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Decree of divorce passed in foriegn country not valid in India as wife did not contest the proceeding in that country

Delhi High Court
Sheenam Raheja vs Amit Wadhwa on 10 September, 2012

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CS(OS) 990/2010

SHEENAM RAHEJA … Plaintiff Through: Mr. Deepak Anand, Advocate

along with plaintiff in person.

versus

AMIT WADHWA ….. Defendant Through: Defendant is ex parte.

% Date of Decision : September 10, 2012

CORAM:

HON’BLE MS. JUSTICE REVA KHETRAPAL

JUDGMENT

: REVA KHETRAPAL, J.

1. The plaintiff has filed the present suit seeking a decree of

declaration in favour of the plaintiff and against the defendant,

declaring that the proceedings initiated by the defendant for the

dissolution of marriage between the parties on the ground of

irreconcilable differences, arising out of File No.1-09-FL-149089,

pending before the Superior Court of California, County of Santa

Clara, San Jose, USA are illegal, invalid and void ab-initio.

2. During the pendency of the present suit, however, a decree of

dissolution was passed by the Superior Court of California, County of

CS (OS) No.990/2010 Page 1 of 21 Santa Clara, San Jose, USA in favour of the defendant/Husband and

thereupon the plaintiff amended her plaint to seek appropriate orders

declaring the order of dissolution of marriage dated January 14, 2011

and January 18, 2011 passed by the Superior Court of California as

null and void and non-est in the eyes of law.

3. The plaintiff and defendant were married on 15th April, 2000

according to Hindu rites and ceremonies at New Delhi. The marriage

was duly registered under the Hindu Marriage Act, 1955 on 24th

April, 2000. From the wedlock two female children were born on 17th

August, 2001 and 2nd July, 2004, aged 9 years and 6 years

respectively. Both the children are presently in the custody of the

defendant, who, as detailed in the plaint, has taken them away

clandestinely. Shorn of details, the marriage of the plaintiff ran into

troubled waters on account of cruelty inflicted upon her by the

defendant, his mother, sister and other relatives. The mother and sister

of the defendant publicly humiliated the plaintiff for dowry, whenever

she visited India, even though for short spells. On account of said

cruelty and harassment, the plaintiff had become unwell, and on 7th

July, 2008, when the plaintiff came to India along with her two

CS (OS) No.990/2010 Page 2 of 21 children she had to be hospitalized at New Delhi. During this period

the mother-in- law of the plaintiff, without the knowledge and consent

of plaintiff, preponed the already confirmed tickets of the two

children for 17th August, 2008 and took them away with her to USA

on 5th August, 2008. The aforesaid act of the plaintiff’s mother-in-law

naturally caused apprehension in the mind of the plaintiff about her

safety and security in USA, as it became clear to her that the

defendant had no intention to call her to USA. The mother-in-law of

the plaintiff with malafide intentions locked the matrimonial home i.e

H-87, Kirti Nagar, New Delhi and all the belongings of the plaintiff

therein. Since the parents of the plaintiff had limited financial

resources, the plaintiff in order to withdraw money from her savings

bank account visited the State Bank of Patiala, Branch Pusa Road,

New Delhi and was flabbergasted to discover that her savings had

already been withdrawn fraudulently by the defendant and his

relatives by forging her signatures. On coming to know that her bank

account had been cleaned out in this manner, the plaintiff informed

the law enforcing agencies and got registered FIR bearing

No.164/2009 under Sections 420/467/468/471/120-B IPC with the

CS (OS) No.990/2010 Page 3 of 21 Economic Offences Wing, Crime Branch (Delhi Police), where the

matter is still pending for investigation. To be noted at this juncture

that the plaintiff had also lodged a complaint in USA against the

defendant for domestic violence committed in the USA.

4. As averred in the plaint, the plaintiff in the third week of

March, 2010, through a whisper campaign amongst close relatives of

the plaintiff and defendant, came to know that the defendant has filed

some proceedings before a Court in USA. The plaintiff checked the

website of the said Court and came to know that a case for dissolution

of marriage of the parties on the ground of irreconcilable differences

had been filed by the defendant before the Superior Court of

California, County of Santa Clara, San Jose, USA. It is the allegation

of the plaintiff that the plaintiff was never served with the petition and

other pleadings by the defendant, who has played a fraud on the

judicial process to the extent that he did not even disclose the address

of the plaintiff to the Californian Court. The plaintiff on 8th April,

2010 after obtaining copies of the Court papers through her friends in

USA sent a letter to the Court at California, disputing the jurisdiction

of the said Court to entertain the petition of the defendant for

CS (OS) No.990/2010 Page 4 of 21 dissolution of her marriage, solemnized and registered under the

provisions of the Hindu Marriage Act, 1955. The plaintiff also

instituted the present suit seeking a declaration that the proceedings

before the Superior Court at California were illegal, invalid and void

ab-initio.

5. During the pendency of this suit, the plaintiff learnt that a final

order of dissolution of marriage was granted by the Superior Court of

California, County of Santa Clara, San Jose, USA in favour of the

defendant on January 14, 2011 (vide notice of entry judgment dated

January 18, 2011). The plaintiff now seeks to assail the said order of

dissolution of the marriage as null, void and non-est by amendment of

the plaint.

6. Summons of the institution of the present suit were issued to

the defendant on 18th May, 2010. By an order of the same date this

Court opined that prima facie the continuance of proceedings in the

Superior Court of California, County of Santa Clara, San Jose, USA

would act to the prejudice of the plaintiff, as she did not appear to

have any means to contest the said proceedings, and, in the

circumstances, the defendant was restrained from proceeding further

CS (OS) No.990/2010 Page 5 of 21 with the aforesaid case. The defendant was duly served with the order

of this Court along with the copy of plaint and application by all

modes including E-mail, Registered A.D post and UPC at the local

address and at the USA address-3651, Cabernet, Vineyards Circle,

San Jose, CA 95117, USA. Acknowledgement dated 5th June, 2010,

signifying the receipt of the copy of the plaint and the injunction

order of this Court, duly served upon the defendant by the United

States Postal Service and Indian Postal Service, are placed on record

by the plaintiff. It is pleaded that despite being aware of the restraint

order passed by this Court, the defendant knowingly, wilfully and

intentionally continued to proceed with the case in USA in breach of

the interim injunction passed by this court. The plaintiff also served

upon the defendant legal notice dated 12th October, 2010, making the

defendant aware of the consequences ensuing from the breach of

injunction order dated 18th May, 2010 passed by this Court, but to no

avail.

7. Mr. Deepak Anand, the learned counsel representing the

plaintiff, had drawn my attention to the fact that the order of the

Superior Court of California, County of Santa Clara, San Jose, USA

CS (OS) No.990/2010 Page 6 of 21 dated September 3, 2010 unequivocally shows that the order of this

Court was on the file of the said Court. The relevant portion of the

order of the Superior Court of California states:

“The Court notes that it received a letter from Wife dated May 28, 2010, to which she attached a non-certified copy of an order dated May 18, 2010, from the High Court of New Delhi in New Delhi, India. The order, which appears to bear two case numbers-6701/2010 and 99/2010

(sic.)-purports to prohibit Husband from

proceeding with his divorce action in

California based on the theory that California recognizes divorce based on a finding of

irreconcilable differences which, according to the order, is contrary to Indian marriage law.”

8. After noting that this Court had prohibited the husband from

proceeding with the divorce action in California, the Court at

California, however, observed that the Indian order did not indicate

that the husband was ever served with the Indian order. The learned

counsel for the plaintiff contended and I think rightly so, that the said

observation is of no consequence in view of the fact that there is proof

of service upon the defendant on 5th June, 2010, through the United

States Postal Service, which even bears the signatures of the

defendant, namely, Amit Wadhwa with the date and time of service

i.e 05-June-2010 – 10.35 A.M endorsed on it. This is quite apart from

CS (OS) No.990/2010 Page 7 of 21 the fact that the defendant was served through all other modes

including E-mail, proof whereof has been placed on record. The

learned Superior Court of California, despite full and complete

knowledge of the existence of the injunction order passed by this

Court, authorized the defendant to proceed with his request to enter

the plaintiff’s default in case bearing No.1-09-FL-149089 for legal

separation and dissolution of marriage initiated by the defendant in

USA.

