Kavitha M Vs Raghu on 16 Mar 2023

Posted on October 4 by ShadesOfKnife

A single judge of Karnataka HC held that there is no need to conduct Inquiry in the nature of summary trial before passing Interim reliefs, relying on the Magistrate’s inherent power u/s 28(2) of the PWDV Act, while overruling earlier 2009 judgment here. (Comment to myself: someone has to challenge the Sec 28(2) of the DV Act as unconstitutional and get rid of it!)

From Para 14,

14. In the aforesaid circumstances, reference being made to the judgment of the Apex Court in the case of KUNAPAREDDY v. KUNAPAREDDY SWARNA KUMARI1 is apposite.

The Apex Court, in the aforesaid judgment, while considering the purport of promulgation of the Act and its provisions clearly holds that sub-section (2) of Section 28 is significant. The concerned Court is well within its powers to lay down its procedure for disposal of the application under Section 12 or Section 23(2) of the Act. The Apex Court also recognizes that this provision is incorporated by the Legislature keeping a definite purpose for which it is enacted. This Court also recognizes the power of the Magistrate under Section 23 to grant an interim order ex-parte owing to the specific power under sub-section (2) of Section 23 of the Act which is carved out in that behalf. In the light of the judgment of the Apex Court, any other law that is laid down by the co-ordinate Benches of this Court will have to be placed into the oblivion on two counts, as the heart and soul of the Act is found in Section 12 and its beat in Section 23.The reliance placed by the respondent/State upon the judgment of the co-ordinate Bench in the case of KRISHNA MURTHYNOOKULA v. Y SAVITHA2 is in clear contradiction with what the Apex Court has held. The said judgment has also been distinguished in the case of one K.MANJUNATH REDDY v. SMT.A.C. LATHA3.

The co-ordinate Bench recognizes that the section itself provided that the Court can form its own procedure and it would override sub-section (1) of Section 28 and any Rules framed thereunder. The co-ordinate Bench then holds that there was no illegality committed by the Court in exercise of its inherent power for disposal of the application without an inquiry and by way of an affidavit filed by the parties before the concerned Court.

From Para 15-18, [Happy that Section 12(5) is emphasized and directions issued]

15. On a coalesce of the aforesaid analysis of the provisions of the Act and the law laid down by the Apex Court and that of the co-ordinate Bench of this Court, what would unmistakably emerge is that applications concerning protection orders under Section 18, residence orders under Section 19 and monetary relief under Section 20, all of which direct that if the learned Magistrate is prima facie finds justification he could grant those reliefs. Section 23 of the Act empowers the learned Magistrate to grant of interim and ex-parte orders in any application under Sections 18, 19, 20 and 21
or even 22 against the respondent, granting interim relief in terms of the application/s so filed cannot be after an eon, it has to be granted anon. Therefore, there is no warrant for any Magistrate to await for the procedure as stipulated under the CrPC to get concluded, and then grant the relief that is sought in the application. It defeats the very life blood of the Act. If Section 12 is the one under which applications are filed before the concerned Court, sub-section (5) of Section 12 mandates disposal within 60 days.
16. It is quite appalling that an application filed by the petitioner under Section 12 of the Act for the relief as available under Sections 19, 20 and 22 of the Act has been kept pending for close to 52 months after its filing, notwithstanding the fact that the mandate of the Act is disposal of those applications within 60 days. The applications being kept pending would display apathy towards the litigants. The reason for the applications being kept pending is free fall for adjournments being granted by the concerned Court. In the case at hand, close to two years have passed by and the Court has gone on granting time to the husband for filing assets and liabilities statement to determine the payment of maintenance to the wife under the provisions of the Act while the wife/aggrieved person suffers. An application that has to be disposed of within 60 days, has taken 52 months, and is yet to be disposed of.
17. The law Courts which exist to remedy the wrong when it is brought to its notice has to act swiftly, as it is trite that, actus curiae neminem gravabit that the act of Court should prejudice no person. If an act of the Court should not prejudice any person; the Court should not permit any procrastination of the proceedings before it. A woman, who is a victim of domestic violence, knocking at the doors of the Magistrate, under the Act seeking maintenance or shelter such grievance, will have to be addressed with immediacy. It is for this reason that the statute mandates that such applications have to be disposed of within 60 days in terms of sub-section (5) of Section 12 of the Act. The mandate is unequivocal as sub-section (5) mandates that the Magistrate shall endeavour to dispose every application; every application would mean each and every, not a few or more. If the delay takes away the very soul of the enactment, such delay would definitely deny justice. It is, therefore, often said that “justice delayed is justice denied”. If the facts of the case at hand are taken note of, it would display that the petitioner has been denied maintenance and other benefits available under the Act for close to five years now, after she has been out of the matrimonial house.
18. In the aforesaid circumstances, it becomes necessary for this Court to direct the Magistrates, to henceforth decide the applications filed by the aggrieved persons within the time frame. The applications could be for the benefit of Sections 19 and 20 of the Act which are filed along with the application under Section 12 of the Act. Any delay beyond 60 days to consider the application should be only for reasons to be recorded in writing. For a maintenance application, the concerned Court shall direct the husband, after receipt of notice, to file his assets and liabilities statement within four weeks from the date of appearance and in the event, he would dodge appearance before Court, the Court is empowered to grant interim maintenance, on what is filed by the aggrieved person as assets and liabilities statement and as sought in the application, failing which, such cases, like the one that is brought before this Court, would mushroom and defeat the very purport of the promulgation of the Act.

