APPENDIX I DIGEST OF SELECTED CASES

Kusum & Poonam Pradhan Saxena - Family Law

Poonam Pradhan Saxena

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VOLUME I

APPENDIX I DIGEST OF SELECTED CASES

(1) Ashok Hurra v. Rupa Bipin Zaveri1. AIR 1997 SC 1266 [LNIND 1997 SC 414]:
(1997) 4 SCC 226 [LNIND 1997 SC 414].

Note.— Decree of divorce by mutual consent passed even when wife withdrew her consent. Marriage having been
"emotionally and practically dead", the Supreme Court, in exercise of Special Jurisdiction under Article 142 of
Constitution, granted divorce.

This was a petition for divorce by mutual consent under section 13B of the Hindu Marriage Act, 1955. The parties
lived together for about fourteen years. The relationship however was not cordial, and they filed several civil and
criminal cases against each. Ultimately, they agreed to have the marriage dissolved by mutual consent. About eight
months after filing the divorce petition, the husband pressed his application for divorce and notice was sent to the
wife. There were several adjournments and unsuccessful attempts by the trial court for reconciliation. Within one
year of filing of the petition, the husband entered into another marriage and also had a child. The wife filed criminal
cases for declaring the marriage illegal and the child illegitimate. After about 19 months of the filing of the petition,
the wife withdrew her consent.

Can a divorce decree by consent be passed even after consent has been withdrawn by one of the parties?

The trial court dismissed the husband’s petition on the ground that the wife had withdrawn her consent. On appeal,
a single judge of the Gujarat High Court set aside the order on the ground that the wife had not withdrawn her
consent within the period of 18 months and also that the marriage had been irretrievably broken. The decree was
passed with effect from the date of the petition. Against this order, the wife filed a letters patent appeal before the
Division Bench of the High Court, which set aside the order of the single judge. The grounds for this were-there was
no consent as the wife had withdrawn; irretrievable breakdown of marriage is no ground for divorce and even if the
court were to exercise its special powers, it would not like to exercise the jurisdiction in a case where the party’s
conduct is reprehensible. The husband appealed to the Supreme Court. Exercising its jurisdiction under Article 142
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of the Constitution, the court passed na divorce decree subject to the husband paying an amount of Rs. 10 lakhs,
plus Rs. 50,000 as litigating expenses to the wife. The grounds for the relief were:

(i) the marriage had irretrievably broken and there was no point in prolonging the agony of the couple who
have been litigating in various courts;

(ii) there is no delay in the disposal of the matter;

(iii) the wife had not withdrawn the petition within the period of 18 months, and also, no case was made out for
revocation of the consent like fraud, undue influence or mistake; and

(iv) the husband had married again and had a child from the second marriage.

(2) Bai Tahira v. Ali Hussain2. AIR 1979 SC 362 [LNIND 1978 SC 283]: (1979) 2
SCC 316 [LNIND 1978 SC 283].

Note.— Would payment under section 127(3) of the Cr.P.C., howsoever inadequate, absolve a Muslim husband
from his liability to maintain his wife under provisions of section 125 of the Cr.P.C.? Held "no".

Under section 127(3) of the Code of Criminal Procedure, 1973, a woman who has received upon divorce the
amount payable to her under customary or personal law is not entitled to get anything further under section 125.
The case involved the interpretation of the words ‘the sum which under any .personal law of the parties, was
payable on divorce .’ in section 127(3), in the context of a Muslim Woman.

Ali Hussain had married Tahira as his second wife in 1956. In 1962, he divorced her. The flat in which they were
living was transferred to the wife by a consent decree. Mahr and the iddat amount of Rs. 5,000 and Rs. 180
respectively, were also stated to have been adjusted under the terms of compromise. However, some years later,
the wife filed an application for maintenance under section 125 of the Code of Criminal Procedure.

The magistrate awarded a monthly allowance of Rs. 400 for her and Rs. 300 for the child. On appeal, this order was
set aside by the Bombay High Court. The wife filed an appeal to the Supreme Court which was allowed with the
following observations of Justice Krishna lyer:

(3) Balbir Kaur v. Harinder Kaur3. AIR 2003 P&H 174 .

Note.— The case involved a widowed daughter-in-law’s right to maintenance under the Hindu Adoptions and
Maintenance Act.
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F, was the owner of a house consisting of more than five rooms. He had one son and four daughters. After
marriage of his son, he gave one of the rooms to the son and daughter-in-law, D, for their residence. Though the
relations between the son and his wife D were not good but D stayed with him all along. The son died in 1975.
During the life-time of F, D continued to stay in that accommodation along with her three children. F gifted the entire
house, including the room occupied by D, to one of his daughters (the plaintiff) in 1977. After a few months of the
gift deed, the plaintiff sought possession of the room on the ground that the property was the self-acquired property
of her father F who had gifted the same to her and so D should hand over its possession to her. D lost at the trial
court and first appeal; hence, her appeal to the High Court.

One of the issues was whether a widowed daughter-in-law was entitled to maintenance from her father-in-law or his
heirs or his donees even if the property of the father-in-law was self-acquired property. The law on the point was
analysed. The widowed daughter-in-law’s right of maintenance and residence against her father-in-law existed even
under the Shastric law and the same has been statutorily recognised by section 19 of the Hindu Marriage Act. This
right under the Act is available against the father-in-law having in possession coparcenery property, out of which the
widowed daughter-in-law has not obtained any share. However, under the old Hindu law prevailing before 1956, the
widow had a right of maintenance even against self-acquired property of her father-in-law. Gopal Chandra Pal v.
Kadambini Dasi,4 was referred to where a Division Bench of the Calcutta High Court had held that though a
widowed daughter-in-law had no legal right to maintenance as against self-acquired property of her father-in-law,
but if her husband had died during the life-time of the father-in-law, then the latter was under a moral obligation to
maintain his widowed daughter-in-law, even though he had no ancestral assets in his hands. When the father-in-
law’s estate passed to his heirs by inheritance, the moral obligation of the father ripened into a legal obligation of
the heirs. The court accordingly held in Balbir Kaur case, that even though, under the Hindu Adoptions and
Maintenance Act the right of the widowed daughter-in-law is limited to the extent of coparcenary property in the
hands of the father-in-law, but under the old Hindu law prevailing before the Hindu Adoptions and Maintenance Act,
this right of the widowed daughter-in-law of the pre-deceased son is available against the father-in-law’s self-
acquired property also. The right, according to the court, will not cease to be in force because the same is not
inconsistent with any of the provisions of the Hindu Adoptions and Maintenance Act. Thus, D’s appeal was allowed
and she was allowed to remain in possession of the room in lieu of her pre-existing right of maintenance.

Note: Under section 19 of the Hindu Adoptions and Maintenance Act, a daughter-in-law can seek maintenance from
the father-in-law only from out of the coparcenary property in his hands out of which she has not obtained any
share. In this case, the father-in-law had gifted the entire house, which was self-acquired property, to his daughter,
including the room occupied by the widowed daughter-in-law. While he should have provided for the daughter-in-
law no doubt, but legally he was within his right to make the gift.
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(4) Bharatha Matha v. Vijaya Renganathan5. AIR 2010 SC 2685 [LNIND 2010 SC
515]: (2010) 5 JT 534 (Mad).

(JJ. DR. B.S. CHAUHAN and SWATANTER KUMAR)

Note.— Issue of property rights of children born to parties in a live-in relationships.

While live-in-relationships have been recognised under the Protection of Women from Domestic Violence Act, 2005,
and also long cohabitation may give rise to presumption of marriage, yet, these need to be within the parameters of
law. The present judgment is significant in this context where the focal issue was in respect of the property rights of
children born of such relationship. The facts in brief were as follows: ‘R’ an already married female with the
marriage still subsisting, entered into a live-in-relationship with one ‘M’: It was contended that a presumption of
marriage could be drawn in view of their long live-in-relationship and the children born to them would be legitimate
and hence entitled to coparcenary properties of their father, M. The trial court and the first appellate court recorded
a categoric finding of fact that since ‘R’ was already married and her husband was alive on the date of institution of
the property suit, therefore the question of marriage by presumption would not arise. On appeal, however, the High
Court reversed the factual findings of the courts below and held that merely live-in-relationship between the said
two parties would lead to the presumption of marriage between them. An appeal against this to the Supreme Court
was allowed. The court held that the High Court erred in interfering with the factual findings of the courts below
which were based on appreciation of the entire evidence. A reappraisal of findings is permissible only if the findings
recorded by the lower courts is perverse or suffers from the vice of irrationality. Further, according to the Apex
Court, it was not appropriate for the High Court to re-appreciate the evidence in second appeal as no substantial
question of law was involved therein. Thus, it was held that there could be no presumption of marriage. As regards
rights of children in the coparcenary property, it was held that since children were not legitimate, they had no right in
the coparcenary property of their father ‘M.’ Under section 16 of the Hindu Marriage Act, fiction of legitimacy is
created but rights of such children are restricted to the personal property of the parents alone. In this case it was no
where pleaded that the suit property was the self acquired property of ‘M’; further, it was evident from the records
that there was no partition of the joint family properties. As a result thereof, the question of inheritance of
coparcenary property by the illegitimate children who were born out of the live-in-relationship, could not arise.

(5) Brijendra Singh v. State of M.P.6.(2008) I MLJ 1083 SC : AIR 2008 SC 1056
[LNIND 2008 SC 57].

(ARIJIT PASAYAT and P. SATHASIVAM, JJ.)

Note.— A deserted married female’s eight to adopt was the issue involved in this case.
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This was a dispute involving property and agricultural holdings where the main issue involved was as to the
adoption made by the deceased, a married female. To state the facts in brief: ‘M’, a disabled lady was married to
one ‘P’ apparently because under the village custom it was imperative for a virgin to get married. The marriage,
however was not even consummated and ‘P’ left her immediately after the marriage. Ever since then, she lived with
her parents. Twenty-two years later, she adopted ‘B’, the appellant in the present case. In view of some disputes
under the agricultural land ceiling laws (M.P. Ceiling on Agricultural Holdings Act, 1960) ‘M’ filed an application
seeking a declaration that ‘B’ is her adopted son. The same was decreed by the trial court and affirmed by the first
appellate court. The state filed an appeal against this before the High Court (Madhya Pradesh High Court at
Jabalpur). It was held that in view of the provisions of section 8 (c) of the Hindu Adoptions and Maintenance Act,
1956, under which a married female can adopt only after divorce, or her husband is dead, or has renounced the
world, or has been declared by a court to be of unsound mind, the adoption of ‘B’ by ‘M’ was not valid.*7 The
argument that her husband never lived with her, the marriage was not even consummated and she was leading life
like a divorced woman was held to be not tenable. Hence the present appeal before the Supreme Court, where it
was argued:

(a) the undisputed factual position was that there was no consummation of the marriage as the parties were
living separately, practically from the date of marriage; and these facts lead the trial court and the first
appellate court to draw an inference that ‘M’ ceased to be a married woman; and

(b) the issue of invalidity of the adoption was specifically urged and taken note of by the trial court and after
analysing the material and evidence on record it came to the conclusion that ‘M’ was living like a divorced
woman.

These arguments did not find favour with the court " there is a great deal of difference between a female who is
divorced and one who is leading life like a divorced woman", it was observed. The declaration sought for was
refused because ‘M’ was not legally competent to adopt, even while the court conceded that the case "projects
some highly emotional and sensitive aspects of human life". (at p. 1085)

(6) B.P. Achala Anand v. S. Appi Reddy8. AIR 2005 SC 986 : (2005) 3 SCC 313 .

Note.— Whether a deserted wife can contest a suit for eviction filed by the landlord against her husband? (Refer to
Ruma Chakraborty for same issue (case (31).

The appellant was the legally wedded wife of the respondent. When their relationship got estranged, he deserted
her. The matrimonial home was a tenanted premises owned by defendant. The husband left behind his wife and
children in the tenanted premises and walked away to reside in a lodge. In 1991, proceedings for dissolution of
marriage by decree of divorce were initiated and on December 3, 1998, the marriage stood dissolved by a decree of
divorce by mutual consent. In November 1991, the landlord served a notice upon the tenant-husband for eviction
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and proceedings initiated on the ground of bona fide self-requirement and also, that the rent was in arrears.
However, because of the strained relations with his wife and the fact, that he himself had discontinued living in the
tenanted premises, the husband was not serious in contesting the eviction suit. The appellant-wife, therefore,
moved an application under Order 1, Rule 10 of the Code of Civil Procedure, seeking her own impleadment in the
eviction proceedings so as to defend the same. This application was rejected by the trial court; hence the wife’s
appeal to the High Court which was allowed. The wife was permitted to be brought on record as a defendant
subject to her depositing a sum of Rs.10,000 towards arrears which she did. The eviction suit was disposed of by
the trial court which ordered partial eviction of the tenants. Feeling aggrieved, the landlord preferred a revision
petition in the High Court. The High Court held that there is no relationship of landlord and tenant between the
landlord and the ‘wife’ (appellant); that tenancy vested only in the ‘husband’ who had given away the contest.
Accordingly, the order of partial eviction was set aside and an order of eviction under section 21(1) (a) of the
Karnataka Rent Control Act, 1961, made. The appellant wife, thereupon, filed the present appeal by special leave.
The husband did not file any appeal.

The main issue for determination was as to the deserted wife’s right to contest the eviction suit. A Hindu wife is
entitled to be maintained by her husband; she is also entitled to remain under his roof and protection; and also
separate residence if by reason of the husband’s conduct or by his refusal to maintain her in her own place or
residence, or for other just cause, she is compelled to live apart from him. Right of residence is a part and parcel of
wife’s right to maintenance. This has been statutorily recognised by section 18 coupled with section 3 (b) of the
Hindu Adoptions and Maintenance Act. As to wife’s right to maintenance (which includes residence) vis-a-vis the
provisions of the Rent Control law, the latter makes provision for protection of tenant not only for his own benefit but
also for the benefit of all those who are entitled to reside therein. A decree or order for eviction would deprive not
only the tenant of such protection but members of his family (including the spouse) will also suffer eviction. So long
as the tenant defends himself, the interests of the family members merges with that of the tenant and they too are
protected. The tenant cannot, by collusion or by deliberate prejudicial act, give up the protection of the law to the
detriment of his family members. According to the court, so long as a decree of eviction has not been passed, the
members of the family are entitled to come to the court and seek leave to defend and thereby contest the
proceedings and such leave may be granted by the court if the court is satisfied that the tenant was not defending
by collusion, connivance or neglect-or was acting to the detriment of such persons. While no Indian authority on the
point of wife’s right to contest eviction proceedings was brought to notice, the court referred to various English
authorities on the point. On the issue of a wife’s right to residence in the matrimonial home, the Court referred to a
few cases. Dr. Abdur Rahim Undre v. Padma Abdur Rahim Undre,9 is significant. The marriage between the parties
was subsisting in law but broken down irretrievably. The husband filed a suit, inter alia, for injunction, restraining the
wife from entering the matrimonial house. The Court held that an injunction subject to certain terms and conditions
could be granted. The parties, on account of seriously estranged relations between them could not be forced to live
together. The flat was big enough to allow the parties to live there separately. The Court earmarked separate
portions for the husband and the wife to live separately and restrained the wife from entering the portion in
occupation of the husband who was an eminent surgeon, so that he could have peace of mind to enable him to
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discharge his duties as a surgeon. In addition, the husband was directed to pay a certain amount of money by way
of maintenance to the wife.

In Bharat Heavy Plates and Vessels Ltd.,10 the husband was an employee in a company and was allotted a quarter
in which he lived with his wife and children. When differences developed between the spouses, the husband left the
company quarter and also wrote to the company to terminate the lease which was in his favour. Apprehending
eviction, the wife went to court for protection seeking injunction restraining company from evicting her and the
children, which was granted. The High Court upheld the order. It held that the quarter was meant to be used by the
employee husband who was under an obligation to provide shelter to the wife and children. The husband and the
company had both recognised the quarter to be the matrimonial home wherein the wife too was residing. The
amount of rent was directed to be deducted from the salary of the husband.

After referring to the above mentioned cases and a few more, the court held that a deserted wife, who has been or
is entitled to be in occupation of the matrimonial home, is entitled to contest the suit for eviction filed against her
husband in his capacity as tenant subject to satisfying two conditions, viz., (i) that the tenant has given up contest or
is not interested in contesting the suit and such giving up by the tenant-husband shall prejudice the deserted wife
who is residing in the premises, and (ii) the scope and ambit of the contest or defence by the wife would not be on a
footing higher or lower than that of the tenant himself.

So long as, by availing the benefit of the provisions of the Transfer of Property Act and rent control legislation, the
tenant would have been entitled to stay in the tenancy premises, the wife too can continue to stay exercising her
right to residence as a part of right to maintenance, subject to compliance with all such obligations including the
payment of rent to which the tenant is subject. This right of the wife, however, comes to an end with the wife losing
her status as wife consequent upon decree of divorce and the right to occupy the house as part of right to
maintenance coming to an end. The Court remarked (at p. 995):

In the present case, during the pendency of the eviction proceedings in the High Court, a decree of dissolution of
marriage by mutual consent was passed on December 3, 1998. The terms and conditions of such settlement have
not been brought on record by the appellant wife. It is not the case of the wife that she is entitled to continue her
residence in the tenanted premises by virtue of an obligation incurred by her husband to provide residence for her
as a part of maintenance. Consequently, it was held that she cannot be allowed to prosecute the appeal and defend
her right against the claim for eviction made by the landlord.

(7) Capt Suneel v. Union of India11. AIR 2004 Del 95 [LNIND 2003 DEL 826].

Note.— Can an army officers’ wife claim maintenance under the provisions of the Army Act even while she has a
remedy under section 125 of the Cr.P.C. and section 24 of the Hindu Marriage Act, 1955?
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An army officer’s wife has a right to claim maintenance under the provisions of the Army Act even while she has a
remedy under section 125 of the Cr.P.C. and section 24 of the Hindu Marriage Act.