9. The learned counsel for the plaintiff on the aforesaid facts and

on the basis of the affidavits by way of evidence filed by the plaintiff

contends that the marriage between the parties having been

solemnized and registered under the provisions of the Hindu Marriage

Act, 1955 in New Delhi, within the jurisdiction of this Court, its

dissolution could be effected only under the said Act. Both the parties

are Indian citizens holding Indian passports and are permanent

residents of India, hence are governed by Indian laws. The Superior

Court of California does not have the jurisdiction to grant decree of

divorce as per the provisions of Hindu Marriage Act, 1955, as neither

the marriage between the parties was solemnized in USA nor the

CS (OS) No.990/2010 Page 8 of 21 plaintiff was residing within the jurisdiction of the Superior Court of

California at the time of the presentation of the petition. The

jurisdiction assumed by the foreign Court as well as the grounds on

which the relief is claimed must be in accordance with the

matrimonial law under which the parties are married i.e. the Hindu

Marriage Act, 1955. The plaintiff and the defendant have both resided

together in India and hence as per Section 19 of the Hindu Marriage

Act, 1955, the jurisdiction for the grant of decree of divorce vests

with the Courts in India. It is further the contention of the learned

counsel for the plaintiff that the plaintiff has till date not submitted

herself to the jurisdiction of the foreign Court i.e Superior Court of

California, County of Santa Clara, San Jose, USA nor was she

represented through counsel and the Court passed the decree in her

absence.

10. The learned counsel placed reliance on the provisions of

Section 13 of the Code of Civil Procedure, 1908 to contend that the

plaintiff is entitled to a decree of declaration as claimed by her. For

the sake of facility of reference, the provisions of Section 13 of the

CPC are reproduced hereunder:-

CS (OS) No.990/2010 Page 9 of 21 “13. When foreign judgment not conclusive- A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon

between the same parties or between parties

under whom they or any of them claim

litigating under the same title except-

(a) where it has not been pronounced by a

Court of competent jurisdiction;

(b) where it has not been given on the merits of the case;

(c) where it appears on the face of the

proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable;

(d) where the proceedings in which the

judgment was obtained are opposed to natural justice;

(e) where it has been obtained by fraud;

(f) where it sustains a claim founded on a

breach of any law in force in India.”

11. Mr. Anand relied on the decision in the case of Y. Narasimha

Rao and Others Vs. Y.Venkata Lakshmi and Another, (1991) 3 SCC

451, where the Hon’ble Supreme Court interpreted each and every

clause of Section 13 of the Civil Procedure Code vis-à-vis

matrimonial law with a view to secure required certainty and protect

the sanctity of the institution of marriage and the unity of family

which are the cornerstones of our societal life. Clauses (b), (c), (d)

CS (OS) No.990/2010 Page 10 of 21 and (f) of Section 13 were interpreted by the Supreme Court in the

following manner :

“16. Clause (b) of Section 13 states that if a foreign judgment has not been given on the

merits of the case, the courts in this country will not recognise such judgment. This clause

should be interpreted to mean (a) that the

decision of the foreign court should be on a ground available under the law under which

the parties are married, and (b) that the

decision should be a result of the contest

between the parties. The latter requirement is fulfilled only when the respondent is duly

served and voluntarily and unconditionally

submits himself/herself to the jurisdiction of the court and contests the claim, or agrees to the passing of the decree with or without

appearance. A mere filing of the reply to the claim under protest and without submitting to the jurisdiction of the court, or an appearance in the court either in person or through a

representative for objecting to the jurisdiction of the court, should not be considered as a

decision on the merits of the case. In this

respect the general rules of the acquiscence to the jurisdiction of the court which may be valid in other matters and areas should be ignored and deemed inappropriate.

17. The second part of clause (c) of Section 13 states that where the judgment is founded on a refusal to recognise the law of this country in cases in which such law is applicable, the

judgment will not be recognised by the courts in this country. The marriages which take place in this country can only be under either the

CS (OS) No.990/2010 Page 11 of 21 customary or the statutory law in force in this country. Hence, the only law that can be

applicable to the matrimonial disputes is the one under which the parties are married, and no other law. When, therefore, a foreign

judgment is founded on a jurisdiction or on a ground not recognised by such law, it is a

judgment which is in defiance of the law.

Hence, it is not conclusive of the matters

adjudicated therein and, therefore, unenforceable in this country. For the same

reason, such a judgment will also be

unenforceable under clause (f) of Section 13, since such a judgment would obviously be in

breach of the matrimonial law in force in this country.

18. Clause (d) of Section 13 which makes a

foreign judgment unenforceable on the ground that the proceedings in which it is obtained are opposed to natural justice, states no more than an elementary principle on which any civilised system of justice rests. However, in matters concerning the family law such as the

matrimonial disputes, this principle has to be extended to mean something more than mere

compliance with the technical rules of

procedure. If the rule of audi alteram partem has any meaning with reference to the

proceedings in a foreign court, for the

purposes of the rule it should not be deemed sufficient that the respondent has been duly served with the process of the court. It is

necessary to ascertain whether the respondent was in a position to present or represent

himself/herself and contest effectively the said proceedings. This requirement should apply

equally to the appellate proceedings if and

CS (OS) No.990/2010 Page 12 of 21 when they are filed by either party. If the

foreign court has not ascertained and ensured such effective contest by requiring the

petitioner to make all necessary provisions for the respondent to defend including the costs of travel, residence and litigation where

necessary, it should be held that the

proceedings are in breach of the principles of natural justice. It is for this reason that we find that the rules of Private International Law of some countries insist, even in commercial

matters, that the action should be filed in the forum where the defendant is either domiciled or is habitually resident. It is only in special cases which is called special jurisdiction where the claim has some real link with other forum that a judgment of such forum is recognised. This jurisdictional principle is also recognised by the Judgments Convention of the European

Community. If, therefore, the courts in this country also insist as a matter of rule that foreign matrimonial judgment will be

recognised only if it is of the forum where the respondent is domiciled or habitually and

permanently resides, the provisions of clause (d) may be held to have been satisfied.”

12. The Supreme Court thereafter deduced the following rule as

regards to the binding effect of a decree of dissolution of marriage

passed by a foreign court :-

“The jurisdiction assumed by the foreign Court as well as the grounds on which the relief is granted must be in accordance with the

matrimonial law under which the parties are

CS (OS) No.990/2010 Page 13 of 21 married. The exceptions to this rule may be as follows:- (i) where the matrimonial action is filed in the forum where the respondent is

domiciled or habitually and permanently

resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the

respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii)

where the respondent consents to the grant of relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.”

13. Reliance was also placed by Mr. Anand on the decision of

Veena Kalia v. Dr. Jatinder Nath Kalia and Anr., 59 (1995) DLT

635, wherein a learned Single Judge of this Court, Hon’ble Mr.

Justice D.P.Wadhwa (as his Lordship then was) after noting that the

petitioner had never contested the proceedings for divorce filed by the

respondent in the Supreme Court at Nova Scotia, held that it would

not mean that she conceded the jurisdiction of that Court or that the

Supreme Court at Nova Scotia was the Court of competent

jurisdiction. The silence of the wife, which the learned Judge

observed, was not because of her own volition but because of the

CS (OS) No.990/2010 Page 14 of 21 constraints which she could not overcome to contest the proceedings

there, could not confer jurisdiction on that Court, more so as the

husband was not permanently residing within the jurisdiction of the

Supreme Court of Nova Scotia. The Court further observed as under:-

“It is also clear that the ground on which

the decree of divorce had been granted by

the foreign Court is not a ground on which

such a decree could be granted under the

Act. Since the petitioner wife was not in a

position to contest the proceedings in a

foreign Court as she had no means to go

there and the foreign Court did not see to it whether the wife was possessed of sufficient funds and her documentation to visit

Canada complete, the rules of natural

justice stood violated. It is a matter of

common knowledge that mere buying an air

ticket is not enough to visit Canada. There

are various other formalities to be

completed. I am of the firm view that the

foreign judgment on which the husband

relied has no legal validity in this country.”