Kavitha M Vs Raghu on 16 Mar 2023

Citations: [2023 SCC OnLine Kar 11],

Other Sources:

https://indiankanoon.org/doc/158022851/

https://www.casemine.com/judgement/in/6423e02cd66f1c555c648b74

https://www.livelaw.in/news-updates/karnataka-high-court-disposal-of-application-dometic-violence-act-accommodation-monetary-relief-interim-maintenance-224447

Domestic Violence Victims Must Be Addressed With Immediacy: Karnataka High Court Issues Directions to Magistrate Courts

https://www.the-laws.com/Encyclopedia/browse/Case?caseId=013202793200&title=kavitha-m-vs-raghu

“S. 12 is heart and soul of Domestic Violence Act”; Karnataka High Court directs Magistrates to decide applications within the mandated period of 60 days

Index of Domestic Violence judgments is here.

Krishnanand Mishra and Anr Vs State of Jharkhand on 09 Aug 2023

Posted on September 27 by ShadesOfKnife

A single bench judge of Jharkhand High Court quashed the false 498A IPC case against brother-in-law (Nandoi) and sister-in-law (Nanad).

From Paras 11 and 12,

11. Section 498-A of the Indian Penal Code was inserted in the statute with pious view for punishing cruelty of the husband, however, nowadays, the said Section is being misused which has been observed by the Hon’ble Supreme Court in Arnesh Kumar v. State of Bihar & another; [(2014) 8 SCC 273].
12. How the cases are lodged under Section 498-A of the Indian Penal Code at the heat of the moment, that was considered by the Hon’ble Supreme Court in Preeti Gupta & another v. State of Jharkhand & another; [(2010) 7 SCC 667].

From Para 16,

16. Coming back to the facts of the present case. The Court finds that there are general and omnibus allegations against the petitioners and in one of the earlier case, final form was submitted in favour of the petitioners and during pendency of that case, the present case has been filed, which further suggest that maliciously the case has been lodged against the petitioners, who happened to be brother-in-law (Nandoi) and sister-in-law (Nanad) of the informant and they are residing at different place.

Krishnanand Mishra and Anr Vs State of Jharkhand on 09 Aug 2023

Index of Quash judgments is here.

Dr. Pankaj Kumar Vs Prerna on 16 Dec 2020

Posted on September 27 by ShadesOfKnife

A division bench of the Jharkhand High Court granted divorce to the husband, not on the ground of cruelty by wife, but on the ground of irretrievable breakdown of marriage.

From Para 21,

21. We, therefore, proceed to answer this question as this issue has not yet been decided by this Court. We may not have to labour hard in this regard since the Full Bench of Bombay High Court has squarely dealt with the same issue concerning applicability of section 19(3) of the Family Courts’ Act, 1984 and section 28(4) of the Hindu Marriage Ac, 1955 on the period of limitation governing the filing of an appeal before the High Court from the suit s instituted under Hindu Marriage Act concerning the rights of the parties such as, dissolution of marriage, restitution of conjugal right, declaration of a marriage as null and void, judicial separation, etc.