The parties were married in 1995, but after some time their relations strained and in 2001, the husband filed a
petition for divorce under section 13 of the Hindu Marriage Act. The wife, on the other hand, filed criminal
complaints under sections 406 and 498A of the IPC, against the petitioner husband and his parents and a case was
registered. She also made an application to the Army Commander, Headquarters, for grant of maintenance
allowance. After hearing the husband, the Army Commander (AC) made an order sanctioning deduction of 22%
from the pay of the petitioner towards wife’s maintenance. Against this, the husband filed the present writ petition.

The husband’s contentions in appeal were that:

(i) he never neglected to maintain the respondent;

(ii) he had made sufficient provision by depositing sum of Rs. 2 lacs in fixed deposit out of which she has
fraudulently withdrawn Rs. 1 lac;

(iii) she is having her own income of Rs. 5,000 per month;

(iv) the respondent, instead of making an application for maintenance under section 125 Cr.P.C., or under
section 24 of Hindu Marriage Act in the proceedings for divorce, made an application to the AC for grant of
maintenance, and,

(v) the General Officer Commanding-in-Chief (one of the respondents) has passed the order for deduction at
the rate of 22% from his pay and allowances without considering the merit of the case and
recommendations of the commanders in the charge of command.

The respondents sought to justify the impugned order. There was only one significant issue to be decided. The
court held that the powers to grant maintenance under the Army Act are independent of the provisions of the
Cr.P.C. (section 125), and section 24 of the Hindu Marriage Act. Section 90 (i) of the Army Act makes provision for
deductions from pay and allowances of an officer of any sum required by order of the Central Government or any
prescribed officer to be paid for the maintenance of his wife or his legitimate or illegitimate child. In terms of Rule
193 of the Army Rules, the prescribed officer for purposes of clause (i) of section 90 is the Chief of the Army Staff or
the officer commanding the Army. Further, Army Order 23 /94 provides a detailed procedure to be observed before
ordering for deductions of any amount from the pay and allowances of an officer. In view of all these provisions and
rules, the wife was held not to be debarred from claiming maintenance by making application to the Army
authorities.

The Army Order 23 /94, ensures, inter alia, that on account of the deductions, the officer concerned is not put to
undue financial hardship; hence a ceiling is provided which is 22% in respect of wife and in no case the amount of
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maintenance allowance sanctioned to the wife and/or child is to exceed 30% of the officer’s pay and allowances. In
this case, deduction of 22% per month were allowed. However, in view of arrears the monthly amount calculated for
deductions to clear the arrears was far above 33% (it was about 42.6%) which is not permissible. This mistake was
rectified; consequently, in order to compensate the petitioner for overpayment, further deductions from pay and
allowances were directed to be paid at a reduced rate till the amount paid in excess is liquidated. Other than that,
the husband’s petition was dismissed.

(8) Chand Dhawan v. Jawaharlal Dhavan12. (1993) 3 SCC 406 [LNIND 1993 SC
485] : (1993) II DMC 110.

Note.— When there is no decree under the Act (Hindu Marriage Act, 1955) there can be no order for maintenance.

The parties were married in 1972 and had three children. In 1985, a petition for divorce by mutual consent was filed
in the court purported to have been filed jointly by the two spouses. The petition was kept pending as per the
requirement of section 13B. On coming to know of the petition, the wife filed objections. According to her, she never
consented to the divorce and the husband had duped her in obtaining her signature on blank papers on a false
pretext, which he used in the petition. Some understanding was arrived at under which the wife agreed to join the
husband. The parties gave a joint statement to that effect and the divorce petition was got dismissed. Barely three
months later, the husband filed a divorce petition on several grounds. The wife filed an application under section 24
for litigation expenses and maintenance pendente lite, which was granted. Since the husband created obstacles in
such payment, the divorce proceedings were stayed under orders of the High Court of Allahabad.

The wife then filed a petition under section 25 for grant of permanent alimony on the ground that she was facing
starvation, whereas the husband was a multi-millionaire. She also filed a petition under section 24 for maintenance
pendente lite and litigation expenses. The Additional District Judge allowed her petition and granted a sum of Rs.
6,000 as litigation expenses and Rs. 2,000 per month as maintenance pendente lite from the date of application.
The husband filed a revision petition against it in the High Court. The wife also approached the court seeking
enhancement of the amount. Both the revision petitions were referred to a larger Bench. The objection of the
husband that an application under section 25 of the Act was, in the facts and circumstances of the case, not
maintainable, was sustained. It was held that the matrimonial court having not passed any decree under the Act,
there could be no order under section 24 or 25 of the Act. The wife thereupon filed an appeal before the Supreme
Court. The issue was whether the words ‘any decree’ in section 25 includes an order of dismissal of petition. The
court referred to several cases. Some courts held that permanent alimony can be granted only when any decree is
passed and relief sought is given, if the relief is not granted, then it means that there is no decree and in such
situation maintenance cannot be awarded. On the other hand, there were cases where it was held that the words
‘passing any decree’ imply both the allowing and dismissal of the petition. After analysing all the cases, the Apex
Court in the present case came to the conclusion that the wife’s application for maintenance was not maintainable.
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The divorce petition was dismissed as the wife withdrew her consent. According to the court, an order of dismissal
of petition does not disturb the marriage nor confer or take away any legal character or status.

The court remarked:

The wife’s claim, in such a situation, can be agitated under the Hindu Adoptions and Maintenance Act, 1956,
according to the court, since section 18(1) of this Act entitles her to maintenance even without any disruption in her
marital status. It observed:

[Sections 30 and 31 J&K Hindu Marriage Act, 1955 (Corresponding to sections section 24 and 25 Hindu Marriage
Act, 1955)].

(9) Danial Latifi v. Union of India13. (2001) 6 SCALE 537 [LNIND 2001 SC 2181] :
AIR 2001 SC 3958 [LNIND 2001 SC 2181]: (2001) 7 SCC 740 [LNIND 2001 SC
2181].

Note.— Constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986, was challenged in
this case.

The constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986 was challenged on the
ground that it infringed Articles 14, 15 and 21 of the Constitution. The Act was passed after the Supreme Court
decision in the Shah Bano case, with the intention of making the decision in Shah Bano ineffective. The court in that
case had held that if the divorced woman is able to maintain herself, the husband’s liability ceases with the
expiration of the period of iddat, but if she is unable to maintain herself after the period of iddat, she is entitled to
have recourse to section 125 of the Cr.P.C. As stated in the Objects and Reasons of the Bill:

The decision has led to some controversy as to the obligation of the Muslim husband to pay maintenance to the
divorced wife. Opportunity has, therefore, been taken to specify the right which a Muslim divorced woman is entitled
to at the time of divorce and to protect her interests. The Bill accordingly provides for the following among other
things, namely:

(a) A Muslim divorced woman shall be entitled to a reasonable and fair provision and maintenance within the
period of iddat, by her former husband and in case she maintains the children born to her before or after
her divorce, such reasonable provision and maintenance would be extended to a period of two years from
the dates of birth of the children. She will also be entitled to mahr or dower and all the properties given to
her by her relatives, friends, husband and the husband’s relatives. If the above benefits are not given to her
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at the time of divorce, she is entitled to apply to the magistrate for an order directing her former husband to
provide for such maintenance, the payment of mahr or dower or the delivery of the properties.

(b) Where a Muslim divorced woman is unable to maintain herself after the period of iddat, the magistrate is
empowered to make an order for the payment of maintenance by her relatives, who would be entitled to
inherit her property on her death, according to Muslim law, in the proportions in which they would inherit
her property. If any one of such relatives is unable to pay his or her share on the ground of his or her not
having the means to pay, the magistrate would direct the other relatives who have sufficient means to pay
the shares of these relatives also. But where a divorced woman has no relatives or such relatives or any
one of them has not enough means to pay the maintenance, or the other relatives who have been asked to
pay the shares of the defaulting relatives also do not have means to pay the shares of defaulting relatives,
the magistrate would order the state Wakf Board to pay the maintenance ordered by him or the shares of
the relatives who are unable to pay.

These above-mentioned provisions have been enacted in sections 3 and 4 of the Muslim Women (Protection of
Rights on Divorce Act), which were challenged in this writ petition. The main grounds for challenge were:

(i) Section 125 of the Cr.P.C. is a provision made in respect of women belonging to all religions and exclusion
of Muslim women from the benefits of this section would be discrimination between women and women.

(ii) Apart from gender injustice caused in the country, this discrimination further leads to a monstrous
proposition of nullifying a law declared by this court in Shah Bano’s case. Thus there is a violation of not
only equality before law, but also equal protection of laws and inherent infringement of article 21 as well as
basic human values.

(iii) If the object of section 125, Cr.P.C., is to avoid vagrancy, the remedy thereunder cannot be denied to
Muslim women.

(iv) The Act is un-Islamic, unconstitutional and it has the potential of suffocating the Muslim women, and it
undermines the secular character which is the basic feature of the constitution.

(v) There is no rhyme or reason to deprive the Muslim women from the applicability of the provisions of section
125, Cr.P.C., and consequently, the present Act must be held to be discriminatory and violative of article
14 of the Constitution.

(vi) The conferment of power on the magistrate under sub-section (2) of section 3 and section 4 of the Act is
different from the right of a Muslim woman like any other woman in the country, to avail of the remedies
under section 125, Cr.P.C., and such deprivation would make the Act unconstitutional, as there is no nexus
to deprive a Muslim woman from availing the remedies under section 125, Cr.P.C., notwithstanding the fact
that the conditions precedent for availing of the said remedies are satisfied.

In support of the constitutional validity of the Act, the following arguments were offered:
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(i) Where a question of maintenance arises which forms part of the personal law of a community, what is fair
and reasonable is a question of fact in that context. Under section 3 of the Act, it is provided that a
reasonable and fair provision and maintenance to be made and paid by her former husband within the
iddat period would make it clear that it cannot be for life, but would only be for period of iddat and when
that fact has clearly been stated in the provision, the question of interpretation as to whether it is for life or
for the period of iddat would not arise.

(ii) Challenge raised in this petition is dehors the personal law. Personal law is a legitimate basis for
discrimination, if at all, and therefore, does not offend article 14 of the Constitution.

(iii) If the legislature, as a matter of policy, wants to apply section 125, Cr.P.C., to Muslims, it could also be
stated that the same legislature can, by implication, withdraw such application and made some other
provision in that regard. Parliament can amend section 125, Cr.P.C., so as to exclude them and apply the
personal law, and the policy of section 125, Cr.P.C., is not to create a right of maintenance de hors the
personal law.

(iv) In Shah Bano’s case, it has been held that a divorced woman is entitled to maintenance even after the
iddat period from the husband, and that is how Parliament also understood the ratio of that decision. To
overcome the ratio of the said decision, the present Act has been enacted and section 3(1) (a) is not in
discord with the personal law.

(v) The aim of the Act is not to penalise the husband but to avoid vagrancy and in this context, section 4 of the
Act is good enough to take care of such a situation, and that social ethos of Muslim society spreads a
wider net to take care of a Muslim divorced wife and not at all dependent on the husband.

(vi) The interpretation to be placed on the enactment should be in consonance with the Muslim personal law
and also meet a situation of vagrancy of a Muslim divorced wife, even when there is a denial of the remedy
provided under section 125, Cr.P.C., and such a course would not lead to vagrancy since provisions have
been made in the Act. This court will have to bear in mind the social ethos of Muslims, which are different,
and the enactment is consistent with law and justice.

(vii) The Parliament enacted the impugned Act respecting the personal law of Muslims, and that itself is a
legitimate basis for making a differentiation; that a separate law for a community on the basis of personal
law applicable to such community, cannot be held to be discriminatory.

(viii) The personal law is now being continued by a legislative enactment and the entire policy behind the Act is
not to confer a right of maintenance, unrelated to the personal law.

(ix) The Act resolves all issues, bearing in mind the personal law of the Muslim community and the fact that the
benefits of section 125, Cr.P.C., have not been extended to Muslim women, would not necessarily lead to
a conclusion that there is no provision to protect the Muslim women from vagaries and from being a
destitute. Hence the Act is not invalid or unconstitutional.
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The court analysed the Shah Bano judgment and the provisions of the Muslim Women (Protection of Rights on
Divorce) Act in detail, and conceded that the Act appears to be, prima facie, violative of Article 14 of the
Constitution which mandates equality and equal protection of law to all persons, and also Article 15 which prohibits
discrimination on grounds, inter alia, of religion. It, however, observed that the validity or otherwise of a statute
would depend on the interpretation of the same and the court decided to interpret it in a manner so as to uphold the
validity of the Act on the ground that ‘the legislature does not intend to enact unconstitutional laws’.

According to the court, section 3 of the Muslim Women (Protection of Rights on Divorce) Act lays down two
separate and distinct obligations on the part of the husband, viz. (i) to make a reasonable and fair provision for his
divorced wife, and (ii) to provide maintenance for her. The emphasis is not on the nature of duration of any such
provision or maintenance, but on the time by which an arrangement for payment of provision and maintenance
should be concluded, namely, ‘within the iddat period’. Such interpretation, according to the court, would have the
effect of excluding from liability for post-iddat period, maintenance by a husband who has already discharged his
obligations of both ‘reasonable and fair provision’ and ‘maintenance’ by paying these amounts in a lump sum to his
wife in addition to having paid her mahr and restored her dowry as per section 3(1) (c) and 3(1)(d) of the Act.

The court held that the Muslim Women (Protection of Rights on Divorce) Act actually and in reality codifies what
was stated in Shah Bano.

While upholding the validity of the Act, the court summed up its conclusions as follows:

(i) A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife, which
obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the
iddat period must be made by the husband within the iddat period in terms of section 3(1) (a) of the Act.

(ii) The liability of a Muslim husband to his divorced wife arising under section 3(1) (a) of the Act to pay
maintenance is not confined to the iddat period.

(iii) A divorced Muslim woman who has not remarried and who is not able to maintain herself after the iddat
period can proceed as provided under section 4 of the Act against her relatives who are liable to maintain
her in proportion to the properties which they inherit on her death, according to Muslim law, from such
divorced woman, including her children and parents. If any of the relatives being unable to pay
maintenance, the magistrate may direct the state Wakf Board established under the Act to pay such
maintenance.

(iv) The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India.

Thus, without striking down the Act as ultra vires, the court construed it in a manner which will remove
discrimination and hardship to a divorced Muslim wife and ensure her financial security not only during, but also
beyond the iddat period until she remarried.
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(10) Madhavi Ramesh Dudani v. Ramesh K. Dudani14. AIR 2006 Bom 94 [LNIND
2005 BOM 1163].

Note.— Where a born Catholic Christian converts to Hinduism before marriage, is proof of performance of "Shudhi
Karan" ceremony essential for valid Hindu marriage?

The wife, a born Christian but later converted to Hinduism, and the husband a Hindu, were married according to
Hindu rites under the Hindu Marriage Act, 1955. Two daughters were born who were given Hindu names; the wife
participated in all Hindu religious ceremonies and Pujas and was living with her husband in the Hindu family for
more than eight years. When differences cropped up the wife filed a petition, inter alia, for judicial separation. The
husband filed a suit for declaration that the marriage was void since the wife was not a Hindu prior to the marriage
and that she had not converted to Hinduism any time prior to the marriage. The family court judge accepted this
contention and held that he had no jurisdiction to entertain the wife’s petition for judicial separation, nor the one filed
by the husband seeking declaration of nullity since neither of these petitions were maintainable under the Hindu
Marriage Act. Against this the wife filed the present appeal. The court held that the marriage between the parties
cannot be said to be void merely for want of shudhi karan ceremony, i.e. conversion to Hinduism before marriage. It
can be presumed that the priest must not have performed the marriage without conversion. As to the relief, the
court held that the marriage had clearly irretrievably broken down due to acts of cruelties by both parties. In the
circumstances, it would be of no use to confine the relief only to judicial separation. Consequently, instead of
judicial separation sought by the wife, counter-claim of divorce filed by the husband was decreed and the marriage
between the parties was dissolved after making appropriate arrangement for alimony and house for the wife and
education and marriage expenses of daughters.

(11) Malti Roy Chowdhary v. Sudhindra Nath Majumdar15. AIR 2007 Cal 4
[LNIND 2006 CAL 526].

Note.— A married Hindu woman cannot adopt without express consent of husband.

This was a property dispute which centred around the issue of validity of adoption of the appellant by the deceased
estate owner. The appellant ‘M’ had applied for grant of Letters of Administration under section 278 of the Indian
Succession Act, 1925 in respect of the estate of T, as the sole heiress. She claimed this right as the adopted
daughter of T. The trial court, after considering the oral and documentary evidence held that the appellant M, was
not the adopted daughter and so dismissed her application. Against this she filed the appeal. On behalf of the
appellant it was argued that there was overwhelming evidence to indicate adoption, like proof of ceremony of
adoption, natural parents handing over the child M- who was two years old at that time—in the presence of T’s
husband and the priest; acknowledgement and acceptance by T that M was her daughter in school records, M
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APPENDIX I DIGEST OF SELECTED CASES

lighting the funeral pyre of T and later performing her shradh ceremony, M looking after T’s estate, and so on. It was
also pointed out that when the adoption took place T’s husband was present and no objection was raised by him
thereby implying his consent. The High Court, however, did not accept the argument of valid adoption since, under
the provisions of the Hindu Adoptions and Maintenance Act the husband alone had the authority to adopt. It
observed:16

The Court relied on two rulings in support of its decision viz-Dashrath Ramchandra Khairnar v. Pandu Chila
Khairnar 17 and Lalitha Ubhyakar v. Union of India. 18 In the former, an adoption was held to be invalid even
though the husband had, by executing an agreement, consented to his wife’s adopting a son. In Lalitha Ubhyakar
the validity of section 8 (capacity of a female Hindu to take in adoption) was challenged as being violative of Article
14 of the Constitutor (equality). The court however, upheld the validity of the section.

