID::2022 HCHAP 43)
Sohil Agrawal vs Smt. Anjali Agrawal
Date of Judgment: 20 December 2022
Segment Number (Approximate Page Number): 1
Relevancy Score: 67.38
Sohil Agrawal vs Smt. Anjali Agrawal on 20 December, 2022 1. Appellant-Husband preferred this appeal against the judgment and decree dated 18.04.2018 passed by the learned Additional Principal Judge, Family Court, Bilaspur, C.G. in Civil Suit No.112-A/2016, whereby the petition filed by the wife / respondent for grant of decree of divorce was allowed. 2. Averments made in the suit filed under Section 13 of the Hindu Marriage Act, 1955 (for short 'the Act, 1955') by the respondent / wife, in brief, are that appellant / husband married the respondent / wife on 26.04.2012 according to the Hindu rites and rituals. After marriage, the respondent/wife joined the company of the husband and from their wedlock, one male child was born. It is alleged by the wife/respondent that soon after the marriage, she was being tortured and harassed mentally and physically on different occasions by the appellant / husband in connection with demand of dowry and for saving the family, she was tolerating the torture given by the husband. Even at the time of her pregnancy, she was ill-treated by the appellant / husband and was dropped at her parental home. This apart, the appellant / husband also levelled false allegation on her character and on that ground sought divorce by filing a petition under Section 13 of the Act, 1955 i.e. Civil Suit No.48A/14 which was subsequently dismissed by the Court. Being fed up with the persistent ill-treatment by the husband and his family members, she filed a complaint case under Section 12 of the Protection of Women from Domestic Violence Act, 2005 and an application under Section 125 of Cr.P.C. for grant of maintenance as also lodged a report under Section 498-A of IPC against him. Respondent / wife is living separately from the appellant / husband since 09.04.2014, there is no possibility of re-union of the parties and as such, decree of divorce on the ground of cruelty was sought for. 3. Appellant / husband in his written statement denied all the adverse averments made by the respondent / wife and stated that it is the respondent / wife who used to pressurize him for living separately from his family members. He never treated her with cruelty, rather took all possible best care of her.
Tripura High Court
(ID::2020 HTRIP 2)
Smt. Aparna Dey vs Shri Alok Dey
Honourable Judges S.Talapatra, S.G.Chattopadhyay
Date of Judgment: 9 September 2020
Segment Number (Approximate Page Number): 5
Relevancy Score: 67.35
According to the learned trial Judge, the wife respondent brought such false allegations against her husband with a view to harass her husband which amounted to cruelty for the purpose of granting divorce under Section 13 of the Hindu Marriage Act. The trial Judge having relied on the decisions of the Apex Court in K.Srinivas Rao vs. D.A.Deepa reported in (2013) 5 SCC 226 and the decision of this High Court in Biswanath Baspar vs. Jhumarani Ghosh(Baspar) reported in (2015) 1 TLR 649 dissolved the marriage between the petitioner husband and the respondent wife by a decree of divorce under Section 13 of the Hindu Marriage Act, 1955 on the ground of desertion and cruelty which is in challenge before us. [8] We have heard learned counsel representing the parties at length. Mr. Hillol Laskar, learned advocate appearing for the appellant wife vehemently argued that the facts and circumstances of the case clearly show that the husband was at fault who had driven out his appellant wife from his home after committing torture upon her. According to Mr. Laskar, learned counsel of the appellant, the petitioner husband could not prove desertion and cruelty against his respondent wife in the trial court. But the learned trial court without proper appreciation of evidence decreed the suit for divorce relying on the unfounded evidence of the petitioner husband. As a result the decree of divorce granted by the learned trial court is liable to be set aside in appeal. [9] Mr. S.Lodh, learned counsel appearing on behalf of the respondent husband has argued that a long period has elapsed since the appellant wife deserted her husband on 12.01.2007. The husband and wife never lived together thereafter which clearly show that the relationship between the appellant wife and her respondent husband has totally broken and there seems to be no chance of retrieval at all. According to learned counsel it has been proved before the learned trial court that the appellant wife voluntarily deserted her husband without any genuine reason and caused enormous mental cruelty to her husband by bringing unfounded allegations against him and his close relatives which were proved to be false in the court of law.
Calcutta High Court (Appellete Side)
(ID::2021 HCASP 93)
Samim Rahaman vs Nasima Khatun & Anr
Honourable Judges Bibek Chaudhuri
Date of Judgment: 26 March 2021
Segment Number (Approximate Page Number): 4
Relevancy Score: 67.3
The issue is left open for adjudication at the time of final disposal of the application under Section 12 of the Domestic Violence Act. The trial shall decide prima facie as to whether the petitioner divorced the opposite party No.1 or not while adjudicating the question as to whether the opposite party No.1 is entitled to monetary relief under Section 12 of the Domestic Violence Act. 19. At the same time relying on a decision of the Hon'ble Supreme Court in the case of Juveria Abdul Majid Patini vs. Atif Iqbal Mansoori & Anr reported in 2014 (10) SCC 736, this Court can safely hold that a divorced wife is included in the definition of aggrieved person. An application under Section 12 seeking relief under Sections 18 and 23 of the Domestic Violence Act is maintainable if the domestic violence had taken place when the wife lived together in shared household with her husband through relationship in nature of marriage. 20. In the case of Prabir Kumar Ghosh & Ors. vs. Jharna Ghosh & Anr. reported in 2016(2) CalLJ 154, a Coordinate Bench of this Court had the occasion to consider the question as to whether a divorced wife is entitled to claim relief under Section 12 of the Domestic Violence Act for the reason that after divorce the wife had no occasion to live with her husband in the shared household and there was no scope of domestic violence after divorce. This Court held in paragraph 17 of the said judgment : "If economic abuse is evident in respect of an aggrieved person, who was in a domestic relationship and in the event, such economic abuse continues from day to day, the aggrieved person, in my considered opinion, would be entitled to institute a proceeding under Section 12 of the Act of 2005 for necessary relief." 21. In her application under Section 23 of the Domestic Violence Act for interim monetary relief it is stated by the opposite party No.1/wife that her marriage was contradicted under the Mohammedan Law with the petitioner herein on 10th November, 2014. After her marriage she came to know that the petitioner was previously married and there was a male child from his first marriage. He married the opposite party No.1 after giving divorce to his first wife. It is further stated by the opposite party No.1 that after her marriage she became pregnant but her husband used to put pressure on her for abortion.
