Tag: familylaw

INTRODUCTION

In India, marriage is considered a sacred union between two bodies of opposite sexes. Sharing a common room, their life, and the commitment to live with each other makes it unbreakable bondage not only for one life but for seven lives. It is believed that when two souls will unite in every sense that is physical, mental, and psychological, a new soul will come into existence which is termed “PROGENY” which is very important and that is how life will move ahead. It is believed that this relationship is built by God in Heaven and no one should question this, even the “Husband and Wife”. But what if one of the spouses isn’t happy with this sacramental knot and wants to break it? Is he or she allowed to do so?

The answer changes with time. Before this century, even the thought of separation was deemed to be a very sinful thing but today it is not. The main reason behind this is that people are now more advanced. The development in the field of communication, education, understanding, and societal norms has developed the social strata of society. People have now started giving importance to their mental health and that is good in every sense.

BACKGROUND

Historically, there is no proper law that considers the ground of “Irretrievable Breakdown of Marriage” for the ground of Divorce. Under the Hindu Marriage Act, 1955, Section 13 deals with the various ground on which divorce can be obtained. They are:

Fault Ground [Section 13(1)]

1. Desertion, Adultery, Cruelty, Insanity, Leprosy, and Venereal Disease¹.
2. Apart from this, Conversion and Renunciation of the world can also be used as a valid ground for Divorce in Hindu Religion. Under this case, 2 conditions should be met and they are:
3. The spouse has ceased to be a Hindu, and
4. He or she has converted to another religion².

In the case of Teesta Chattoraj vs. Union of India³, the court held that conversion of religion by one spouse can be used as a valid ground for divorce. Similarly, in the case of Sital Das vs. Sant Ram⁴, the court held that if someone undergoes the traditions, rites, and ceremonies of religion, that person will be considered to have entered the religious order but if that individual cohabits then it cannot be considered a valid ground because he or she has no longer renounced the world.

Divorce by Mutual Consent [13B (1)]⁵

According to this section, if the spouses are not happy with each other and want to separate and lead a new life away from each other, they can file for divorce based on the ground of “Divorce by Mutual Consent”.

Customary Divorce [Section 29 (2)]⁶

Proceeding further, Section 27 and Section 28 of the Special Marriage Act, 1954⁷ also deals with the grounds of divorce in a solemnized marriage. But nowhere it is explicitly mentioned that the ground of “Irretrievable breakdown of Marriage” is a valid ground. In this respect only, the Law Commission of India in its 71^st Report recommended that the ground of “Irretrievable Breakdown of Marriage” should be explicitly mentioned and stated in the Hindu Law. But this lapsed as there was a high level of resistance and lack of support from some major women-led NGOs. The reason which was put forthwith was that the ground of “mutual consent” already covers this and a new addition will only complicate things further.

In the case of Munish Kakkar vs. Nidhi Kakkar⁸, the court itself expressed that a dead letter marriage would only create a strenuous relationship between the spouses. It would be better if they split and move ahead in their lives “as the recognition of the futility of a completely failed marriage being continued only on paper….”

That is why, in the case of Naveen Kohli vs. Neelu Kohli⁹, the Supreme Court itself stated that adding the ground of “Irretrievable breakdown” in the Hindu Marriage Act, 1955 is reasonable. The individuals are right if they go with this option.

LEGAL FACET

Though there is no specific provision present in the current judicial system, there are instances where the Supreme Court has collapsed the marriage on the ground of irretrievable breakdown under the power conferred by Article 142 of the Constitution of India.

In the case of Pramod Kumar Mittal and Another vs. Kanchan Devi¹⁰, the Court exercised its power under Article 142 of the Constitution of India and dissolved the marriage between the appellant and the respondent. Here, there were 4 daughters also who were born out of wedlock but the Court maintained that the husband is maintaining them till now and he will continue to do so. A reasonable opportunity will be given to the wife to meet her daughters if she has any intentions or desire for doing so.

Similarly, in the cases of Sanghmita Ghosh vs. Kajal Ghosh¹¹, Samar Ghosh vs. Jaya Ghosh¹², K Srinivas Rao vs. D.A. Deepa¹³, Sukhendu Das vs. Rita Mukherjee¹⁴, the court exercised its power under Article 142 and dissolved the marriage on the ground of “Irretrievable Breakdown”.

