Pramod Vs Umesh at Poonam on 01 Mar 2024
Index of Divorce judgements is here.
A single judge of Delhi High Court held as follows,
From Paras 11 and 12,
11. He further submits that cognizance of the charge-sheet filed by the police was taken by the learned Metropolitan Magistrate only against accused no.1, that is, Mr. Yogesh Gupta, and summons were issued to him alone vide order dated 22.12.2020. Later, by an order dated 06.07.2022, summons were issued also against other accused, including the petitioners herein. He submits that this is a procedure unknown to law.
12. He further submits that charges inter alia against the petitioners have been framed on 24.01.2023 in absence of the petitioners inasmuch as the petitioners, due to an inadvertent error, had noted the next date of hearing as 24.02.2023, which is also reflected on the official website of the Courts, and had not appeared on 24.01.2023.
From Paras 17 and 18,
17. In Kahkashan Kausar @ Sonam & Ors.,(Supra), the Supreme Court highlighted the concern over the misuse of Section 498A of the IPC and in the increasing tendency of the complainant to implicate the relatives of the husband in matrimonial disputes.
18. The Supreme Court also placed reliance on the precedents on this issue in Rajesh Sharma & Ors. v. State of U.P. & Anr., (2018) 10 SCC 472; Arnesh Kumar v. State of Bihar & Anr., (2014) 8 SCC 273; Preeti Gupta & Anr. v. State of Jharkhand & Anr., (2010) 7 SCC 667; Geeta Mehrotra & Anr v. State of Uttar Pradesh & Anr., (2012) 10 SCC 741, and K. Subba Rao v. State of Telangana, (2018) 14 SCC 452 and held that in the absence of any specific and distinct allegations being made against the family members of the husband and where there are only general and omnibus allegations, the FIR registered against such family members is liable to be quashed. It was further held that, in fact, in such cases if the family members are forced to go through the tribulations of trial, it would inflict severe scars upon them and such exercise must be discouraged.
From Para 22, (hehehehe)
21. As clever case of drafting, specific allegations have been made dating back to around 1994-95 against Mr.Vimal Aggarwal, the other maternal uncle of the husband of the respondent no.2 and his wife Ms.Anu Aggarwal. Specific allegations against the petitioners dating back to 18.07.2007 have been made. As noted hereinabove, the complaint has been filed almost 10 years thereafter.
From Para 23,
23. In Mahmood Ali and Others (Supra), the Supreme Court emphasised that the High Court owes a duty to look into the FIR with care and a little more closely. It was further observed that it will not be enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not and, in frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection, try to read in between the lines.
From Para 24,
Rajesh Aggarwal and Anr Vs State of NCT Delhi and Anr on 12 Mar 202424. Where the wife is set to implicate the entire family of the husband in a criminal case, it is to be expected that through her lawyer she would get a complaint properly drafted making some specific allegations against each of the family members. If only on such averment, the family members are to face agony of the trial, it would defeat the ends of the justice. In my opinion, therefore, the Court must scrutinise the complaint/FIR to determine whether the allegations are a case of clever drafting or have at least some element of truth in the same. Though the Court is not expected to conduct a mini trial, the Court also cannot be a mere spectator and refuse to exercise the power that is vested in it under Section 482 of the Cr.P.C., where it finds that the continuation of such proceedings would defeat the ends of the justice and would amount to insurmountable harassment, agony and pain to the accused and be an abuse of the criminal process.
Index of Quash judgments is here.
A single judge of Delhi High Court allowed wife to file fresh affidavit in a 125 CrPC maintenance proceedings, after husband files a 340 CrPC perjury application.
From Para 8,
8. I have given considered thought to the contentions raised.
The maintenance granted to the wife is as a measure of social justice and the proceedings under Section 125 Cr.P.C. is with an objective to protect women and children from vagrancy and destitution. The Family Courts have been established for adopting and facilitating the conciliation procedure and to deal with family disputes in an expeditious and speedy manner. Section 10(3) of the Family Courts Act, 1984 provides that nothing in sub-section 1 or sub-section 2 of Section 10 of the Family Courts Act, 1984 shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject matter of the suit or proceedings or at the truth of the facts alleged by one party and denied by another party. Thus, the objective remains to reach at the truth of the facts, which is a guiding star for the proceedings under the Family Courts Act. Even in terms of Section 14 of the Family Court Act, the Family Court may receive as evidence any report, statement, information or matter that may in its opinion assists it to deal effectively with the dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872. Keeping in perspective the aforesaid objective and provisions, the technicalities cannot be permitted to prevail. The learned Family Court after appreciation of the facts correctly permitted the filing of the fresh affidavit instead of amendment of earlier affidavit to enable the parties to bring out any inconsistencies or discrepancies for consideration.