Kerala High Court
(ID::2021 HKERP 130)
Mr.Ramachandra Warrior vs Jayasree
Honourable Judges K.Vinod Chandran, M.R.Anitha
Date of Judgment: 18 March 2021
Segment Number (Approximate Page Number): 11
Relevancy Score: 67.26
The domestic violence continued and on 09.01.2007 again the wife and child were evicted from the house and they had to take shelter in a neighbouring house of an aged couple. The husband had made wild allegations of the wife having very many relationships outside the marriage and even alleged that the present house in which she was staying was rented out by her paramours. From the facts and circumstances pleaded, the learned Magistrate accepted the grounds raised by the wife. None of the allegations raised by the husband stood substantiated and even Ext.D1, Building Permit produced by the husband was found to be for a reconstruction or alteration. It was found that the subject house was the shared household of the parties and Crl.R.P 3079/2009 - 18 - the domestic violence was specifically spoken of by the wife. The wife alleged that she was ill-treated and her chastity was questioned and even the daughter's parentage was disowned. Finding domestic violence having been proved, the learned Magistrate passed an order under S.18 prohibiting the respondent-husband from committing any act of domestic violence and also restrained dispossession of the wife from the shared household, under S.19 of the DV Act. The Appellate Court concurred with the judgment of the Magistrate. 18. The learned Counsel for the husband, on the merits of the case, argued that the finding as to shared household is incorrect. The Courts below did not properly appreciate the report of the Protection Officer, wherein it was reported that the allegations of domestic violence are suspicious in nature. It was also argued that the pleadings in the complaint were vague and the additional evidence produced as Annexure-III to VII were ignored by the lower courts. Per contra it was pointed out that the revision petitioner had no consistent case before the Magistrate's Court and the order as affirmed by the Appellate Court ought to be sustained. 19. We agree with the respondent-wife that there was no consistent case for the revision petitioner-husband before the lower courts. The marriage was disputed and it was also alleged that the couple stayed together only for four days but, obviously a child was born in the wedlock.
Delhi High Court
(ID::2013 HDELP 328)
Pritam Ashok Sadaphule vs Hima Chugh
Honourable Judges Veena Birbal
Date of Judgment: 22 April 2013
Segment Number (Approximate Page Number): 1
Relevancy Score: 67.12
* 1. By this revision petition challenge has been made to order dated 22nd September, 2011 passed by the ld.Addl. District Judge-1, New Delhi District, Patiala House Courts, New Delhi in HMA No.15/2011 whereby the application of the petitioner/husband under section 13 of the CPC has been dismissed. 2. Briefly the facts relevant for the disposal of the present petition are as under:- The parties met each other in England in the year 2004 and developed liking for each other. On 5th March, 2005, both got married at New Delhi. After about one week of marriage, they went back to England on 12th March, 2005. With the passage of time, disputes and differences arose between them as a result of which they could not live together. In September, 2009, respondent/wife had lodged a complaint of domestic violence, cruelty and assault against the petitioner/husband in Ilford Police Station, England. It is alleged that respondent/wife also invoked the jurisdiction of UK Family Court (Brentford County Court) for Non-Molestation and Occupation order in September, 2009. Thereafter, she had come back to India in December, 2009. In March, 2010, respondent/wife lodged FIR against the petitioner/husband, his parents and family members being FIR no.46/2010 under Section 498-A/34 IPC, P.S. Tilak Nagar, Mumbai. Petitioner/husband has filed a petition for quashing of aforesaid FIR which is pending disposal before the Bombay High Court. 3. In December, 2010, petitioner/husband had filed a divorce petition before the Ilford County Court in UK for dissolution of marriage by a decree of divorce on the ground that the respondent had misbehaved with him and that he could not reasonably be expected to live with her. It is alleged that respondent was served with the divorce petition on 19th November, 2010. 4. On 21st December, 2010, respondent/wife had filed a suit being Civil Suit (OS) No.2610/2010 before this court praying for a grant of decree of permanent injunction against the petitioner for continuing with the divorce petition before the court in UK. During the pendency of aforesaid divorce petition, respondent had filed a complaint before learned MM, Dwarka, New Delhi under The Protection of Women from Domestic Violence Act, 2005. The same was dismissed on 24th December, 2010 by the concerned ld.MM, as not maintainable.