14. In Smt.Anubha v. Vikas Aggarwal & Ors, 100 (2002) DLT

682, this Court relying upon the decision of the Supreme Court in the

case of Narasimha Rao (supra), held that as laid down by the

Supreme Court, the first and foremost requirement of recognising a

foreign matrimonial judgment is that the relief should be granted to

the petitioner on a ground available under the matrimonial law under

CS (OS) No.990/2010 Page 15 of 21 which the parties are married, or where the respondent voluntarily and

effectively submits to the jurisdiction of the forum and contests the

claim which is based on a ground available under the matrimonial law

under which the parties are married. On the facts of the case before it,

the Court further held as under:-

“25. The ground on which the marriage of

the defendant was dissolved is not available in the Hindu Marriage Act. The parties are

Hindus. Their marriage was solemnised

according to the Hindu rites. Their

matrimonial dispute or relationship was,

therefore, governable by the provisions of

Hindu Marriage Act. Since the plaintiff did

not submit to the jurisdiction of the USA

Court nor did she consent for the grant of

divorce in the US Court the decree obtained

by the defendant from the Connecticut Court

of USA is neither recognisable nor

enforceable in India.”

15. The learned counsel for the plaintiff also vehemently contended

that the defendant-husband has practiced fraud upon the Court at

USA inasmuch as no summons were ever served on the plaintiff at

any point of time. The proof of service of summons do not have any

acknowledgement/receipt/signature of the person to whom the

summons and copies were delivered. The issue of service of

CS (OS) No.990/2010 Page 16 of 21 summons, however, need not be delved into in view of the

observations made hereinafter.

16. In the instant case, the Superior Court of California has passed

the decree of dissolution of marriage on the ground of irreconcilable

differences. The said ground, not being a ground available for

dissolution of marriage under Section 13 of the Hindu Marriage Act,

1955 under which the marriage between the parties was contracted, it

cannot be said that the judgment is passed on merits. Further, it can,

by no stretch of imagination, be said that the decision of the Superior

Court of California was the result of the contest between the parties.

On the contrary, the judgment dated 14.01.2011 shows no application

of mind or appreciation of facts and is merely mechanical in its form

as well as substance. Moreover, the impugned proceedings and the

decree of dissolution are in violation of the principles of natural

justice, which the Supreme Court in the case of Narasimha (supra)

interpreted to mean something more than mere compliance with the

technical rules of procedure. It was observed by the Supreme Court

that it should not be deemed sufficient that the respondent had been

duly served with the process of the court but it must also be

CS (OS) No.990/2010 Page 17 of 21 ascertained whether the respondent was in a position to present or

represent himself/herself and contest effectively the said proceedings

and if the foreign court had not ascertained and ensured effective

contest by requiring the petitioner to make all necessary provisions

for the respondent to defend including the costs of travel, residence

and litigation where necessary, it should be held that the proceedings

were in breach of the principles of natural justice. In this regard, the

order dated 18.05.2010 passed by this Court and the order dated

03.09.2010 passed by the Superior Court of California are of

significance. This Court on 18.05.2010 concluded that prima facie the

continuance of proceedings in the Superior Court of California would

act to the prejudice of the plaintiff, as she did not appear to have any

means to contest the said proceedings, and, in the circumstances, the

defendant was restrained from proceeding further with the aforesaid

case till the next date of hearing which was 21.10.2010. The Superior

Court of California on 03.09.2010, despite being aware of the order of

this Court, disregarded the same merely on the technical ground that

the order did not indicate that the husband was ever served with the

Indian order and in completely ignoring the principles of natural

CS (OS) No.990/2010 Page 18 of 21 justice, concluded that the Court had the jurisdiction to hear the

husband’s petition for dissolution of marriage and that there was no

legal basis to stay the divorce proceedings, authorizing the husband to

proceed with his request to enter wife’s default.

17. The cumulative effect of the aforesaid facts, in my considered

opinion, is that the decree of dissolution of marriage passed by the

Superior Court of California cannot be said to have been passed on

merits nor can it be said to be in compliance with the principles of

natural justice. The plaintiff-wife did not contest the claim nor agree

to the passing of the decree. In fact, the plaintiff in the present case

did not have the wherewithal to contest the impugned proceedings. As

noticed above even her bank account had been fraudulently operated

by the defendant and his relatives by forging her signatures and First

Information Report in this regard was lodged by her being FIR

No.164/2009 under Sections 420/467/468/471/120-B IPC, in respect

of which Status Report has been filed by the Investigating Agency

from time to time. In these circumstances, the judgment, having been

passed in default of wife’s appearance, is clearly in violation of the

principle of audi alteram partem as enunciated by the Supreme Court

CS (OS) No.990/2010 Page 19 of 21 with reference to foreign judgments rendered in matrimonial disputes,

where the wife is not in a position to contest the case in a foreign

jurisdiction, resulting in grave injustice to the wife.

18. Lastly, this Court cannot help but refer to the following

observations made by the Hon’ble Supreme Court in Neeraja Saraph

(Smt) v. Jayant V.Saraph and Anr, (1994) 6 SCC 461, which case

pertained to desertion of an Indian wife by an NRI husband:-

“…But the rule of domicile replacing the

nationality rule in most of the countries for assumption of jurisdiction and granting relief in matrimonial matters has resulted in conflict of laws. What this domicile rule is not necessary to be gone into. But feasibility of a legislation safeguarding interest of women may be

examined by incorporating such provisions as-

(1) No marriage between a NRI and an

Indian woman which has taken place in

India may be annulled by a foreign

court;

(2) Provision may be made for adequate

alimony to the wife in the property of the

husband both in India and abroad.

(3) The decree granted by Indian courts

may be made executable in foreign

courts both on principle of comity and by

entering into reciprocal agreements like

Section 44-A of the Civil Procedure Code

which makes a foreign decree executable

as it would have been a decree passed by

that court.”

CS (OS) No.990/2010 Page 20 of 21

19. Regretfully the plight of women and their exploitation by NRI

husbands is yet to be ameliorated through legislative measures as

suggested in the said case.

20. In view of the aforesaid, the decree of dissolution of marriage

passed by the Superior Court of California in favour of the defendant

can not be said to be conclusive under Section 13 of the Civil

Procedure Code and hence is not enforceable in India. The decree of

dissolution of marriage dated January 14, 2011 and judgment entered

on January 18, 2011 passed by the Superior Court of California,

County of Santa Clara, San Jose, USA in favour of the defendant be

and is hereby declared null and void and unenforceable in India being

opposed to the laws in force in this country.

21. Resultantly, the suit stands decreed in terms of the prayer made

by the plaintiff. The plaintiff shall also be entitled to recover cost in

the sum of Rs.2 lakhs from the defendant.

22. CS(OS) No.990/2010 and IA Nos.182/2012 and 183/2012

stand disposed of.

REVA KHETRAPAL

(JUDGE)

September 10, 2012/’k’

CS (OS) No.990/2010 Page 21 of 21

Categories: Judgement

HC: Refusal to have sexual life with spouse amounts to cruelty-Husband granted divorce

Categories: Judgement

Denying sex to spouse on first night ground for marriage annulment: Delhi high court

Delhi High Court
Smt. Shashi Bala vs Shri Rajiv Arora on 21 March, 2012

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment delivered on: 21.03.2012

FAO No.185/2001

Smt. Shashi Bala ……appellant. Through: Mr. Atul Bandhu, Adv.

Vs.