And, the recent case in this regard is R. Srinivas Kumar vs. R. Shametha¹⁵. Here, the petitioner claimed that he suffered mental cruelty because of the respondent and that is why he filed for divorce under the Section 13(1)(i-a) and (ib) of the Hindu Marriage Act, 1955 which was dismissed in the Family Court as the husband failed to prove the ground of cruelty. When he then appealed to the Higher Court, it was again dismissed. After this, he moved to the Supreme Court and presented his case where it was mentioned that both the spouses are not living with each other for the past 22 years and this should be considered as a ground for an “Irretrievable Breakdown” of marriage. Then, the SC exercised his power under Article 142 and granted Divorce.

Sometimes, there are situations like when the spouses cannot bear each other in a matrimonial relationship for even the time period of 1 year or 6 months. In that case, the SC did exercise its power again and dissolved the marriage. This was done in the case of Manish Goel v. Rohini Goel¹⁶, where the court held that “the court is competent to waive of the statutory period of six months in the exercise of its jurisdiction under Article 142 of the Constitution.” This case is also important from the view that, in this case, the Court passed an order contrary to another law. Generally, no court has the power to issue a direction that is in contravention of the statutory provisions because courts are the institutions that are meant to enforce the rule of law and not pass an order which is in contravention of that. But in the case of, Laxmidas Morarji (dead) by L.Rs. v. Behrose Darab Madan¹⁷, the Court has held that the power under Article 142 of the Constitution of India is constitutional and therefore, cannot be restricted by any statutory enactments. This doesn’t mean that now the Court can act or pass an order which is inconsistent with the statutory enactments about the case. The power has to be exercised only in cases where existing provisions of the law are not able to bring complete justice between the parties.

Likewise, there are a series of Judgments where the Supreme Court pronounced judgments in the exercise of its power under Article 142 of the Constitution of India and granted divorce to the spouses who no longer wanted to live with each other in a matrimonial relationship because it continuity will only prove to be fruitless and further cause emotional roller coastal ride on the lives of the individuals involved. The sooner it ends, the better it would be for both parties as there is no reason of continuing or be tied in a sacramental knot that has no sense in reality.

CONCLUSION

No doubt marriage is an institution that is very pious and sacramental in its own sense. When it happens, there is a birth of a new soul in this world which only brings happiness and happiness. Not only that, but it also grants individuals some legal rights which are not in place when the individual is single. It is only extended to married people that are:

1. Right to inherit spouse’s property upon death
2. Right to receive spouse’s social security, pension, worker’s compensation, or disability benefits
3. Right to receive “marriage” or “family rate” on health, car, and/or liability insurance.

But still, that does not mean keeping two people in a relationship where both parties or even one party is unhappy. If the marriage proves to be meaningless and pointless, it should be dissolved. Apart from this, our legal judicial system cannot turn a blind eye when one or both parties find it laborious to continue in a relationship. It is a very miserable situation where only quarreling, bickering, bitterness, and many other things reside. And in that case, it cannot be said as an immoral activity when one party tries to break it. Because all the responsibilities and duties come after humanity. It is to be noted that “Irretrievable Breakdown of Marriage” is not a recognized ground for Divorce under the actual Hindu Marriage Act, 1955 or any law. It has been only accepted as a ground-based on precedents.