Himachal Pradesh High Court
(ID::2022 HHIMP 50)
Along With Civil Misc. Petition No. 949 ... vs Neela Vijay Kumar Bhate
Honourable Judges Satyen Vaidya
Date of Judgment: 23 September 2022
Segment Number (Approximate Page Number): 4
Relevancy Score: 67.07
10. Learned trial Court, for above purpose, took notice of following material: (I) The averment made in the reply filed by wife to the effect that the husband was interested to marry someone else; (ii) a suggestion made to husband in his cross- examination on behalf of the wife to the effect that he had re-married and for that reason he wanted divorce from the wife, (iii) an averment made in the examination-in-chief of the father of wife to the effect that husband had re- married and he was keeping another woman as his wife; (iv) an extract from the statement of wife while appearing as witness to the effect "he never used to stay in the matrimonial house and he used to remain with that lady with whom he had married now" 11. Relying upon the dictum of Vijay Kumar Ram Chandra Bhate vs. Neela Vijay Kumar Bhate, ...9... reported in (2003)6 SCC 334, the learned trial Court held . that in case of disgusting accusation of unchastity and indecent familiarity with a person outside wedlock and extra marital allegations of spouse are levelled and not proved, then they would amount to cruelty and aggrieved spouse is entitled for divorce on this ground alone. Allegations against the husband by wife and her father in their reply and statements as noticed above, were held to be accusation of serious nature and such accusation having remained unproved, husband was held to be entitled to a decree of divorce. 12. Husband has not assailed the findings returned by learned trial Court in so far as his allegations of cruelty were held to be condoned. Thus, the only question that arise for determination is whether, in the facts and circumstances of the case, the divorce could be granted, on the ground of cruelty to the husband, on the basis of allegations of his having another wife, in defence? ...10... 13. I cannot persuade myself to subscribe to the . view taken by the learned trial Court. The learned trial court contradicted itself in the sense that on one hand the allegations of cruelty levelled by husband were washed away by applying norm of condonation against husband, on the other, allegations of second marriage against husband levelled in defence by wife were used against her by ignoring the same principle.
Bombay High Court
(ID::2017 HBOMP 112)
Kishor S/O Shrirampant Kale vs Shalini Kishor Kale
Honourable Judges Vasanti A. Naik, V.M.Deshpande
Date of Judgment: 14 February 2017
Segment Number (Approximate Page Number): 3
Relevancy Score: 67.03
The Family Court granted a decree for restitution of conjugal rights in favour of the wife while dismissing the husband's petition for a decree of divorce. The judgment of the Family Court dismissing the petition filed by the husband is challenged by the husband in this appeal. We are not deciding the question whether the wife was entitled to a decree of restitution of conjugal rights, though the Family Court has granted the same, as the learned counsel for the wife has made a statement in this Court, on the instructions of the wife who is present in the Court today, that the wife is not desirous of executing the decree of restitution of conjugal rights, as she is not willing to reside with the husband. It is stated that the decree would not be acted upon. Hence, we proceed to decide the appeal against the judgment refusing a decree of divorce in favour of the husband. Shri Mahalle, the learned counsel for the husband submitted that the Family Court ought to have granted a decree of divorce, as the marriage between the parties is irretrievably broken. It is stated that the parties are not residing together for more than 25 years and this shows that the marriage is irretrievably broken. It is submitted that the wife was instrumental in publishing the false news items in the newspaper and that has maligned the image of the husband. It is submitted that the wife had falsely filed the proceedings against the husband under the provisions of the Protection of Women from Domestic Violence Act, 2005 though the wife had left the matrimonial home without any just or reasonable excuse. It is stated that in the circumstances of this case, this Court may grant a decree of divorce in favour of the husband, as the parties have admittedly separated before nearly 25 years. Smt. Chandekar, the learned counsel for the wife opposed the prayer made in this appeal. It is submitted that the Family Court has rightly held that the husband has utterly failed to prove that the wife has treated him with cruelty. It is submitted that the letters written by the wife to the husband and that are marked as exhibits, clearly show that the wife was not at fault and she was ready to reside with the husband, but the husband had compelled the wife to leave the matrimonial home.
Kerala High Court
(ID::2009 HKERP 204)
James K.Avaran vs Jancy Ritamma George @ Jancy Avarah
Honourable Judges R.Basant, M.C.Hari Rani
Date of Judgment: 5 June 2009
Segment Number (Approximate Page Number): 3
Relevancy Score: 67.0
According to him, the wife had approached the courts in Switzerland for a decree for separation, and having approached the courts in Switzerland for a decree for separation, her subsequent conduct of rushing to India and filing an application for divorce was not justified. It is calculated to avoid the fiscal liability for payment of support to the dependent husband which under the law in Switzerland, the claimant wife would be exposed to. Preliminary objection was raised against maintainability of the petition for divorce before Indian Courts. 8. The husband denied the allegations of physical and mental cruelty but asserted unambiguously that the wife was guilty of adulterous and unchaste behaviour after marriage. He raised allegations of licentious behaviour and conduct on the part of the wife prior to marriage also. 9. We cut a long story short. We are not referring to the acrimonious proceedings between the parties after the filing of the application for divorce. Before the court below, the claimant wife examined herself as PW1 and her father as PW2. The respondent-husband examined himself as RW1. Exts.A1 to A31 were marked on the side of the claimant-wife whereas Exts.B1 to B16 were marked on the side of the respondent-husband. We note that Ext.B series are not marked properly by the Family Court. Registry shall ensure that this inadequacy is rectified immediately by the Family Court. 10. The learned Judge of the Family Court on an anxious consideration of all the relevant material came to the conclusion that it cannot be said that the parties were not domiciled in India on the date of presentation of the application. The contention of the husband that the parties were domiciled in Switzerland was not accepted by the Family Court. The Family Court did not proceed to consider in detail the allegations of physical cruelty, but came to the conclusion that the allegations of mental cruelty and torture by the husband by raising unsubstantiated allegations of adulterous, unchaste and licentious conduct are sufficient by themselves to justify the plea for divorce on the ground of mental matrimonial cruelty. Accordingly, the Family court proceeded to pass the impugned order. 11. Before us, the learned counsel for the appellant- husband and respondent-wife have advanced detailed arguments.