Shri Rajiv Arora ……Respondents Through: Mr. R.G. Srivastava, Adv.

CORAM:

HON’BLE MR. JUSTICE KAILASH GAMBHIR

KAILASH GAMBHIR, J.

1. By this appeal filed under section 28 of the Hindu Marriage Act, 1955, the appellant seeks to challenge the impugned order and decree dated 12.2.2001 passed by the learned Trial Court whereby a decree of divorce in favour of the respondent husband under Section 13(i)(a) of the Hindu Marriage Act was granted and the counter claim FAO 185/01 Page 1 of 19 filed by the appellant seeking a decree for restitution of conjugal rights under Section 9 of the Hindu Marriage Act was dismissed.

2. Brief facts of the case relevant for deciding the present appeal is that the marriage between the parties was solemnized on 17.2.1991 according to Hindu rites and ceremonies. It was stated by the husband in his divorce petition that after the solemnization of the marriage, right from the inception, the attitude of the appellant was indifferent and she complained that the marriage had not been solemnized with a man of her taste. As per the respondent husband, the appellant had refused to participate in the traditional ceremony of dud-mundri by saying that she did not like all this but without disclosing any reasons. As per the respondent, the appellant also did not take any interest in the dinner which was served on the wedding night i.e. 18.2.1991. It is also the case of the respondent that when both of them went to their bedroom around 11.30 p.m. the appellant was not responsive and she did not allow the respondent to have sexual intercourse with her. The respondent has alleged that it is only on 25.2.1991, that he was allowed to have sexual intercourse with the appellant for the first time, but again the appellant remained unresponsive and such conduct of the appellant caused mental cruelty FAO 185/01 Page 2 of 19 to the respondent. It is also the case of the respondent husband that on 13.4.1991, the appellant refused to perform “chuda ceremony” which not only hurt the sentiments of the respondent but his parents as well. It was also stated that the appellant in fact removed the chuda and threw it under the bed by saying that she did not believe in all these things. It is also the case of the respondent that the appellant used to visit her parents on her own without even informing the respondent and finally left the matrimonial home on 16.4.1992 and since then she did not come back. It is also the case of the respondent that he had sexual intercourse with the appellant only for about 10-15 times during her stay with him for a period of about 5 months. It is also the case of the respondent that the appellant used to quarrel with his old parents and she also used to insist to shift to her parents’ house at Palam colony. The respondent also alleged that on 11th March, 1991 the appellant tried to illegally remove the jewellery from the almirah which belonged to his mother and which was kept for his unmarried sister and while doing so she was caught red handed. It is also the case of the respondent that the appellant made a false complaint with the Crime Against Women Cell and Family Counsel Office, which complaints were ultimately withdrawn by her. Based on FAO 185/01 Page 3 of 19 these allegations the respondent husband claimed the decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act.

3. In the written statement filed by the appellant wife, she denied all the abovesaid allegations leveled by the respondent husband. She denied that she had refused to participate in the “Dud Mundari Ceremony”. The appellant had also stated that after taking lunch on the wedding day, one lady relative of her in-laws and parents of the respondent remarked that she did not bring bed and sofa sets in her dowry and in response she informed them that her father had given a bank draft of Rs. 30,000/- besides presenting costly clothes, ornaments, TV, clothes for relatives, utensils and other articles in the marriage. It is also the defence of the appellant that on the wedding night the respondent entered the bedroom showering filthy abuses on the appellant and told her that she had not brought the dowry according to their expectations. It is also her case that she was also told by the respondent that the bank drafts should have been prepared either in the name of the respondent or in the name of his father. It was denied by the appellant that her attitude was indifferent at the time of dinner. She also denied the allegation of non- consummation of the marriage on the wedding night. The appellant FAO 185/01 Page 4 of 19 took a stand that right from the wedding night i.e. 18.2.1991 the parties had normal physical relationship with each other. She also denied that she did not perform “chuda ceremony” or threw the chuda under the bed. She also denied that she left the matrimonial home on 16.4.1992. The appellant also took a stand that on 23.4.1992 the respondent, his parents and two sisters asked her to bring Rs. 50,000/- or otherwise leave the matrimonial home and on her refusal to meet the said demand, she was thrown out of the matrimonial home. The appellant denied that she had sexual relationship with the respondent only 10-15 times or she had refused to have sex with the respondent. She also denied that she never insisted the respondent to live in the house of her parents. She also denied that on 11th March, 1991 she made any attempt to steal the jewellery or she was caught red handed. She also stated that in the last week of April, 1991 she was told by the respondent to withdraw Rs. 30,000/- from her bank account as the old sofa lying in the house required replacement but no new sofa set was purchased when she brought the said money and gave the same to the mother of the respondent. The appellant also took a stand that she was prepared to FAO 185/01 Page 5 of 19 live with the respondent as she had withdrawn from her society without any reasonable cause and without any fault on her part.

4. Based on the pleadings of the parties, the learned Trial Court framed the following issues:-

(i) Whether the respondent has treated the petitioner with cruelty? (ii) Relief.

(iii) Whether the petitioner has withdrawn from the company of the respondent without any reasonable cause or excuse? If so, its effect. The respondent in evidence examined himself as PW2 besides examining Shri Dalveer Singh, Head Constable as PW1 and Shri Vishwamitra, father of the respondent as PW 3, his colleague Shri Vijay Kumar Taygi PW4. The appellant on the other hand examined herself as RW1 with no other evidence in support.

 

5. After taking into consideration the pleadings of the parties, the learned Trial Court found that the refusal of the appellant wife to participate in the “Dud Mundari ceremony” and thereafter “Chudha ceremony”, which were customary rituals in the family of the respondent husband caused embarrassment and humiliation to the respondent and such acts on the part of the appellant amounted to cruelty. The learned Trial Court also found that in the span of one FAO 185/01 Page 6 of 19 year and two months of the married life, the parties had sex only for about 10-15 times and also denial of the appellant for sexual relationship on the very first night of the marriage is a grave act of cruelty as healthy sexual relationship is one of the basic ingredients of a happy marriage. The learned Trial Court also found that filing of the complaints by the appellant with the Crime Against Women Cell and Family Counsel Office also collectively caused mental cruelty to the respondent husband. Accordingly, the learned trial court granted a decree of divorce in favour of the respondent and against the appellant and consequently also dismissed her counter claim for restitution of conjugal rights.

 

6. Mr. Atul Bandhu, learned counsel appearing for the appellant before this court vehemently argued that the learned Trial Court did not refer to the evidence of the appellant wife wherein she has denied all the allegations leveled by the respondent husband in his petition for divorce. Counsel also contended that the marriage was consummated on the very first night and the appellant wife never denied sexual relationship to the respondent husband. Counsel also submitted that nowhere the respondent husband has stated that as to when he was refused any such sexual relationship by the appellant. FAO 185/01 Page 7 of 19 Counsel thus argued that the learned Trial Court has granted the decree of divorce merely on the ground that the appellant wife did not participate in the dud-mundari ceremony and chudha ceremony and also she did not allow the husband to have sexual intercourse more than 10-15 times in a period of 5 months and as per the counsel, these grounds cannot be treated sufficient enough to constitute cruelty as envisaged under Section 13(ia) of the Hindu Marriage Act. In support of his arguments, counsel for the appellant placed reliance on the judgment of the Hon’ble Supreme Court in Savitri Pandey vs Prem Chandra Pandey AIR2002SC591 and V. Bhagat vs D. Bhagat (Mrs) (1994) 1 SCC 337.