From Para 10, (Perjury proceedings are intact)
Sachin Kumar Daksh Vs Mamta Gola and Anr on 16 Feb 202410. It may further be observed that any direction by the Trial Court to file a fresh affidavit does not obliterate the earlier affidavit filed by respondent No.1 on record. Appropriate proceedings can always be considered by the Court in accordance with law in case the Court is of the opinion that a false affidavit had been filed in the proceedings by either of the parties. The same does not in any manner adversely impact the application, if any, preferred by the petitioner under Section 340 Cr.P.C.
Index of Perjury proceedings is here. Index of Maintenance proceedings is here.
A division bench of Delhi High Court held as follows,
From Paras 19 and 20,
19. With regard to Section 13(1) (ib) of the Hindu Marriage Act, 1955, the pertinent observations of the Hon’ble Supreme Court in Bipin Chandra Jaisinghbhai Shah Vs. Prabhavati 1956 SCC OnLine SC 15 are as under:-
“Thus the quality of permanence is one of the essential elements which differentiates desertion from wilful separation. If a spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned : (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid.”
20. The Hon’ble Supreme Court in Bipinchandra Jaisinghbhai Shah(Supra) has further observed that once it is found that one of the spouses has been in desertion, the presumption is that the desertion has continued and that is not necessary for the deserted spouse actually to take steps to bring the deserting spouse back to the matrimonial home.
Finally in Paras 23 and 24,
Gaurav Nighawan Vs Shweta on 05 Jan 202423. Applying the provisions of Section 13(ib) of the Act, we find that merely within two months of marriage between the parties, the respondent-wife left the matrimonial home. Neither she made any complaint against the appellant nor did she file petition under Section 9 of the Hindu Marriage Act, 1955 seeking Restitution of Conjugal Rights. No doubt, even appellant has not been able to show before the learned Family Court and even in this Court that he had made any concrete efforts to bring back his wife to the matrimonial home. However, when he approached the court seeking divorce, despite service through publication, the respondent did not appear before the learned Family Court to contest the allegations made by the appellant. The respondent has even abstained herself from appearing before this Court despite service through the SHO concerned. Relevantly, since the marriage in the year 2015 till the year 2023, the respondent has not made any effort to join company of appellant-husband. There is no doubt that respondent has quietly chosen to stay apart from appellant and broken the bond of marriage, though not legally but otherwise.
24. In the light of afore-noted facts and circumstances of the present case, this Court is of the considered opinion that respondent has wilfully deserted the appellant and so, appellant is entitled to get benefit of provision of Section 13(1) (ib) of the Hindu Marriage Act, 1955. The marriage between the parties is thus, dissolved and a decree of divorce is granted. Decree sheet be prepared accordingly.
Index of Divorce judgments is here.
A division bench of Delhi High Court held as follows,
From Paras 11-13,
Laxmi and Anr Vs Shyam Pratap and Anr on 28 Apr 202211. The daughter-in-law can claim maintenance from her father-in-law provided he has inherited some estate of her husband. The appellant has failed to disclose any estate of her husband having devolved upon the respondents. Not only this, the respondent No.1 father-in-law has already expired. Now only respondent No.2 mother-in-law survives and the appellants cannot as a matter of right, claim any maintenance from her.
12. Section 22 of the Act provides for maintenance of dependents of the deceased by the heirs of the deceased, but this is subject to the condition that they having inherited the estate from the deceased.
13. As already noted above, no estate has been inherited either by the mother or the sister of the deceased husband of the appellant No.1 from which any maintenance can be claimed by the appellants. There is no infirmity in the impugned order of the learned Family Judge. The appeal is hereby dismissed.
Index of judgments under HAMA 1956 are here.