This view has been further followed by the Allahabad High Court in the case of Smt. Gunjan v. Praveen ( Supra), Rajasthan High Court in the case of Kuldeep Yadav v. Anita Yadav ( and Delhi High Court in the cases of R.R.D. (Supra) and DC (Supra) cited by the learned counsel for the appellant. The
rationale behind taking such a view is that the Act of 1984 provides for a special forum relating to matrimonial dispute and for that, special procedure was devised for expeditious adjudication of the case. Provisions of section 20 thereof containing the obstante clause has to be construed in that context, whereas Parliament being conscious of the period of limitation of 30 days prescribed under section 19(3) of Family Courts’ Act, 1984 chose to make suitable amendment in section 39(4) of the Special Marriage Act, 1954 and section 28(4) of the Hindu Marriage Act, 1955 by enlarging the period of limitation from 30 days to 90 days keeping into account the observations made by the Apex Court in the case of Savitri Pandey (supra) and
the rationale behind it. It is true that in a country like us where millions of people face financial hardship for litigating a matter and considerable time, money and energy have to be spent in pursuing the appeal given the difficult geographical condition, access to justice may become illusory in approaching the Court of Appeal within a small period of 30 day and amendment to section 28(4) introduced in 2003 to the Hindu Marriage Act, 1955 being the later enactment in point of time compared to the provisions of section 19(3) under the Family Courts’ Act, 1984, the intention of the Legislature to provide a larger time period for preferring an appeal needs to be furthered in order to resolve this inconsistency by adopting the principles of harmonious construction. We are, therefore, inclined to follow the principles laid down by the Full Bench decision of Bombay High Court in this regard. The Hindu Marriage Act being a special legislation, the provisions governing the period of limitation for preferring an appeal arising out of the decisions of the Family Court under the Hindu Marriage Act, 1955 should be governed by larger period of limitation of 90 days prescribed under section 28(4) thereof. The second question posed for determination at the outset is also answered in the aforesaid manner in the affirmative. Having held so, the instant appeal does not suffer from any delay since the original petition was filed within a period of 90 days from the date of the impugned order i.e. 05.08.2015. As such, there is no delay in preferring the instant appeal. I.A. No. 539/2020 is disposed of.

Dr. Pankaj Kumar Vs Prerna on 16 Dec 2020

2023-Mar-31: The parties settled.

Learned counsel for the parties submit that since the parties have settled the matrimonial dispute in all respects and the disposal / withdrawal of two pending cases against each other is only a matter of time where both the parties are taking steps and joint compromise petition has been filed in one of them whereas in the other they would be filing the joint compromise petition, the appeal itself can be disposed of in terms of the settlement by dissolution of the marriage as they are living separately also.
Having regard to the aforesaid state of facts and that the parties have settled the matter amicably amongst themselves during course of mediation at JHALSA and have decided to live separately without any condition of permanent alimony, there is no point in keeping this appeal pending as no lis survives to be adjudicated upon. As such, the appeal is disposed of in terms of the settlement jointly signed by the parties on 7th November 2021 part of the mediation report dated 16th November 2021 bearing letter no.2513. As such, marriage between the parties is dissolved. Parties are at idem that the two pending cases shall be withdrawn or disposed of parties on the basis of the joint settlement between the parties. They have also agreed not to institute any future cases against each other. Parties should abide by the terms and conditions of the settlement. The settlement should form part of the decree. Decree accordingly.

Dr. Pankaj Kumar Vs Prerna on 31 Mar 2023

Index of judgements on Divorce Appeals is here.

N.Rajendran Vs S.Valli on 03 Feb 2022

Posted on September 26 by ShadesOfKnife

A division bench of the Apex Court granted divorce to the husband, not on the ground of cruelty by wife, but on the ground of irretrievable breakdown of marriage.

From Para 29,

29. Article 142 of the Constitution undoubtedly clothes this Court with a reservoir of power to pass orders as would reach complete justice to the parties. What comes to mind is the concept of irretrievable breakdown of marriage. Undoubtedly, though there have been reports of the Law Commission in this regard recommending changes in the law, as of today the statute does not provide for irretrievable breakdown of marriage as a ground. However, this Court has on a number of occasions exercised its power and granted dissolution of marriage on the ground of irretrievable breakdown of marriage based on Article 142. In this regard, learned counsel for respondent pointed out that this is not a case for exercising power under Article 142. He addressed this submission, reminding us of the conduct of the appellant throughout. He would submit that the respondent is completely without blame. She was always ready and willing. The findings as found by the High Court being confirmed, no occasion arises for this Court to exercise power under Article 142. We record this submission for as a prefatory remark to indicate that this is not a case where both parties are agreeable for a dissolution by way of irretrievable breakdown of marriage. But that then leads us to the question as to whether the consent of the parties is necessary to order dissolution of marriage on the ground of irretrievable breakdown. This again, is not res integra. We may notice that this Court has in a catena of decisions discussed this very aspect.