7. Mr. R.G. Srivastava, learned counsel appearing for the respondent on the other hand fully supported the reasons given by the learned Trial Court which entitled him to claim a decree of divorce under Section 13(ia) of the Hindu Marriage Act. Counsel for the respondent also submitted that the appellant did not respect the sentiments of the respondent and his family members by refusing to perform customary rituals like dud-mundari ceremony and chudha ceremony. Counsel also argued that the appellant did not discharge her matrimonial obligations either towards her husband or even FAO 185/01 Page 8 of 19 towards his old parents. Counsel also submitted that the appellant made false complaints to the Crime Against Women Cell and to the Family Counsel Office, which she later withdrew and such act of the appellant also caused mental cruelty to the respondent. Counsel also submitted that by denying normal sexual relationship to the respondent, the appellant had shaken and destroyed the very foundation of a sound marriage. Counsel also submitted that the respondent had duly discharged his burden to prove the case set up by him where as the appellant failed to discharge her burden and even could not prove her defence. In support of his arguments, counsel for the respondent placed reliance on the following judgments:-

1. Vinita Saxena vs Pankaj Pandit 2006(3) SCALE (SC) 367.

2. Naveen Kohli vs Neelu Kohli 2006(4) SCC 558.

3. Samar Ghosh vs Jaya Ghosh 2007 (4) SCC 511.

4. Praveen Mehta vs Inderjit Mehta AIR 2002 SC 2582

5. Rajinder Bhardwaj vs Anita Sharma AIR 1993 Delhi 135.

8. I have heard learned counsel for the parties and given my thoughtful consideration to the arguments advanced by them. FAO 185/01 Page 9 of 19

9. Cruelty as a ground for divorce is nowhere defined in the Hindu Marriage Act as it is not capable of precise definition. There cannot be any straitjacket formula for determining whether there is cruelty or not and each case depends on its own facts and circumstances. What may be cruelty in one case may not be cruelty in other and the parameter to judge cruelty as developed through judicial pronouncements is that when the conduct complained of is such that it is impossible for the parties to stay with each other without mental agony, torture and stress. It has to be something much more than the ordinary wear and tear of married life. The conduct complained of should be grave and weighty and touch a pitch of severity to satisfy the conscience of the court that the parties cannot live together with each other anymore without mental agony, distress and torture. The main grievance of the respondent herein is the denial of the appellant to have normal sexual relationship with the respondent. As per the case of the respondent, during the short period of 5 months he had sexual intercourse with the appellant only 10-15 time while the plea taken by the appellant is that she had never denied sex to the respondent. The courts have through various judicial pronouncements taken a view that sex is the foundation of marriage and marriage FAO 185/01 Page 10 of 19 without sex is an anathema. The Division Bench of this Court in the celebrated pronouncement of Mrs. Rita Nijhawan vs. Mr.Bal Kishan Nijhawan AIR1973Delhi200 held as under:

“In these days it would be unthinkable proposition to suggest that the wife is not an active participant in the sexual life and therefore, the sexual weakness of the husband which denied normal sexual pleasure to the wife is of no consequence and therefore cannot amount to cruelty. Marriage without sex is an anathema. Sex is the foundation of marriage and without a vigorous and harmonious sexual activity it would be impossible for any marriage to continue for long. It cannot be denied that the sexual activity in marriage has an extremely favorable influence on a woman’s mind and body, the result being that if she does not get proper sexual satisfaction it will lead to depression and frustration. It has been said that the sexual relations when happy and harmonious vivifies woman’s brain, develops her character and trebles her vitality. It must be recognised that nothing is more fatal to marriage than disappointments in sexual intercourse.” The learned Trial Court referred to the judgment of this court in the case of Shankuntla Kumari vs. Om Prakash Ghai AIR1983Delhi53 wherein it was held that:

“(25) A normal and healthy sexual relationship is one of the basic ingredients of a happy and harmonious marriage. If this is not possible due to ill health on the part of one of the spouses, it may or may not amount to cruelty depending on the circumstances of the case. But willful denial of sexual relationship by a spouse when the other spouse is anxious for it, would amount to mental cruelty, especially when the parties are young and newly married.”

Hence, it is evident from the aforesaid that willful denial of sexual intercourse without reasonable cause would amount to cruelty. In the FAO 185/01 Page 11 of 19 authoritative pronouncement of the Hon’ble Supreme Court in Samar Ghosh vs Jaya Ghosh (2007)4SCC511, the Hon’ble Supreme Court took into account the parameters of cruelty as a ground for divorce in various countries and then laid down illustrations, though not exhaustive, which would amount to cruelty. It would be relevant to refer to the following para 101 (xii) wherein it was held as under:- “(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.”

Although it is difficult to exactly lay down as to how many times any healthy couple should have sexual intercourse in a particular period of time as it is not a mechanical but a mutual act, however, there cannot be any two ways about the fact that marriage without sex will be an insipid relation. Frequency of sex cannot be the only parameter to assess the success or failure of a marriage as it differs from couple to couple as to how much importance they attach to sexual relation vis a vis emotional relation. There may be cases where one partner to the marriage may be over sexual and the other partner may not have desire to the same level, but otherwise is fully potent. Marriage is an institution through which a man and a woman enter into a sacred FAO 185/01 Page 12 of 19 bond and to state that sexual relationship is the mainstay or the motive to be achieved through marriage would be making a mockery of this pious institution. By getting married, a couple agrees to share their lives together with all its moments of joy, happiness and sorrow and the sexual relationship between them brings them close and intimate by which their marital bond is reinforced and fortified. There may not be sexual compatibility of a couple right from inception of the relationship and depending upon physical, emotional, psychological and social factors, the compatibility between some couples may be there from the beginning and amongst some may come later. Undoubtedly, a normal and healthy couple should indulge into regular sexual relationship but there may be exceptions to this and what may be normal for some may not be normal for others as it would depend upon various factors such nature of job, stress levels, social and educational background, mood patterns, physical well being etc. Indisputably, there has to be a healthy sexual relationship between a normal couple, but what is normal cannot be put down in black and white.

 

10. Adverting back to the facts of the present case, the marriage between the parties was solemnized on 17.2.1991 and FAO 185/01 Page 13 of 19 according to the appellant she was forced to leave the matrimonial house on 16.4.1992, whereas as per the respondent husband, the appellant wife practically stayed at the matrimonial home only for a period of five months as for rest of the period she stayed at her parental house. The case of the respondent is that he had sex with the appellant only for about 10-15 times in a span of five months of married life and that he was denied sexual relationship on the very first night of their marriage and denial of sex at the wedding night caused great mental cruelty to him. The respondent husband also stated that he was allowed to have sexual intercourse by the appellant for the first time only on 25.2.1991.The appellant wife has denied the said allegations of the respondent husband and in defence stated that she was having normal sexual relationship with her husband and even had sexual intercourse on the wedding night. The learned Trial Court after analyzing the evidence adduced by both the parties found the version of the appellant untrustworthy and unreliable while that of the respondent, much more credible and trustworthy. The appellant on one hand took a stand that on 18.2.1991 the atmosphere on that night was very tense so much so that, both the parties could not sleep and speak to each other and she did not even take proper food and the FAO 185/01 Page 14 of 19 whole night there was tension between the parties and the atmosphere was fully charged, but at the same time in the cross- examination of PW2 the suggestion was made by counsel that the appellant touched the feet of the respondent when he entered the room on the said wedding night and she also admitted that her husband had never taken liquor in her presence and he had never come to her in drunken state. It would be appropriate to reproduce para 55 of the Trial Court judgment to bring to surface the said contradiction on the part of the appellant.