A single judge of Delhi High Court, relying on Vimalben and Laxmi decisions, held as follows,
From Paras 4-6,
4. On the other hand, the learned counsel for the respondent, while not disputing the above submissions of the learned counsel for the petitioners, submits that the respondent has now become aware of certain coparcenary properties in the possession of the petitioners. He submits that, in fact, there are certain properties of the late husband of the respondent which are now being held by the petitioners. He submits that he shall be moving an appropriate application before the learned Family Court to bring on record the above facts.
5. The learned counsel for the petitioners disputes the assertions of the learned counsel for the respondent that there are any coparcenary properties held by the petitioner no.1 or that there are any properties of the late husband of the respondent being held by the petitioners.
6. Be that as it may, the Impugned Order, which grants interim maintenance to the respondent, cannot be sustained.
From Paras 8-9,
8. This Court in Laxmi & Anr. (supra) has reiterated that a daughter-in-law can claim maintenance from her father-in-law, provided that the father-in-law has inherited some estate of her husband. In absence of any such disclosure, the daughter-in-law cannot maintain such claim against the father-in-law; in any case, claim cannot be maintained against the mother-in-law.
9. In Satpal (supra), the Division Bench of Punjab & Haryana High Court also reiterated that for invoking the provision of Section 19 of the Act, the widowed daughter-in-law has to show that the father-in-law has coparcenary property in his possession. Such claim will not lie against the salary of the father-in-law or against his self-acquired property.
Finally, from Paras 10-11,
Suresh Tiwari and Anr Vs Madhu Tiwari on 31 Jul 202310. In the present case, as the petition filed by the respondent stands today, there is no averment of the petitioner no.1 holding any coparcenary property against which the respondent can maintain her claim under Section 19 of the Act. The Impugned Order also does not give any such finding. The Impugned Order, therefore, cannot be sustained and is accordingly set aside.
11. As far as the plea of the learned counsel for the respondent that the respondent has now become aware of coparcenary property in the possession of the petitioner no.1 and/or that the petitioners are holding properties belonging to the late husband of the respondent, in absence of such averments before the learned Family Court, they cannot be taken cognizance of at this stage by this Court. The respondent shall be free to move an appropriate application in this regard before the learned Family Court, and the same shall be considered by the learned Family Court remaining uninfluenced by any observations made in the present order.
Index of judgments under HAMA 1956 are here.
A division bench of Delhi High Court, held that ‘Mother igniting animosity in children towards father is cruelty, valid ground for divorce’.
From Paras 32-33,
32. It is unfortunate that despite the respondent being educated, she was unable to manage her sentiments and emotions, when it came to her husband. She has made adulterous allegations against the appellant and according to her, she had even taken the phone number and the photographs of the lady. However, significantly nothing has found its way to the present proceedings and no cogent evidence of the same has surfaced. Making such unwarranted allegations of adultery without any corroboration, is an act of mental cruelty as held in the case of Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, (2003) 6 SCC 334 and A. Jayachandra v. Aneel Kaur, (2005) 2 SCC 22. Similar observations were also made in the case of Jayanti vs Rakesh Mediratta, 2016 SCC OnLine Del 5760.
33. The differences between two adults may arise due to myriad reasons, some may be temperamental or factual, but the irrationality of the conduct ofthe respondent is brought forth by her conduct of involving in eight years old child, in their disputes. The petitioner and the respondent may not have been able to generate mutual affection, respect and understanding due to their differences, but it does not justify the act of the respondent in embroiling their minor daughter in their fights. Taking a small daughteralong with her with a specific design to the house of the appellant and then to make allegations of adultery and call the Police, is an act of ruining thepsyche of a child and turning her against her father. A person may be a badhusband but that does not lead to the necessary conclusion of he being a badfather. The act of the respondent in trying to turn the children against their father and even making her write a complaint against her father, is a clear case of parental alienation, which in itself is an act of grave mental cruelty.
From Para 36,
Kanwal Kishore Girdhar Vs Seema Girdhar on 28 Feb 202436. This is a clear case of parental alienation where the respondent has not even spared her children and has involved them in her differences, with the appellant. Such conduct of making unsubstantiated allegations of adultery coupled with involving their child in the inter se disputes between the parties, can be termed as nothing but an extreme act of cruelty.
Index of Divorce judgments is here.