From Para 32,

32. Having found that consent of the parties is not necessary to declare a marriage dissolved, we cannot be unmindful of the facts as they exist in reality. There has been a marriage which took place on 31.10.2004. There is a child born in the said marriage. No doubt being in contravention of Section 15, it becomes a fait accompli but at the same time we do not reasonably perceive any possibility of the appellant and the respondent cohabiting as husband and wife. Whatever life was there in the marriage has been snuffed out by the passage of time, the appearance of new parties and vanishing of any bond between the parties. Not even the slightest possibility of rapprochement between the appellant and the respondent exists for reasons though which are entirely due to the actions of the appellant and for which the respondent cannot be blamed. The marriage between the appellant and the respondent has become dead. It can be described as a point of no return. There is no possibility of the appellant and the respondent stitching together any kind of a reasonable relationship as the tie between the parties has broken beyond repair and having regard to the facts of this case, we would think that it would be in the interest of justice and to do complete justice to the parties that we should pass an order dissolving the marriage between the appellant and the respondent.

From Para 34,

34. Accordingly, while we affirm the judgment of the High Court and refuse to grant a decree of dissolution on the ground of cruelty by the respondent, we in exercise of our power under Article 142 of the Constitution declare the marriage between the appellant and the respondent as dissolved. This will be on condition that the appellant will pay a sum of Rs.20,000,00/- (Rupees twenty lakhs) to the respondent by way of a demand draft within a period of eight weeks from today. We further make it clear that this will be without prejudice to all the rights available to the son who was born in the marriage between the appellant and the respondent under law in regard to property rights. Till the amount is paid as aforesaid, the appellant will continue to be liable to pay Rs.7000/- per month to the respondent.

N.Rajendran Vs S.Valli on 03 Feb 2022

Index of Divorce judgements is here.

Darshanik M M Vs Poornima A on 04 Dec 2023

Posted on September 23 by ShadesOfKnife

A single judge of Karnataka High Court at Bengaluru Bench passed the following order in compliance of Rajnesh Pal Naidu Vs Neha Naidu Joshi and Anr on 04 Nov 2020

From Paras 4-7,

4. Learned counsel appearing for the petitioner submits that the amount of Rs.5 lakhs is directed to be paid from nowhere, as there is no consideration at the hands of the concerned Court qua the judgments rendered on the issue of grant of maintenance by the Apex Court and the Court has passed an order directing the said payment.
5. Learned counsel appearing for the respondents would admit that the concerned Court has not followed the judgment of the Apex Court in the case of Rajnesh v. Neha,1 but would only submit that a time limit be prescribed for the concerned Court to dispose the application I.A.No.2 seeking grant of maintenance.4.
6. In the light of the aforesaid submissions, a perusal at the order would indicate that the concerned Court has passed an order directing payment of Rs.5 lakhs, without considering the judgment of the Apex Court in the case of Rajnesh (Supra). This appears to be a serious flaw, in the light of the judgment in the case of Aditi Alias Mithi vs Jitesh Sharma reported in 2023 SCC Online SC 1451, which follows Rajnesh vs. Neha.
7. In the light of the law reiterated by the Apex Court in the case of Aditi (Supra), the concerned Court ought to have looked into the judgment of the Apex Court in the case of Rajnesh (Supra) and then directed appropriate maintenance to be paid in an application filed by the wife. In the light of the order not referring to Rajnesh (Supra), the order is rendered unsustainable.

Darshanik M M Vs Poornima A on 04 Dec 2023

Index of Maintenance cases u/s 144 BNSS (125 CrPC) is here.

Parul Tyagi Vs Gaurav Tyagi on 04 Aug 2023

Posted on September 23 by ShadesOfKnife

A single judge of Allahabad High Court passed the following guidelines in elaboration of Rajnesh Pal Naidu Vs Neha Naidu Joshi and Anr on 04 Nov 2020 and Aditi Sharma Vs Jitesh Sharma on 06 Nov 2023