“55.From the evidence on record, it is gathered that on the wedding night i.e. on 18.2.91 a “Dud Mundari” ceremony was to be performed but the respondent wife refused to participate in the same. This version of PW 2 has been fully corroborated by his father PW 3. The husband i.e. Rajiv Arora, had entered by both PW 2 and RW1. RW 1 in her cross-examination has stated that their marriage had been consummated on that very night and her husband had come to her and she did not have to persuade the petitioner. On the other hand the petitioner has stated that their marriage could not be consummated on their wedding night and he had sex with his wife for the first time only on 25.2.91. RW1 in her cross-examination has stated that the atmosphere that night was very tense and both the parties could not sleep and they did not speak to each other and her husband had grievance about the insufficient dowry which had been given in the marriage . RW 1 has also admitted that on 18.2.91, she did not take proper food as she was not feeling well. This version of RW1 that she did not take food that night is corroborated by the version of PW1 who has stated that on the wedding night at the time when the dinner was served the attitude of the respondent was indifferent and she did not take any dinner but she took only a little sweet.” FAO 185/01 Page 15 of 19

11. In matrimonial cases, more often than not it is a challenging task to ascertain as to which party is telling truth as usually it is the oral evidence of one party against the oral evidence of the other. What happens in the four walls of the matrimonial home and what goes on inside the bed room of the couple is either known to the couple themselves or at the most to the members of the family, who are either residing there or in whose presence any incident takes place. Whether the couple has had sex and how many times or have had not had sex and what are the reasons; whether it is due to the denial or refusal on the part of the wife or of the husband can only be established through the creditworthiness of the testimonies of the parties themselves. Consequently, the absence of proper rebuttal or failure of not putting one’s case forward would certainly lead to acceptance of testimony of that witness whose deposition remains unchallenged. In the present case, the testimony of the respondent that the appellant was never responsive and was like a dead wood when he had sexual intercourse with her remained unrebutted. It is not thus that the respondent had sex with her wife only about 10-15 times from the date of his marriage within a period of five months, but the cruel act of the appellant of denying sex to the respondent FAO 185/01 Page 16 of 19 especially on the very first night and then not to actively participate in the sex even for the said limited period for which no contrary suggestion was given by the appellant to the respondent in his cross- examination. The respondent has also successfully proved on record that the appellant did not participate in the customary rituals of dud mundri and that of chudha ceremony, which caused grave mental cruelty to the respondent. It is a matter of common knowledge that after the marriage, certain customary rituals are performed and the purpose of these rituals is to cement the bond of marriage. The question whether there was a refusal on the part of the respondent not to perform the ritual of dud-mundari and chudha ceremony is difficult to be answered as on one hand, the appellant has alleged that she had duly participated in the ceremonies while on the other hand the respondent has taken a stand that there was refusal on the part of the appellant to participate in the ceremonies. No doubt the testimony of the respondent has been supported by the evidence of his father and there is no corroborative evidence from the side of the appellant, although her brother had accompanied her in doli and in such backdrop, adverse inference thus has to be drawn against the appellant for not producing her brother in evidence who could be the FAO 185/01 Page 17 of 19 best witness to prove the defence of the appellant alleging her participation in the dud-mundari ceremony. Undeniably, these customary ceremonies are part of the marriage ceremony and refusal of the same that too in the presence of the family members of the husband would be an act of cruelty on the part of the wife. The appellant has also failed to prove any demand of dowry made by the respondent or his family members as no evidence to this effect was led by the appellant. The appellant herein also filed criminal complaints against the respondent and his family members and later withdrew the same. Undoubtedly, it is the right of the victim to approach the police and CAW cell to complain the conduct of the offending spouse, however, frivolous and vexatious complaints like in the present case led to cause mental torture and harassment to the respondent and his family members. Thus, taking into account the conduct of the appellant in totality, this court is of the view that the same amounts to causing mental cruelty to the respondent.

12. Before parting with the judgment, this court would like to observe that the sex starved marriages are becoming an undeniable epidemic as the urban living conditions today mount an unprecedented pressure on couples. The sanctity of sexual FAO 185/01 Page 18 of 19 relationship and its role in reinvigorating the bond of marriage is getting diluted and as a consequence more and more couples are seeking divorce due to sexual incompatibility and absence of sexual satisfaction. As already stated above, to quantify as to how many times a healthy couple should have sexual intercourse is not for this court to say as some couples can feel wholly inadequate and others just fine without enough sex. “That the twain shall become one flesh, so that they are no more twain but one” is the real purpose of marriage and sexual intercourse is a means, and an integral one of achieving this oneness in marriage.

 

13. This Court therefore, does not find any kind of illegality or perversity in the findings given by the learned Trial Court in the impugned judgment dated 12.2.2001 and the same is accordingly upheld. The present appeal filed by the appellant is devoid of any merits and the same is hereby dismissed.

KAILASH GAMBHIR, J

21.03. 2012

FAO 185/01 Page 19 of 19

 
 
Categories: Judgement

HC: Maintenance under HMA25 is valid even if divorce is rejected

Rajasthan High Court
Vishram Singh vs Smt Bholi Bai on 1 March, 2012
name=”textfield” rows=”27″ cols=”100″>

In the High Court of Judicature for Rajasthan at Jaipur Bench Jaipur

S.B.Civil Misc. Stay Application No.785 of 2010

in

S.B.Civil Misc.Appeal No.1049 of 2010

Vishram Singh

vs.

Smt. Bholi Bai @ Bholeshwari @ Kamlesh

Date of Order : 01.3.2012

HON’BLE MS. JUSTICE BELA M. TRIVEDI

Mr.J.R.Tantia for the appellant/applicant.

Mr. Pankaj Gupta for the respondent.

By the Court:

1.Heard learned counsel for the parties.

2.Vide order dated 16.4.2010, this court while issuing notice to the respondents had directed the appellant to continue to pay the maintenance at the rate of Rs.5,000/- per month and stayed the recovery of arrears of maintenance. Today, the matter has come up for confirmation of the said stay order.

3.It has been sought to be submitted by learned counsel Mr.J.R.Tantia for the appellant that the court below could not have passed the permanent alimony under section 25 of Hindu Marriage Act, when the divorce petition of the appellant was dismissed. According to him, in view of section 25(1) of the said Act, the amount of arrears be stayed during the pendency of the appeal. There is no force in the submissions of learned counsel for the appellant, inasmuch as under section 25 of the said Act, any court exercising its jurisdiction under the said Act may at any time of passing of any decree or at any time subsequent thereto, on application to it for the purpose of maintenance direct the concerned respondent to pay maintenance. In the instant case, the court below had specifically framed the issue with regard to the permanent alimony to be paid to the respondent-wife and while dismissing the divorce petition filed by the appellant, the court had directed the appellant to pay maintenance at the rate of Rs.5,000/- per month from the date of application i.e. 30.8.2005 till the date of payment. There is no reason to stay the said order. Hence, in the opinion of the court, the appellant is liable to pay entire amount arrears with interest as directed by the court below and also to continue to pay Rs.5,000/- per month to the respondent-wife.

4.In that view of the matter, it is directed that the appellant shall deposit the entire amount of arrears within eight weeks from today.

5.The application stands disposed of accordingly.

(BELA M. TRIVEDI) J.

om

All corrections made in the judgment/order have been incorporated in the judgment/order being emailed. Om Prakash

PA

http://indiankanoon.org/doc/151597974/

Categories: Judgement, Judgement

HC: Maintenance under HMA25 is valid even if divorce is rejected

Rajasthan High Court
Vishram Singh vs Smt Bholi Bai on 1 March, 2012
name=”textfield” rows=”27″ cols=”100″>

In the High Court of Judicature for Rajasthan at Jaipur Bench Jaipur

S.B.Civil Misc. Stay Application No.785 of 2010

in

S.B.Civil Misc.Appeal No.1049 of 2010

Vishram Singh

vs.

Smt. Bholi Bai @ Bholeshwari @ Kamlesh

Date of Order : 01.3.2012

HON’BLE MS. JUSTICE BELA M. TRIVEDI

Mr.J.R.Tantia for the appellant/applicant.

Mr. Pankaj Gupta for the respondent.

By the Court:

1.Heard learned counsel for the parties.

2.Vide order dated 16.4.2010, this court while issuing notice to the respondents had directed the appellant to continue to pay the maintenance at the rate of Rs.5,000/- per month and stayed the recovery of arrears of maintenance. Today, the matter has come up for confirmation of the said stay order.