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REFERENCES

1. Hindu Marriage Act, 1955, Section 13(1).
2. ibid
3. Teesta Chattoraj vs, Union of India, 2012 SCC OnLine Del 1949 
4. Sital Das vs. Sant Ram, 2011 SCC OnLine Mad 681
5. Hindu Marriage Act, 1955, Section 13 (B) (1)
6. Hindu Marriage Act, 1955, Section 29 (2)
7. Special Marriage Act, 1954, Section 27 and 28
8. Munish Kakkar vs. Nidhi Kakkar, (2020) 14 SCC 657
9. Naveen Kohli vs. Neelu Kohli, 2006 (4) SCC 558
10. Kanchan Devi vs. Promod Kumar Mittal, (1996) 8 SCC 90
11. Sanghamita Ghosh vs. Kajal Ghosh (2007) 2 SCC 220
12. Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511
13. K.Srinivas Rao vs. D. A. Deepa, (2013) 5 SCC 226
14. Sukhendu Das vs. Rita Mukherjee, (2017) 9 SCC 632
15. R. Srinivas Kumar vs. R. Shametha, AIR 2019 SC 4919
16. Manish Goel vs. Rohini Goel, (2010) 4 SCC 393
17. Laxmidas Morarji (DEAD) by LRS. vs. Behrose Darab Madan, (2009) 10 SCC 425

This article is written by Deeksha Singh, from Lloyd Law College, Greater Noida.

-Report by Nishtha Tiwari

In the case of Ariz Kohli v. Tehzeeb Kohli, Tehzeeb Kohli filed an application in the year 2018 for restitution of Conjugal rights. After two years she amended the application and filed it for divorce which stated that marriage could not be saved and her husband’s conduct revealed that restitution cannot take place. This application was allowed by Bandra Family Court but was then challenged by the husband in the High court.

Respondent’s Advocate Malcolm Siganporia stated, that for all purposes provisions of the CPC will be applicable and for Family Court also, provisions of Civil Procedure Court would be equally applicable.

Petitioner’s Advocate Rafique Dada stated that delicate and sensitive matrimonial matters must be dealt with liberty and with previous judgments given to the restoration of normal marriages and if cannot happen, dissolution must be
permitted.

Justice Dangre said that the relief sought by way of an amendment is conflicting with the original reliefs which can be granted by the application. The high court set aside the order passed by the family court by stating that they failed in considering the true summary of the provision permitting the grant of the amendment.

-Report by Avinash Pandey

In the case of Kailash Vs. Gordhan was presented before the Madhya Pradesh High Court challenging the legality of the first marriage and proving the second marriage was not illegal under the Indian Laws. The judgment of the Judicial First-Class Magistrate was challenged who had dismissed the appeal after allowing appeals from both sides and cross-examining all the evidences produced, the charges applied in this case were under Section 494 and Section 143
of the Indian Penal Code. The case was then presented before Justice Ani Verma at the Madhya Pradesh High Court.

In this case, the petitioner had rightfully completed his marriage with the respondent, but after some time the respondent, in this case, had committed to a second marriage while she had not obtained a divorce. After the Judicial First Class had acquitted all the respondents from the following case, the petitioner filed a criminal plea before the Madhya Pradesh High Court.

The petitioner had contested before the court that the second marriage by the respondent was illegal and the court was confronted with the argument that was the second marriage a valid marriage under the law and if not was the offense punishable under section 494 of the Indian Penal Code for remarriage while still being committed to one prior. The court in its judgment had initially defined the pointers that are important for a crime to be considered under Section 494 of IPC.

Considering the facts of the above case, the court held that the respondent had denied the marriage with the petitioner initially under Section 313 of the CRPC. The court observed that the need to prove the legality in front of the court was on the appellant, yet he had failed to discharge the burden on him. The court said that no proof or document was presented by the appellant to stand that the marriage between the petitioner and respondent was a legal Hindu marriage following all the rituals.

The court while acquitting the respondents from the following appeal had stated that the burden of proof was on the petitioner to provide relevant documents which will show that the first marriage and the second marriage were not legal which they have failed to do and hence the appeal was dismissed and the respondents were rightfully released from the case.

SUCCESSION LAWS

Succession essentially refers to the division of a dead person’s property. It refers to the sequence in which assets are transferred from one person to another, and also how much portion a specific member of the family receives upon the death of the individual. Corporate personalities with a continuous existence are excluded by succession rules in India. Succession, also known as Inheritance, is not just a stream of revenue for many people, but it is also a sign of familial lineage in Indian culture. Awareness of inheritance rules would be beneficial for all legal heirs in order to avoid any litigation squabbles, family disputes, or asset frauds.

WHO IS A LEGAL HEIR?