G. Guidelines to the Family Courts
87.1 The Family Court Judge shall ensure compliance of the following guidelines in maintenance proceedings:
i) Both parties must submit the Affidavit of Disclosure of Assets and Liabilities as Enclosure-I or II (as applicable), as provided in the Rajnesh Case (supra).
ii) The memo of parties shall include the parties’ current mobile number, email address (if available), and the latest residential and official addresses, particularly if the applicant/respondent is employed.
iii) The memo of parties shall also specifically mention the name of the concerned police station, where the applicant and respondent resides and works (as applicable).
iv) Additionally, the Family Court Judge must ensure that Enclosure-I or II, as applicable, are accompanied by an affidavit from the respondent, containing the following details:
a) Permanent and current address of the respondent.
b) Mobile number of the respondent for communication during the pendency of the petition.
c) Email ID and WhatsApp number, if any.
d) Name and address of the respondent’s employer, along with a telephone number.
e) An undertaking from the respondent to promptly inform the court through an affidavit if there is any changes to his address, mobile number, E-mail ID, WhatsApp number, residential address, workplace, or employer’s name.
87.2 Upon receiving an application for maintenance, the Family Court shall include the following specifics in the initial order:
i) Mandatory requirement of an Affidavit of Disclosure of Assets and Liabilities, as per Enclosure-I & II, whichever is applicable, along with the reply.
ii) The respondent shall be given two opportunities for filing a reply, and the application for interim maintenance shall be decided in less than six months.
iii) The respondent must submit the reply within four weeks.
iv) If the affidavit is not filed within four weeks, the court will proceed based on the applicant’s submission and the existing pleadings to decide the application. If the respondent repeatedly delays in filing the reply with the affidavit, requesting more than two adjournments, the court may exercise its authority to strike off the respondent’s defence, provided it determines that the delays are intentional and obstructive, causing undue disruptions to the proceedings. In such cases, the Family Court may proceed to adjudicate the maintenance application based on the applicant’s submitted affidavit and the existing pleadings.
v) The order shall indicate that false statements in the Affidavit of Disclosure of Assets and Liabilities may lead to proceedings under section 340 Cr.P.C. besides contempt of court. It should also explain the ingredients of section 340 Cr.P.C., the potential criminal prosecution in IPC, and the maximum sentence for such offences, if proved in court.
87.3 The Family Court shall employ all legally permissible methods of serving notices to the respondent, using persuasive measures as may be necessary. The Family Court shall develop practical and effective mechanisms to ensure successful service on the respondent, aligning with the objectives and principles of these guidelines. If the court determines that the Process Server/Postman/Police Officer has submitted a routine, repetitive service report (e.g., citing unclaimed postal articles, locked premises, addressee left the address, or an unknown address), it may hold the officer accountable in accordance with the law. The Family Court may also explore modern methods of service facilitated by internet access, including courier services, email, or instant messaging platforms like WhatsApp and other electronic media. The essence of service lies in ensuring that the proceedings are duly conveyed to the respondents or contesting parties. Service on a litigant can be accomplished through e-mail or phone contact29. Serving notice, summons, and exchange of pleadings, service via e-mail, fax, or commonly used instant messaging services like WhatsApp is considered valid30.
87.4 If either party disputes the information declared in the Affidavit of Disclosure of Assets and Liabilities, the aggrieved party has the right to seek the other party to produce the relevant documents in question31.
87.5 To determine the amount of maintenance, the Family Court Judge shall adhere to the criteria outlined in Part-3 of the Rajnesh Case (supra). In cases where the wife has her own income, this shall not preclude her from being eligible to receive maintenance from her husband. The court must assess whether the wife’s income allows her to sustain a lifestyle commensurate with that of her husband in her matrimonial home32.
87.6 It is assumed that an able-bodied husband is capable of earning enough to support his wife and children. For interim maintenance determination, the minimum wage rates of Uttar Pradesh, as per the latest Government Notification, may serve as a guideline. This is just one of the alternatives that the Family Court Judge may consider when assessing a person who claims to be a labourer with no other income sources, among other pleadings.
88. The interim maintenance order shall contain the ingredients of the third proviso to section 125 Cr.P.C. (added by Act 50 of 2001, effective from 24.9.2001), and Uttar Pradesh State Amendments (upto date) in this regard, in plain language so that the respondent could understand understand the consequences of non-payment of interim maintenance. A table summarizing hearing dates and a brief description of Family Court orders on each date shall also be made part of the order.
89. Both interim and final maintenance orders shall include a table showing the number of orders passed by the Family Court prior to awarding interim and final maintenance, along with brief descriptions of orders passed on each date until the final adjudication of the section 125 Cr.P.C. application. The final maintenance order shall also include a date-wise account of proceedings related to section 125(3) Cr.P.C.
90. In cases involving parties from the Economically Weaker Section, individuals living below the poverty line, or casual labourers, the obligation to submit the Affidavit of Disclosure of Assets and Liabilities would be exempted. The court may demand an EWS/BPL certificate issued by the competent authority, which may be the Office of the Labour Commissioner or the Revenue Authority, as applicable.
91. District Judges shall develop a structural system for regularly assessing and overseeing the performance of family courts within their districts, ensuring the adherence to directives issued by the Supreme Court in Rajnesh Case (supra) and by this Court, in the instant case, this reporting mechanism would serve as a means of accountability, enabling timely interventions by the Constitutional Courts, when necessary. This may encompass routine evaluations, case audits, and feedback mechanisms to gauge the effectiveness and quality of judicial decisions in this context.
92. All District Judges shall convene semi-annual meetings of their respective Family Court Judges to review and evaluate the implementation progress of the guidelines issued by the Supreme Court in Rajnesh Case (supra) and this Court in the instant case. If the guidelines issued to Family Courts are not followed, concerned District Judge shall submit a semi-annual report to the Registrar General of this Court, against the Judicial Officer, who has not complied the guidelines. The Registrar General shall record its finding and present these reports to the respective Administrative Judge of the concerned Judicial Officer for their review and reference. Additionally, a record of these reports shall also be maintained in the service book of the concerned Judicial Officer. The District Judge shall prepare the progress report in the manner as provided in Enclosure-III attached with this judgment.
93. The District Judge along with the Principal Judge, Family Court shall flag the critical issues with respect to service of notice/summons and problems encountered in enforcement of interim maintenance/maintenance orders passed by respective Family Court Judges in the meeting of District Monitoring Committee for Family Courts, and the civil administration shall provide all assistance, as may deem necessary.
94. The District Legal Services Authority, in collaboration and cooperation with the respective District Bar Association, shall arrange awareness and training sessions/ workshops to encourage Bar members to submit pleadings in accordance with Enclosure-I & II.
95. For the sake of convenience, the Enclosures I & II attached to Rajnesh Case (supra) are hereby included as part of this order. Additionally, Enclosure-III is provided for the convenience of all District Judges to prepare the compliance report, in case aforesaid guidelines are not followed.
96. The Registrar (Compliance) of this court shall communicate copy of this judgment to all District Judges for dissemination among all Family Court Judges, and Chief Secretary, Government of Uttar Pradesh to circulate among all District Magistrates and Senior Superintendent of Police, of respective districts. Furthermore, a copy of this judgment shall be published on the websites of all District Courts, Family Courts, and Courts of Judicial Magistrate to facilitate awareness and implementation.

