Beena MS Vs Shino G Babu on 04 Feb 2022

Posted on February 28, 2022 by ShadesOfKnife

A Division bench of Kerala High Court held the following in a Divorce Matter, wherein one party is withholding the consent in a irretrievably broken-down marriage.

From Para 5,

5. The husband attributes this conduct as a behavioural disorder. The wife denies the same. We are not able to discern ourselves to classify this as
behavioural disorder or not. There are various types of personality disorders. In the absence of any medical evidence before us, we may not be able to classify this behaviour as a personality disorder. But, we are sure unstable emotions and relationships existed between the parties as revealed from Exts.A2 to A4 e-mail chatting reports and Ext.A5 whatsapp message. If one of the spouses is unable to adjust to such behaviour, that party cannot be found fault with. The obsessive nature of the character possessed by the wife would have led to a deteriorating relationship between the parties from the initial phase of life itself. Chasing happiness based on schedules instead of living in the moment, appears to be the vowed daily life routine adopted by her. She was not realistic to the fact that the secret of marital harmony lies in accepting the life as it unfolds and not becoming a stickler of the schedules or routines. Compulsive obsessiveness is also considered as a disorder. Though we are not sure about attributing the appellant as a person who suffers from such disorder, on going though the evidence, we are certain such attitude and behaviour was unbearable to the husband. If the conduct and character of one party causes misery and agony to the other spouse, the element of cruelty to the spouse would surface, justifying grant of divorce. If the parties cannot mend their ways, the law cannot remain oblivious to those who suffer in that relationship. In any matrimonial relationship, spouses may have a different outlook on the marriage based on faith, perceptions, outlook, attitudes, social ethos, etc. Fearing divorce is repugnant to his or her notion, one would refrain from the divorce based on mutual consent. The court cannot leave the life of a spouse to the mercy of the opposite spouse. Human problem requires resolution consistent with the notion of justice. The husband wants to get out of the misery and agony of the relationship; though, what was portrayed before the court is the fault of the wife, the husband also failed in building the relationship. We made an attempt for conciliation. The said attempt failed. There is no scope for reviving the dead marriage. The Apex Court in Naveen Kohli v. Neelu Kohli [(2006) 4 SCC 558], opined that if the parties cannot live together on account of obvious differences, one of the parties is adamant and callous in attitude for having divorce on mutual consent, such attitude can be treated as the cause of mental cruelty to other spouses.

From Para 6,

6. The law on divorce recognises both fault and consent as a cause for separation. When both the parties are unable to lead a meaningful matrimonial life due to inherent differences of opinion and one party is willing for separation and the other party is withholding consent for mutual separation, that itself would cause mental agony and cruelty to the spouse who demands separation. The purpose of marriage is to hold matrimonial ties lifelong, respecting mutual obligations and rights. The companionship of spouses creates oneness of the mind to walk together. It is through mutual respect and courtship, the companionship is built and fortified. The modern jurisprudence of irretrievable break down to allow divorce is premised on the fact that the spouses can never remain together on account of their differences. If the court is able to form an opinion that due to incompatibility, the marriage failed and one of the spouses was withholding consent for mutual separation, the court can very well treat that conduct itself as cruelty. If one of the spouses is refusing to accord divorce on mutual consent after having convinced of the fact that the marriage failed, it is nothing but cruelty to spite the other spouse. No one can force another to continue in a legal tie and relationship if the relationship deteriorated beyond repair. The portrayal of such conduct through manifest behaviour of the spouse in a manner understood by a prudent as ‘cruelty’ is the language of the lawyer for a cause before the court. This case is also not different. The behavioural disorder pointed out against the appellant in the petition for divorce was essentially reflection of incompatibility that existed between the parties. The husband wants to get out of the struggled relationship, on the projected cause of cruelty with reference to the incidents of misbehaviour. Incompatibility is a factor that can be reckoned while considering the ground for cruelty, if one of the spouses withholds the consent of mutual separation, though incompatibility is not recognised as ground for divorce.

Beena MS Vs Shino G Babu on 04 Feb 2022

Sonika Vs Vikas on 06 Jan 2022

Posted on February 23, 2022 by ShadesOfKnife

A Court in Delhi says that Interim maintenance has to be given to a woman who continues to reside in her matrimonial home.