A single judge bench of Delhi High Court passed these guidelines to the Mediators…
From Para 42,
Chatter Pal and Ors Vs State and Anr on 16 May 2023(b) Guidelines Apropos Drafting A Settlement Agreement in Matrimonial Disputes with Special Reference to Clauses dealing with Criminal Cases
42. Having discussed the significance of process of mediation in resolution of a dispute, especially those arising out of family and matrimonial cases, and having taken note of complexities that can arise due to inadequate drafting, inconsistencies, omissions or oversights within a settlement agreement achieved between parties subsequent to a successful mediation, this Court deems it appropriate to lay down following guidelines in relation to drafting of a Mediated Settlement Agreement, in addition to the guidelines laid down:
(i) Specify Names of Parties: The agreement must specifically contain names of all the parties to the agreement.
(ii) Avoid Ambiguous Terms: The terms such as ‘respondent’, ‘respondents’, ‘petitioner’ or ‘petitioners’, in absence of their names in the agreement must be avoided in an agreement as it leads to ambiguities and further litigation.
(iii) Include All Details: The terms and conditions of the agreement reached between the parties, howsoever small and minute they may be, must be incorporated in the agreement.
(iv) Timeline For Compliance: The timeline of the fulfilment of terms and conditions as well as their execution must be clearly mentioned. There should be no tentative dates as far as possible.
(v) Default Clause: A default clause should be incorporated in the agreement and the consequences thereof should be explained and enlisted in the agreement itself.
(vi) Mode of Payment: In case any payment is to be made as per settlement, the agreement should specify the method of payment agreed upon between the parties which should also be as per their convenience i.e. electronic mode, by way of a Demand Draft or FDR and the necessary details for fulfilment of this condition.
(vii) Follow-Up Documents: The agreement should also stipulate as to which Follow-up documents are to be prepared and signed by which party. It may also be mentioned as to when, where, how and at whose cost such documents are to be prepared in furtherance of the terms of the agreement, as far as possible.
(viii) Cases involving 498A IPC: Further, especially in cases of matrimonial disputes, where one of the conditions in the Agreement is to cooperate in quashing of FIR, such as those under Section 498A IPC, and filing of affidavit and appearing in the Court for the purpose of the same, it is advisable that the agreement must stipulate the names of all the parties concerned who have been named in the FIR specifically and the fact that the claims have been settled in totality for quashing of entire FIR and proceedings emanating therefrom qua all persons named in the FIR. It be also clarified specifically that the FIR will be quashed in totality against all the persons arrested, not arrested, chargesheeted, not chargesheeted, with their names and whether the entire FIR will be quashed against all of them upon payment by husband or any other person on behalf of the husband.
(ix) Criminal Complaints/Cross-cases: Criminal Complaints filed by parties against each other, pending trial or investigation should also find specific mention with names of all the parties, the Court concerned, and as to how the parties intend to deal with them. The number/details of the complaint, FIR, Sections under which they have been filed, should also be mentioned specifically.
(x) Read and Understood: The agreement should necessarily mention that all the parties have read and understood the contents of the settlement agreement in their vernacular language.
(xi) Signing of Agreement: In case only one or some parties are present during mediation proceedings and only their signatures are obtained on the agreement, it be clearly mentioned and clarified that the agreement is being signed on behalf of those relatives or parties also even in case they are not present, in case the agreement is qua them too and they are not present in person due to age, ailment, distance or any other reason. It is important to do so since in matrimonial offences, the near and distant relatives may, due to above reasons, not be present in person but agreements are reached in totality, especially regarding quashing of FIRs and criminal proceedings and withdrawal of complaints.
(xii) Clarity of Language: At last, the language used in a settlement agreement must be definite enough to understand the real intention of the parties and the goals they wish to achieve by entering into the agreement.
A single judge of Delhi High Court held as follows,
From Paras 13-15,
Bharti Anand Vs Sushant Anand and Ors on 26 Apr 202213. Although the complaint contains several allegations against the respondent Nos. 3 and 4 as noted above, as far as the living arrangements are concerned, it is the case of the complainant herself that the matrimonial home in Jalandhar was shared between her and the respondent Nos. 1 and 2. The respondent Nos. 3 and 4 (being the sister-in-law of the petitioner and her husband) visited often for various lengths of time, but there is no suggestion that they were, or intended to be, permanently resident in the said household. It is in this context that the MM and the Appellate Court have reached the conclusion that there is no domestic relationship between the petitioner and the respondent Nos. 3 and 4.