Bombay High Court
(ID::2005 HBOMP 36)
Smt. Madhavi Ramesh Dudani vs Ramesh K. Dudani
Honourable Judges H.L. Gokhale, R.S. Dalvi
Date of Judgment: 1 November 2005
Segment Number (Approximate Page Number): 12
Relevancy Score: 66.73
Petition No. A-1822 of 1992, it has various prayers. The first prayer was that of judicial separation on the ground of cruelty and ill-treatment. In the counter-claim filed by the husband, he had also alleged acts of cruelty on the part of the wife though he had not referred to any particular section and had submitted that in the event the court holds that it has the jurisdiction, the marriage may be dissolved by a decree of divorce. Inasmuch as the original petition filed by the wife was only for judicial separation and not for divorce, we asked the counsel for the Appellant as to whether he was interested only in judicial separation or whether he would agree for divorce. He filed an affidavit affirmed by the Appellant on 27th October 2005 stating that if appropriate maintenance for the two daughters and at least one bedroom hall kitchen flat are provided, she has no objection to the divorce being granted. Mr. Bhowmik however invoked section 13-B of the Hindu Marriage Act for divorce by mutual consent to which the Respondent's counsel could not agree under instructions. 21. Now, as far as the relations between the parties are concerned, they are sufficiently spoiled. The wife has pointed out various acts of cruelty and ill-treatment including physical and verbal abuse whereas the husband has pointed out that she was in the habit of siphoning off his funds in his absence. He has also alleged an incident of house-breaking after she walked out of the house. She had gone to the extent of applying for impounding his passport after she started living apart. It is alleged that she resorted to tarnishing his image by publishing their disputes in newspapers. There are number of such instances relied by both the parties and we do not think it necessary to place on record the precise particulars of these allegations. Suffice it to say that it Page 1250 can be said that both the parties have treated each other with such a conduct that it could be considered by the other as the acts of cruelty. Cruelty is a feeling which one forms in view of the conduct of the other party. It may consist of physical as well as mental torture. In the present case, it is quite clear that consequently the marriage between the parties is irretrievably broken down.
Allahabad High Court
(ID::2022 HALHP 82)
Smt. Poonam Alias Pinki vs Amit Kumar Alias Monu
Honourable Judges Sunita Agarwal
Date of Judgment: 31 October 2022
Segment Number (Approximate Page Number): 12
Relevancy Score: 66.72
The facts on record rather reflected that the respondent husband had committed cruelty on his wife by throwing her and his minor daughter out of his house, keeping them away from their home and letting them survive on their own without any financial support. The divorce petition was filed within 2½ years of marriage and the motive of filing the divorce petition is evident from the statement in the petition itself where the first notice seeking divorce was sent to the appellant on 22.2.2001 at her parent's address, while she was residing in her matrimonial home. The plea of the written deed of divorce dated 7.7.2002 allegedly executed between the parties in the divorce petition further reflects the mindset of the respondent that he was making all efforts to get rid of the appellant by all means. In fact from the cause of action as stated in the divorce petition, noted above, it is evident that no cause of action was available to the respondent to institute the divorce petition. The divorce petition was liable to be dismissed, at the threshold, as the respondent could not make out a cause of action to institute the petition. 41. As regards the criminal cases lodged by the appellant wife, we may record that the submission of the final report by the police when the cases were pending before the Court of law could not be a reason to hold that the allegations made by the wife therein were false. The fact that those cases were filed after filing of the divorce suit during the period when the appellant was residing in her paternal home (Maika) has no relevance in so far as the merits of the allegations made therein. As is evident from the order of the Family Court itself the protest petition was pending in the matter under Section 498A whereas the final report filed in the case under Section 307 IPC was under consideration before the competent court of law at the time of the decision in the divorce suit. 42. In any case, the assertions of the wife, in cross, that she was ready to withdraw the criminal cases and forgive her husband, in case he was willing to keep the appellant as his wife, could not have been viewed against the appellant.
Telangana High Court
(ID::2018 HTELP 78)
Mohd. Kaleem, Ameerpet, Hyderabad And ... vs Waseem Begum, Gandhi Bhavan, Hyd And ...
Honourable Judges Sanjay Kumar
Date of Judgment: 31 December 2018
Segment Number (Approximate Page Number): 5
Relevancy Score: 66.64
The case of the ex-husband was that the appellant-wife had obtained an ex parte Khula (divorce) from a Mufti and was therefore not entitled to file a petition under Act, 2005. In those circumstances, the Hon'ble Supreme Court held as under: 19. Even if it is presumed that the Appellant has taken 'Khula' (divorce) on 9th May, 2008 and the 1st Respondent is no more the husband, the question arises that in such case whether the erstwhile-wife can claim one or other relief as prescribed Under Sections 18, 19, 20, 21, 22 and interim relief Under Section 23 of the Domestic Violence Act, 2005, if domestic violence had taken place when the 2011 (3) Crimes 7 Raj (2014) 10 SCC 736 wife lived together in a shared household with her husband through a relationship in the nature of marriage. 31. An act of domestic violence once committed, subsequent decree of divorce will not absolve the liability of the Respondent from the offence committed or to deny the benefit to which the aggrieved person is entitled under the Domestic Violence Act, 2005 including monetary relief under Section 20, Child Custody under Section 21, Compensation under Section 22 and interim or ex parte order under Section 23 of the Domestic Violence Act, 2005." On the above analysis and in the light of the ratio laid down in Juveria Abdul Majid Patni3, we hold that the domestic relationship between the first respondent-wife and the deceased husband (petitioner No.1) did not cease upon her obtaining a divorce and the DVC is maintainable in relation to the past acts of domestic violence allegedly committed by the petitioners. Mere grant of a divorce would not absolve the petitioners from the criminal misdeeds allegedly committed by them during the existence of a domestic relationship between the parties. The reference is answered accordingly. Registry is directed to post the case before the learned Judge having the provision to hear it for disposal on merits. ____________________ SANJAY KUMAR, J ____________________ M. GANGA RAO, J 31st December, 2018 Note: L.R. Copy to be marked B/o. sur
Punjab-Haryana High Court
(ID::2015 HPHCP 21)
Hema Rawal Sharma & Anr vs Prashant Sharma
Honourable Judges M.M.S. Bedi