A legal heir is somebody who is supposed to receive property shares through a will or a Succession Act. As a result, a legal heir is an individual who, either by law or by will, claims his or her ancestor’s property. An inheritance is a piece of a deceased person’s estate given to an heir.

There are two primary methods for succession:

1. By Testamentary Succession, which occurs when the deceased leaves a testament naming specific successors to his property.

2. By Intestate Succession, when the deceased hasn’t left a will, the law ruling the dead (as per his religion) steps in and decides how his estate will be distributed.

When a person is dead without a will, he or she is said to have died intestate, and the assets are dispersed by a probate court.

In the present article, we are going to discuss the Succession laws that are applied amongst the Christians and the Parsis. Just like Hindu and Muslim religions, every other religion governs its property affairs with its own set of laws and rules. Hindu law is governed by Hindu Succession Act, 1956, and the Muslim religion is governed by Muslim Personal Law (Shariat) Application Act, 1937. Similarly, Christians and the Parsis are governed by the Indian Succession Act, of 1925.

CHRISTIAN LAWS OF SUCCESSION

The deceased’s religion determines who inherits his estate. The Indian Succession Act of 1925 essentially deals with the group of legal heirs who are eligible to inherit the deceased’s estate after his death. Considering domicile is a key criterion for defining succession laws affecting Christians in India, there is a wide range of rules of succession controlling Christians in India. For example, until January 1986, Christians in Kerala were controlled by two separate Acts: people domiciled in Cochin were managed by the Cochin Christian Succession Act, 1921, while those domiciled in Travancore were controlled by the Travancore Christian Succession Act, 1916. Both two Acts have already been repealed, and Christians who were previously regulated by these laws are now regulated by the general framework of succession under Indian Succession Act, 1925. However, in particular taluks, Protestant and Tamil Christians, for instance, are still ruled by their distinct rules. Christians in Goa and the Union Territories of Daman and Diu are regulated by the Portuguese Civil Code, 1867, whereas Christians in Pondicherry may be managed by the French Civil Code, 1804 (such Christians are known as “Renoncants”).

S. 2(d) of the Act defines an “Indian Christian” as follows: “Indian Christian” denotes a native of India who is, or alleges to be, of unmixed Asiatic heritage and practices any form of Christianity.

This was explained further in the case of Abraham v. Abraham, when the extent of this notion of an “Indian Christian” was defined in terms of its actual use. This decision established that a Hindu who converts to Christianity is no longer subject to Hindu law (customary or otherwise), and any ongoing obligatory force that Hindu law may have exercised over him is relinquished. Nonetheless, despite having converted from the old religion to the new one, he was given the option of allowing the old law to persist to affect him.

Sections 31 to 49 of the Indian Succession Act of 1925 govern this. As per Section 32, a Christian’s legal heirs are:

• Wife (Widow)
• Son
• Daughter
• Father
• Mother
• Brother
• Sister
• The direct bloodline (Such as son and his father, grandfather and great- grandfather)
• Under the third degree of kinship, if a person dies without leaving a will and only his great-grandfather, an uncle, and a nephew are remaining, no one will take equal shares with direct kindred.

The idea of kindred and consanguinity is introduced in Section 24 of the Act, which defines it as “the link or relationship of persons derived from the same source or same ancestry.” S. 25 defines ‘lineal consanguinity as a lineage in a direct relationship. This category includes relatives who are descended from each other or the same single origin.

S. 26 defines ‘collateral consanguinity’ as the situation in which two people are sprung from the same line or genetic basis but not in a straight line. It is worth noting that the rule for Christians makes no distinction between relationships via the father and those through the mother. If the intestate’s relations on both the father and mother sides are equitably linked, they are all qualified to succeed and will share equally. Furthermore, there is no differentiation between full-blood/half-blood/uterine relatives; and a posthumous kid is recognized as a child who was present when the intestate died, as long as the child was born alive and was in the womb so when the intestate died.