From Paras 3 and 4,

3. After perusing the complaint u/s. 12 of Prevention of Woman from Domestic Violence Act (PWDV Act), the reply thereto and the documents filed, the learned trial Court passed the Impugned Order holding that the appellant is not entitled to any interim maintenance. Aggrieved of this order, the appellant has now approached this Court praying that she is indeed entitled to interim maintenance from her husband and therefore the impugned order must be set aside. On the other hand learned counsel for the respondent has argued that the impugned order has been correctly passed and is a well reasoned one, which should not be interfered with.
4. The relevant portion of the impugned order is reproduced below :-
“In the opinion of this Court, there is no ground to grant interim maintenance to the complainant at this stage. This is so because admittedly the children are in joint custody and are being taken care of by respondent no. 1 in the matrimonial home. Moreover, since the complainant is residing in the matrimonial home, it is difficult to believe that no expenses are being paid by respondent no. 1 for her sustenance. Thus, there is no ground to grant interim maintenance to the complainant. It is also pertinent to note that the complainant is well qualified and holds an MBA and B.Ed. Degree and also a diploma in Art and Craft and hence, in a position to earn a living for herself.
In view of the reasons mentioned in the aforesaid paragraphs, the application for interim maintenance stands dismissed.”
This Court is unable to agree with the above said findings and the reasoning behind it as given in the impugned order. Thus, for reasons discussed in detail below in the paragraphs that follow, the impugned order is set aside.

Now the verbal vomit begins…

From Para 5,

5. The trial Court has basically denied any interim maintenance to the appellant herein on the ground that since she is residing in the matrimonial house, it is difficult to believe that no expenses are being paid for her sustenance. Admittedly, the husband and the wife were residing in the same household at the time of passing of the Impugned Order. However, the trial Court was wrong in coming to the conclusion that merely because the aggrieved person before it was residing in her matrimonial house, she is not entitled to any maintenance. The appellant has made specific allegations of domestic violence in her complaint u/s. 12 of the PWDV Act before the trial Court. In fact an FIR has also been registered upon allegations of cruelty as made by the complainant wife to the concerned police authorities. The Domestic Incident Report (DIR) filed by the protection officer also corroborates the complaint of the appellant. As is usually the case, such instances of domestic violence as are narrated by the appellant before the trial Court, in her complaint, took place within the four walls of house and in support of her grievance, the complainant can only rely on the averments made in her complaint and cannot place much material on record to substantiate her averment at the initial stage. However, in view of this court, considering the detailed allegations as made in the complaint U/s 12 of the PWDV Act, there is sufficient material to give rise to at least a prima facie assumption that the appellant was treated with domestic violence.

From Paras 9, 10 and 11,

9. Also the trial Court did not apply the correct legal position and reasoning while holding that since the appellant is an M.A., B.Ed., so she is also capable of earning a decent salary and taking care of her own financial needs. Thus, she is not entitled to any maintenance. It is a settled law that the capacity to earn is totally different from the actual earnings. A middle aged woman, a mother of 3, who has accused her husband and in laws of threatening her with domestic violence, can not be denied maintenance on the ground that many years ago she had procured a B.A. and B.Ed. Degree. The complainant has specifically alleged in her complaint u/s. 12 of PWDV Act that despite her degree, she was not allowed to work by her husband and in laws ever since her marriage. The respondent husband never placed on record any material before the trial Court to show any earning of his wife since the date of marriage. He has not mentioned anywhere in his reply to the complainant u/s. 12 of PWDV Act or in his income affidavit what amount was ever earned by the complainant after marriage, who her employer was and for how many days she had so worked? If, indeed the wife had ever earned a decent amount for herself, the husband should have at least mentioned some details of the said earning and employment but the respondent is silent on this aspect. This only grants more credibility to the version of complainant that she has never worked after her marriage. Indeed the couple has three minor children aged around 11 (eleven) years, 09 (nine) years and 7 (seven) years. Thus, as is usually a practice in many Indian households, an educated woman despite her qualification may not be allowed to join any regular employment to take care of her young children born in quick succession and to attend to the needs of her husband and family.
10. Considering the admitted income of the respondent husband in the present case, while the appellant cannot be found entitled to any lavish life style, however, this does not mean that she is not entitled to even a single penny as her maintenance. Thus, considering the admitted income of the respondent husband, which is around Rs. 1,400/- (Rupees one thousand four hundred only) per working day (which amounts to around Rs. 32,000/- (Rupees thirty two thousand only) per month, the appellant is found entitled to an interim maintenance amount of Rs. 5,000/- (Five thousand only) per month towards her daily expenses of food, medicines, toiletries and such like needs. This amount has been arrived at after taking into account the fact that the respondent husband is also maintaining his three school going children and the complainant does not require any amount towards her residential needs as the appellant is residing in her matrimonial house as was admitted by the counsel for the appellant before the trial court on 26.03.2021.
11. The respondent no. 1 is hereby directed to pay a sum of Rs. 5,000/- (Rupees five thousand only) as interim maintenance to the appellant till the disposal of the complaint u/s. 12 of PWDV Act before the trial Court. This amount is to be paid from the date of filing of the complaint before the trial Court. Arrears be cleared within twelve months. A long time is given for clearing the arrears considering the salary of the respondent and his legal obligation towards maintaining his three children also.