Thus, the Calcutta High Court in Malti Roy Chowdhary held that the case of adoption sought to be made by the
appellant was not proved as the husband of T never took any initiative in this regard—he was only present when M
was handed over to his wife T and that by itself does not confer validity to the adoption, the court held. However,
since M was well acquainted with the estate and was staying in the house of the deceased T, she can certainly
administer properties left by T, but without any heritable or other interest therein. The court clarified further that it
would be open for heirs or legal representatives of the deceased to apply for removal of the appellant M, if such
situation arises.

(12) Mangala Bhivaji Lad v. Dhondiba Rambhau Aher19. AIR 2010 Bom 122
[LNIND 2010 BOM 400].

(JJ. A.P. DESHPANDE and Smt. R.P. SONDURBALDOTA)

Note.— Right of maintenance of a wife of void marriage.

The case involved the issue of maintenance for a wife whose marriage was void as she had married a man who
already had a wife. The parties went through a marriage ceremony, got the marriage registered and stayed together
for 17 years. Thereafter the husband filed a petition in the Family court for, inter alia, a declaration that the marriage
was null and void under section 5 (i) coupled with section 11 of the Hindu Marriage Act, 1955. The wife resisted the
petition on grounds that the husband had concealed his earlier marriage; and that there was a proper marriage
between her and the petitioner which was registered. She also sought provision for separate residence and
permanent alimony under section 18 of the Hindu Adoptions and Maintenance Act. The Family Court found that the
marriage was void but refused the declaration to that effect in view of section 23 (a) and (d) of the Hindu Marriage
Act on the ground that the husband cannot be allowed to take advantage of his own wrong. He, however, refused to
grant any maintenance on the ground that the marriage being void, she is not entitled to maintenance under section
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25 of the Hindu Marriage Act, nor under section 18 of the Hindu Adoptions and Maintenance Act. Hence the wife’s
appeal. The Family Court order was assailed on the following grounds:

(i) Since the Family Court declined to declare the marriage as null and void, her status as a ‘wife’ is not
affected and hence she has a right to maintenance.

(ii) The term ‘wife’ has not been defined anywhere, so there cannot be a restrictive meaning attached to it
thereby depriving her of a right to claim maintenance, which is a provision for social justice and protection.

(iii) The narrow interpretation of the provision of maintenance under section 25, Hindu Marriage Act, read with
section 24 of the Act, may render section 23 ineffective.

The court refused to accept any of these arguments. It held that a marriage which is void ipso jure does not require
a declaration to that effect. Absence of such declaration does not, by default, give her the status of legally wedded
wife. The expression ‘wife’ means a legally wedded wife only in terms of the law applicable to the parties. As for
Hindus, the law relating to marriage is codified by the Hindu Marriage Act and therefore unless the marriage is valid
under the provisions of that Act, the parties entering into such a marriage cannot describe themselves as "husband"
and "wife" for purpose of application of different statutes or for deriving the benefits available thereunder.

The argument that section 18 of the Hindu Adoptions and Maintenance Act entitles a Hindu wife, whether married
before or after the commencement of their Act, to maintenance by her husband even upon living separately, "if he
had another wife living" was also repelled by the court. It held that the expression "any other wife" means any other
legally wedded wife, i.e. where both marriages had taken place prior to the Hindu Marriage Act when second
marriage was legal.

As regard the contention that the Hindu Adoptions and Maintenance Act is a piece of beneficial legislation and
should be liberally construed the court held that while a provision may be liberally construed but liberality cannot
overstep legislative limits of interpretation putting into the legislation something which is not there. The counsel for
the wife sought relief by referring to a judgment of the Delhi High Court in Narinder Pal Kaur v. Manjit
Chawla,20wherein a wife of a void marriage was given maintenance in exercise of inherent powers of the court
under section 151 of the Civil Procedure Code. This plea was also turned down by the court. It observed:

The wife’s appeal was accordingly dismissed. It may be mentioned that in this case the court also found that firstly,
the claimant knew about the husband’s earlier marriage when she entered into the marriage with him and secondly,
she had sufficient income and means of support, of her own.

(13) Manish Goel v. Rohini Goel21. AIR 2010 SC 1099 [LNINDORD 2010 SC
251]: (2010) 4 SCC 393 [LNINDORD 2010 SC 251].
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(AFTAB ALAM and Dr. B.S. CHAUHAN, JJ.)

Note.— Divorce by mutual consent under section 13 -B, (HMA) waiver of six months period, Court will exercise
jurisdiction under Article 142 of Constitution only in exceptional circumstances.

This is a significant judgment of the Apex Court where it has clarified that extra-ordinary powers vested in it under
Articles 136 and 142 of the Constitution can be exercised only under exceptional circumstances and nobody has a
vested right to approach the court for this. To state the facts in brief. Two highly qualified spouses fell out very soon
after marriage. The husband filed a case under section 12 of the Hindu Marriage Act for annulment of the marriage
at Gurgaon, and the wife filed petitions under the Domestic Violence Act, 2005 (Protection of Women Against
Domestic Violence Act, 2005) at Delhi she also lodged several complaints against him and his family members
under various provisions of the Indian Penal Code. However, on the intervention of family members and friends
they arrived at a compromise in proceedings pending before the Mediation Centre whereby they agreed to settle all
their disputes and have their marriage dissolved by mutual consent. Consequently, an application for divorce by
mutual consent under section 13 -B(1) of the Hindu Marriage Act was filed in the Family Court at Delhi and their
statement was recorded. However, they moved another application for waiver of the six months period for filing the
second motion which was rejected by the Family Court on the ground that it was not competent to do so and such
waiver is permissible only under directions of the Supreme Court vide judgment in Anil Kumar Jain v. Maya Jain.22
Thereupon a special leave petition was filed by the petitioner/appellant in the Supreme Court where it was argued
that there is no prohibition in law in entertaining the present petition under Article 136 of the Constitution against the
order of the Family Court and further that the relief sought could be granted only by the Supreme Court, hence he
has a right to approach this court for the relief. The court expressed its unhappiness in the manner in which the
matter was handled and argued. The court observed: " the parties merely being highly qualified, have claimed even
to be higher and above the law, and have a vested right to use, misuse and abuse the process of the court." (at
1100) During pendency of petition for dissolution of marriage before a competent court at Gurgaon they filed a
petition for divorce by mutual consent before the family court in Delhi. "Such a procedure adopted by the petitioner
amounts to abuse of process of the court" the court remarked. As to the jurisdiction under Article 136 of the
Constitution the court stated that it is an extra-ordinary jurisdiction vested by the Constitution in the court and
therefore extra-ordinary care and caution has to be observed while exercising it. No party has a vested right to
invoke this. Such a course can be resorted when there is some injustice done which needs to be eradicated or
there is a question of law of general public importance. In other words, "unless it is shown that exceptional and
special circumstances exist that substantial and grave injustice has been done and that the case in question
presents features of sufficient gravity warranting review of the decision appealed against, such exercise should not
be done". (at 1101) Such power cannot be used to ‘short circuit’ the legal procedure prescribed in overriding power,
the court observed.

Exercise of special powers under Article 142 of the Constitution was sought as, according to the appellant, the case
presents special features warranting exercise of such power. The court conceded that it has been exercising such
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power for dissolving a marriage which is "totally unworkable, emotionally dead, beyond salvage and has broken
down irretrievably, even if the facts of the case do not provide a ground in law on which the divorce could be
granted. Divorce decree has been granted to put quietus to all litigations between the parties and to save them from
further agony". In support of this, the court referred to various of its judgments.23The court however stated that
generally, no court has competence to issue a direction contrary to law nor can it direct an authority to act in
contravention of statutory provisions. Courts are meant to enforce the rule of law and not pass orders or directions
which are contrary to what has been injected by law. In sum, the court held that in exercise of the power under
Article 142 of the Constitution, this court generally does not pass an order in contravention of or ignoring statutory
provisions nor is the power exercised merely on sympathy.

In this case, the petitioner abused the process of the court by approaching different forums for the same relief; even
otherwise, the court held, the statutory period of six months for the second motion under section 13 -B(2) has been
prescribed to give an opportunity to the parties to rethink. Further, in this case there has been no obstruction to the
stream of justice, nor any injustice caused which requires to be eradicated, nor even any question of general public
importance involved. Since none of the above contingencies existed in this case, the court refused to entertain the
petition. The same was, accordingly, dismissed.

(14) Manisha Sandeep Gade v. Sandeep Vinayak Gade24. AIR 2005 Bom 180
[LNIND 2004 BOM 1054].

Note.— Can divorce be granted on ground of cruelty on basis of allegations made by respondent in the written
statement?

The parties were married in December 1997, but stayed together for hardly two years as differences developed
between them. There was no child of the marriage. Both were working—wife was self-employed with monthly
income of Rs. 6,000 and the husband, a teacher with salary of Rs. 3,000. The husband filed a petition for divorce
under section 13(1) (i) on the ground of cruelty and the wife filed a petition seeking permanent maintenance under
section 18 of the Hindu Marriage Act.

The case of the husband was that the wife treated him with cruelty and the following instances were enumerated to
substantiate the case, viz. (i) refusal to do domestic work; (ii) insulting and abusive behaviour; (iii) insistence on
having a separate residence; (iv) not returning home on a number of days every week; (v) threatening and
terrorizing the husband and his parents; (vi) not disclosing that she had some gynecological problem prior to
marriage and concealing her miscarriage. While denying all these allegations, the wife made her own allegation in
the written statement which were, that (i) he behaved with her perversely and harassed her sexually; (ii) he would
indulge in obscene talk with his girl friends on phone and in person and would behave immodestly with the girl
friends to torture her; (iii) he had illicit relationship with one ‘L’, wife of ‘V’, and in fact he wanted to marry her. Apart
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from these allegations against the husband, she made the following allegations against her father-in-law as well,
viz. (i) he would touch her unnecessarily; and (ii) he would barge into the kitchen if she was changing her clothes.

On analysing the evidence, the family court judge came to the conclusion that the husband had failed to establish
the six specific instances of cruelty. He, however, stated that the allegations made by the wife in the written
statement were baseless and amounted to cruelty. As to her allegation about the illicit relationship with L, there was
no other evidence except her own bare words in the affidavit. In fact it was her duty to examine L’s husband V
which was not done. Likewise, no details about her allegations against the father-in-law were given. Thus, a decree
of divorce was granted in favour of the husband. As to the wife’s entitlement to alimony under section 25 of the
Hindu Marriage Act, the court noted that the wife’s income was more than the husband’s and so she was not
entitled to permanent alimony. As far as the wife’s petition for maintenance under section 18 of the Hindu Adoptions
and Maintenance Act was concerned, the court held that since the marriage was being dissolved, the wife could not
claim relief under section 18, as sub-section (1) of section 18 gives right of maintenance to a Hindu wife whose
marriage is subsisting. The section also provides for the right of residence to a wife, which, however, would be
available if the husband is guilty of cruelty. That apart, on the facts of the case, the judge was of the view that the
husband did not have such capacity to provide any separate residence, and accordingly dismissed the wife’s
petition under the Hindu Adoptions and Maintenance Act. The wife filed an appeal against these orders; the
husband did not file any cross-objection to the finding of the family court that the six instances of cruelty alleged by
him were not established. The High Court observed that he not having challenged this, it can be taken that he has
accepted that he has failed to establish the allegations of cruelty on those grounds.

The main issue for consideration in the appeal was as to whether the family court was right in granting divorce
merely on the basis of the allegations made by the appellant wife in her written statement. Also, it was contended
on behalf of the wife that the least he should have done was to amend his petition and raise the plea that he had
suffered cruelty in view of the allegations made in the written statement; thereafter specific evidence on that behalf
should have been led before any conclusion was arrived at. In the absence of any such plea being raised by
amending the petition, the respondent should not have been allowed to argue the plea of cruelty merely on the
basis of the allegations made in the written statement, it was argued (at p. 183-emphasis added). On the other
hand, for the husband it was argued that the allegations were so wanton that they had only to be noticed to
examine whether they will constitute cruelty or not. If that was so, the decree of divorce ought to follow inasmuch as
section 13(1) (i-a) of the Hindu Marriage Act speaks of "treating the other party with cruelty". The phrase is wide
enough and would cover a cruel treatment even subsequent to the filing of the petition by making baseless
allegations in the written statement. The High Court analysed the judgments of the Apex Court in V. Bhagat v. D.
Bhagat 25 and Chanderkala Trivedi v. Dr. S.P. Trivedi,26 to come to a finding that where serious allegations are
made in pleadings, the consequent irretrievable breakdown of the marriage, though not a ground by itself, will be a
very important circumstance to be considered while deciding whether divorce should be granted or not. Once such
serious allegations are made, it becomes clear that there is no chance of parties coming together or living together
again. The following observations of the court in V. Bhagat v. D. Bhagat were referred to: (at p. 187)
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APPENDIX I DIGEST OF SELECTED CASES

Likewise, referring to Chanderkala Trivedi (supra) it was stated that once serious allegations are made in the
pleadings of husband and wife, it is obvious that the marriage between the parties is dead and continuing the
litigation further is nothing but an exercise in futility and continuing the agony.

As for allegations in the written statement themselves amounting to cruelty, reliance was placed on Jaishree Mohan
Otavnekar v. Mohan Govind Otavnekar,27Nirmala Manohar Jagesha v. Manohar Shivram Jagesha,28Rajan Vasant
Revanker v. Shoba Revankar,29 for the wife’s argument that it was imperative that an amendment ought to have
been carried out to the petition to contend that the allegations in the written statement constituted cruelty,
Gurbachan Kaur v. Swaran Singh,30Paras Ram v. Kamlesh,31 and Naval Kishore Somani v. Poonam Somani,32
were relied upon.

After analysing the cases referred to by the counsels of both the parties, as also the evidence, facts and
circumstances of the case, the court held that the family court’s order was correct. It was observed (at p. 193):

The court further pointed out that "in a case where the petitioner makes the grievance of cruelty on the basis of
some instances and fails to establish the same but the respondent comes up with serious allegations (such as
adultery, insanity or unchastity) and proves the same, would it not amount by itself to cruelty by the respondent?
Will it be expected of the court to tell the petitioner to amend his petition in view of those allegations in the written
statement and send him back to the trial court when on the face of it those allegations constitute cruelty and
particularly when the respondent produces no credible evidence in support thereof .in a situation like this, the court
will be failing in its duty if the parties are directed to amend the pleadings and again spend much more time in a
retrial where the conclusion is foregone and obvious", the court observed (at p. 193). In any case, in the facts of the
present case, even though no amendment was carried out in the petition, the parties had led their evidence on the
allegations made by the appellant wife. All the findings of the family court were upheld, viz. (i) allegations made by
the appellant wife were baseless and false and constituted cruelty; (ii) petition for maintenance under section 18 of
the Hindu Adoptions and Maintenance Act could not be maintained as divorce was granted; and (iii) no permanent
alimony could be awarded to the appellant wife under section 25 of the Hindu Marriage Act in as much as it was
clearly established that the income of the appellant wife was better than the respondent husband’s.

(15) Manisha Tyagi v. Capt. Deepak Kumar33. AIR 2010 SC 1042 [LNIND 2010
SC 165]: (2010) 4 SCC 339 [LNIND 2010 SC 165].

(V.S. SIRPURKAR and SURINDER SINGH NIJJAR, JJ.)

Note.— On a petition for divorce, middle-path adopted and decree of judicial separation granted so that parties may
once again ponder over in the interest of their child.
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This is a matrimonial case with a chequered history and also indicating element of subjectivity in judicial approach
in the same set of circumstances. Husband, an army officer and wife, an advocate, fell out soon after marriage. The
husband filed a petition for divorce on the ground of cruelty. As instances and examples of cruelty he alleged that
the wife was rude, ill-mannered, quarrelsome and schizophrenic making his life a living hell; she shouted, made
scenes and humiliated him in front of his officers and jawans, made allegations of sodomy against him, and
allegations against his old and infirm father of molesting her. Besides, the husband alleged that she filed various
criminal cases against him which ended either in his acquittal, discharge or were quashed thereby indicating that
these were false. Further, that she hurled filthy abuses on him and his family members, compared him to a barking
dog etc. The husband also complained about her erratic sexual behaviour. All this amounted to extreme mental
cruelty on him, he stated. The wife made equally vile allegations of dowry demand, sodomy, and mental and
physical torture in various ways. In sum, there were innumerable complaints and allegations of all sorts against
each other. Best efforts for reconciliation were made by the court but to no effect. The trial court, on evaluation of
the entire evidence came to the conclusion that even though it is clearly a case where marriage has broken but
under the law as it exists, the marriage cannot be dissolved on the ground of irretrievable breakdown. However he
found that both the parties were at fault and that the husband could not prove that the wife has treated him with
cruelty of the nature so as to entitle him to a decree of divorce. Hence his petition was dismissed. On appeal
against this by the husband, the single judge observed that the wife had crossed the "Lakshman Rekha" and
exceeded all limits of decency when she went to the extent of lodging a false FIR and when she tried to humiliate
him in the eye of his superiors, he also found that both the parties were at fault. However, with the hope that parties
might ponder upon the situation and may be able to re-unite, at least for the welfare of their daughter, the court
adopted a middle path and granted a decree of judicial separation instead of divorce. While the husband accepted
it, the wife went in appeal before the Division Bench which observed:34

This court (Division Bench of the High Court) also observed that even though the marriage had irretrievably broken
but, in the absence of such statutory ground the marriage cannot be dissolved on this ground. It however
proceeded on the basis of allegations a cruelty and was more than convinced that the wife’s behaviour amounted to
mental cruelty of the worst type. Her allegations such as "describing husband as dog and mimicking as animals and
making allegations of sodomy would be enough to say that these amounted to cruelty". Her making complaints and
FIRS ending in his discharge, or acquittal were also construed as cruelty. The court took a very serious view of her
allegation of being molested by her father-in-law "A daughter-in-law making an allegation against her old and infirm
father-in-law of molesting her would certainly be an intolerable behaviour, which can be termed nothing but an act
of immense cruelty for a son" the court observed.