Parul Tyagi Vs Gaurav Tyagi on 04 Aug 2023

Index of Maintenance cases u/s 144 BNSS (125 CrPC) is here.

Abhilash.M.V Vs Soumya Soman on 10 Nov 2023

Posted on September 23 by ShadesOfKnife

A single judge bench of Kerala High Court held as follows,

From Paras 4-7,

4. When the revision petition came up for consideration on 20.3.2023, this Court admitted the revision petition and stayed further proceedings in M.C.No.6/2020, subject to the condition that the revision petitioner deposits the arrears of maintenance due to the second respondent and continues to pay interim monthly maintenance allowance @ Rs.4000/- to the second respondent. This Court had called for a report from the Family Court, to ascertain as to whether the revision petitioner was served with notice prior to the passing of the impugned order.
5. Pursuant to the above order, the learned Judge of the Family Court, by communication dated 27.3.2023, has informed this Court that the order
sheet and the records in M.C.No.6/2020 reveal that even before notice was served on the revision petitioner in the application, a counsel named Sri. K.R.Muraleedharan appeared on behalf of the revision petitioner on 13.12.2023 and prayed for time for appearance of the revision petitioner. Accordingly, the application was adjourned to 27.10.2022 and then to 16.12.2022, on which date the impugned order was passed. It is also reported that the counsel failed to file any vakalath. Subsequently he gave his no objection certificate to another counsel named Sri.S. Nidhin, who has now filed a vakalath for the revision petitioner.
6. On a consideration of the assertions in the memorandum of the revision petition, the materials placed on record, and the communication of the learned Judge of the Family Court, it is evident that the notices in both the M.C as well as Crl.M.P. were not served on the revision petitioner. It is only on the basis of the submission made by a counsel, that the Family Court assumed that the revision petitioner had failed to appear in the application and then passed the impugned order. Thus, I am of the definite view that the revision petitioner has not been granted an opportunity to contest the Crl.M.P. on merits.
7. In the above conspectus, I am of the firm view that the order has to be set aside and the revision petitioner be granted an opportunity to file his objection to the Crl.M.P. No.16/2020 and M.C. No.6/2020, which will do complete justice to both sides.