3.It has been sought to be submitted by learned counsel Mr.J.R.Tantia for the appellant that the court below could not have passed the permanent alimony under section 25 of Hindu Marriage Act, when the divorce petition of the appellant was dismissed. According to him, in view of section 25(1) of the said Act, the amount of arrears be stayed during the pendency of the appeal. There is no force in the submissions of learned counsel for the appellant, inasmuch as under section 25 of the said Act, any court exercising its jurisdiction under the said Act may at any time of passing of any decree or at any time subsequent thereto, on application to it for the purpose of maintenance direct the concerned respondent to pay maintenance. In the instant case, the court below had specifically framed the issue with regard to the permanent alimony to be paid to the respondent-wife and while dismissing the divorce petition filed by the appellant, the court had directed the appellant to pay maintenance at the rate of Rs.5,000/- per month from the date of application i.e. 30.8.2005 till the date of payment. There is no reason to stay the said order. Hence, in the opinion of the court, the appellant is liable to pay entire amount arrears with interest as directed by the court below and also to continue to pay Rs.5,000/- per month to the respondent-wife.

4.In that view of the matter, it is directed that the appellant shall deposit the entire amount of arrears within eight weeks from today.

5.The application stands disposed of accordingly.

(BELA M. TRIVEDI) J.

om

All corrections made in the judgment/order have been incorporated in the judgment/order being emailed. Om Prakash

PA

http://indiankanoon.org/doc/151597974/

Categories: Judgement, Judgement

82 lakh paid for divorce and quashing 498A

January 30, 2012 1 comment

Punjab-Haryana High Court
Parambir Singh @ Pammi And Others vs State Of Punjab And Another on 24 January, 2012
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Crl.Misc.No.M-14727 of 2009 (O&M)

Date of decision : 24.01.2012

Parambir Singh @ Pammi and others

….Petitioners

Versus

State of Punjab and another

…Respondents

CORAM : HON’BLE MR.JUSTICE MAHESH GROVER ….

Present: Mr.Deepinder Brar, Advocate for the petitioners.

Mr. B.B.S.Teji, Addl.A.G., Haryana

for respondent No.1.

Mr.S.P.S.Sidhu, Advocate

for respondent No.2.

…..

MAHESH GROVER, J.

This is a petition under Section 482 of the Code of Criminal Procedure praying for quashing of FIR No.25 dated 21.2.2008 under Sections 498-A, 406, 342, 295-A, 506, 34 IPC, registered at the behest of the complainant-respondent No.2 at Police Station Lambi, District Muktsar.

Originally this petition was filed for quashing of the FIR on the ground that the allegations set out therein were not sustainable and that the complainant had given an aggravated version of a grievance and given to it a colour of criminality so as to settle scores with the petitioners.

Crl.Misc.No.M-14727 of 2009 (O&M) -2- During the subsistence of these proceedings, the petitioners and the complainant have resolved their differences and have decided to put an end to the entire litigation. Broadly, the terms of the agreement envisage the dissolution of marriage by a decree of divorce which has since been effected on 28.11.2011 and further as a part of settlement an amount of Rs.82 lacs was agreed to be paid by the petitioners to the complainant. Out of a sum of Rs.82 lacs some amount was already paid to the complainant and the balance amount of Rs.38 lacs has been handed over by way of Cheque No.952392 to the complainant in Court.

Learned counsel for the parties contend that in view of the aforesaid, the FIR deserves to be quashed. The parties are present in Court and have been duly identified by their respective counsel. Both have got their statements recorded separately accepting the factum of compromise and stating that they have no objection if the FIR is quashed. Having regard to the aforesaid facts when the allegations had surfaced on account of a marital discord and also noticing the fact that the parties have since resolved their differences and have nullified their marriage by a decree of divorce and in lieu thereof an amount of Rs.82 lacs has been paid by the petitioners to the complainant on account of permanent alimony, maintenance, etc. and keeping in view the observations of the Full Bench of this Court in Kulwinder Singh v. State of Punjab and others, 2007(3) RCR (Crl.) 1052, I deem it appropriate to accept the petition and direct that the Crl.Misc.No.M-14727 of 2009 (O&M) -3- FIR in question and all consequent proceedings arising therefrom be quashed. Ordered accordingly.

Before parting with the order, it is made clear to the petitioners that in case the cheque handed over to the complainant today in Court falters for some reason, it shall be viewed by the Court to be an attempt to obstruct the course of justice and appropriate orders shall be passed upon such a breach being brought to the notice of the Court.

Petition disposed of.

24.01.2012 (MAHESH GROVER) JUDGE

http://indiankanoon.org/doc/45893095/

Categories: Judgement

If order of maintenance is passed under section 18 HAMA or section 125 Cr.PC then wife can file for divorce under section 13(2)(iii)

Delhi High Court
Satinder Singh vs Bhupinder Kaur on 2 November, 2011

IN THE HIGH COURT OF DELHI AT NEW DELHI

MAT APP. No.20/2011 & CM No. 5645/2011

Judgment delivered on: 02 November, 2011

Satinder Singh ……Petitioner Through: Mr. Hari Shankar, Adv.

Vs.

Bhupinder Kaur ……Respondent Through: Mr.Shailender Dahiya, Adv.

CORAM:

HON’BLE MR. JUSTICE KAILASH GAMBHIR

KAILASH GAMBHIR, J.

*

1. By this appeal filed under Section 28 of the Hindu Marriage Act, 1955 read with section 151 CPC, the Appellant seeks to challenge the Order dated 16.8.2010 passed by the learned trial court whereby a decree of divorce under Section 13(2)(iii) of the Hindu Marriage Act was passed in favour of the respondent.

 

2. Brief sequence of events that has led to the filing of the present appeal is that the respondent filed a petition for divorce under section 13(2)(iii) of the Hindu Marriage Act and MAT APP.20/2011 Page 1 of 11 the appellant filed an application under Order VII rule 11 for rejection of the plaint which was dismissed vide order dated 13.11.2009. A revision was filed against the said order which was dismissed by this court vide order dated 17.12.2010. Thereafter the petition for divorce was decided and the respondent was granted divorce vide order dated 16.8.2010 and feeling aggrieved by the same, the appellant has preferred the present appeal.

3. Assailing the said judgment and decree, learned counsel representing the appellant submits that the order passed under Section 125 Cr.PC was an interim order and based on the interim order the learned matrimonial court could not have exercised jurisdiction to grant a decree of divorce in terms of section 13(2) (iii) of the Hindu Marriage Act. Counsel also submits that any interim order passed in any proceedings will always remain an interim order which would ultimately be subject to passing of a final order and the final order can always vary and in a given case may be against the party in whose favour an interim order has been passed. Counsel thus submits that jurisdiction under Section 13(2) (iii) of the Hindu Marriage Act may be exercised by the matrimonial court only when a final order was passed under Section 125 Cr.PC and, therefore, the MAT APP.20/2011 Page 2 of 11 expression ‘order’ referred to under section 13(2) (iii) of the Hindu Marriage Act must be read as a final order and not as an interim order. Counsel also submits that the respondent has also misled the matrimonial Court by not disclosing the fact that she got remarried and due to such suppression of a material fact on the part of the respondent she was not entitled to the grant of decree under section 13(2) (iii) of the Hindu Marriage Act. Counsel also submits that the learned matrimonial court has also not appreciated that the earlier divorce petition filed by the respondent under section 13(1) (ia) of the HM Act was dismissed and the said finding being against the respondent and in favour of the appellant, the learned trial court ought not to have passed a decree in favour of the respondent under section 13(2) (iii) of the Hindu Marriage Act. In support of his arguments, counsel for the appellant has placed reliance on the following judgments :-

1.Gita Massant vs. Narain Dass, 27 (1985) DLT 374

2.Snehlata Seth vs. V.Kewal Krishan Seth, 27(1985) DLT 449.