Sonika Vs Vikas on 06 Jan 2022

Smitha Vs State of Kerala and Ors on 27 Jan 2022

Posted on February 21, 2022 by ShadesOfKnife

Law point held by Kerala High Court is: The principle of locus standi is alien to criminal jurisprudence

From Para 2,

2. Petitioner is the wife of the injured in a road traffic accident. It is alleged that on 16.10.2021, petitioner’s husband Thankachan, a carpenter by avocation, sustained injuries while proceeding to the place of work travelling on the pillion seat of the motor cycle bearing Registration No.KL-32/Q-0114 ridden by the accused, through Elamakkara-Puthukkalavattom Road; in front of Skyline Apartments, due to the rash and negligent riding as to endanger human life, since he had abruptly twisted, the vehicle capsized and her husband fell down and sustained grievous injuries. He was immediately rushed to the MAJ Hospital, Edappally. Ext.P1 indicates that Thankachan was taken there at 9.20 am on 16.10.2021 with the alleged history of road traffic accident. Ext.P2 discharge summary indicates that on the same day, he was taken to the Department of Orthopaedics and Rehabilitation, Lisie hospital where he was admitted with the history of pain and swelling on left ankle following alleged history of road traffic accident. Diagnosis was fracture trimalleolar left ankle for which he underwent surgery on 19.10.2021 and was discharged on 21.10.2021. The grievance of the petitioner is that despite Ext.P1 intimation given by the CMO, MAJ Hospital to the Sub Inspector, Elamakkara Police Station, crime was not registered. It is alleged that on 11.11.2021, petitioner lodged a complaint before the City Police Commissioner, Ernakulam which also was not acted upon and thus, on 19.1.2022, she approached the Judicial First Class Magistrate-II, Aluva. It is specifically averred that after sustaining grievous injuries, her husband is in immobile stage and is under complete rest and thus, she approached the court alleging offences under Sections 279, 337
and 338 IPC. But astonishingly enough, the complaint was returned stating that ‘the petition was filed by the wife of the complainant’. The most disturbing aspect is that a note seen put on the last page of the complaint, as follows:-

“19/01/22
Verified within the jurisdiction. Receipt of complaint at Commissioner Office is not seen produced. Hence for orders.
Id/-
Petition filed by wife of the complainant. Hence may be returned, for orders.
Id/-
Returned
sd/-”
It is clear that the signed order was passed by the Magistrate. It is pointed out that the Magistrate has returned the complaint on the premise that it was filed by the wife of the complainant which is illegal.

From Para 4,

4. I have no doubt that the order passed by the Magistrate is illegal and unsustainable. It is the settled proposition of law that criminal law can be set in motion by any person. Here, on the ground that after sustaining grievous hurt, her husband is unable to move out and hence, she has taken initiative to prefer the complaint. The principle of locus standi is alien to criminal jurisprudence.

From Para 5,

5. More disturbing is the Court acting upon office notes put up by the ministerial staff. This Court takes strong exception to such a conduct. In judicial matters, the staff members cannot make any note or suggestion. The learned Magistrate has not applied his mind before returning the complaint. The reason stated is illegal. The order is quashed and the Magistrate is directed to entertain the complaint and pass orders, in accordance with law, within a period of seven days from today.

Smitha Vs State of Kerala and Ors on 27 Jan 2022

Kahkashan Kausar @ Sonam Vs State of Bihar on 08 Feb 2022

Posted on February 18, 2022 by ShadesOfKnife

Apex Court quashed the FIR against relatives, which was riddled with vague allegations.

From Para 12,

12. Before we delve into greater detail on the nature and content of allegations made, it becomes pertinent to mention that incorporation of section 498A of IPC was aimed at preventing cruelty committed upon a woman by her husband and her in-laws, by facilitating rapid state intervention. However, it is equally true, that in recent times, matrimoniallitigation in the country has also increased significantly and there is a greater disaffection and friction surrounding the institution of marriage,now, more than ever. This has resulted in an increased tendency to employ provisions such as 498A IPC as instruments to settle personalscores against the husband and his relatives.

From Para 18,

18. The above-mentioned decisions clearly demonstrate that this court has at numerous instances expressed concern over the misuse of section 498A IPC and the increased tendency of implicating relatives of thehusband in matrimonial disputes, without analysing the long term ramifications of a trial on the complainant as well as the accused. It is further manifest from the said judgments that false implication by way of general omnibus allegations made in the course of matrimonial dispute, ifleft unchecked would result in misuse of the process of law. Therefore, this court by way of its judgments has warned the courts from proceedingagainst the relatives and in-laws of the husband when no prima facie case is made out against them.