On the basis of all this, the court held that cruelty as alleged by the husband stood proved and consequently, the
single judge order was set aside and a decree of divorce granted to the husband. It is significant to note here that it
was not the husband who had gone in appeal against the grant of decree of separation by the single judge, but the
wife who filed SLP, and yet, the Division Bench granted relief of divorce as initially sought by him as if it was he who
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APPENDIX I DIGEST OF SELECTED CASES

had challenged the decree of separation and appealed for a divorce. However, the wife again went in appeal
against the Punjab and Haryana, Division Bench order and came to the Supreme Court. The Supreme Court held
that the High Court had erred in granting the divorce decree to the husband. The wife had come before it (the
Division Bench) complaining against the grant of decree of separation by the single judge, therefore even if her
appeal had been dismissed, the finding in her favour (that no cruelty was proved by the husband) would have
remained intact. And as mentioned above, the effect of the order passed by the Division Bench is as if an appeal of
the husband against the decree of judicial separation has been allowed. According to the Supreme Court, it was not
a case where it was necessary for the Division Bench to correct any glaring and serious errors committed by the
courts below which had resulted in miscarriage of justice. "In our opinion, there was no compelling necessity,
independently placed before the Division Bench to justify reversal of judicial separation. In such circumstances it
was wholly inappropriate for the Division Bench of the High Court to have granted a decree of divorce to the
husband," the court held (at p. 1050). Thus the order of the Division Bench was reversed and that of the single
judge granting judicial separation, was upheld.

(16) Md. Abdul Zalil Ahmed v. Marina Begum35. AIR 1999 Gau 28 [LNIND 1998
GAU 151].

Note.— Even though divorce by mutual consent is not a ground under the Dissolution of Muslim Marriages Act, yet
decree of divorce in terms of compromise after the wife’s divorce petition under the about Act, can be granted.

A wife filed an application for divorce under the Dissolution of Muslim Marriage Act, 1939. The main grounds for the
relief were husband’s failure to perform without reasonable cause, his marital obligation, and cruelty, i.e. physical
torture and ill-treatment, making her life miserable.

The Act was passed to give certain rights to married women and was not against the tenets of the Quran. The
grounds for dissolution of marriage under section 2 are, inter alia, the husband has failed to perform without
reasonable cause, his marital obligation for a period of three years, the husband treats her with cruelty, that is to
say, habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount
to physical ill-treatment.

After the wife’s petition, both the parties filed a joint petition for a decree ‘in terms of the application filed by the
wife’. The family court, however, did not allow this on the ground that mutual consent was not a ground available
under the Act. Against this the husband went in appeal. The Gauhati High Court allowed the petition. It held that
even though there is no provision for divorce by mutual consent under the Muslim Act of 1939, ‘it should be borne in
mind that the parties can compromise such a matter and a decree may be passed in terms of the compromise if
otherwise it does not militate against the grounds as reinforced in section 2 of the Dissolution of Muslim Marriages
Act, 1939’. (p. 29)
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The husband in this case had already re-married and the wife’s marriage had been fixed up. Without a divorce, she
could not have married again. In view of this, the court held, ‘it will not be just and proper to keep her hanging in air’.

A decree of divorce was accordingly passed.

(17) M.M. Malhotra v. Union of India36. AIR 2006 SC 80 [LNIND 2005 SC 777].

Note.— A husband marrying an already married woman cannot be held guilty of plural marriage but it would
constitute an act involving moral turpitude.

The appellant husband was an officer in the Air Force. He married the complainant in 1973. In 1990, she filed
complaints against the husband alleging that he had illicit relations with another woman; that he tortured her brutally
and also used criminal force on her by slapping, kicking and beating her. She also alleged that he had married the
other woman and had committed the offence of bigamy. It is significant to note that in around 1993, the husband
had filed a suit for a declaration, inter alia, that the complainant was not his wife as she already had a subsisting
marriage on the date they started living as husband and wife. His suit was decreed. The husband’s argument was
that since the marriage with the complainant was null and void vide section 5 (i) read with section 11 of the Hindu
Marriage Act, and no marriage in the eyes of the law, his subsequent marriage was not a case of plural marriage.
This argument was accepted by the authorities and it was held that while the appellant could not be held guilty for
the offence of plural marriage, his conduct overall, was reprehensible and involved moral turpitude. Punishment by
way of order of compulsory retirement, was thus passed. Husband’s appeal against this to the High Court was
dismissed, hence the present appeal.

The court went through the various provisions of the Hindu Marriage Act and cases, to establish that a void
marriage is no marriage in the eye of the law; it also analysed provisions of Air Force Act, 1950 and Air Force Rules
and Regulations. After considering all these as also the facts and circumstances of the case, the Apex Court came
to the conclusion that the appellant’s conduct was highly reprehensible and unbecoming of his position and hence
the punishment of compulsory retirement was not at all disproportionate. The appeal was accordingly, dismissed.

(18) Mohd. Ahmed Khan v. Shah Bano Begum37. AIR 1985 SC 945 [LNIND 1985
SC 145]: (1985) 2 SCC 556 [LNIND 1985 SC 145]. As a consequence of the
strong opposition and criticism of this judgment, the Muslim Women (Protection of
Rights on Divorce) Act, 1986, was passed.
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Note.— What is the extent of a Muslim husband’s liability to maintain his divorced wife under section 125 of the
Code of Criminal Procedure, 1973? This was the issue involved in the case.

Ahmed Khan, an advocate, was married to Bano Begum in 1932 and had five children. They lived together till 1975
in which she was driven out of the house by her husband. In 1978, she filed a petition for maintenance under
section 125 of the Code of Criminal Procedure. As soon as she filed this petition, the husband divorced her ‘by an
irrevocable talaq’. He contended that after divorce he had no obligation to maintain her. The judicial magistrate at
Indore ordered him to pay her ‘a princely sum’ of Rs. 25 per month, even though the wife had alleged that he was
earning Rs. 60,000 per year. On appeal, the Madhya Pradesh High Court raised this amount to Rs. 179.20.
Dissatisfied with this order, the husband went in appeal to the Supreme Court.

The court upheld the wife’s right to maintenance, and imposed costs at Rs. 10,000 on the husband who divorced
his wife and threw her out of the house after 43 years of married life and after they had three sons and two
daughters. It held that the provision for maintenance under section 125 of the Code of Criminal Procedure, 1973 is
not dependant on the religion of either spouse. The husband’s plea that since he had returned to her the whole sum
which, under the personal law applicable to them, was payable after divorce under section 127 of the Code of
Criminal Procedure, 1973 his claim of no further liability was not accepted. According to the court, mahr was an
obligation imposed on the husband as a mark of respect for the wife. It is not an amount in consideration of divorce.
A ‘husband does not divorce her, as a mark of respect’ remarked Chief Justice Chandrachud in his order.

(19) Mr. ‘X’ v. Hospital ‘Z’38. AIR 1999 SC 495 : (1998) 8 SCC 296 .

Note.— An AIDS patient’s right to marry.

The appellant was a medical doctor. In the course of a blood sample test which was conducted for donating blood
to a surgery patient, he was found to be HIV+. After the test, he proposed marriage to Ms ‘Y’, which was accepted
and the marriage was scheduled to take place after about four months. However, the appellant’s HIV+ status was
divulged by the respondent hospital where the tests were done, and the marriage called off. This caused a lot of
embarrassment and he was criticized and ostracized by community. He approached the National Consumer
Disputes Redressal Commission for damages against the hospital on the ground that the information which was
required to be kept secret under the code of medical ethics was illegally disclosed. The petition as also his
application for interim relief were summarily dismissed, and he was asked to approach the civil court.

It was contended in the appeal that the principle of ‘duty of care’ as applicable to medical professionals includes the
duty to maintain confidentiality, and since this duty was violated by the respondent hospital, they are liable to pay
damages.

The court referred to the Hippocratic Oath, the Code of Medical Ethics, the Indian Medical Council Act, 1956 as
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amended in 1964, and the guidelines of the General Medical Council of Great Britain on HIV infection and AIDS. It
came to the conclusion that there is an exception to the rule of confidentiality and disclosure of information is
allowed in public interest. ‘Public interest would override the duty of confidentiality, particularly where there is an
immediate or future health risk to others’, the court said.

It was further contended by the appellant that his right of privacy was infringed by disclosing his HIV+ status. The
court referred to and analysed various cases on the issue and came to the conclusion that the right of privacy is ‘not
absolute and may be lawfully restricted for the prevention of crime, disorder or protection of health or morals or
protections of rights and freedom of others.’ (p. 501)

It held that disclosure in this case was not violative of either the rule of confidentiality or his right of privacy as, if the
marriage had taken place, his wife too would have got infected with the dreadful disease.

Marriage, according to the court, is a sacred union, legally permissible of two healthy bodies of opposite sexes.
Mental and physical health is of prime importance in marriage as one of the objects of marriage is the procreation of
equally healthy children. That is the reason why every system of matrimonial law provides that a spouse can seek
divorce if the other spouse is suffering from any venereal disease. Reference was made to the relevant provisions
under the matrimonial statutes. In the opinion of the court, a person who is suffering from any such disease has no
right to marry so long as he is not fully cured of the disease. That person must be injuncted from entering into
marital ties so as to prevent him from spoiling the health and, consequently, the life of an innocent woman. (p. 502)

A person’s right to marry cannot be accepted in absolute terms. As long as he/she is not cured of the disease, the
right to marry cannot be enforced through a court of law and shall be treated as a ‘suspended right’.

In this case there was a clash of fundamental rights between the appellor and Ms Y2, viz. the former’s right to
privacy and the latter’s right to lead a healthy life which is a fundamental right under Article 21. The court held that
‘the right which would advance the public morality or public interest, would alone be enforced though the process of
court for the reason that moral consideration cannot be kept at bay and the judges cannot be expected to sit as
mute structures of clay in the Hall known as court room, but have to be sensitive, in the sense that they must keep
their fingers firmly upon the pulse of the accepted morality of the day’ (p. 503)

The appeal was accordingly dismissed.

(20) Mr. ‘X’ v. Hospital ‘Z’39. AIR 2003 SC 664 [LNIND 2002 SC 785]: (2003) 1
SCC 500 [LNIND 2002 SC 785].
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Note.— An AIDS patient cannot be debarred from marrying provided the other person has given his/her informed
consent.

This judgment is a sequel to the earlier judgment (AIR 1999 SC 495 : (1998) 8 SCC 296 ) on AIDS patient’s right to
marriage and confidentiality. The Three-Judge Bench overruled its earlier judgment on whether there is a complete
bar for marriage if a healthy spouse gives an informed consent to marriage with a spouse found to be HIV+. It held
that the court in its earlier order had gone further than was warranted by declaring generally as to what right and
obligations arise in such context, as right to privacy and confidentiality or whether such persons are entitled to be
married or not, or in the event such persons marry they would commit an offence under law, or whether such right is
suspended during the period of illness.

It, however, reiterated the basis of its earlier decision and held that a person’s right to privacy was not affected in
any manner by revealing his HIV+ status to the relations of his fiance.

(21) Y. Narasimha Rao v. Y. Venkata Lakshmi40. (1991) 2 SCALE 1, (1991) 3

Note.— Does non-contest by a spouse of divorce petition filed by the other in a foreign court imply consent and
submission to the jurisdiction of that foreign court?

The parties were married in Tirupati, in 1975. They were separated in 1978. The appellant husband had obtained a
decree for dissolution of marriage from the Circuit Court of St Louis County, Missouri, USA, in 1980. The wife’s
participation in the proceedings before the American court seem to be confined to her replies that she was not
submitting to its jurisdiction. Throughout the proceedings, she remained ex parte and the American court passed a
decree of divorce in her absence.

Thereafter, the husband remarried in India. The wife (first wife) filed a criminal complaint charging him of bigamy.
The trial court dismissed her case in view of the divorce he had obtained. She then filed a criminal revision petition
to the High Court which set aside the Magistrate’s order on the ground that he had acted on the photostat copy of
the divorce order. The Magistrate was directed to dispose of the petition filed by the appellant (non-complainant) for
their discharge afresh, in accordance with law. An appeal to the Apex Court was filed against this order. The appeal
raised important issues—if the Indian courts recognise the foreign decree, the second marriage of the appellant
would be valid in India; if not the husband would be liable for bigamy under the IPC. Besides, non-recognition of the
decree would mean that the appellant and the respondent would continue to have the legal status of husband and
wife in India whilst under the Missouri laws in the U.S.A., they would be divorced.

The court surveyed the development of rules of private international law which are not codified but are scattered in
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different statutes and judicial pronouncements. It lamented that the labours of the Law Commission which made
significant recommendations on the issue in its 65th Report in 1976, have not fructified. It emphasised the need for
guidelines and certainty on the issue of recognition of foreign divorces. It said (at p. 5):

Making a beginning in this direction, the court held that the relevant provisions of section 13 of the Code of Civil
Procedure, 1908,*41 are capable of being interpreted in a manner which will secure certainty in conformity with
public policy, justice, equity and good conscience. ‘The rules so evolved will protect the sanctity of the institution of
marriage and unity of family which are the cornerstones of our societal life,’ the court remarked (at p. 5). It analysed
each clause of the section to substantiate its view. Thus, clause (a), which refers to a court of competent
jurisdiction, should be interpreted to mean only the court which the law under which the parties were married so
recognises unless both parties voluntarily and unconditionally concede to the jurisdiction of any other court. As
regards clause (b), merits of the case should mean that the decision should be based on a ground available under
the law in which the parties were married; besides, the decision should be the result of proper contest.

On clause (c), the court opined that a judgment founded on a ground not recognised by the law applicable, the
Hindu Marriage Act, 1955 in this case, is a judgment in defiance of the law and will therefore not be enforceable
under clause (f). As regards the requirement of compliance of principles of natural justice laid down in clause (d),
the court held that this principle has to be extended beyond mere compliance with technical rules of procedure. The
court must ensure an effective contest by requiring the petitioner to make all necessary provisions for the
respondent to defend, including costs of travel, residence and litigation.

The court held that the Missouri court had no jurisdiction to award the decree since the ground on which the decree
was made, viz., irretrievable breakdown of the marriage, is not a ground recognised under the law governing the
parties, viz., the Hindu Marriage Act, 1955. Also the decree had been obtained by misrepresenting that he (the
husband) was a resident of Missouri whereas the record showed that he was only a bird of passage and was
ordinarily a resident of Louisiana. He had, if at all, only technically satisfied the requirement of ninety days
residence for purposes of invoking jurisdiction. Thus jurisdiction of forum as well as ground on which the decree
was passed not being in accordance with the law under which the parties were married, the decree of the foreign
court could not be recognised.

(22) Naveen Kohli v. Neelu Kohli42. AIR 2006 SC 1675 [LNIND 2006 SC 192]:
(2006) 4 SCC 558 [LNIND 2006 SC 192].

Note.— A strong plea for introducing irretrievable breakdown of marriage as ground for divorce made.

A husband filed a divorce petition against his wife on the ground of cruelty making several allegations, including her
filing criminal complaints against him. It was a very acrimonious court battle. The family court at Kanpur granted the
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APPENDIX I DIGEST OF SELECTED CASES

decree, the wife filed an appeal against this before the Division Bench of the Allahabad High Court and the divorce
decree was set aside. Thereupon the husband filed a special leave petition under Article 136 of the Constitution.
The court analysed in great detail the facts and circumstances of the case, the various judgments on cruelty by
court in India and abroad and also the law on the issue and dissolved the marriage. It observed:43

The wife was challenging the divorce even after making innumerable allegations and criminal complaints against
the husband. In the light of this, the court stated:44

According to Justice Dalveer Bhandari who delivered the judgment, "wisdom lies in accepting the pragmatic reality
of life and take a decision which would ultimately be conducive in the interest of both the parties" and dissolve the
marriage.

A copy of this judgment has been sent to the Secretary, Ministry of Law and Justice, Department of Legal Affairs,
Government of India, with a recommendation that the Government seriously consider bringing an amendment in the
law to incorporate irretrievable breakdown of marriage as a ground for divorce.

(23) Nil Ratan Kundu v. Abhijit Kundu45. (2008) 7 MLJ 248 [LNIND 2008 SC
1610] (SC) : (2008) 9 SCC 413 [LNIND 2008 SC 1610].

(C.K. THAKKER and D.K. JAIN, JJ.)

Note.— In custody disputes, it is not the ‘negative test’ that the father as guardian is not ‘unfit’ for custody, but the
‘positive test’ that such custody would be in child’s interest or not, which should be the determining factor. Custody
given to maternal grandparents as against the father.

This was a case for child custody between the father and the maternal grandparents. The facts briefly stated are as
follows. The mother of the child, Antariksh, died, allegedly due to neglect, harassment and torture at the hands of
her husband and mother-in-law. The child was just about five at that time. The father was charged under sections
498A and 304 of the Indian Penal Code, 1860 and arrested. The child was in ailing condition at the father’s house
and was given to the maternal grandparents who nursed him, brought him up with utmost care and love and
admitted him to one of the best schools. After the husband came out on bail he filed an application under the
Guardians and Wards Act, 1890, seeking custody of his son. This was strongly resisted by the maternal
grandparents who contended that the petitioner/claimant, father of the child, had killed their daughter (the mother of
the child) and criminal cases were pending against him; further that the child was given to them when he was in
very bad state of mind and body and now his custody should not be given to the father. The trial court however,
allowed the application; it observed that the fact that criminal cases were pending against him did not ipso facto
disqualify him to act as guardian, and held that the father being the natural guardian "the present and future of
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APPENDIX I DIGEST OF SELECTED CASES

Antariksh [the child] would be better secured in the custody of the respondent [father]". An order was accordingly
passed to give over the custody to the father "immediately". The appellants filed an appeal before the High Court
but the same was dismissed. It held that there was no infirmity in the trial courts order and the child should be
handed over to the father "within twenty four hours positively".