3.Prem Chandra Agarwal vs. U.P. , JT 2009(8) SC 118

4. Amarjeet Singh vs. Devi Ratan, AIR 2010 SC 3676

5. Kalabharati Advertising vs. Hemant Vimalnath, AIR 2010 SC 3745

4. Opposing the present appeal, counsel for the respondent submits that the appeal filed by the appellant is a MAT APP.20/2011 Page 3 of 11 gross abuse of process of law and the appellant has suppressed from this court that he had filed an application under Order VII Rule 11 CPC before the matrimonial Court to seek rejection of the said petition filed by the respondent under section 13(2) (iii) of the HM Act and that the said application of the appellant was dismissed by the trial court. Counsel further submits that against the said order the appellant had also filed a revision petition before this Court which was also dismissed vide order dated 17.12.2010. Counsel thus submits that because of suppression of these vital facts, the appellant is not entitled to the grant of any relief by this Court in the present appeal. Counsel further submits that in the order passed by the Hon’ble High Court in the said revision petition, the finding has already been given by this Court that the interim order passed under section 125 Cr.PC would give jurisdiction to the matrimonial court to pass a decree under section 13(2) (iii) of the HM Act and the said finding not being challenged by the appellant, the same attained finality and in view of this also the appellant now cannot agitate the same grievance again before this Court. Counsel also submits that so far as the remarriage of the respondent is concerned, same has taken place after the passing of the decree of divorce in favour of the respondent.

MAT APP.20/2011 Page 4 of 11

5. I have heard counsel for the parties at considerable length and gone through the records.

 

6. The Law Commission in its 59th report recommended adding section 13(2)(iii) to the Act wherein it provided an additional ground of divorce to the wife. The intent of introducing the said section was to give the wife the right to seek divorce if she has been neglected or not maintained by her husband after an order of maintenance has been passed in her favour. There was discussion with regard to the said provision being made available to the husband equally but it was concluded that such right would ultimately lead to the husband misusing the provision, who in the bid to get rid of his wife would abandon her and compel the wife to move the court for the grant of maintenance and thereafter himself fully submit to the order of payment of maintenance knowing that he would be entitled to get a decree of divorce after the said period of one year has elapsed. Therefore the said provision was brought on the statute book to enable only the wife to seek a decree of divorce if after passing of the order of maintenance there has been no cohabitation for one year which would mean that the husband has ceased to value the society of the wife and their need for each others company has MAT APP.20/2011 Page 5 of 11 prima facie come to an end. Earlier it was suggested that the period under the section be of three years but later on it was reduced to one year as being appropriate. Thereafter Section 13(2)(iii) of the Hindu Marriage Act in its present form was introduced in the Act through the Marriage Laws (Amendment ) Act, 1976 (Act 68 of 1976). Hence by virtue of the said provision, an additional ground of divorce has been made available to the wife to seek dissolution of her marriage by a decree of divorce on the ground that a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife either in a suit filed by the wife under Section 18 of the Hindu Adoptions and Maintenance Act or in the proceedings under Section 125 of the Code of Criminal Procedure and since the date of passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards. For better appreciation, Section 13(2) (iii) is reproduced as under: “Section 13(2): A wife may also present a petition for dissolution of her marriage by a decree of divorce on the ground,-

(iii) that in suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 , (78 of 1956 .) or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974 .) (or under the corresponding section 488 of the Code of

Criminal Procedure, 1898 ), (5 of 1898 .) a decree or order, as the case may be, has been passed

against the husband awarding maintenance to the MAT APP.20/2011 Page 6 of 11 wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been

resumed for one year or upwards;”

 

7. It would be evident from a plain reading of the above provision that for a wife to claim divorce under the said provision she is required to satisfy the following conditions: (a) A decree or order has been passed in her favour and against the husband awarding maintenance to her either in a suit filed by her under Section 18 of the Hindu Adoptions and Maintenance Act or in the proceedings under Section 125 of the Code of Criminal Procedure; and

(b) That the wife has been living apart since passing of such a decree or order; and

(c) There has been no resumption of cohabitation between the parties for a period of one year or upwards. Hence, in a petition filed by the wife under the said section if she is able to satisfy the aforesaid three conditions, then she would be entitled to a decree of divorce. In the facts of the case at hand, the contention raised by the counsel for the appellant is that the order which gives a right to the wife to seek divorce under the said section is a final order and not an interim order. The appellant had urged this ground for filing an application MAT APP.20/2011 Page 7 of 11 under order 7 rule 11 for rejection of the petition for divorce filed by the wife on the basis of the interim order dated 2.3.2005 under section 125 CrPC where the court while dismissing the said application vide order dated 13.11.2009 held that the word ‘order’ would include an interim order as well and the appellant herein had then challenged the order before this court in the revision petition which was also dismissed by this court vide order dated 17.12.2010 with the following observations: “As per this Section, wife is entitled to file a petition for dissolution of marriage by a decree of divorce on the basis of proceedings under Section 125 Cr.P.C. wherein a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife. The word “order” appearing in this Section includes the interim order as well as the final order and does not speak only of the final order passed on a petition under Section 125 Cr.P.C. for seeking dissolution of marriage by a decree of divorce under the above provisions of law” Admittedly, the above said order of this court was not challenged by the appellant and thus attained finality laying the controversy to rest to whether the order under the said section would mean an interim order as well and the ground cannot be allowed to be reagitated by the appellant herein.

 

8. Even otherwise, a bare look at the section13(2)(iii) would manifest the intention of the legislature as two separate expressions have been used in the said Section i.e. ‘decree’ or MAT APP.20/2011 Page 8 of 11 ‘order’, which would necessarily mean either an interim or a final order. The intention of the legislature is to give a right to the wife to invoke the said provision in a case where even an interim order has been passed in either of the said proceedings, which is also clear from the language used in the said section beginning with the words “in a suit under Section 18 of the Hindu Adoption and Maintenance Act, 1956 (78 of 1956), or in a proceeding under Section 125 of the Code of Criminal Procedure , wherein the words ‘in a suit or in a proceeding’ would clearly mean that the order passed during the pendency of the proceedings either under Section 18 or under Section 125 of the Code of Criminal Procedure. There is thus no room to interpret the said provision in a manner suggested by the counsel for the petitioner which otherwise would defeat the very purpose and object of the said section.

 

9. The essence of the said provision is that there should be no resumption of cohabitation between the parties for a period of one year or upwards from the date of the passing of such an order, so this one year gap has to be reckoned from the date of the passing of an order under Section 125 of the Code of Criminal Procedure or under Section 18 of the Hindu Adoptions MAT APP.20/2011 Page 9 of 11 and Maintenance Act and not necessarily a final order or decree. The section does not talk about the payment or non payment of the maintenance amount but of the non resumption of cohabitation of the parties. Clearly, in the facts of the present case the appellant had admitted that there was no resumption of cohabitation for a period of more than one year after the order dated 02.03.2005 under Section 125 Cr.P.C. was passed by the court of the learned Metropolitan Magistrate.

 

10. It is quite pertinent to note that section 13(2)(iii) talks about section 18 under the HAMA and section 125 Cr.PC, which are both the provisions for grant of maintenance available to the wife only unlike section 24 or 25 of the HMA wherein any party can approach the court for the grant of maintenance. It is thus manifest that the order of maintenance passed in the favour of the wife in her petition under section 18 HAMA or section 125 Cr.PC would make her available the right to file for divorce under section 13(2)(iii). If the contention of the counsel for the appellant is accepted and the order in the section is meant to be only a final order then the purpose of the said provision would be negated as the wife who seeks a decree of divorce under the said section would have to wait till a final order under section 18 or MAT APP.20/2011 Page 10 of 11 section 125, as the case may be, which would certainly mean insisting on an invariably long waiting period, which is certainly not the object of the said section. The only desideratum is that the parties have ceased to live together for one year or more and to save the wife from vagrancy she has a order or decree of maintenance in her favour. The judgments relied upon the counsel for the appellant would not be applicable to the facts of the case at hand as they sought to carve a different legal proposition altogether.

 

11. In the light of the above discussion, this court does not find any merit in the present appeal and the same is hereby dismissed.

November 02, 2011 KAILASH GAMBHIR,J MAT APP.20/2011 Page 11 of 11

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