Finally,

In the result,
(i) The order in Crl.M.P. No.16/2020 in M.C. No.6/2020 is set aside.
(ii) The revision petitioner and the respondents are directed to appear before the Family Court on 1.12.2023.
(iii) The revision petitioner shall be given an opportunity to file his written objections both in Crl.M.P. No.16/2020 and M.C.No.6/2020, within 30 days from today.
(iv) The Family Court shall keep in mind the law laid down by the Hon’ble Supreme Court in Rajnesh v. Neha and Another [2020 (6) KHC 1] and Aditi alias Mithi v. Jitesh Sharma [Crl.Appeal No. 3446/2023], and direct the parties to file the affidavits of disclosure of assets and liabilities.
(v) The Family Court shall dispose of Crl.M.P. No.16/2020, in accordance with law and as expeditiously as possible, at any rate, within a period of 30 days from 1.12.2023.
(vi) The Family Court shall also make an endeavour to dispose of M.C. No.6/2020, in accordance with law and as expeditiously as possible.

Abhilash.M.V Vs Soumya Soman on 10 Nov 2023

Index of Maintenance cases u/s 144 BNSS (125 CrPC) is here.

Aarti Vs Kishan Meena on 22 Aug 2024

Posted on September 16 by ShadesOfKnife

A division bench of Madhya Pradesh High Court at Indore held as follows,

From Para 16,

16. It has also been held in Samar Ghosh (supra) where on facts there has been irretrievable breakdown of marriage, the party opposing the divorce and not letting go the other party free of the matrimonial bond, would be causing mental cruelty to the other party. This makes considerable sense in the Indian context where to reach finality by exhausting the remedy of appeals may take several years. In such situation the party opposing the grant of divorce may, in some cases, be doing so only out of spite, either to harass the other party or prevent it from remarrying or out of sheer cussedness. That may indeed also confirm the allegation that such party had been causing mental cruelty, and was now intent on causing further mental cruelty by opposing the divorce.

From Para 19,

19. Respondent by filing certified copy of impugned judgment and decree in Criminal Case No.2015/2017 under Section 498-A of Indian Penal Code, 1860 and Section 3/4 of Dowry Prohibition Act, 1961 has proved that criminal case was lodged at the behest of appellant / wife in which ultimately appellant, his sister and parents were acquitted by the parties. Learned Court below relying upon the judgment in the case of Vandana Gupta Vs. Ramesh Gupta reported in 2009 (2) MPLJ 214, Madhuri Aaswani Vs. Arjundas Aaswani reported in 2007 (3) MPLJ 550 and Vishwanath Agrawal Vs. Sarla Agrawal reported in AIR 2012 SC 2586 concluded that prosecution of husband and her relatives on the false allegation of demand of dowry comesunder mental cruelty. The findings recorded by the learned Court below are impregnable and infallible.

From Para 21,

21. Learned Court below has recorded the finding that termination of pregnancy without consent of husband also comes under the purview of cruelty. With regard to the aforesaid finding, this Court is of the view that termination of pregnancy may come under the term ‘cruelty’ depending upon the facts and circumstances of the case.

Aarti Vs Kishan Meena on 22 Aug 2024

Index of Divorce Judgments is here.

Arti Tiwari Vs Sanjay Kumar Tiwari on 04 Sep 2024

Posted on September 14 by ShadesOfKnife

A division bench at Allahabad High Court held that,

From Para 3,

3. In brief, it may be noted that the marriage between the parties was solemnized on 2.3.2000. At that time, the appellant was working as Class-III employee at the Rajkiya Bachat Karyalaya, at Bareilly. His father and siblings were residing at their house at Unnao. The family of the appellant belongs to Kanpur Nagar. According to the respondent/husband, the appellant resided at her matrimonial home for a few days, but raised complaint of not feeling safe in the company of only male family members of the respondent, his mother having died almost 20 years earlier.Occasioned by that, the respondent took the appellant to the city of his work, at Bareilly. Even there, the appellant, did not stay for long. She now cited reasons to stay at Kanpur Nagar as she was a practising advocate. Thus, the appellant is described to have left for Kanpur Nagar. However, intermittent cohabitation of the parties at Bareilly, Kanpur Nagar and Unnao, during that period, is not disputed. Then, according to the respondent, he applied for and consequently, was transferred to Kannauj. This transfer, respondent had sought only to make it possible for the respondent to stay at Kanpur Nagar with him. Upon being thus transferred, the respondent took up a rented accommodation at Kanpur Nagar and he used to commute to Kannauj from there every day. However, the appellant still did not stay with him for long. Though intermittently, the appellant did stay with the respondent at his rented premises, she preferred to stay at her parental house. In that context, it is the further case of the respondent that the appellant wanted the respondent to stay with her at her parental home at Kanpur Nagar. When the appellant did not agree to live with the respondent at the rented accommodation taken by him at Kanpur Nagar, he vacated that premises and started staying at Unnao, at his parental home from where too he could easily commute to Kannauj, in connection with his work.