This order was challenged before the Apex Court. It was argued that both the lower courts had adopted a technical
and legalistic rather than pragmatic and realistic approach, and they have not taken into account the welfare of the
child which is the paramount consideration in such cases. They reiterated that the respondent and his family
members tortured the child’s mother for not bringing enough dowry; she was mentally and physically harassed and
was admitted to hospital by the appellants only. After she was cured she again returned to the matrimonial home.
However, her torture continued and she was brutally assaulted by the respondent and his mother; when she was
brought to the hospital, she was declared dead. Due to all this, the child suffered mental shock and became sick;
the appellants brought him with them and since then are looking after him very well. It was also contended in the
appeal that the child’s wishes were never ascertained by the courts below, even though he was more than six years
old at that time and capable of independent opinion. Further, the courts did not take the father’s ‘character’ into
account.

The father’s counsel, however supported the order of the trial courts and High Court urging that these courts had
considered the relevant legal provisions and the fact that the respondent was the natural guardian and "there was
no earthy reason to deprive him of custody of the minor". And further, that the courts below were conscious of the
pending criminal cases against his client and therefore had observed that if ultimately he is convicted and
sentenced to jail, the appellants could move the court for change of custody.

The Supreme Court, however, was not impressed by the respondents arguments. It referred to several English and
American authorities on the issue.46 In fact, the following statement of Bailey in Habeas Corpus (Vol. I, p. 581) is
worth special mention.

Coming back to Nil Ratan Kundu’s case, the court analysed the statutory provisions as well as relevant case law47
in order to emphasise that the predominant consideration is the welfare of the child. After a detailed enalysis, the
Apex Court came to the conclusion that the orders passed by the courts below are short of the fundamental
principles on more than one ground. For instance, they noted that the grandparents were giving "all love and
affection" to Antariksh but that does not mean that the father will not give that love and affection; that the appellants
got the child admitted in a well reputed school, does not mean that father will not do that, etc. In fact, the courts
below emphasised the fact that he being the natural guardian has a right to custody and has not invoked any
disqualification provided in the law. The Supreme Court held that it is not the ‘negative test’ that the father is not
‘unfit’ or disqualified to have custody but the ‘positive test’ that such custody would be in the welfare of the minor
which is material. The child is not a property or commodity; issues relating to custody of minors and tender-aged
children have to be handled with love, affection, sentiment and by applying human touch to the problem, the court
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remarked. It also stated that the lower courts were duty bound to consider the allegations against the father and the
pending criminal cases. One of the matters which is required to be considered by the court is the ‘character’ of the
proposed guardian. A complaint against father alleging and attributing death of mother and criminal cases is indeed
a relevant factor and the court must address to the said circumstance while deciding custody in favour of such
person; nor did the courts below ascertain the wishes of the child. The Supreme Court, on ascertaining the child’s
wishes found that he was very happy with his grandparents and wished to stay with them. On consideration of all
the above, it was held that it would not be proper on the facts and circumstances of the case to give custody to the
father, and the appeal was accordingly allowed.

(24) N. Shankar v. S. Saraswathi48. (2010) 1 MLJ 959 [LNIND 2009 MAD 3867]
(Mad).

(K. RAVIRAJA PANDIAN and T. RAJA, JJ.)

Note.— This was a case of irretrievably broken marriage but in the absence of this as a ground for relief under the
existing law, divorce was granted on the ground of cruelty.

This is one amongst several cases which indicates how, in the absence of a statutory provision of irretrievable
breakdown as a ground for divorce the courts feel tied down to the technicalities of the law. While in some cases
they are not able to give meaningful relief, even if they wish to, in others they seek alibis to found the case on
statutorily permitted ground. In this case, the husband sought divorce on the ground of cruelty citing various
examples and incidents of wife’s misbehaviour. To mention some—she used to force him to have sexual
intercourse even when he was not keeping well and having wheezing problem; she would become hysterical,
abusive and physically violent and scratch him with her nails; she picked up quarrels over petty things and even
threaten him that she would commit suicide. The parties had lived together for only four years and litigating for
twelve years. Mental and physical cruelty was alleged in the above circumstances. The wife on the other hand, had
her own share of complaints and allegations. She charged him of having extra-marital affairs and alleged that
because of that he wanted her to agree to a divorce by mutual consent. When she refused to agree to that, the wife
alleged, he used to beat her. Further, when her only 27 years old brother died, he did not even care to make a
condolence call on the family. Besides, according to the wife, even though she was an advocate practising in the
Chennai High Court, she gave it up at the husband’s instance only for the sake of family life, peace and harmony. In
view of all this, she opposed the husband’s allegations and petition for divorce. The trial court was impressed and
convinced by the wife’s assertions and so dismissed the husband’s petition; hence his appeal to the High Court.
The High Court held that the trial court failed to take into consideration the wild and reckless allegations made
against each other; there was denial of marital comforts to each other for long period which undoubtedly would
amount to mental cruelty; the fact that the appellant/husband refused to visit the bereaved family on the death of
wife’s younger brother was an instance not only indicating bitterness against each other but also that normal human
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feelings and emotions had been lost. The court was of the opinion that it was impossible to preserve or save the
marriage and further, any effort to keep it alive would prove to be totally counter—productive. The court referred to
several cases decided by the Apex Court where marriage having been completely broken, relief was granted
irrespective of whether respondent was at fault or both were at fault, but justification for the relief, in most of the
cases, was sought on statutory ground. In the present case also the High Court found that both were at fault and
the marriage had become a fiction and ceased to exist in spirit though remaining on papers. Therefore, allowing the
husband’s appeal, divorce was granted to him. However, as if by way of caution or disclaimer it observed:

We make it clear that our opinion is not rested upon irretrievable breaking down of marriage but based on section
13(1) of the Act. (at p. 965)

(25) Noor Saba Khatoon v. Mohd Quasim49. AIR 1997 SC 3280 [LNIND 1997 SC
1009]: (1997) 6 SCC 233 [LNIND 1997 SC 1009].

Note.— Rights of children of divorced Muslim parents, to maintenance under section 125 of Cr.P.C. are not affected
by the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986.

The parties were married in 1980 and had two daughters and one son. Disputes arose between them and the
respondent allegedly turned the appellant out of the matrimonial home along with the three children then aged six,
three and one-and-a-half years and took a second wife. He also refused and neglected to maintain her as well as
the children. The wife filed an application for maintenance under section 125 of the Code of Criminal Procedure,
1973. The husband was directed vide an order dated 19 January 1993 by the trial court to pay maintenance to her
at the rate of Rs. 200 per month, and to each of the three children a monthly maintenance of Rs. 150 was awarded
till they attained majority. Thereafter the husband divorced the wife and filed an application in the trial court for
modification of the earlier maintenance order in view of the provisions of the Muslim Women (Protection of Rights
on Divorce) Act, 1986. The order was modified and under this order, the wife was entitled to maintenance only for a
period of three months, i.e. for the period of iddat. The order pertaining to children was not altered, as according to
the court, the Act of 1986 does not affect their rights. The husband challenged this order through a revision petition
which was dismissed. He thereupon filed a criminal miscellaneous petition under section 482 of the Code of
Criminal Procedure in the High Court, challenging the correctness of that part of the order which upheld the right to
maintenance of the three minor children under section 125 of the Code of Criminal Procedure. A single judge of the
High Court took the view that after coming into force of the 1986 Act, the minor children of Muslims are not entitled
to claim maintenance under sections 125 - 27 of the Code of Criminal Procedure and that under section 3 (i)(b) of
the 1986 Act, a divorced Muslim woman is entitled to claim maintenance for her minor children only for a period of
two years from the date of the birth of such child. In view of this, according to the court, only the third child who was
one-and-a-half years old, was entitled to receive maintenance till she attained the age of two. Against this the wife
came in appeal. The question was whether section 3 (i)(b) of the 1986 Act in any way affects the rights of minor
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children of divorced Muslim parents to the grant of maintenance under section 125 of the Code of Criminal
Procedure.

The court held that the 1986 Act was enacted as a sequel to the judgment in Mohd Ahmed Khan v. Shah Bano.50

The Act was not enacted to regulate the obligations of a Muslim father to maintain his minor children unable to
maintain themselves. Children continue to be governed by section 125 of the Code, according to the court.

Referring to the language of section 3 (i)(b) of the 1986 Act, the court observed that it is regarding additional
maintenance to the wife for the fosterage period of two years from the date of birth of the child, which is presumably
aimed at providing some extra amount to the mother for her nourishment for nursing or taking care of the infants
upto a period of two years. It has nothing to do with the right of the children to claim maintenance under section 125
of the Code of Criminal Procedure.

Reversing the order of the High Court, the Apex Court held:

(26) Pratibha Rani v. Suraj Kumar51. AIR 1985 SC 628 [LNIND 1985 SC 86]:
(1985) 2 SCC 370 [LNIND 1985 SC 86].

Note.— Can a wife file a case of criminal breach of trust and misappropriation of her stridhana under sections 405
and 406 of the Indian Penal Code? The majority view was that she can.

A wife was harassed and turned out of the matrimonial house. In spite of her repeated demands, her belongings,
including her clothes and jewellery, were not given to her. She thereupon filed a case of criminal breach of trust and
misappropriation of her stridhana under sections 405 and 406 of the Indian Penal Code, 1860. While the trial court
gave her some relief, the High Court quashed her complaint and held that section 406 of the Indian Penal Code
does not apply to such cases, as after marriage, the wife’s stridhana becomes joint property of both the spouses.
The wife was accordingly asked to approach the civil courts for return of her stridhana. The wife went in appeal
against this order. Allowing the appeal, the Supreme Court, by a majority judgment, held that simply because the
parties are married and living jointly, does not mean that any one of the spouses can commit acts of criminal breach
of trust.

According to the court:

Criticizing the interpretation of the High Court, Justice Fazal Ali (for himself and Justice Sabyasachi Mukherji)
remarked:
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Justice Varadarajan, in his minority judgment, held that in the absence of any agreement or specific entrustment by
a spouse of his/her property to the other, the penal provisions cannot be attracted. According to him:

The judge in his dissenting order, further remarked:

In view of the majority opinion, the wife’s appeal was allowed and the High Court order set aside.

(27) Rajesh Kumar Singh v. Rekha Singh52. AIR 2005 All 16 [LNIND 2006 AP
831].

Note.— Can a husband claim cruelty on the plea that he has to live with a wife who is a victim of gang rape? The
court expressed its stock at the very submission of such plea.

The parties were married on May 11, 1999 and lived together for some days after marriage whereafter, the husband
who was in defence services joined back his duties. In between they lived together from time to time when the
husband used to come home. The time when they were not together, the wife used to reside at her father’s
residence and visited her in-laws off and on.

An unfortunate incident with the wife took place during April 11-13, 2000 where after the husband filed a suit for
divorce on ground of adultery and cruelty by the wife. His allegations were that the wife had illicit relations with
respondent 2; she had been missing during the period April 11-13, 2000 for which an FIR was lodged by her father
on April 12, 2000 and she was found in unconscious state on April 13, 2000 near a railway track. He further alleged
that she had left her father’s residence on April 11, 2000 with respondent 2 for abortion but later on respondent 2
duped her and she was gang-raped during April 11-13, 2000. The wife denied that she was missing; that she had
any illicit relationship with respondent 2 or anyone else; she alleged that her in-laws used to ill-treat her and her
husband had promised to take her with him; she was informed that he was coming and she was to meet him at his
sister’s house where the appellant husband’s father and his sister were present; they gave her tea mixed with some
intoxicant; she became unconscious and thereafter she was left near the railway track. She does not know what
had happened with her during April 11-13, 2000.

The trial court dismissed the husband’s petition. It held that the wife had no illicit relationship with respondent
number 2 or anyone and further, that rape was not a ground for divorce. Hence, the husband’s appeal. During the
examination, the husband and his father made no complaints about her character or general behaviour/conduct.
However, photostat copies of some letters were filed which the court disbelieved. There was no other evidence to
establish her illicit relations with anyone. The court came to a conclusion that some unfortunate incident happened
and as the husband himself had stated-the wife was gang raped. The husband’s counsel suggested that it was not
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possible for the appellant (husband) to move in the society with a person who has been gang raped and it is a kind
of cruelty and so he is entitled to a decree of divorce.

The husband’s appeal was dismissed. The court was, in fact, shocked at the counsel’s submission. It stated (at p.
19):

The court further remarked (at p. 19):

Thus, the court clearly held that the wife had no illicit relations with anyone; that rape is not a ground for divorce; the
husband could not claim cruelty because he had to live with a rape victim; and there was no cruelty on the part of
the wife.

Note.—The court has shown immense sensitivity to the issue. Today, when cases of rape are increasing each day,
the plight of the victim who has suffered the trauma of rape can well be imagined if the courts were to view it as a
‘matrimonial offence’. "The rape victim doesn’t require divorce suit slapped on her; she doesn’t require court room;
she requires counselling, understanding, compassion and moral support", the court said (at p 20).

(28) Ram Prasad v. State of Uttar Pradesh53. AIR 1961 All 334 [LNIND 1960 ALL
159].

Note.— Constitutional validity of the provisions prohibiting bigamy were challenged as being violative of right of
religion under Article 25 of the Constitution. The husband’s case was dismissed.

The appellant, a Hindu, was an engineer employed in the State of Uttar Pradesh in the Public Words Department.
He married in 1934 and had a daughter. Thereafter, his wife had several miscarriages and the doctors found that
she could no longer have a child. The appellant and her father believed that according to Hindu Dharma Shastras,
salvation was not possible without a son so he decided to marry again with a hope to have a son. The wife made a
complaint to his office. Relying on rule 27 of the Government Servant’s Conduct Rules, the State Government
directed that the appellant could not marry without its permission. The request for permission was made; meanwhile
the Hindu Marriage Act came into force prohibiting bigamy. The request for second marriage was refused. The
husband filed a writ challenging the rule as also provisions of the Hindu Marriage Act prohibiting second marriage,
as being violative of Article 25 of the Constitution.

The Hindu Marriage Act, 1955vide sections 5(i), 11 and 17 and the Uttar Pradesh Government Servant’s Conduct
Rules vide its rule 27 which prohibit bigamy, is not ultra vires Article 25 of the Constitution, which guarantees
freedom of religion.
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There was nothing unconstitutional about the conduct rules and provisions of the Hindu Marriage Act, as these
were saved by clause (2)(b) of Article 25, which protect any measures ‘providing for social welfare and reform’.
Moreover, the law permits adoption and an adopted son is for all purposes as good as a natural born son. It was
accordingly held that the state was justified in refusing the grant of permission for second marriage.

(29) Ravi Kumar v. State and Shikha Sharma v. State54. (2005) 1 DLT 124. See
Manish Singh v. State Govt of NCT, AIR 2006 Del 37 [LNIND 2005 DEL 758]
where the court has clarified its stand.

Note.— The legal status of a marriage in contravention of legally prescribed age was the issue before the court in
this case.

These were petitions in the nature of habeas corpus. R, a 28 year old vegetable seller and S, a girl aged 16 plus,
fell in love and got married. The elder sister, unhappy with the alliance and suspecting that S had been enticed and
kidnapped by R lodged an F.I.R. Both R and S were apprehended. R was arrested on charge of kidnapping and S
being a minor, was sent to Nari Niketan since she was not willing to go to her parents. Meanwhile, on statement of
S that she and R loved each other and it was she who had called R and got married of her own choice, R was
granted bail. R’s application for custody of S was, however, dismissed. Subsequently, S filed a petition though R.
Both were called in the court along with complainant who stated that she had lodged the complaint under a mis-
apprehension and later realised that S had married R by her choice. The complainant accordingly, sought that the
case against R be quashed. R was granted acquittal. In the other case, a writ of habeas corpus was filed by a
mother and uncle of a minor girl aged 16 alleging that she had been kidnapped. It transpired, however, during the
course of the proceedings that the accused was a tenant in the house of girl’s mother and they started liking each
other and got married. According to the girl’s statement, it was she who suggested the boy (the accused) to leave
home and get married since parents would not have agreed to their marriage. The complainant (mother) wanted the
girl to stay with her at least till she attained majority but the girl refused. The girl, who was in the family way, wanted
to live with the accused and until that time she expressed a desire to live in the Nari Niketan, rather than go to her
parents.

The issue before the court was whether the marriages in both the above cases, were illegal; whether the girls, who
though minor but had reached the age of discretion, could be sent in protective custody to a Remand Home against
their will; whether in a habeas corpus petition, the court should entertain the prayer for quashing of the criminal
proceedings for abduction, rape, kidnapping etc., in exercise of jurisdiction under Articles 226 and 227 of the
Constitution.
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The main issue involved was, however, as to the status of the marriage because in both the cases, the girls were
below the age of 18, though above 15.

After analysing the case law on the issue, the court held that the marriage was neither void nor illegal on account of
the girls being less than 18 years of age and being over 15 years. It accordingly held that the minor girls cannot, in
the circumstances of the case, be directed to be detained in a Remand Home against their wishes. Criminal
proceedings against the boys were quashed too.

Note.— While one does understand the rationale behind not invalidating non-age marriages, yet, the goal should be
to completely ban child marriages in a phased manner. The court in this case has salvaged the situation by giving
an order keeping in view the best interests of the parties in the circumstances of the case. It could, however, have
added a rider or a word of caution against under-age marriages.

(30) Reema Aggarwal v. Anupam55. AIR 2004 SC 1418 [LNIND 2004 SC 1499]:
(2004) 3 SCC 199 [LNIND 2004 SC 1499].

Note.— Can a person who enters into a marital arrangement be allowed to take shelter behind a smokescreen to
contend that since his marriage was not valid the question of dowry or dowry harassment does not arise.

The parties were married in 1998. The wife was allegedly harassed by the husband and the in-laws for not bringing
sufficient and more dowry. In order to kill her, some acidic substance was forcibly put in her mouth; she started
vomiting and was taken to the hospital in unconscious state. (All these statements were made by her to the
Investigating Officer.) An FIR was registered and on completion of investigation the charge-sheet was placed and
charges were framed for offences punishable under sections 307 and 498A of the Indian Penal Code, 1860. The
accused pleaded innocence. Their plea before the trial court was that the victim woman was not his legally married
wife since he already had a wife when she married him. In view of this fact, it was contended, that the charge under
section 498A was thoroughly misconceived as both sections 304B and 498A pre-suppose a valid marriage of the
alleged victim woman with the offender-husband. Since the prosecution had failed to establish that the respondent
husband’s first marriage had been legally dissolved when he married the victim, the marriage was illegal and
section 498A had no application. The accusations under section 307 were, according to the trial court, not
established. The accused were, accordingly, acquitted. Appeal against this before the High Court was dismissed.
Hence, the present appeal.