Date of Judgment: 21 January 2015
Segment Number (Approximate Page Number): 4
Relevancy Score: 66.59
In that case, the parties had shared household in USA and husband was resident of USA. The Single Bench of Delhi High Court held that an adult male who is not in domestic relationship cannot be made liable under the provisions of the Act. He also relied upon D.Velusamy vs D.Patchaiammal, AIR, 2011 SC 479, to contend that even if the man and woman have been residing together and voluntarily cohabiting as being akin to spouses for a significant period of time, it cannot be said that they lived together in a shared household as defined in Section 2 (s) of the Act. On the basis of said judgments, it was CRR-35-2013 (O&M) argued that the wife not living together in shared household and divorce having been granted, the wife would not be entitled to any protection under Sections 18, 19, 20, 22 or 23 of the Act. On the other hand, Mr.R.L.Batta, learned Senior Advocate, appearing on behalf of the wife has contended that the wife Hema Rawal being married to Prashant Sharma and having challenged the ex parte order of divorce before the U.K. Court, is entitled to protection under the Act besides "residence order" and monetary relief under Sections 18, 19 & 20 of the Act. He also argued that the respondent husband is financially sound to bear the expenditure of the residence of the petitioner and having committed acts of domestic violence being in domestic relationship with her and also having shared household, the wife would be entitled to the protection from domestic violence i.e,. physical abuses, verbal abuses as well as emotional and economic abuses. I have heard the learned counsel for both the sides and carefully considered their contentions as mentioned hereinabove. It is an admitted fact that the husband is working at London. As per the allegations of wife, she is aggrieved wife and the respondent husband is drawing a salary of Rs.40,000/- per day. He also owns property in New Delhi, Noida and Mumbai having right title and interest in the family business. It is also a fact that the parties have been residing separately on account of their matrimonial CRR-35-2013 (O&M) dispute. Who is guilty for the matrimonial wrong is not to be considered under the provisions of the Act, taking into consideration the objectives of the Act which are always required to be taken into consideration.
Chattisgarh High Court
(ID::2023 HCHAP 7)
Smt. Duleshwari Sahu vs Ramesh Kumar Sahu
Date of Judgment: 23 January 2023
Segment Number (Approximate Page Number): 5
Relevancy Score: 66.43
In para 12, she has admitted that she was not living with the husband since 2013 and that she had filed a case under the Protection of Women from Domestic Violence Act against the husband and further admits that no harassment has been meted out to her by the husband. It is worthwhile to mention here that as per order dated 18/09/2017, the suit under Section 13 of Hindu Marriage Act filed by the wife was dismissed for want of prosecution. (10) DW-02 Khorbahra Ram Sahu, father of wife stated in his cross- examination in para 9 admits that he had singed the affidavit under Order 18 Rule of CPC after reading the same and a case under Section 498-A of IPC was filed by his daughter in which the applicant (husband) has been acquitted. In para 10, he states that since the relation of his daughter and her family was cordial, she lived at her matrimonial home since 2013. He admits that a social meeting was convened at his home and thereafter his daughter went back to her matrimonial home. (11) PW-02 Neelkanth Sahu, states in para 8 that the wife had filed a divorce petition on 16/06/2015 before the Family Court, Durg i.e. Case No. 273/2015 which was withdrawn by the wife after apperance of the husband before the Court, and after counseling in the Court, due to non-appearance of the wife the application under Section 13(1)(2)(a) of the Hindu Marriage Act was dismissed on 18/09/2017. (12) The Hon'ble Supreme Court in the matter of K.Srinivasa Rao Vs. D.A. Deepa reported in (2013) 5 SCC 226 wherein it has been held at paragraphs 30 and 31, which read as under: "30.It is also to be noted that the appellant-husband and the respondent-wife are staying apart from 27/4/1999. Thus, they are living separately for more than ten years. This separation has created an unbridgeable distance between the two. As held in Samar Ghosh, 2007 4 SCC 511, if we refuse to sever the tie, it may lead to mental cruelty. 31. We are also satisfied that this marriage has irretrievably broken down. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. But, where marriage is beyond repair on account of bitterness created by the acts of the husband or the wife or of both, the courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others necessitating severance of marital tie.
Karnataka High Court
(ID::2022 HKARP 139)
Smt.J.H.Veronica @ J.H. Manila vs Mr.D.Anil Kumar Son Of Late Doreraja
Honourable Judges S. Sunil Dutt Yadav
Date of Judgment: 24 March 2022
Segment Number (Approximate Page Number): 1
Relevancy Score: 66.42
'Right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessity of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing, expressing oneself in diverse forms, freely moving out and mixing and co-mingling with fellow human beings'. This is what Hon'ble Apex Court had said in the case of Francis Colaria Mullin V/s. Administrator, Union Territory of Delhi, reported in AIR 1981 SC 746. 2. The present appeal is filed by the estranged wife assailing the judgment and decree dated 18.08.2017 passed in MC No.163/2016 on the file of learned Principal Judge, Family Court, Ballari ('Family Court', for short), whereby the learned Judge dismissed the petition filed by the wife under Section 10(x) of the Divorce Act, 1869 (for short, 'Act'). 2. Parties herein are referred to as wife and husband for the sake of convenience. 3. The wife has filed petition under Section 10(x) of the Act, seeking divorce on the ground of cruelty meted out by the husband and that it would be harmful for the wife and injurious to her life to stay with the husband. It is averred in the petition that their marriage was solemnized on 08.02.2011 and it was a love marriage, from their wedlock, a son by name Nikil Kumar was born. It is stated that the relationship between the husband and wife was stable for sometime and that the husband was doing painting work prior to the marriage. But, however, after the marriage he has restrained himself from working and for one or the other reason has failed to provide necessary amenities of life to the wife and the son. It is stated that due to the rude behavior of the husband and his bad habits of drinking alcohol heavily, eating gutka and playing Matka had made the life of the wife miserable and the behavior of the husband went on becoming worst day by day and it went to the extent of husband having beaten up the wife and caused grievous injuries and due to which, she was admitted in the hospital and had to under go treatment. It is stated that the living with the husband has become intolerable as the husband was frequently torturing and harassing the wife and with no alternative remedy, the wife had left the matrimonial house on 13.06.2014 and also the subsequent dates.