14. The Supreme Court in Satish Chander Ahuja vs. Sneha Ahuja7, with respect to the definition of shared household in the DV Act, has observed inter alia as follows:-
“68. The words “lives or at any stage has lived in a domestic relationship” have to be given its normal and purposeful meaning. The living of woman in a household has to refer to a living which has some permanency. Mere fleeting or casual living at different places shall not make a shared household. The intention of the parties and the nature of living including the nature of household have to be looked into to find out as to whether the parties intended to treat the premises as shared household or not. As noted above, the 2005 Act was enacted to give a higher right in favour of women. The 2005 Act has been enacted to provide for more effective protection of the rights of the women who are victims of violence of any kind occurring within the family. The Act has to be interpreted in a manner to effectuate the very purpose and object of the Act. Section 2(s) read with Sections 17 and 19 of the 2005 Act grants an entitlement in favour of the woman of the right of residence under the shared household irrespective of her having any legal interest in the same or not.”
15. While the above observations of the Court are in the context of the place of residence of the “aggrieved person”, it would equally apply to the identification of those who may be properly impleaded as respondents on the basis of residence in the shared household. Just as the woman living fleetingly or casually at different places, would not convert those places into a “shared household”, the visits of sundry family members to the matrimonial home, without permanency or the intention to treat the premises as shared household, would not render them as members of the “shared household”.
Index of Domestic Violence cases is here.
A division bench of Delhi High Court held that, repeated threats to commit suicide and the attempt to commit suicide was held to be an action amounting to cruelty, based on Supreme Court decisions.
From Pars 25-31,
Payal Sethi Vs Rohit Sethi on 09 Jan 202425. The repeated threats to commit suicide and the attempt to commit suicide was held to be an action amounting to cruelty by the Supreme court in the case of Pankaj Mahajan Vs. Dimple, (2011) 12 SCC 1. It was further observed that cruelty postulates a treatment of a spouse with such cruelty that it would be harmful or injurious to live with the other spouse. Similarly in Narendra Vs. K. Meena (2016) 9 SCC 455, it was observed that in case the wife succeeds in committing suicide, one can only imagine how the poor husband would get entangled into the clutches of law which would virtually ruin his sanity, peace of mind, career and probably his entire life. Such threat of attempting suicide amounts to cruelty.
26. In the present case as well, the conduct of the appellant is clearly is an act of cruelty towards the respondent/husband.
27. We may note further that on leaving the matrimonial home on 15.12.2009, the appellant lodged a complaint with Crime against Women Cell, which became the basis of registration of FIR No. 508/2012 under Section 498A/406/34 IPC. The respondent was once again driven to take anticipatory bail. The appellant even made a claim of Rs.5 lakhs to settle all the disputes, but the respondent was not in a position to offer more than Rs.3 lakhs because of which the matter could not be settled.
28. Even thereafter another case under the Protection of Women Against Domestic Violence Act was filed in the year 2018 despite the separation of more than nine years. The appellant, no doubt has a legal right to take recourse for the wrong that may have been committed but making unsubstantiated allegations of having been subjected to dowry demands or acts of cruelty by the respondent or his family members, and getting criminal trials initiated against the respondent are clearly acts of cruelty.
29. In the case of K. Srinivas Vs. K. Sunita (2013) 5 SCC 226, the Hon’ble Supreme Court held that filing of false complaints against the husband and his family members constitutes mental cruelty for the purpose of Section 13 (1) (ia) of the Hindu Marriage Act. It was further observed that filing appeals questioning the acquittal of the husband indicates the relentless attempts of the wife to somehow ensure that the husband and his family are put in jail. Such acts, without a doubt, amount to cruelty.
30. The Supreme Court in Mangayakarasi v. M. Yuvaraj (2020) 3 SCC 786, observed that an unsubstantiated allegation of dowry demand or such other allegations made against the husband and his family members exposed them to criminal litigation. Ultimately, if it is found that such allegations were unwarranted and without basis, the husband can allege that mental cruelty has been inflicted on him and claim a divorce on such a ground.
31. We note that during the two years of their matrimonial life, the parties barely resided together for ten months in all and even during that time there were various acts of the cruelty of being subjected to false complaints and civil as well as criminal litigation, committed by the appellant towards the respondent. We therefore, conclude that the learned Addl. Principal Judge, Family Court has rightly held that the respondent was subjected to cruelty by the appellant and granted divorce under Section 13 (1)(ia) of the HMA.
Index of Divorce Judgments is here.
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