From Para 21 and 22,

21. Here it must be borne in mind that although the two FIRs may constitute two independent instances, based on separate transactions, the present complaint fails to establish specific allegations against the in-laws of the Respondent wife. Allowing prosecution in the absence of clear allegations against the in-laws Appellants would simply result in an abuse of the process of law.
22. Therefore, upon consideration of the relevant circumstances and in the absence of any specific role attributed to the accused appellants, it would be unjust if the Appellants are forced to go through the tribulations of a trial, i.e., general and omnibus allegations cannot manifest in a situation where the relatives of the complainant’s husband are forced to undergo trial. It has been highlighted by this court in varied instances, that a criminal trial leading to an eventual acquittal also inflicts severe scars upon the accused, and such an exercise must therefore be discouraged.

Kahkashan Kausar @ Sonam Vs State of Bihar on 08 Feb 2022

Citations :

Other Sources :

Rajendra Bhagat Vs State of Jharkhand on 03 Jan 2022

Posted on February 18, 2022 by ShadesOfKnife

Apex Court held that when there is a genuine settlement between the parties and they are living happily together, such settlement has to be upheld by High Court and quash the 498A IPC case. This cites B.S. Joshi & Ors Vs State Of Haryana & Anr on 13 March, 2003

From Para 5, (The bozos who file false matrimonial cases do NOT realize what they are unleashing; in this case Armyman lost his job!)

5. The appeal preferred by the appellant, being Criminal Appeal No. 10 of 2019, was dismissed by Sessions Judge, Gumla on 30.05.2019. Thereafter, the appellant preferred a revision petition before the High Court, being Criminal Revision No. 910 of 2019. While the said revision petition was pending, two significant events took place. The firsthad been sanction of competent authority for dismissal of the appellant from his military service w.e.f. 14.07.2020for having been convicted of the offence under Section 498-A IPC. In the second relevant event, on 24.11.2020, the appellant and the respondent No. 2 submitted a jointapplication before the High Court, inter alia, stating that with the intervention and advice of family members, common relatives and friends, they had entered intosettlement and resolved all their disputes. It was submitted that upon the appellant approaching his wife forsettlement with assurance to keep her with full honour and dignity, the proposal was accepted by the wife (respondent No. 2) with some conditions, while also undertaking todischarge her matrimonial duties. It was submitted that the parties were residing together with love and affectionand with no dispute between them. It was, therefore jointly prayed that since the dispute was a family dispute that arose due to miscommunication and misunderstanding, now the revision petition may be disposed of in view of the changed circumstances and the family status of the parties. This application was registered as I.A. No. 6052 of 2020.

From Para 7,

7. Having examined the matter in its totality, it appears that the High Court, while disposing of the revision petition with the application moved by the parties, did not pause to consider that maintaining of conviction of the appellant of the offence under Section 498-A IPC would not be securing the ends of justice and with such conviction being maintained and the appellant losing his job, the family would again land itself in financial distress which may ultimately operate adverse to the harmony and happy conjugal life of the parties. The learned counsel appearing for the appellant and the respondent No. 2 both have reiterated their stand that they have resolved their disputes and are living together while leading a happy conjugal life.

From Para 10,

10. In the aforesaid view of the matter, and taking note of the terms of settlement as stated in the application moved before the High Court which include the undertaking of the appellant that he would be nominating the respondent No. 2 as the nominee in his service record; and where the parties are said to be leading a happy conjugal life, we are clearly of the view that the High Court should have accepted the settlement and quashed all the proceedings with annulment of the orders against the appellant. The High Court having not done so, we are inclined to adopt this course so as to secure the ends of justice.

Rajendra Bhagat Vs State of Jharkhand on 03 Jan 2022

Citations :

Other Sources :

Nakkeeran alias Jeroan Pandy Vs State and Anr on 07 Dec 2021

Posted on February 3, 2022 by ShadesOfKnife

Nakkeeran alias Jeroan Pandy Vs State and Anr on 07 Dec 2021

Citations :

Other Sources :

Shades of Knife

True Colors of a Vile Wife

Month: February 2022

Sonika Vs Vikas on 06 Jan 2022

Smitha Vs State of Kerala and Ors on 27 Jan 2022

Kahkashan Kausar @ Sonam Vs State of Bihar on 08 Feb 2022

Rajendra Bhagat Vs State of Jharkhand on 03 Jan 2022

Nakkeeran alias Jeroan Pandy Vs State and Anr on 07 Dec 2021