Orissa High Court
(ID::2023 HORIP 13)
Tapaswini Das vs Santosh Kumar Swain
Honourable Judges Biswanath Rath, M.S.Sahoo
Date of Judgment: 18 August 2023
Segment Number (Approximate Page Number): 3
Relevancy Score: 66.41
On his taking steps to bring the respondent/wife and the newly born girl baby to his home, it all ended in vain. Husband claims, considering the final desertion of the wife from matrimonial home on 28.9.2016 remained willful and all his attempt went in vain. Finding there was no development even after the girl child // 5 // was born, claimed there was complete breakdown of marriage and it is on both the count; cruelty as well as wife volunteering separation and living separately for more than a year, found no other option than to bring the application for divorce. Husband also claims, prior to his filing Section 13 of the Hindu Marriage Act application wife had filed an application under Section 13 of the Hindu Marriage Act seeking divorce against the husband. It is alleged, in the proceeding initiated by the wife she had categorically agreed for divorce. Wife even had gone initiating Criminal Proceeding No.97 of 2017, which also remain subjudice and in the meantime, the husband was constrained to bring C.P.No.980 of 2017 bringing an application under Section 13(1) of the Hindu Marriage Act for dissolution of marriage and grant of divorce. 3. On her appearance, the wife, present applicant while refuting and challenging all the allegations made by the husband in filing written statement contended that the proceeding is not maintainable. She also claimed that there is no cause of action for initiation of such proceeding. Wife also alleged husband did not come to court in clean hands. Wife brought allegation against the husband and family members torturing her physically and mentally on the premises that she has not brought sufficient dowry articles in conformity with their demand. Wife also alleged that there was also torture involving there is poor quality in the // 6 // dowry articles. Wife specifically pleaded that her father gave a sum of Rs.5,00,000/- along with one Color T.V. gold ornaments, wooden furniture along with some other household articles. Wife even alleged in her written statement that in spite of all the above, husband again demanded for a sum of Rs.2,00,000/- to purchase a car. On refusal of such demand, they went on torturing her both physically and mentally. Even during conception the husband and family members did not provide her proper food.
Jharkhand High Court
(ID::2024 HJHAP 183)
Sanjeev Choubey vs Sweta Kumari
Honourable Judges Anubha Rawat Choudhary
Date of Judgment: 19 February 2024
Segment Number (Approximate Page Number): 9
Relevancy Score: 66.33
The wife claimed that the husband had agricultural income as well as the income from house rent which was denied by the husband in his cross-examined. The records of the case also indicate that a petition was filed by the husband on 13.01.2020 seeking direction to competent authority of Income Tax Department at Delhi for furnishing income tax return, TDS certificate of the wife giving her PAN Number for the financial years 2016-17 to 2018-19. However, such a petition was not pressed and the parties remained absent on a number of dates. The argument on behalf of the wife was concluded on 03.12.2021 and the matter was posted for the argument of the husband on 04.12.2021 on which date the presence of both the parties has been recorded but at the time of arguments no one turned up on behalf of the husband to argue the case on repeated calls and the case was fixed for orders on 15.12.2021 and thereafter the impugned order has been passed on the basis of the materials on record. 18. This Court finds that there has been matrimonial discord between the parties and the parties have been living separately. The aforesaid evidence reveal that there was no willingness on the part of the husband to take the wife back to her matrimonial house and the husband had also refused to take her back in response to a court question. Both the parties are in litigating term and the husband has filed a petition seeking divorce and the wife has also filed a case under Domestic Violence Act which is pending. It further appears from the cross-examination of the husband that there was a compromise between the parties in National Women's Commission wherein the husband had agreed to pay Rs. 18,000/- as maintenance and the husband claimed that he paid the same to his wife through online transfer from the year 2015 to February 2016 and during this period also they did not live together but at the same time the admittedly since 2014, the husband has been living in Sanghai, China as a medical practitioner. 19. In totality of the facts and circumstances of this case, this Court is of the considered view that the learned Family Court has rightly recorded a finding that the wife had a reasonable excuse for living separately from her husband.
Madras High Court
(ID::2024 HMADP 239)
C.Tamilkumaran vs Vedagnana Lakshmi
Honourable Judges S.Srimathy
Date of Judgment: 23 September 2024
Segment Number (Approximate Page Number): 19
Relevancy Score: 66.28
The exhibits 1 to 48 marked on the side of husband would indicate the threat, humiliation, highhandedness of the wife and her relatives. In short, the husband had reached a stage that it will be harmful or injurious for him to live with his wife. Therefore this Court is of the considered opinion that the husband is entitled for the relief of divorce. 19. Further, in the present case the husband had stated right from the day of marriage the wife was fighting with him which is evident from his letter written to his mother. The parties had lived hardly for three years and not a single day was happy for the parties. The parties were estranged from 2007 onwards and for more than 17 years they are living separately. The breakdown of marriage has never been reconciled by the parties leading to the inference that it has reached beyond https://www.mhc.tn.gov.in/judis C.M.S.A.(MD)Nos.27 and 28 of 2015 return. The long, continued separation has made the martial bond an empty shell. In such circumstances, divorce in the only relief as held in Samar Ghosh Vs. Jaya Ghosh reported in (2007) 4 SCC 511. 20. At this juncture, the Learned Senior Counsel appearing for the wife stated that if divorce is granted it would affect the parties since the parties are in their middle age. Especially the wife in her middle age ought to face the society with a stigma as divorced women and the same would affect the upbringing of their daughter. However, the said submission cannot be entertained in the present case, since the husband had already suffered in the hands of the wife and her family. 21. For the reasons stated supra, the substantial questions of law raised by the appellant / husband are answered in favour of the husband and the civil miscellaneous second appeals are allowed. The judgment and decree passed by both the Courts in both the cases are set aside. The marriage between the appellant / husband Dr.S.Tamilkumaran and respondent / wife Vedagnana Lakshmi is hereby dissolved. No costs. 23.09.2024 NCC : Yes / No Index https://www.mhc.tn.gov.in/judis : Yes / No C.M.S.A.(MD)Nos.27 and 28 of 2015 Internet : Yes / No Tmg To 1. II Additional District Sessions Court, Thoothukudi. 2.Subordinate Court, Thoothukudi.