From Para 7,

7. It is also the case of the respondent that the appellant offered cruel behaviour towards all family members of the respondent, from very beginning. Not only she would use harsh words andabusive language in normal household affairs, it was specifically stated by the respondent that the appellant wanted the respondentto abide absolutely, by her wishes. Failing that she threatened to level false allegations against the respondent and his father, including allegation of illicit relationship between the respondentand his real sister. While no such case was ever lodged by the appellant and no such complaint appears to have been made by the appellant to any authority, at the same time, it is on record that after the institution of the divorce suit on 01.08.2006, the appellant instituted Criminal Case No. 687 of 2006 on 14.11.2006 i.e. after three months of the institution of the divorce case. Remarkably,though allegations of demand of dowry and cruelty were made in the First Information Report, there is no prior complaint or First Information Report of such allegation ever made by the appellant,over six years of marriage between the parties.

From Para 11, (Desertion is established)

11. During his extensive cross-examination, the above noted aspects proven by the respondent during his examination-in-chief were not controverted or doubted. We have made reference to those facts to bring out the extent to which the efforts had been made by the respondent to prove desertion offered by the appellant. In absence of any doubt being raised during the extensive cross-examination of the respondent, we do not find any error in the finding of the learned Court below to believe the testimony of the respondent. Sitting in first appeal, we are ourselves inclined to draw firm conclusion that the appellant had no will or desire to live in matrimony with the respondent either at his parental home or at his place of work, or even otherwise at Kanpur Nagar. She only desired to stay at her parental home.

From Para 17,

17. In face of Criminal Revision proceeding pending, against the order of conviction passed in the appeal proceedings, we are not recording any firm conclusion with respect to falsity or otherwise the allegations made in the criminal case, at the same time, in the context of facts and circumstances proven in this case, the critical element of cruelty is found in existence. Desertion suffered over long years in a young marriage, accompanied with harsh words spoken and complete lack of desire and effort on part of the deserting spouse to cohabit as also lodging of criminal case alleging demand of dowry only after institution of divorce case proceeding by the other spouse and pursuing it in appeal to secure conviction (after initial acquittal) does indicate in any case, the marriage between the parties is irretrievably broken down.

From Para 19,

19. In view of the facts noted above we do not find it a fit case to provide for permanent alimony. The daughter born to the parties has attained the age of majority.

Arti Tiwari Vs Sanjay Kumar Tiwari on 04 Sep 2024

Basudha Chakraborty Vs Neeta Chakraborty on 20 May 2024

Posted on September 13 by ShadesOfKnife

A division bench of Apex Court held as follows,

We have failed to comprehend the necessity of the direction of the High Court insisting for personal presence of the petitioner no.2 in Court in-person, despite being apprised that the petitioner no.2 has been suffering from severe medical conditions. From the materials placed on record we find that not only did the petitioner no.2 undergo an organ transplant in the recent past, he is afflicted by other ailments too calling for a surgery thus making it inadvisable for him to travel to Kolkata for attending court proceedings physically. That apart, the petitioner no.1 had physically appeared before the Court on 8th April, 2024 in deference to the order dated 31st January, 2024, yet, she too has been ordered to be produced in court by the police without apparent justification.
We are also at loss to comprehend as to why despite the advancement of science and technology and with the introduction of facilities for virtual hearing in the High Courts, the Court did not consider it desirable to grant liberty to the two petitioners to appear before it through the virtual mode.
The dispute that the High Court is seized of arises out of a marital discord between the spouses and the situation, prima facie, was not such so as to call for the Court’s insistence for personal presence of both the petitioners including the ailing petitioner no.2 by taking an arduous journey from a distant place like Mumbai despite his medical conditions. If the Court thought it fit to interact and bring about a settlement between the parties, an attempt to achieve it by allowing the petitioners to attend proceedings through the virtual mode ought to have been made.
The impugned order is bound to operate harshly against the petitioners. We expect the Court to exercise restraint unless any party repeatedly acts in breach of its order to undermine its dignity, prestige and majesty, thereby attracting the contempt jurisdiction. Exercise of discretion judiciously could have prevented the proceedings from reaching this Court.

Basudha Chakraborty Vs Neeta Chakraborty on 20 May 2024

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