Christian law doesn’t quite acknowledge children born outside of marriage; it only recognizes legal marriages. Furthermore, polygamous marriages are not permitted. The Act’s Sections 33, 33-A, and 34 control transfer to the widow. They agree that if the dead has both a widow and lineal descendants, she will receive one-third of his wealth, while the remaining two-thirds will go to the remainder. If the widow remains surviving, the lineal descendants will receive two-thirds of the property; if she is not, they will receive the entire inheritance. Per capita (equal division of shares) is applicable if they are related to the deceased to the same degree. This is in accordance with Sections 36-40 of the Act.

Part VI of the Indian Succession Act of 1925 addresses testamentary succession. S. 59 states that any person mentally sound who is not a minor may part off his estate through a will. The interpretations of this Section substantially broaden the scope of testamentary disposal of an estate by saying unequivocally that married women, as well as deaf/dumb/blind people who are not consequently disabled to form a will, are all permitted to dispose of their asset by will. The method also requires mental clarity and abstinence from alcohol or disease that renders a person failing to comprehend what he is doing.

LAWS OF INHERITANCE FOR PARSIS

Sections 50 – 56 of the Indian Succession Act of 1925 deal with Parsi inheritance laws. There is no difference between the rights of the widow and widower, as it is in Christian inheritance law. The laws for Parsis are extremely ambiguous. A small group of Parsi Zoroastrians in India, whose religious objectives as well as their existence as citizens must be protected in order to ensure stability as citizens of India, and who, according to the Indian Constitution, resemble a specific culture. The Legislature’s stirring up of the issue of the Uniform Civil Code in India has caused alarm for these Parsi Zoroastrians, which will influence their succession rights. According to the Indian Succession Act, 1925, section 54, a Parsi person has the following legal heirs:

• Father
• Mother
• Full brother
• Full sister
• Paternal grandparents
• Maternal grandparents
• Children of maternal grandparents and their lineal descendants
• Children of paternal grandparents and their lineal descendants
• Parents of paternal grandparents
• Parents of maternal grandparents
• Children of paternal grandparents’ parents and their lineal descendants
• Children of maternal grandparents’ parents and their lineal descendants

A widow or widower of an intestate who marries again during the intestate’s lifetime receives no portion. The only exception to this rule would be the intestate’s mother and paternal grandmother, who would receive a portion even if they remarried during the intestate’s lifetime.

SUCCESSION PRINCIPLES COMMON FOR CHRISTIANS AND PARSIS      

• Illegitimate child’s rights: Christian and Parsi law do not recognize people who were born outside of marriage and only handle legal weddings (Raj Kumar Sharma vs. Rajinder Nath Diwan). Thus, the relationship referred to in various parts of the Succession Act about Christian and Parsi succession is the tie resulting from legitimate matrimony.
• The law does not distinguish between ties via the father and those through the mother for Christians and Parsis. In circumstances where both the father and mother sides are evenly linked to the heir, all those relations are entitled to succeed and will give equally. Additionally, there is no distinction between full-blood, half-blood, and uterine relationships; and a posthumous kid is considered the same as a child alive when the intestate died, provided the child was born alive, and was in the womb so when the intestate died.
• Testamentary Succession: Applicable to both Christians and Parsis.
• Wills and Codicils: Any individual of sound mind who is not a minor has the power to dispose of his estate by a Will. Thus, a married woman or other individuals who are deaf, dumb, or blind are not prohibited from making a Will if they are aware of what it accomplishes. As a result, the only people who are barred from making Wills are those who are in an unfit frame of consciousness due to intoxication, disease, or other factors.
•  Testamentary Guardian: A father has the power, by Will, to designate a guardian or guardian for his minor child.
•  Revocation of Will by Testator’s Marriage: All types of wills are canceled by marriage that occurs after the Will is made.
• Privileged and Unprivileged Wills: Unprivileged Wills are those that meet the necessary conditions outlined in Section 63 of the Succession Act, while Privileged Wills are those that are executed in accordance with Section 66 of the Succession Act.
•  Bequests to religious and charitable causes: Section 118 of the Succession Act (which applies to Christians and not Parsis) states that no man with a nephew or niece or any nearer relative shall have the power to pass down any property to religious or charitable purposes unless by a Will implemented not less than 12 months before his death, and stashed within six months from its implementation and operation in some place provided by law for the secure storage of the Wills of living peasants. The Supreme Court ruled that the aforementioned condition was unconstitutional, thus Christians and Parsis can give their possessions to philanthropy without being restricted by it.
• Probate-In the event of a Parsi’s death after the Act’s inception, a probate is required if the will in issue is created or the property entrusted under the will is located within the “ordinary original civil jurisdiction” of Calcutta, Madras, and Bombay, and also where such wills are created beyond these limits insofar as they correspond to immovable property located within those limits.