Karnataka High Court
(ID::2016 HKARP 26)
Dr Geeta W/O Dr Mahantesh Patil vs Dr.Mahantesh Patil S/O Dr V.D.Patil
Honourable Judges Vineet Kothari, B.Veerappa
Date of Judgment: 16 September 2016
Segment Number (Approximate Page Number): 17
Relevancy Score: 66.27
Admittedly, according to the husband, they last resided together on 17th February 2009 and the petition filed for divorce on 01.04.2011. It amounts to the factum of separation, the intention to bring co-habitation permanently to an end- animus deserendi, continued not less than two years immediately preceding the presentation of the petition. It is also not in dispute that the appellant/wife has been living separately from the respondent/husband for the past more than seven years and her attitude is well established that at no point of time, she has taken steps to join her husband and it is not her case that she had filed any petition under Section 9 of the Hindu Marriage Act for restitution of Conjugal Rights against the respondent/husband from the date she has separated from her husband or went out from the matrimonial home. Therefore, said conduct of the appellant amounts to desertion. 37. The legal position about the cruelty constituting a ground of divorce under S.13(1) (1a) of the Hindu Marriage Act, 1955 including mental cruelty was succinctly discussed by the Hon'ble Supreme Court in the case of Vishwanath Agarwal Vs Sarala Vishwanath Agarwal (2012) 7 SCC 288 and the Hon'ble Court held that the ground of divorce on cruelty has an inseparable nexus with human conduct and is always dependent on social strata or mileu to which the parties belong, their way of life, relationship, temperaments and omissions that are conditioned by their social status and in the facts of the case before the Court, where the wife published in newspapers that her husband was a womanizer and drunkard and wild allegations about the extra marital relationships were made in such newspapers, the Court held that it amounted to mental cruelty sufficient for award of a divorce decree to the aggrieved husband. 38. The Hon'ble Supreme Court in the case in K Srinivasa Rao Vs D A Deepa (2013) 5 SCC 226, held that filing of false complaints in criminal proceedings and making of indecent/defamatory statements in the complaints which ultimately result in acquittal of the spouse or/his relatives and filing of such repeated false complaints or cases in the courts or issuing notices or news items which may have an adverse impact on the business prospects or job of spouse are illustrative cases of mental cruelty which would warrant grant of divorce decree.
Madhya Pradesh High Court
(ID::2024 HMPHP 557)
Smt. Manglesh Singh vs Rajkumar Singh
Honourable Judges Sanjay Dwivedi
Date of Judgment: 12 August 2024
Segment Number (Approximate Page Number): 1
Relevancy Score: 66.24
This petition is arising out of the order passed by the Family Court in a pending petition of divorce and as such, with the consent of learned counsel for the parties, the matter is finally heard. 2. This petition is under Article 227 of the Constitution of India filed against the order dated 17.03.2021 passed in a case No.847 of 2019 wherein the application of the wife/ present petitioner filed under Order 1 Rule 10 of the Code of Civil Procedure has been rejected by the Court i.e. First Additional Principal Judge, Family Court, Bhopal. 3. The facts in compendium leading to filing of the instant petition are as under:- (3.1) A petition has been filed by the respondent/husband under Section 13(a)(c) of the Hindu Marriage Act, 1955 seeking decree of divorce against the wife/present petitioner on the ground of cruelty. (3.2) The ground of cruelty is based upon the allegations made by the wife/present petitioner against the husband/respondent that he is in illicit relationship with one Sanghmitra Singh and as per the husband this allegation is absolutely false and incorrect. (3.3) In the divorce petition, the cause of action arose only when the wife alleged illicit relationship of the husband/respondent with Sanghmitra Singh in the year 2009 and started quarrelling with the husband/respondent and thereafter the situation was continued and as such, in the year 2019, a petition seeking decree of divorce was filed by the husband/respondent. (3.4) As per the allegations made in the plaint and ground of cruelty created by the husband that the wife/present petitioner has made false allegations of illicit relationship with Sanghmitra Singh and that illicit relationship was also flourished by her intimating the friends and other relations of the husband/respondent and as such, defamed the husband and his family members and on those grounds, she left the house of the husband/respondent and thereafter she filed a petition of divorce in the Court of Jabalpur, but later on, she withdrew petition of divorce. (3.5) The parties have adduced their evidence and the case is at the state of passing the final judgment.