There were arguments from both the sides which were supported by judgments by the respective counsels. After
analysing the arguments and the case law, the court came to the following conclusion (at p. 1423-24):
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The following observations are specially pertinent in the context (at p. 1422):

It is indeed a landmark judgment. Husbands of a marriage which suffers from a legal flaw will not be allowed to take
advantage of that flaw to wriggle out of liability for offences committed under sections 498A and 304B, simply on the
plea that these offences pre-suppose a valid or legal marriage between the victim and the accused.

(31) Ruma Chakraborty v. Sudha Rani Banerjee56. (2005) JT 12 SC 134 : AIR

Note.— Does a divorced wife have a right to be impleaded as a respondent in eviction proceedings filed by a
landlord against her husband. [Refer to B.P. Achala case (case (6)) for same issue].

A landlady filed a suit for eviction under section 13(1) (a) of the West Bengal Premises Tenancy Act, 1956, on the
ground of subletting the premises without her consent. Her case was that the tenant’s marriage with his wife having
been dissolved by a decree of divorce, the wife was no longer a part of the tenant’s family and therefore her
(divorced wife’s) occupation of the suit premises was in contravention of the statutory provisions of the Act. The
husband had admittedly left the suit premises but his minor children along with their mother as the custodian (i.e.
the divorced wife) were living there. The tenant husband’s defence, consequently, was that his children are entitled
to the tenancy right and virtually can step into the shoes of the recorded tenant who is still alive and contesting even
though he has walked out of the premises parting with exclusive legal possession to the wife. The appellant wife
filed an application under Order 1, Rule 10(2) of the Code of Civil Procedure, 1908 for being impleaded as a
defendant almost 8 years after the institution of the suit. Her application was dismissed by the civil judge. She then
moved the Calcutta High Court in civil revision but her application was rejected there also; hence the appeal to the
Apex Court.

It was argued on behalf of the appellant that being the divorced wife, she continued to enjoy the status akin to that
of a licensee under her husband in respect of tenancy of her husband pursuant to the provisions of sections section
3 and 18 of the Hindu Adoptions and Maintenance Act, 1956. (Under section 3, Hindu Adoptions and Maintenance
Act, 1956 maintenance includes provision for residence; and under section 18 thereof, a Hindu wife is entitled to be
maintained by her husband during her life-time).

Further, that by precluding her from contesting the suit, the suit would be decreed ex parte to the detriment of the
appellant and her minor children who, even after the decree of divorce, continue to have a right of residence in the
suit premises and cannot be dispossessed except in accordance with law.

Another argument for the appellant was that the High Court had failed to appreciate that even after the divorce
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decree, the wife still has a right of maintenance which includes right of residence. Consequently, the appellant had
a right of residence vis--vis her husband and so their stay in the rented accommodation of her husband could not be
treated as illegal.

Another fact brought to the court’s notice in support of the appellant’s case was a notice issued by the landlady sent
to the appellant stating that the appellant has been paying rent on behalf of the tenant and occupying the said
accommodation. The appellant was, herein, requested to get a confirmation in writing from her husband that he had
no interest in the said premises of the house and surrender the possession of the same to the landlady so that the
agreement could be entered into with the appellant on fresh terms and conditions if she proposed to continue to
stay. The letter/notice further stated that so long as these formalities were not completed, the occupation by the
appellant was illegal and unauthorised. This letter, according to the appellant’s counsel, amounted to recognition of
the appellant as a sub-tenant by the landlady.

For the tenant, it was argued that there was no infirmity in the orders of the trial court and the High Court and vide
Order 1, Rule 10(2) of the CPC the appellant wife was not a necessary party whose presence was necessary for
complete and effective adjudication of the case. It was further stated that only parties notified as sub-tenants were
to be made parties under section 13(2) of the Act i.e., when the tenant obtains the prior written consent of the
landlord under section 114 of the Act and both the tenant and sub-tenant have been notified under section 16(1).
This was not the case of the appellant, it was argued. As to proper party, it was contended that the appellant had to
show a direct legal interest as opposed to commercial or indirect interest in the subject-matter of litigation,
especially in a suit relating to immovable property. In this case the appellant, not being a party to the contractual
tenancy, could not claim any right, title or interest through her divorced husband and consequently she had totally
failed to demonstrate any legal interest which would entitle her to be impleaded as a proper party also.

After going through the various cases referred by the parties in support of their respective arguments, as also the
statutory provisions in the CPC and the various laws entitling a wife to maintenance with right to residence as a
component of maintenance, the Court came to the following conclusions:—

(i) The husband, as the pleadings also indicated, never allowed his wife to occupy the suit premises and that
she was in possession of the suit premises only as a custodian of the minor children of the
defendant/husband/tenant and that the monthly rents payable were being paid on account and on behalf of
the defendant.

(ii) The defendant himself was contesting the suit by filing a written statement and therefore the appellant wife
had no locus standi to be impleaded in the suit either as a necessary or proper party in whose presence
the suit ought to be or should be heard.

(iii) The mere payment of rent by her on behalf of the defendant could not create a jural relationship of landlord
and tenant.
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APPENDIX I DIGEST OF SELECTED CASES

(iv) Since the original tenant was alive and contesting, the question of representing the interest of minor
children did not arise.

(v) The Court also held that the letter produced by the appellant in support of her argument that the landlady
had recognised her as a sub-tenant, infact did not support her case as she (the landlady) had clearly stated
that unless the formalities were completed, the occupation of the premises by the appellant were illegal
and unauthorised.

The Court analysed the case of B.P. Achala Anand v. S. Appi Reddy,57 in great detail in support of its finding that a
divorced wife stands on a different footing than a deserted wife, as divorce brings to an end the status of a wife as
such. Whether or not she has to right of residence in the matrimonial home would depend on the terms and
conditions on which the decree of divorce has been granted and provision for maintenance (including residence)
has been made. In the instant case (Ruma Chakraborty) which was a divorce by mutual consent, the husband was
ordered to pay a sum of Rs. 200 p.m. for maintenance of the minor children only. The appellant/wife, in the opinion
of the Court, by such consent order had expressly waived her right to maintenance. In the words of the court (at p.
149):

(32) Sangeeta B. Kadam v. Balkrishna Ramchandra Kadam58. AIR 2005 Bom

Note.— The case involved the issue of recovery by the wife of her ornaments and property under section 27 of the
Hindu Marriage Act, 1955. The scope and ambit of the provision has been discussed in great detail.

A suit for recovery by wife of her ornaments and property which is her own is not maintainable under section 27 of
Hindu Marriage Act, 1955, but is so under section 7(1) (c) of the Family Courts Act, 1984.

This case had a long history. The parties were married in 1969 but within a few months disputes developed. Both
had their own versions and grievances. In between their rough times, three children were also born to them.
Ultimately, in 1982, the husband filed a petition for divorce. The wife contested the same and also claimed her
ornaments which she had left behind and also various household articles and furniture in the matrimonial home. [It
is pertinent, to note that the wife was working with far better salary than the husband.] The husband did not file any
counter to this claim.

In the wife’s written statement, she denied all the allegations of the husband and contended that it was he who had
treated her with cruelty. She therefore filed a petition for judicial separation. Both these petitions (of husband and
wife) were heard together and the city civil court judge at Mumbai dismissed the husband’s petition and granted a
decree of judicial separation to the wife. As to ornaments and articles claimed by the wife, the court was of opinion
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that these were either purchased or acquired by the wife and so he did not have jurisdiction to go into the
entitlement of the same under section 27 of the Hindu Marriage Act, 1955, which governs disposal of marital
property i.e., property acquired at or about the time of marriage which may belong jointly to both the husband and
the wife.

After the lapse of one year since the decree for judicial separation; the husband filed a petition for divorce under
section 13 (1A)(i), before the family court. The proceedings were filed in the family court since these courts were set
up in Mumbai in 1989 pursuant to the passing of the Family Courts Act, 1984. The wife opposed the divorce petition
but the same was granted in 1991. Meanwhile, the wife had also filed an appeal against the order of the judge, city
civil court, rejecting her claim for ornaments and other articles on the ground that it was not maintainable under
section 27 of the Hindu Marriage Act, 1955. The single judge, however, held that the appellant had claimed these
items as her own property, therefore, it is not possible to hold that these ornaments and other articles were
presented to her "at or at about the time of marriage or to show that it had become the joint property of both the
husband and wife".

The wife filed an appeal against this order as well as against the grant of divorce. These were heard together by the
Division Bench which held that section 27 of the Hindu Marriage Act, 1955, did not cover the claim of ornaments
and properties which were not presented to a wife at the time of marriage. It, however, held that it can grant relief in
respect of such properties by invoking section 151 of the Code of Civil Procedure, 1908. This order is reported in as
Sangeeta Kadam v. Balkrishna Kadam.60 Thus, her claim for ornaments and articles was allowed; the decree of
divorce in favour of the husband was, however, confirmed.

The husband, aggrieved by the order allowing her claim for articles, filed an appeal in the Apex Court in 1993 which
held that section 27 of the Hindu Marriage Act, 1955, does not include only the property given at the time of
marriage but would also include the property given before or after the marriage to become their joint property.
However, according to the court, though section 27 was attracted to the present claim, but since no proper trial was
held on this issue the matter was sent back to the family court. This order forms the judgment in Balkrishna Kadam
v. Sangeeta Kadam.61 Thus proceedings were revived in the family court. The parties gave an application that they
did not want to lead any fresh evidence and the evidence led earlier on the issue which was remanded to the family
court, be considered. However, after hearing the arguments, the judge held that since the wife had not adduced any
evidence to establish her claim, her contention could not be accepted. Hence, the wife’s appeal.

It was contended by the wife’s counsel that the Supreme Court had already held that section 27, Hindu Marriage
Act, 1995, did apply to the fact situation of the present case. As for evidence, it was argued that the evidence was
already led when the matter was contested before the city civil court and when the matter was remanded an
application had been filed before the family court stating that the evidence led earlier be considered and so the
family court judge should have looked into that evidence. The present court looked into the evidence recorded
earlier in great detail and came to the conclusion that "in the absence of adequate evidence on record and on
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probabilities, it is not possible to accept her claim for the items of furniture and other articles". In regard to
ornaments, the wife’s claim was conceded; the value of gold and silver ornaments was assessed at Rs. 1,20,000.
According to the court (at p. 268):

Another significant aspect of the matter was pointed out by the counsel. As far as the question of jurisdiction of the
court to deal with the claim of ornaments was concerned-when the wife filed her claim, it was decided by the city
civil court. Now the matter is with the family court. Her claim mentioned that the ornaments and articles were either
purchased by her or belonged to her. While it could be argued that section 27 of Hindu Marriage Act, 1955, was a
restricted section and it covered only the property presented at or after marriage, property owned by the spouses
separately required an independent civil suit. The jurisdiction of the family court, however, is wide. Under
Explanation (c) to section 7(1) of the Family Courts Act, 1984, it has the jurisdiction to decide a suit or proceeding
between the parties to a marriage with respect to the property of the parties or either of them. In other words, the
court, clarified (at p. 270):

After the matter was remanded to the family court, the wife had moved an amendment in 1998 to claim ownership
of the flat. She submitted that this flat had been sold by her husband to a third party in 1991 though it formed a part
of her property. This was rejected by the family court on the ground that the matter remanded to him was for a
limited purpose to decide the issue of stridhana and the claim for ownership of the flat would mean widening the
scope of the proceedings and the fundamental character thereof will change. The wife filed a writ to challenge this
order which was rejected by a single judge. The present Division Bench also did not accept this claim. She was
advised to file separate proceedings for this claim.

Hence the wife’s appeal was allowed in part in so far as the husband was directed to pay an amount of Rs.
1,20,000 with interest at the rate of 10% from the year 1982.

Note.— The case had a long chequered history. It depicts the miseries and agony of parties whose relationship
became strained soon after the marriage but the litigation lingered for about a quarter century-and perhaps still to
go on. The fate of the children born during the tug-of-war between the parents can be imagined. The basic dispute
in the present case concerned ornaments and property. The wife’s claim to stridhana was allowed in view of the fact
that the case had passed on to the Family Court Act, 1984 which was set up during the course of the litigation and
since the family court had wider jurisdiction to decide the wife’s claim to stridhana under section 7(1) (c) of the
family court (as against section 27 of the Hindu Marriage Act, 1955). But family courts do not exist everywhere.
Would a wife (or the husband as the case may be) have to file a civil suit in the ordinary courts with all the delays,
expenses and harassment in order to claim her properties?

(33) Sanjay Kumar v. Smt. Pratima Devi62. AIR 2010 Pat 96 .

(J. DIPAK MISRA C.J. and J. SHIVA KIRTI SINGH)

APPENDIX I DIGEST OF SELECTED CASES

Note.— No ground of desertion is available if the other party has not deserted the petitioner for a period of at least
two years.

This was a husband’s suit for divorce against the wife on ground of desertion in the following circumstances. The
parties were married in April, 2004 and just five days later the wife left the matrimonial home and went to her
parents. The husband made best efforts to bring her back but she refused on the ground that since he was suffering
from tuberculosis she would not stay with him. Thereupon, after one year and two months, the husband filed the
divorce petition under section 13(1) (ib) of the Hindu Marriage Act, 1955. Upon receiving court notice, the wife
appeared before the court but did not file any written statement. The family court then proceeded ex parte. After
examining witnesses, the court expressed the opinion that the husband was suffering from tuberculosis as he did
not prove any documentary evidence to show that he was free from any disease. The family court accordingly, held
that the wife had reasonable cause to stay away from the husband and that the husband has not been able to
prove anything in respect of cruelty [through cruelty was not taken as ground]. In view of this, the court granted
judicial separation. Hence, the husband’s appeal. The High Court rightly rejected the family court’s inference that
the husband was suffering from tuberculoses for which there was no justification at all, and that the wife was
justified in staying away. However, as to the husband’s divorce petition on ground of desertion, the High Court held
that "even though the wife has stayed away from the husband, the desertion does not come within 13(1)(ib) of the
Act in as much as it cannot be held that she had deserted the petitioner for a continuous period of not less than two
years immediately preceding the presentation of the petition. Hence the order not granting divorce cannot be found
fault with". (pp. 97-98)

The husbands request to file a fresh application for divorce on ground of cruelty and desertion was granted.

(34) Sarla Mudgal v. Union of India63. AIR 1995 SC 1531 [LNIND 1995 SC 661]:
(1995) 3 SCC 635 [LNIND 1995 SC 661].

Note.— Issue involved was whether a Hindu male married under the Hindu Law, could by embracing Islam
solemnise a second marriage; whether such marriage would be legal and whether the husband would be guilty of
bigamy.

This was a set of four petitions filed by two organisations, under Article 32 of the Constitution. The first petition
involved a Hindu wife whose Hindu husband became a Muslim and married a Hindu woman converted to Islam,
named Sunita Narula alias Fatima. In another petition, Sunita alias Fatima, alleged that after their conversion to
Islam and subsequent marriage, her husband came under the influence of his first wife and reconverted to
Hinduism and also ceased to maintain her. Her further contention was that she continued to be a Muslim and was
not being maintained under either of the personal laws. In the third petition, a Hindu wife alleged that her husband
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embraced Islam to marry another woman. The fourth petition was by a Hindu wife alleging that her husband after
conversion intended to marry another woman.

The issues involved in the case were as follows:

(i) Whether a Hindu husband married under the Hindu law, by embracing Islam can solemnize a second
marriage?

(ii) Whether such marriage without having the first marriage dissolved under the law, would be a valid
marriage qua the first wife who continues to be a Hindu?

(iii) Whether the apostate husband would be guilty of the offence under section 494 of the Indian Penal Code,
1860?

The court referred to various decisions on the subject and came to the conclusion that a marriage celebrated under
one personal law cannot be dissolved by the application of another personal law to which one of the spouse
converts and the other refuses to do so. Where a marriage takes place under the Hindu law the parties acquire a
status and certain rights by the marriage itself under the law governing the Hindu marriage. If one of the parties is
allowed to dissolve the marriage by adopting and enforcing a new personal law, it would tantamount to destroying
the existing rights of the other spouse who continues to be a Hindu. According to the court, a Hindu marriage can
be dissolved on any of the grounds specified in the Act. Until the marriage is so dissolved, none can marry again.
Conversion to Islam and marrying again would not, by itself, dissolve the Hindu marriage.

The court held that under the Hindu personal law, a marriage subsisted even after one of the spouses converted to
Islam. Consequently, the second marriage of the apostate under the shelter of conversion to Islam would be a
marriage in violation of the provisions of the Hindu Marriage Act and an illegal marriage qua his wife who married
him under the Act and continues to be a Hindu.

The court further held that the second marriage of a Hindu husband after his conversion to Islam is void in terms of
section 494 of the Indian Penal Code, 1860, and the apostate husband would be guilty of the offence of bigamy.

(35) Savitaben Somabhai Bhatiya v. State of Gujarat64. AIR 2005 SC 1809

Note.— When marriage is void, wife cannot be awarded maintenance under section 125 of the Cr.P.C.

No maintenance can be awarded to a wife under section 125 of the Cr.P.C where the marriage is void.