Christians: A Christian is not required to get probate of his Will.

CONCLUSIONS AND SUGGESTIONS

The inheritance regulations that must be obeyed are heavily influenced by the faith that the intestate professes at the moment of his or her death. The complexity of succession rules in India as a result of the various religions in use has made succession laws even more challenging. However, regardless of faith, the primary goal of intestate succession rules is to distribute property to legitimate successors without causing family feuds. The succession laws of the faith professed by the individual who died intestate dictate who all qualify as lawful heirs and their order of preference. As a result, understanding the laws relevant to a person creating a will or organizing the inheritance of his estate requires a thorough understanding of the intestate’s faith.

The Indian Succession Act of 1925, which is the law of the land in terms of intestate and testamentary succession, must evolve with the passing years and civilization. Keeping several biased outdated rules in place goes against the principles of the Constitution. Women’s right to inheritance is important for socioeconomic and political development, yet women are frequently denied equal rights to inheritance due to a deeply established patriarchal system. Women’s status could be improved further by granting them similar rights in the property. The repeal of gender discriminatory elements from the Indian Succession Act, of 1925 would go a great way toward improving the situation of women, particularly Christian women, who constitute the majority of the community regulated by the Act.

Kerala Law Commission’s 104th Report on the Law of Intestate Succession Among Christians in Kerala,   submitted under the chairmanship of T.R. Balakrishna Iyer, strongly endorsed laying down uniform rules of intestate succession for all Christians without exception, taking its cue from the Christian Succession Acts (Repeal) Bill, 1958, under which Kerala Government itself had realized the need for uniform law for intestate succession among Christians. It opined that the continuation of separate laws of succession over various places violated the principle of equality enshrined in Articles 14 and 15 of the Constitution. The adoption of a uniform rule of intestate succession would indeed be a move forward towards the establishment of a Uniform Civil Code, as contemplated by the Constitution’s Directive Principles.

India is a religiously multicultural country, and its constitution grants equal treatment to all religions. Keeping up with the plethora of succession rules, on the other hand, may be rather difficult and time-consuming for both the average man and law enforcement. As every citizen of India, regardless of creed, race, or customs, is given equal recognition in fundamental rights, a uniform code of succession laws among all religions guided throughout the country would facilitate a better understanding and application of rules for both the common man and law enforcers.

CITATIONS AND REFERENCES

1. AIR 1987 Del 323.
2. Archana Mishra, ‘Breaking Silence – Christian Women’s Inheritance Rights under Indian Succession Act 1925’, https://www.researchgate.net/publication/291349382_Breaking_Silence_-_Christian_Women’s_Inheritance_Rights_Under_Indian_Succession_Act_1925/link/56a1d5a108ae27f7de26952a/download .

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This article is written by Ajita Dixit, who graduated from ILS, Dehradun, and presently pursuing Masters in Law.

–Report by Rhea Mistry

In the case of Monika Sharma v. Mukesh Bhagal, the court disposed of the appeal for annulment of the marriage of Monika Sharma due to the bar of limitation.

The appellant is a graduate of Master of Science from Singhania University in Rajasthan and is not known the age, education, and occupation of the respondent. She is an officer at the Union Bank of India in Mumbai. The appellant and respondent, both are Hindus. Monika Sharma, the appellant knew the respondent since the year 2000.

In the appeal, the appellant asserted that in the year 2003 when she was pursuing her 10th-grade studies and was of 14-15 years of age, the respondent made his first physical contact under duress with her and clicked obscene photographs. The respondent had threatened her he would leak her obscene photographs if she told anyone about his actions. Monika was suffering silently as she comes from a very religious family in the State of Haryana where the Khap Panchayat is practiced.