Karnataka High Court
(ID::2022 HKARP 447)
Smt.Lovina D/O Gabrial Gonsalves vs Shri.Minguel S/O Saver Alphonso
Honourable Judges S G Pandit
Date of Judgment: 27 September 2022
Segment Number (Approximate Page Number): 2
Relevancy Score: 66.04
This Court is conscious of the fact that merely because there is no evidence opposing the case of the petitioner, that itself would not be a ground to grant decree for dissolution of marriage. The party who seeks dissolution of marriage has to prove the ground urged seeking dissolution of marriage. However in any case counter claim seeking restitution of conjugal rights is not maintainable without evidence and the same should have been dismissed. 6. The appellant-wife in support of her claim seeking dissolution of marriage has produced 56 documents. The records would reveal that complaint is filed against the respondent-husband alleging domestic violence. The appellant- wife has also approached Santvana Mahila Sahaya Kendra, Yallapur seeking redressal of her grievance. The trial Court has noticed that the appellant and the respondent were known to each other 7 to 8 years prior to their marriage. The evidence would reveal that there was repeated fight between the appellant and the respondent and it is alleged that the husband used to consume liquor and ganja. The trial Court has refused to grant decree for divorce primarily on the ground that the allegation made by the wife relating to her husband, forcing her to obtain bank loan in the name of petitioner is not established and the appellant-wife in the cross-examination has admitted that she went to the bank on her own to avail the loan. However, the trial Court has also noticed that complaints lodged by the appellant-wife against the husband addressing complaint to various Officers of the Government has reduced the chance of settlement between the husband and wife. The trial Court has come to the conclusion that the evidence on record would not prove the allegation of cruelty alleged against the husband. 7. This Court has perused the evidence on record. The documentary evidence placed before the Court would demonstrate that the wife has lodged complaint against the husband alleging ill-treatment. The wife in support of her case has also lead evidence of her mother. The cross-examination of the wife would reveal that the appellant and the respondent knew each other many years prior to the marriage and the line of cross-examination proceeded on the line that relationship between the appellant and the respondent was extremely cordial before the marriage.
Kerala High Court
(ID::2009 HKERP 204)
James K.Avaran vs Jancy Ritamma George @ Jancy Avarah
Honourable Judges R.Basant, M.C.Hari Rani
Date of Judgment: 5 June 2009
Segment Number (Approximate Page Number): 2
Relevancy Score: 65.93
The wife contends that the court had granted police protection for her peaceful separate residence whereas the husband claims that such police protection was granted in his favour. Be that as it may, there is no dispute that the parties are residing separately from 17-8-2002 and that a court in Switzerland has afforded police assistance for them to reside separately. The wife has permanent employment as a Nurse there whereas the husband does not appear to have any such permanent employment. He lives on social security which is available for persons residing in Switzerland. In the proceedings before the Switzerland Court, maintenance/support has been ordered to be paid by the wife to him. There is, of course, the assertion and evidence that he is employed for some newspapers in Kerala as their local correspondent in Switzerland. 6. The wife claimed divorce under Section 10 of the Indian Divorce Act on the ground of cruelty. As stated earlier, she alleged that the husband has been guilty of mental cruelty he having incessantly raised false allegations of unchaste and adulterous behaviour. He had also assaulted her physically and verbally. These acts of his amounted to matrimonial cruelty, it was alleged. The claim for divorce was made on the plank of these allegations of matrimonial cruelty. 7. The husband entered appearance and resisted the claim for divorce. It would appear that the husband is not in principle against the dissolution of the marriage. He denies the allegations of cruelty but asserts unambiguously that the wife has been guilty of adultery and unchaste behaviour as also licentious conduct even before and after the marriage. Specific allegations to that effect are raised in the objections filed. However, the husband asserted that he was also interested in getting the matrimonial tie dissolved. But according to him not the courts in India but the Courts in Switzerland alone have jurisdiction to entertain such plea for divorce. He also wants divorce, which is not in dispute. According to him, the parties were not domiciled in India at the time of presentation of the application for divorce and consequently courts in India have no jurisdiction to entertain the claim for divorce.
Kerala High Court
(ID::2010 HKERP 48)
Abdurahiman 49 Years vs Khairunnessa 43 Years
Honourable Judges R.Basant, M.C.Hari Rani
Date of Judgment: 1 March 2010
Segment Number (Approximate Page Number): 2
Relevancy Score: 65.86
The attitude of the husband towards the wife started changing thereafter and he started cruel behaviour against her. She was relegated to a different house with only one bed room and kitchen made available to her. He allegedly indulged in cruel behaviour. He did not maintain her. He did not perform his marital obligations. He indulged in physical cruelty against her. To crown all other circumstances, he, a person aged above 40 years, notwithstanding his marriage with her and four children born in the said wed-lock, contracted another marriage and started residing with the second wife. According to the petitioner/wife, he did not treat her equitably in accordance with the injunctions of the Quran. It is, in these circumstances, that she came to court with her application for divorce under Sec.2 (ii), (iv), (viii)(a) and (f) of the Act. 3. The husband resisted the prayer for divorce. He did not admit the second marriage. He denied the allegations of failure/omission to pay maintenance. He denied the allegation that he had not performed his marital obligations. He denied the allegation of physical cruelty. He did not explain why he married again. He did not specifically assert that he was treating both his wives equally and equitably. 4. Parties went to trial on these contentions. The wife examined herself as P.W.1. She examined a witness as P.W.2 to prove the second marriage of her husband. That witness marked Ext.A1 marriage certificate to prove the second marriage. The husband examined himself as R.W.1. He did not at that stage dispute the second marriage. In evidence, he took up an interesting stand unsupported by his pleadings that he had got married again with the consent of his first wife. 5. The court below by the impugned order found the wife entitled to a decree for divorce as claimed. Accordingly, the court below proceeded to pass the impugned order. 6. We are in this appeal primarily concerned with the decree for divorce under Sec.2(viii)(f) of the Act. This Court entertained a doubt as to the standards applicable regarding equitable treatment of the wife in accordance with the injunctions of the Quran. Counsel for the parties - Advocates M/s. K.P. Mujeeb and Pushparajan Kodoth were heard.
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