The appellant was married to the respondent in 1994 according to customary rites and rituals of their caste. Though
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initially all went well, after sometime she was subjected to mental and physical torture. The reason for this change
in husband’s attitude, the appellant wife alleged, was the fact that he developed illicit relations with a lady named
Veenaben. The respondent neglected his wife and child; hence, she filed an application for maintenance under
section 125 of the Cr.P.C. The husband opposed this application on the ground that the appellant was not his
legally wedded wife and the child born to her was not his. According to him, Veenaben was his wife whom he had
married 22 years back and had two children also. The trial court, however, granted maintenance; on husband’s
appeal the additional sessions judge set aside the order and remanded the matter to the trial court for fresh
adjudication after affording the husband an opportunity to cross examine the witnesses of the appellant. After
considering the matter afresh, the trial court again awarded maintenance to both the appellant and the child. A
criminal revision application was again filed by the husband which was dismissed by the additional district judge.
The husband then filed a special criminal application before the Gujarat High Court which held, that the appellant
was not legally wedded wife of the respondent; this finding was substantiated by documentary proofs of the fact that
the respondent was already married to Veenaben before the alleged date of marriage between the appellant and
the respondent. However, maintenance granted to the child was maintained and the amount of Rs. 350 p.m.
awarded to her was enhanced to Rs. 500 p.m.

On wife’s appeal to the Supreme Court against the finding that the marriage was not legal, it was contended on her
behalf that the High Court had taken too technical a view and that strict proof of a valid marriage is not the sine qua
non for getting maintenance under the provisions of section 125 of the Cr.P.C. It was further argued that the
documents produced by the husband to substantiate the plea of his earlier marriage with Veenaben should not
have been given primacy over the clinching evidence adduced by the wife to show that she was unaware of the
alleged marriage. Also, since the husband is guilty of fraud and misrepresentation, the equity should not weigh in
his favour. Law is intended to protect destitute and harassed women and rigid interpretation given to the word "wife"
goes against the legislative intent, it was argued.

The Court refused to accept this plea. It conceded that "there may be substance in the plea .that law operates
harshly against the woman who unwittingly gets into relationship with a married man and section 125 of the Code
does not give protection to such woman. This may be an inadequacy in law, which only the legislature can undo.
But as the position in law stands presently, there is no escape from the conclusion that the expression "wife" as per
section 125 of the Code refers to only legally married wife". (at p. 1811, emphasis added).

Reference was made to a few cases Nanak Chand v. Chandra Kishore,65Yamunabai Anantrao Adhav v Anantrao
Shivram Adhav,66 in support of the proposition that personal law of the parties is relevant for deciding the validity of
the marriage and any attempt to exclude altogether the personal law applicable to the parties from consideration is
improper. The fact that the wife was not informed about the earlier marriage was held to be of no significance as,
"the principle of estoppel cannot be pressed into service to defeat the provision of section 125 of the Code" (at p.
1813). According to the court (at p. 1813):
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Thus, the wife not being legally married wife was held not to be entitled to maintenance under section 125 of the
Code. However, as regards maintenance for the child the amount of Rs. 350 was raised to Rs. 500 by the High
Court and that was the maximum which could be awarded prior to the amendment in 2001, which has done away
with any limits. Hence, the amount was raised to Rs. 850. The argument of the husband that there was no
amendment made to the claim petition seeking enhancement was rejected as being too technical a plea.

(36) Sawan Ram v. Kalawati67. AIR 1967 SC 1761 [LNIND 1967 SC 153]: (1967)
3 SCR 687 [LNIND 1967 SC 153].

Note.— In case of an adoption by a widow, would the adopted child after the widow’s death be the heir of her
(deceased widow’s) deceased husband?

Under section 12 of the Hindu Adoptions and Maintenance Act, 1956, an adopted child shall be deemed to be the
child of his or her adoptive father or mother with effect from the date of adoption and from such date all ties of the
child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption
in the new family; there are however certain restrictions and exceptions also imposed.

In this case, the issue involved was whether on the death of the widow, the son adopted by her would be the heir of
her deceased husband. The husband R died leaving behind his widow B. He owned some land and a house. She
mortgaged a portion of the land in favour of M. She also made a gift of her house and land in favour of K who was
her grand-niece. The reversioner, Sawan Ram, challenged these alienations and contended that these were not
binding on him. His suit was decreed. Against this, B filed an appeal to the High Court. Pending appeal, she
adopted Deepchand as her son. A deed of adoption was executed in 1959; B died within two months of the
adoption. Sawan Ram then filed a suit for possession of the house and land. The trial court dismissed the suit on
the ground that Deepchand, the adopted son, had a preferential claim to the properties as against the reversioner,
since he was not merely the adopted son of the widow but also of her deceased husband. The High Court
confirmed the decision of the trial court. Hence, the present appeal to the Supreme Court, by the reversioner. His
argument was that B having only a life-interest in the properties of her deceased husband, she could not claim the
benefit of section 14 of the Hindu Succession Act, 1956, viz., absolute ownership rights, and hence could not
alienate the properties. Further, it was argued that the adopted son could not succeed to the property of B’s
husband because he was not the son of B’s deceased husband. The Hindu Adoptions and Maintenance Act, 1956,
having conferred an independent right of adoption on a female Hindu, if a widow adopts a son he becomes the
adopted son of the widow only and cannot be deemed to be the son of the deceased husband as the doctrine of
relation back has been abrogated by the Hindu Adoptions and Maintenance Act, 1956. Further, that under the Act,
even an unmarried female Hindu may adopt and the adopted child would be related to her only, likewise, a child
adopted by a widow would be her child only. The court, however, did not accept these contentions. It held that
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under section 5(1) of the Act, the words used are adoption "by or to a Hindu". Adoption to a Hindu was intended,
according to the court, to cover cases where an adoption is made by one person while the adopted child becomes
the child of another person also. In a case where a widow adopts a son, the actual adoption is by the female but the
adoption would not only be to herself but also to her deceased husband. Referring to section 12 of the Act, it
pointed out that from the date of adoption, all ties of the child in the family of birth are severed and new ties are
created in the adoptive family; and it is well recognised that a married female belongs to the family of her husband
and accordingly, the adopted child must also belong to the same family. Thus, it was held (at p 1764):

(37) Smt. Raj Kumari Awasthi v. State of U.P.68. (2008) 3 ALJ 100 [LNIND 2008
ALL 10].

(AMAR SARAN, J.)

Note.— The issue of adult unmarried daughters’ right to seek maintenance under the provisions of section 125 of
Cr.P.C. was involved in this case.

The issue involved in this case was as to an adult unmarried daughter’s right to maintenance from her father under
section 125 of the Cr.P.C. The applicants, mother and daughter had obtained a maintenance order from the family
court at the rate of Rs. 700 per month each, against the husband and father respectively. This order was later
modified under section 127 of the Cr.P.C. whereby grant of maintenance for the wife was upheld but in case of the
daughter it was limited till she turned major. This was challenged before the High Court. It was argued that under
section 127, Cr.P.C., grant of maintenance cannot be denied to an adult unmarried daughter who has no source of
income and who being a student of class XII is in dire need of father’s financial support for her education and
upbringing. The court referred to, and analysed the provisions of the Cr.P.C., the Hindu Adoptions and Maintenance
Act, 1956, the Law Commission recommendations in its 41st Report, and several cases.69

It expressed deep disconcert and lamented that "a person having sufficient means is required to maintain her
unmarried daughter who has turned major, only if her inability to maintain herself is due to any physical or mental
abnormality or injury and not otherwise".70 The court, however, stayed the order of the family court whereby grant
of maintenance to the daughter was limited till she reached the age of majority. It relied on the two-judge bench
decision of the Apex Court in Jagdish Jugtawat v. Manju Lata, 71 where, in similar circumstances, the father had
prayed that the daughter be allowed maintenance only till she attains majority and not thereafter. The magistrate
had refused the prayer and the High Court, while conceding that under the provision of section 125 Cr.P.C., the
daughter was entitled to maintenance only till she attained majority, still refused to interfere with the order. It drew
support from the provisions of the Hindu Adoptions and Maintenance Act, 1956 under which, vide section 20(3),
even a major daughter is entitled to seek maintenance from her father. Thus, in order to avoid multiplicity of
litigation, the order impugned, does not warrant interference, the court held. The father’s appeal against this was
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APPENDIX I DIGEST OF SELECTED CASES

rejected and the High Court order was upheld. Drawing support from this, the Allahabad High Court in Smt. Raj
Kumari Awasthi held that on a combined reading of section 125 of the Cr.P.C. and section 20(3) of the Hindu
Adoptions and Maintenance Act, 1956, the right of a daughter to claim maintenance from her parents after attaining
majority till her marriage is recognised in section 20(3) of the Hindu Adoptions and Maintenance Act, 1956 and thus,
it stayed the operation of the order restricting the daughter’s right only until the age of majority.

According to the court, to expect that an unmarried daughter who is still going to college or staying at home
awaiting marriage and who has no source of income, can be denied maintenance unless her inability to maintain
herself is due to physical or mental abnormality, is extremely harsh and oppressive; it violates Article 14 and 21 of
the Constitution and is also contrary to the spirit of Articles 15(3) and 39(e) & (f) of the Constitution, the Court
observed.

A plea was made to amend section 125(1) (c) and give to all unmarried daughters a right to be maintained by their
parents even after they have attained majority, if they are unable to maintain themselves. This is the only way to
prevent vagrancy and destitution of the girl child, which is one of the prime objectives that these summary
provisions for maintenance seek to address, the court held.

However, why only daughters, why not sons too? A boy who has just attained majority would not instantly become
equipped for earning and maintaining himself. A boy of 18 would just have entered college. Is he expected to give
up his education and look around for whatever work he can get because there is no financial support from any
corner? In any case there is no absolute right for anyone and each case would depend on its own facts and
circumstances.

(38) Sushma Choure v. Hetendra Borkar72. AIR 2010 Ch. 30 .

(T.P. SHARMA and R.L. JHANWAR, JJ.)

Note.— Legal status of a marriage of a man with a woman already married, was the issue in this case. The
marriage was held to be void.

The issue involved in this case was as to the validity of a second marriage. A husband filed a petition for annulment
of the marriage under section 11 coupled with section 5 (i) of the Hindu Marriage Act, 1955, on the ground that at
the time of his marriage with the respondent, the respondent was already married and hence this marriage is void.
The family court declared the marriage null and void and it is against this that the wife has come in appeal. The
facts in brief were as follows: According to the petitioner-husband, the wife was having illicit relations with one R.K.,
had two abortions as a result of this relationship, and then married him and was also residing with him as his wife.
She had also filed a petition for restitution of conjugal rights under section 9, against R.K., and during subsistence
of that marriage, she showed herself as unmarried and solemnised marriage with the petitioner. The wife conceded
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that she had illicit relations with R.K. for over a year but according to her this fact was told to the husband and his
family members. She, however, denied that there was any marriage and reiterated that at the time of marriage with
the petitioner she was unmarried. In her appeal it was argued that the husband has not proved the fact of the her
first marriage with R.K. and therefore the present marriage was not in violation of the provision of section 5 (i) of the
Hindu Marriage Act, 1955. While the burden to prove the existence of the first marriage lay with the husband, he
succeeded in discharging the same through oral and documentary evidence. There was proof of some judicial
proceedings between the appellant wife and R.K. The appellant had also filed a petition for restitution of conjugal
rights as the wife of R.K. and these were pending before the additional district judge. Even though R.K. denied that
he had married the appellant but according to the High Court, the petition for restitution on behalf of the appellant
against R.K. is sufficient for drawing the presumption of lawful marriage between the appellant and R.K. The
appellant has not pleaded nor proved that her first marriage with R.K. had been dissolved by any mode permissible
in accordance with the law. Hence, the only inference was that she was not unmarried when she married the
petitioner/respondent and hence the marriage was void. Her appeal was, consequently, dismissed.

(39) Shobha Rani v. Madhukar Reddy73. AIR 1988 SC 121 [LNIND 1987 SC
757]: (1988) 1 SCC 105 [LNIND 1987 SC 757].

Note.— Whether demanding dowry amounts to cruelty; held dowry demand is unlawful and illegal and hence is per
se, an act of cruelty.

A wife filed a petition for divorce under section 13 of the Hindu Marriage Act, 1955, on the ground of cruelty. The
word ‘cruelty’ is not defined. It may be mental or physical, intentional or unintentional. While in case of acts of
physical acts there is no problem in determining cruelty, when mental cruelty is alleged, various factors need to be
looked into. However, there may be cases where the conduct complained of is in itself bad enough and per se
illegal. In such case, the impact or the injurious effect on the other spouse need not be enquired into or considered,
and cruelty will be established if the conduct is proved or admitted.

The wife had made several grievances, but the only one with which the court was concerned was her complaint
about the dowry demand made by him and his parents. A practice which started as customary presents to the bride
out of love and affection, and also keeping in mind various socio-economic considerations like less opportunities for
higher education or employment of girls, absence of legal right to share in joint family properties etc, has now taken
an ugly turn. Brides are harassed and tortured for not bringing enough dowry. The court referred to the provisions of
the Dowry Prohibition Act, 1961, as amended in 1984, and section 498A of the Indian Penal Code, 1860, penalising
a husband or his relatives who subject her to cruelty. Though in the instant case, the court was not concerned with
criminal law, but with matrimonial conduct, it held that the very demand of dowry amounts to matrimonial cruelty.

The wife’s allegation of dowry demand by the husband and his parents was established, inter alia, by one on the
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APPENDIX I DIGEST OF SELECTED CASES

letters written by the husband in which he had conceded that there was nothing wrong in his parents asking for a
few thousand rupees. In his own words, this was such a common thing for which his parents were being needlessly
blamed. The trial court and the High Court (of Andhra Pradesh) found that there was no cruelty. The trial court had
remarked:

The High Court also felt that there was nothing wrong or unusual in the respondent, who was a doctor, asking his
rich wife to spare some money. The Supreme Court, in appeal, held that the High Court misunderstood the case
and proceeded on the ground that the husband wanted some money from the wife, whereas the fact is that, as he
himself admitted in his letter, his parents demanded dowry. The court also made it clear that intention to harm is not
an essential ingredient of matrimonial cruelty. It observed:

(40) S.R. Batra v. Tarun Batra74. AIR 2007 SC 1118 [LNIND 2006 SC 737]:
(2007) 3 SCC 169 [LNIND 2006 SC 737].

Note.— Issue of "shared-household" within the meaning of sections 17 and 19(1) of protection of women from
Domestic Violence Act, 2005 was involved in this case. It was held that the wife had no right over the property
belonging to persons (the in-laws in this case), other than her husband.

The parties were married in 2000 and shifted in the house of the husband and his parents on the ground floor of the
property. The property belonged to the parents of the husband but all of them lived together on the ground floor.
After sometime, because of some differences, the parties (spouses) shifted to the second floor of the house which
became their matrimonial home. The relations, however, instead of improving, deteriorated further and the
petitioner wife filed FIR under provisions of sections 406 / 498A/ 506 and 34 of the Indian Penal Code, 1860,
against the husband and other family members which led to their arrest in January, 2003. According to the wife, it
became all the more difficult for her to stay in the matrimonial home so she shifted to her parent’s residence. Later
when she tried to enter the matrimonial home, she found the main entrance locked and so was unable to enter her
matrimonial home. She consequently filed a suit for mandatory injunction directing the respondents and their son-in-
law and her husband, to open the main entrance to enable her to reside there and for permanent injunction
restraining the respondents from breaking open the locks of her matrimonial home and removing her goods
therefrom. The respondents contested the suit and applied for a mandatory direction to the petitioner to hand over
possession of the second floor of the property. The arguments of the respondents were:

(i) The petitioner was not residing in the second floor of the house since 2002; on the contrary, she
trespassed upon the property and on inspection of the portion, it was noted on February 23, 2003 that
except for one blanket, there was nothing else there.

(ii) Their son Amit Batra had purchased some property in Ghaziabad and had shifted there; and hence that
was now the matrimonial home of the petitioner.
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(iii) In law, the user of the second floor property by the petitioner was merely permissive as the entire property
was owned by the respondent (parents) and the petitioner had no right to reside in that property, except
with their permission.

On the basis of the facts, the trial judge held that the petitioner was "admittedly" in possession of the second floor
and both the parties should refrain from interfering in each other’s right to have access to the common passage.
The respondents appealed against the order. The senior civil judge, by his order held that the petitioner was not
residing in the second floor since her goods were not there, and also the premises had no electricity and water.
Further, since the husband of the petitioner was not living there but elsewhere, the matrimonial home cannot be
where only the wife was residing. Further, that the wife had no right over the property belonging to persons other
than her husband and therefore the wife’s application for interim injunction deserved to be dismissed. It was,
however, directed that the wife may visit the property "once or twice in a month along with local police to see that
the locks in the suit premises were intact or not". The court directed the parties to maintain status quo. Both the
parties were aggrieved by the order and hence filed respective petitions under Article 227 of the Constitution.75

The court proceeded on the assumption that the wife was not residing in the second floor of the house because,
according to the court, whether or not she was residing there was immaterial; besides, her actual or at least
constructive possession was not seriously doubted; the court also believed that the husband was now residing at a
place other than the second floor property. On these assumptions, the issue was whether the second floor of the
house was the petitioner wife’s matrimonial home or not. If so, then she had a right to stay there, otherwise not. The
court pointed out that unlike as in England where the Matrimonial Homes Act, 1983 protects the interests of the
spouses, we have no law. This fact was also pointed out by the Supreme Court in B.R. Mehta v. Atma Devi.76 The
court in the present case (Tarun Batra) referred to the accepted practice in India where, after marriage, the bride
resides with her husband, usually in the parental home of the husband-exceptions apart. A woman would, therefore,
have a right to remain in that matrimonial home as long as she is married and if she is ‘obliged’ to leave that home
.she would be entitled to obtain an injunction from an appropriate court protecting her right and preventing her from
being thrown out. Consequently, according to the court, going by the general accepted practice, the ground floor of
the house was the matrimonial home of the petitioner and Amit Batra where they stayed after marriage even though
the entire property belonged to the parents of Amit Batra; and later on they shifted their matrimonial home to the
second floor of the said property with the consent of the owners i.e., the respondents. As to the argument that the
husband had shifted to Ghaziabad so that would be the matrimonial home and he was prepared to have the
petitioner reside with him there, the court held that in view of the husband’s divorce petition (which was dismissed in
default), "it is extremely unnatural to expect the petitioner to treat Amit Batra’s Ghaziabad residence as her
matrimonial home". In other words, the court ruled, "Amit Batra’s shifting from the second floor of the said property
to Ghaziabad would not ipso facto shift the petitioner’s matrimonial home to Ghaziabad".