This continued till 2008 when she moved to pursue her higher studies. When the appellant returned in 2010, the respondent threatened to defame her and her family and disfigure her by throwing acid on her if she didn’t marry him.

In 2011, when the appellant was working as a teacher at a Coaching Centre, the respondent slapped her in front of everyone just because the appellant had refused to go out with him. The appellant had secured a job as a single-window operator at a branch of Punjab National Bank located in the village Dhanora and was staying in a PG. The respondent constantly pressurized her for marrying him taking the advantage of her situation.

On December 28th, 2011, the respondent called the appellant to come out of her office, or else he would create a fiasco there. On going out of the office the respondent took the appellant’s phone, pulled her into the car, and gave a prasad to eat. The prasad was spiked and the appellant wasn’t aware of it, but, later, realized it. After eating the spiked prasad, the appellant had become helpless and a silent observer of the events unfolding with her. She remembered that on the way the respondent picked up his friends, took her to a mandir, clicked some photos, and made her sign some blank papers. And on the next day, 29th December 2011, the respondent dropped her at her office. The respondent had threatened her not to reveal the incidents or else he would harm her and her family.

In March 2012, the appellant shifted to Mumbai as she got the opportunity to work at Union Bank of India, the respondent followed her to Mumbai and harassed her continuously to come and live with him. When the appellant refused all his proposals, he again threatened to leak her photographs. In April 2012, the respondent left Mumbai after threatening the appellant that if she does not marry him, he would kill her parents in Haryana. The respondent came back to Mumbai and started extorting money from the appellant. The respondent continued his force, abuse, and harassment. His family started exerting pressure on her to marry him, so the appellant informed them about the respondent’s behavior and actions, still, the family did not pay any heed and pressured her to marry him. The appellant claimed the respondent also sexually and physically abused her once which left her mentally sick for some time.

In November 2013, gaining courage, she canceled her cards as she had given them to the respondent for use. On December 3rd, 2013, the appellant informed her parents about the incidents and the events following which the parents filed a complaint against the respondent. Upon this, the respondent filed an application for restitution of conjugal rights in the Court of Civil Judge at Bilaspur on 17th January 2014 under section 9 of the Hindu Marriage Act.
This was the first time the appellant came to know that the respondent purported to be her supposed husband. The appellant had not gone forward with her complaint, but in July 2014, with her lawyer, she filed a complaint and went forward with it. A crime was registered under sections 376, 366, 354, 506 (2) of the Indian Penal Code and 9 of 25 under section 4 of the Protection of Children from Sexual Offences Act, 2012 against the respondent and she had filed her statement at Bilaspur.

The court stated that the appellant was suffering since 2003 when she was of 14-15 years, and when she was of 18 years in 2007, she did not file a complaint and kept silent. After 6 years, the appellant has filed her complaint. There are just her bare words and no verification from any source, including her parents, brothers, sisters, or Union Bank of
India personnel. There is also no evidence of alleged extortion of a considerable amount by manipulating her debit card, which might have easily been obtained as electronic evidence. There is also no evidence of a medical evaluation of the appellant, who claims that the respondent sexually exploited, and subjected her to unnatural intercourse.
The court said that the overall evidence is improbable, unbelievable, and unacceptable.

The judge held that once the appellant came to know that she was forcefully taken to a mandir, the force and fraud ceased to exist. If the aforementioned truth was known on December 29, 2011, the petition might have been presented within a year. Nothing stopped her, and thus the bar under sub-section-2 of Section 12 of the Act operates in the relevant facts and circumstances.

The appeal made is without any substance and stands dismissed.

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While allowing a revision petition filed by a divorced woman asking for maintenance, the Rajasthan High Court held that wife means a woman who has obtained a divorce and not remarried.

In this case, the woman had left her matrimonial house due to cruelty by her husband. The Family court had denied the maintenance and therefore the woman had filed a revision petition in the High Court.

The petitioner contended that the court below did not award the maintenance because the parties had been divorced. However, the divorce had been obtained ex-parte. Further, the explanation in section 125(1) of the Cr.P.C says that:

” “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.”