The court also referred to Anu Seth v. Rohit Narain Seth,.77 in support of its view that the mere fact that the
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APPENDIX I DIGEST OF SELECTED CASES

husband shifts out of the matrimonial home to set up a home somewhere else does not, in all cases, mean that his
new place of residence becomes the matrimonial home.

Thus, it was held that Amit Batra’s changing the residence from the second floor to Ghaziabad, for whatever
reasons, would not shift the matrimonial home away from the second floor, more so in view of the facts of the case
where he had applied for a divorce from the petitioner.

As to the contention of the respondents that the property was owned by them and they had only permitted the
petitioner to reside therein-the permissive user, according to their argument, did not give her a right to continue to
reside in that property as she had no proprietary interest therein. This argument was also dismissed. The
respondents were no strangers but parents of the husband and the parents-in-law of the petitioner. The theory of
permissive user could not be advantageously used by them in the Indian context particularly when the son and the
petitioner actually lived with them on the ground floor and thereafter shifted to the second floor of the same house
with full knowledge and consent with a view to shift their matrimonial home from the ground floor to the second
floor.

In view of all this, the High court held that the petitioner was entitled to continue to reside in that house which was
her matrimonial home and nobody could deny her access or interfere in her possession thereof.

On appeal however, this order was set aside by the Apex Court. For the wife, support was drawn from section 2(3)
of the Protection of Women from Domestic Violence Act, which protects a woman from being evicted from the
shared matrimonial home. Support was also sought from sections 17 and 19(1) of the Act under which shared
household includes a household where the person aggrieved lives or at any stage had lived in a domestic
relationship. It was contended their since the respondent had admittedly lived in the property in question in the post,
hence said property is her shared house-hold. The court dismissed this argument and held that if this plea were to
be accepted it will mean that wherever the husband and wife lived together in the past, would become shared
house-hold and the wife can well insist in living in all these houses merely because at same stage she had stayed
there with her husband. "Such a view would lead to chaos and would be absurd", according to the court.

(41) Tejinder Kaur v. Gurmit Singh78. AIR 1988 SC 839 [LNIND 1988 SC 131]:
(1988) 2 SCC 90 [LNIND 1988 SC 131].

Note.— In terms of section 15 of the Hindu Marriage Act, 1955, after a decree of dissolution of marriage, a party
cannot legally remarry pending an application for special leave to appeal.

The Hindu Marriage Act, 1955 enjoins monogamy. A party can contract a valid second marriage only after the first
marriage ceases to exist in the manner envisaged by section 15, which is that the time for filing an appeal, if there is
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APPENDIX I DIGEST OF SELECTED CASES

such a right, has expired without any appeal having been filed or an appeal has been filed but dismissed. The
requirement of the one year waiting period for remarriage has been done away with vide an amendment by the
Marriage Laws (Amendment) Act, 1976.

This was a case where a husband obtained a decree of dissolution on the ground of cruelty, which was granted by
the Additional District Judge, Patiala, on 29 March 1986. The wife filed an appeal before the High Court and the
same was dismissed in limine on 16 July 1986. The wife thereupon filed a special leave petition. The preliminary
objection raised against the appeal was that the petition had become infructuous, as the respondent husband had
in the meanwhile remarried on 17 August 1986, i.e., just after a month of the dismissal of her appeal.

The issue raised was whether the condition pre-requisite under section 15, before a lawful marriage can take place
after a decree of dissolution, has been complied with or not.

Reference was made to several cases, notably, Lila Gupta v. Laxmi Narayan 79 and Chandra Mohini v. Avinash
Prasad.80 In Lila Gupta, the court held that a marriage contracted in contravention of the rule relating to one year
(prior to the amendment in 1976) laid down in the proviso to section 15, would not be void. ‘ .Viewing the
successive Marriage Act, it appears that prohibitory words, without a declaration of nullity, were not considered by
the legislature to create a nullity’, the court observed. And further, ‘an incapacity for second marriage for a certain
period does not have the effect of treating the former marriage as subsisting’.

In Chandra Mohini, the court held that even though section 15, in terms does not apply to a case of special leave to
appeal to the Supreme Court, a spouse who has won in the High Court and got a decree of dissolution of marriage
cannot, by marrying immediately after the High Court’s judgment, take away the right of presenting an application
for special leave from the other spouse. According to the court, the successful party must wait for a reasonable time
and make sure whether an application for special leave has been filed in this court.

In Tejinder Kaur, the husband denied any knowledge of any appeal in the High Court or its dismissal, and so
contended that he was justified in contracting a second marriage on 17 August 1986, i.e. immediately after the
expiry of one month from the date of decree by the trial court. The wife, however, placed on record a copy of the
registered notice dated 31 May 1986, intimating him of the appeal.

On these facts, it was held that the husband should have enquired about the fate of the appeal. At any rate, the
High Court having dismissed the appeal on 16 July 1986, the petitioner wife could have presented a special leave
petition within 90 days therefrom under Article 133 C of the Limitation Act, 1963. Until that period, it was not lawful
for either party to marry again, the court held.

The preliminary objection raised by the husband was thus overruled and the wife’s special leave petition placed for
hearing.
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(42) Veena Kalia v Jatinder Nath Kalia81. AIR 1996 Del 54 [LNIND 1995 DEL
393].

Note.— Mere fact of non-contest by the wife of a divorce petition filed by the husband in a foreign court does not
imply that she had conceded to the jurisdiction of the foreign court.

The husband obtained an ex parte divorce decree under section 13 of the Hindu Marriage Act, 1955, from a court in
Nova Scotia (Canada) on the ground of irretrievable breakdown of the marriage. Subsequently, the wife filed for
divorce in India on the ground of adultery, cruelty and desertion of the husband. She alleged that the husband left
her and two minor daughters aged one and two years to study abroad and deserted her. She also alleged that since
over 23 years they have not lived together and that he got married there and had children out of the second
marriage. She also claimed maintenance under section 23 of the Hindu Adoptions and Maintenance Act, 1956, for
herself and daughters, as also their marriage expenses.

The trial court dismissed her petition on the ground that since she had accepted the judgment of the foreign court
dissolving her marriage, the bar of res judicata under section 11 of the Civil Procedure Code, 1908, applied and
further, that her petition was mala fide attempt to harass the husband and was nothing but misuse of the court
process. Against this the wife filed an appeal. It was argued on her behalf that simply because she did not contest
the divorce application filed by the husband in Canada, does not imply that she had conceded to its jurisdiction. She
further contended that the divorce was obtained on a ground that is not even available under the Hindu Marriage
Act, 1955, and that the husband was neither domiciled nor habitually or permanently resided within the jurisdiction
of that foreign court and hence the decree granted by the Supreme Court of Nova Scotia was a nullity.

The court referred to some cases decided by the Supreme Court on the issue of foreign divorce decrees e.g., Satya
v Teja Singh,82Surinder Kaur Sandhu v. Harbax Singh Sandhu,83Narasimharao v. Venkatalakshmi.84 It held that
the rules of natural justice were violated as the foreign court did not care to check up whether the wife had enough
means and the necessary documents to defend her case in Canada. Consequently, a decree of divorce in her
favour, on grounds of adultery, cruelty, and desertion was passed. A maintenance allowance of Rs. 10,000 per
month and Rs. 10 lakh by way of marriage expenses for the daughters was also awarded.

(43) Yallawa v. Shantavva85. AIR 1997 SC 35 [LNIND 1996 SC 1634]: (1997) 11

Note.— Does the right to challenge an ex parte divorce order abate or survive after the death of the decree-holder,
was the issue involved here.
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An ex parte divorce decree was obtained against the wife on the ground of her desertion. The mother-in-law filed a
suit against the ‘wife’ (daughter-in-law), alleging that despite the divorce obtained by her son, she was interfering
with the possession and enjoyment of suit properties of her son. The trial court granted temporary injunction against
the ‘wife’. Thereafter the husband died and the wife filed an application for setting aside the ex parte divorce decree
on the ground that she had no notice about the proceedings. The trial court dismissed the same as being time
barred, but on appeal, the High Court condoned the delay and restored the case. The mother-in-law filed the
present appeal. Her primary objection was as to the maintainability of the application after the ‘husband’s’ death. It
was argued that divorce proceedings represented a personal cause of action and the right to challenge the ex parte
order does not survive after the death of the decree holder.

The court analysed the issue in detail and agreed that a divorce petition is a personal cause of action, but clarified
that if pending trial and before any decree is passed, a party dies, then the personal cause of action would abate
indeed, but once a decree is passed-whether ex parte or bipartite-then the question whether the right to sue would
survive would depend on the legal affects of the decree. As observed by the court:

The court also analysed the issue in the context of other statutory provisions, e.g. section 19 of the Hindu Adoptions
and Maintenance Act, 1956 entitles a Hindu widow to be maintained out of the property of her deceased husband,
and failing which she may have to be maintained by her father-in-law under certain circumstances. However, if
instead of being a widow she has the status of a divorcee, she will be denied these rights.

Apart from this, there is the aspect of a stigma attached to the party. A decree of divorce, as is obvious, is based on
fault or misconduct of the non-applicant. According to the court, such party should not be denied the right to get
such finding vacated by filing an appeal or in case of an ex parte order, by having it set aside.

In the course of the proceedings, an objection was also raised that joinder of non-spouse in such cases would be
against the provisions of section 13 of the Hindu Marriage Act, 1955, whereunder only spouses can file a petition.
The court countered this argument by conceding that initially at the filing stage the parties must be either the
husband or the wife, but once a decree is passed, the stage of launching any petition does not survive. If pending a
trial the spouse dies, the personal cause of action dies too, since no rights are still crystallised by then against or in
favour of either spouse. After a decree, however, several pernicious legal consequences flow. The court held:

The Supreme Court accordingly held that in this case the High Court had already set aside the ex parte divorce
decree, which means the relationship subsisted. Now that the husband was dead, there was no tie that needed to
be snapped by any legal order, as it would be like ‘trying to slay the slain’. The original petition of the husband
which was restored by setting aside the ex parte order, was held to have abated after the husband’s death and
hence infructuous.
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APPENDIX I DIGEST OF SELECTED CASES

4. AIR 1924 Cal 364 .

7. The law has been amended now and in view of the Personal Laws (Amendment) Act, 2010, a married female can
adopt with her husbands’ consent. However, fate of females in the position of ‘M’ would still remain unchanged.

9. AIR 1982 Bom 41 [LNIND 1981 BOM 279].

10. AIR 1985 AP 207 [LNIND 1985 AP 67].

16. Ibid, p 7.

17. (1976) 79 Bom LR 426.

18. (AIR 1991 Kant 186 [LNIND 1990 KANT 308].

20. AIR 2008 Del 7 [LNIND 2007 DEL 500].

22. (2009) 10 SCC 415 [LNIND 2009 SC 1762].

23. Romesh Chander v. Savitri, AIR 1995 SC 851 [LNIND 1995 SC 70]: (1995) 2 SCC 7 [LNIND 1995 SC 70]; Kanchan
Devi v. Promod Kumar Mittal, AIR 1996 SC 3192 [LNIND 1996 SC 2375]: (1996) 8 SCC 90 [LNIND 1996 SC 2375];
Anita Sabharwal v. Anil Sabharwal, (1997) 11 SCC 490; Ashok Hurra v. Rupa Zaveri, AIR 1997 SC 1266 [LNIND 1997
SC 414]: (1997) 4 SCC 226 [LNIND 1997 SC 414]; Kiran v. Sharad Dutt, (2000) 10 SCC 243; Swati v. Rajan, AIR 2004
SC 161 : (2004) 1 SCC 123 ; Durga Tripathy v. Arundhati Tripathy, AIR 2005 SC 3297 [LNIND 2005 SC 626]: (2005) 7
SCC 353 [LNIND 2005 SC 626]; Naveen Kohli v. Neelu Kohli, AIR 2006 SC 1675 [LNIND 2006 SC 192]: (2006) 4 SCC
558 [LNIND 2006 SC 192]; Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511 [LNIND 2007 SC 387] ; Satish Sitole v.
Ganga, AIR 2008 SC 3093 [LNIND 2008 SC 1379]: (2008) 7 SCC 734 [LNIND 2008 SC 1379].

25. AIR 1994 SC 710 [LNIND 1993 SC 972]: (1994) 1 SCC 796.

26. ( 1993) 3 SCALE 541 : (1993) II DMC 271.

27. AIR 1987 Bom 220 [LNIND 1986 BOM 386].

28. AIR 1991 Bom 259 [LNIND 1990 BOM 674].

29. AIR 1995 Bom 246 [LNIND 1994 BOM 168].

30. AIR 1978 All 255 .

31. AIR 1982 P&H 60 .

32. AIR 1999 AP 1 [LNIND 1998 AP 472].

34. Manisha Tyagi v. Capt. Deepak Kumar, (2007) 1 HLR 297 at 301 and quoted by Supreme Court in Manisha Tyagi v.
Deepak Kumar, AIR 2010 SC 1042 [LNIND 2010 SC 165] at 1046 : (2010) 4 SCC 339 [LNIND 2010 SC 165].

41 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—
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APPENDIX I DIGEST OF SELECTED CASES

(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
recognise 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.

43. Ibid, p 1688.

44. Ibid, p. 1689.

46. Halsbury’s Laws of England, Fourth Edn., Vol. 24; Bailey’s Habeas Corpus, Vol. I; McGrath Re, (1893) 1 Ch. 143;
American Jurisprudence, Second Edn., Vol. 39, para 34; etc.

47. Saraswathibai Shripad v. Shripad Varangji, AIR 1941 Bom 103 ; Rosy Jacob v. Jacob A. Chakramakkal, AIR 1973 SC
2090 [LNIND 1973 SC 118]: (1973) 1 SCC 840 [LNIND 1973 SC 118]; Thrity Hoshie Dolikuka v. H.S. Dolikuka, AIR
1982 SC 1276 [LNIND 1982 SC 114]: (1982) 2 SCC 544 [LNIND 1982 SC 114]; Surinder Kaur Sandhu v. Harbax
Singh Sandhu, AIR 1984 SC 1224 [LNIND 1984 SC 108]: (1984) 3 SCC 698 [LNIND 1984 SC 108]; Elizabeth Dinshaw
v. Dravand M. Dinshaw, AIR 1987 SC 3 [LNIND 1986 SC 431]: (1987) 1 SCC 42 [LNIND 1986 SC 431]; Chandra Kala
Menon v. Vipin Menon, (1993) 2 SCC 6; Mousami Mitra v. Jayant Ganguli, (2008) 6 MLJ 128 [LNIND 2008 SC 1155]
(SC); Kirtikumar Joshi v. Pradip Joshi, AIR 1992 SC 1447 : (1992) 3 SCC 573 ; Bimla Devi v. Subhash Yadav, AIR
1992 Pat 76 ; Goverdhan Lal v. Gajendra Kumar, AIR 2002 Raj 148 ; M.K. Hari Govindam v. A.R. Rajaram, AIR 2003
Mad 315 [LNIND 2003 MAD 124]; Kamla Devi v. State of H.P., AIR 1987 HP 34 [LNIND 1986 HP 11]; Annie Besant v.
G. Narayaniah, AIR 1914 PC 41 .

50. AIR 1985 SC 945 [LNIND 1985 SC 145].

57. JT 2005 (2) SC 233 : AIR 2005 SC 986 : (2005) 3 SCC 313 .

60. AIR 1994 Bom 1 [LNIND 1992 BOM 273].

61. AIR 1997 SC 3562 [LNINDORD 1997 SC 119].

65. AIR 1970 SC 446 [LNIND 1969 SC 209].

66. AIR 1988 SC 644 [LNIND 1988 SC 64].

69. Jagdish Jugtawat v. Manjulata, (2002) II U.P. Cr.R. 313; Nanak Chand v. Chandra Kishore, AIR 1979 SC 446 : (1969) 3
SCC 802 ; Ram Singh v. State, AIR 1963 All 313 [LNIND 1962 ALL 9]; Mahabir Agarwal v. Gita Roy, (1962) 2 Cri LJ
528 (Cal); Nalini Ranjan v. Kiran Rani, AIR 1965 Pat 442 ; Khedani v. Lagan Singh, AIR 1921 Pat 379 ; Bhagat Singh v.
Emperor, (1910) 26 PR 1910 Cr 6 IC 96; Krishna Swamy Iyer v. Chandra Vandana, (1918) 25 MLJ 349. Thombuswamy
Pillai v. Ma Louse, 10 Bur LT 209; Shaikh Ahmad v. Bai Fatima, AIR 1943 Bom 48 ; Jagir Kaur v. Jaswant Singh, AIR
1963 SC 1521 [LNIND 1963 SC 40]: (1964) 2 SCR 73 [LNIND 1963 SC 40]; Noor Saba Khatoon v. Md. Qasim, AIR
1997 SC 3280 [LNIND 1997 SC 1009]: (1997) 6 SCC 233 [LNIND 1997 SC 1009].

70. Smt. Raj Kumari Awasthi, at 101.

APPENDIX I DIGEST OF SELECTED CASES

71. ( 2002) II U.P. Cri R 313 (SC).

75. Tarun Batra v. S.R. Batra, AIR 2005 Del 270 [LNIND 2005 DEL 53].

76. AIR 1987 SC 2220 [LNIND 1987 SC 623] (1987) 4 SCC 183 [LNIND 1987 SC 623].

77. (2000) 87 DLT 486.

79. AIR 1978 SC 1351 [LNIND 1978 SC 152]: (1978) 3 SCC 258.

80. AIR 1967 SC 581 [LNIND 1966 SC 257]: (1967) 1 SCR 864 [LNIND 1966 SC 257].

82. AIR 1975 SC 105 [LNIND 1974 SC 290].

83. AIR 1984 SC 1224 [LNIND 1984 SC 108].

84. (1991) 3 SCC 451 [LNIND 1991 SC 286].

End of Document