On the other hand, the respondents i.e., the husband argued that she had voluntarily deserted her matrimonial home and since she has stopped performing her duties as a wife, she is not entitled to any maintenance. The Hon’ble Court replied to this:

” the learned court below has come out with a judgment without considering the definition of wife provided under Section 125(1) Cr.P.C. The learned court below has gravely erred in denying the maintenance on the ground of divorce and cruelty. The maintenance is one thing, which has to be granted and a lady suffering cruelty, cannot be said to have deserted or voluntarily residing away. The circumstances created by the husband, if not conducive, are bound to push away the wife.”

Therefore, the court allowed the petition and awarded a maintenance of Rs. 10,000 to the wife every month.

case: Richa Dharu vs. Hemant Panwar

https://hcraj.nic.in/cishcraj-jdp/pdfjs-dist/web/viewer.php?file=https://hcraj.nic.in/cishcraj-jdp/storefiles/createordjud/205600012582019_1.pdf

While allowing an appeal for a partition suit, the Supreme Court said that there is a trend of delay in initiating final decree proceedings.

The plaintiffs, in this case, had filed for a partition, claiming half a share in the property. The property belonged to Kattukandi Edathil Kanaran Vaidyar. He had four sons, Damodaran, Achuthan, Sekharan and Narayanan. Achuthan had one son Karunakaran. Sekharan and Narayan did not have any sons. Damodar had married Chiruthakutty and they both had a son out of wedlock. The son of Damodar is the first plaintiff in this case. It was contended by the defendants that Damodar did not marry and therefore, the plaintiffs should not get any share in the property.

The Trial Court had framed issues and upon examination of the evidence, it had concluded that Damodar had married Chiruthakutty and the first plaintiff is their son. The trial court had accordingly passed a preliminary decree in the favour of the plaintiffs.

The defendants filed an appeal before the High Court where it was held that the first plaintiff is the son of Damodaram, however, he is an illegitimate child. The appeal had been filed before the Supreme Court challenging this order. A lot of evidence was examined by the Hon’ble Court and on the basis of which the court said:

“The documents produced by the plaintiffs were in existence long before the controversy arose between the parties.
These documents, coupled with the evidence of PW­2, would show the long duration of cohabitation between Damodaran and Chiruthakutty as husband and wife……..27. We have also perused the evidence of the defendants. We are of the view that the defendants have failed to rebut the presumption in favour of a marriage between Damodaran and Chiruthakutty on account of their long co­habitation.”

The Supreme Court relied on a number of judgments and observed that when a man and woman have been living for a long time, it is usually presumed that they are married. Though the presumption is rebuttable, the burden lies on those who want to rebut this presumption. In the present case, the defendants have failed to rebut the presumption that no marriage took place between Damodaran and Chiruthakutty. On the other the documents produced by the plaintiffs proved it. In light of the above, Supreme Court allowed the appeal and restored the order of the Trial Court.

The Hon’ble court then went on to observe that, the litigants take a lot of time in moving an application for preparation of a final decree after a preliminary decree has been passed. The court relied on the observations it had made in the case of Shub Karan Bubna and said that this practice should be discouraged as it delays the realization of the fruits of the decree. It was observed:

” We are of the view that once a preliminary decree is passed by the Trial Court, the court should proceed with the case for drawing up the final decree suo motu. After passing of the preliminary decree, the Trial Court has to list the matter for taking steps under Order XX Rule 18 of the CPC. The courts should not adjourn the matter sine die, as has been done in the instant case. There is also no need to file a separate final decree proceeding. In the same suit, the court should allow the concerned party to file an appropriate application for drawing up the final decree. Needless to state
that the suit comes to an end only when a final decree is drawn.”

It further directed the Trial Court to suo-moto start the proceedings for possession of the property without any separate proceedings and a copy of this judgment has to be sent to all registrar generals of the High Court, who then have to circulate it further to the trial courts.

case: KATTUKANDI EDATHIL KRISHNAN & ANR. vs. KATTUKANDI EDATHIL VALSAN & ORS.

https://main.sci.gov.in/supremecourt/2009/15653/15653_2009_2_1501_36142_Judgement_13-Jun-2022.pdf