Citations : [2015 SCC ONLINE SC 1073], [2016 SCC 16 352], [2017 SCC CIV 5 817]
Other Sources :
https://www.casemine.com/judgement/in/581180ed2713e179479dfa29
Final decision between these parties is available here.
Category: Supreme Court of India Judgment or Order or Notification
Sivasankaran Vs Santhimeenal on 13 Sep 2021
A division bench of Apex Court granted divorce to a husband, on the grounds of Cruelty apart from irretrievable breakdown of marriage.
From Paras 4 and 5,
4. Insofar as irretrievable breakdown of marriage is concerned, no doubt, it does not exist as a ground of divorce under the Act. The issue has been debated by the Law Commission in its various reports. Breakdown of marriage was incidentally considered by the Law Commission in its 59th report (1974), but the Commission made no specific recommendations in this regard. Thereafter in its 71st report (1978), the Law Commission departed from the fault theory of divorce to recognise situations where a marriage has completely broken down and there is no possibility of reconciliation. Neither party need individually be at fault for such a breakdown of the marriage – it may be the result of prolonged separation, clash of personalities, or incompatibility of the couple. As the Law Commission pithily noted, such marriages are ‘merely a shell out of which the substance is gone’. For such situations, the Commission recommended that the law be amended to provide for ‘irretrievable breakdown of marriage’ as an additional ground of divorce. This recommendation was reiterated by the Law Commission in its 217th Report in 2010, after undertaking a suo moto study of the legal issues involved. So far, the Law Commission’s recommendations have not been implemented. In 2010, the government introduced the Marriage Laws (Amendment) Bill, 2010, which inter alia proposed to add irretrievable breakdown of marriage as a new ground for divorce in both the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. After receiving suggestions from relevant stakeholders, the bill was amended and re- introduced as the Marriage Laws (Amendment) Bill, 2013. This bill was never passed.
5. The result is that, in appropriate cases, this court has granted decrees of divorce exercising its unique jurisdiction under Article 142 of the Constitution of India, to do complete justice between the parties. Such a course is being followed in varied kinds of cases, for instance where there are inter se allegations between the parties, in order to put a quietus to the matter, the parties withdraw these allegations and by mutual consent, this court itself grants divorce. There are also cases where the parties accept that there is an irretrievable breakdown of marriage and themselves request for a decree of divorce. One of the more difficult situations is where, in the opinion of the court, there is irretrievable breakdown of marriage but only one of the parties is willing to acknowledge the same and accept divorce on that account, while the other side seeks to oppose it even if it means carrying on with the marriage.
From Para 7,
7. A marriage is more than a seemingly simple union between two individuals. As a social institution, all marriages have legal, economic, cultural, and religious ramifications. The norms of a marriage and the varying degrees of legitimacy it may acquire are dictated by factors such as marriage and divorce laws, prevailing social norms, and religious dictates. Functionally, marriages are seen as a site for the propagation of social and cultural capital as they help in identifying kinship ties, regulating sexual behaviour, and consolidating property and social prestige. Families are arranged on the idea of a mutual expectation of support and amity which is meant to be experienced and acknowledged amongst its members. Once this amity breaks apart, the results can be highly devastating and stigmatizing. The primary effects of such breakdown are felt especially by women, who may find it hard to guarantee the same degree of social adjustment and support that they enjoyed while they were married.
From Para 14,
14. We are conscious that the Constitution Bench is examining the larger issue but that reference has been pending for the last five years. Living together is not a compulsory exercise. But marriage is a tie between two parties. If this tie is not working under any circumstances, we see no purpose in postponing the inevitability of the situation merely because of the pendency of the reference.
From Paras 17-19,
17. There are episodes of further harassment by the respondent even at the place of work of the appellant including insulting the appellant in front of students and professors, as is apparent from the judgment of the Trial Court. She is stated to have threatened the appellant of physical harm in front of his colleagues as per the testimony of PW.3 and complained to the appellant’s employer threatening to file a criminal complaint against him (PW.3). The first appellate court somehow brushed aside these incidents as having not been fully established on a perception of wear and tear of marriage. The moot point is that the marriage has not taken of from its inception. There can hardly be any ‘wear and tear of marriage’ where parties have not been living together for a long period of time. The parties, undisputedly, never lived together even for a day.
18. We are, thus, faced with a marriage which never took of from the first day. The marriage was never consummated and the parties have been living separately from the date of marriage for almost 20 years. The appellant remarried after 6 years of the marriage, 5 years of which were spent in Trial Court proceedings. The marriage took place soon after the decree of divorce was granted. All mediation efforts have failed.
19. In view of the legal position which we have referred to aforesaid, these continuing acts of the respondent would amount to cruelty even if the same had not arisen as a cause prior to the institution of the petition, as was found by the Trial Court. This conduct shows disintegration of marital unity and thus disintegration of the marriage.10 In fact, there was no initial integration itself which would allow disintegration afterwards. The fact that there have been continued allegations and litigative proceedings and that can amount to cruelty is an aspect taken note of by this court. 11 The marriage having not taken of from its inception and 5 years having been spent in the Trial Court, it is difficult to accept that the marriage soon after the decree of divorce, within 6 days, albeit 6 years after the initial inception of marriage, amounts to conduct which can be held against the appellant.
Citations :
Other Sources :
https://indiankanoon.org/doc/48424234/
https://www.casemine.com/judgement/in/613f760f9e99febca989f9ba
https://www.indianemployees.com/judgments/details/sivasankaran-versus-santhimeenal
Rakesh and Anr Vs State of UP and Anr on 13 Aug 2014
A division bench of Apex Court held as follows
From Para 2, Issue was fixed.
2. Whether a Magistrate after accepting a negative final report submitted by the Police can take action on the basis of the protest petition filed by the complainant/first informant? The above question having been answered in the affirmative by the Allahabad High Court, this appeal has been filed by the accused.
From Para 7, issue was answered.
7. If we are to go back to trace the genesis of the views expressed by this Court in Gopal Vijay Verma (supra), notice must be had of the decision of this Court in H.S. Bains vs. State (Union Territory of Chandigarh) 3 wherein it was held that after receipt of the police report under Section 173, the Magistrate has three options –
“(1) he may decide that there is no sufficient ground for proceeding further and drop action;
(2) he may take cognizance of the offence under Section 190 (1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report;
(3) he may take cognizance of the offence under Section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200. If he adopts the third alternative, he may hold or direct an inquiry under Section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be.”
8. The second and third options available to the Magistrate as laid down in H.S. Bains (supra) has been referred to and relied upon in subsequent decisions of this Court to approve the action of the Magistrate in accepting the final report and at the same time in proceeding to treat either the police report or the initial complaint as the basis for further action/enquiry in the matter of the allegations levelled therein.
Citations : [2014 RCR CRIMINAL SC 4 52], [2014 MPWN SC 3 73], [2014 AIR SC 3509], [2014 SCALE 9 347], [2014 AIOL 490], [2014 CRIMES SC 4 183], [2014 CRLJ SC 4195], [2014 JLJR SC 4 16], [2014 BOMCR CRI SC 4 643], [2014 SUPREME 7 286], [2014 SLT 7 183], [2014 SCC 13 133], [2014 SCC CRI 5 611], [2014 SCC ONLINE SC 619], [2014 AIC 142 75], [2014 ACR SC 3 3091], [2014 UC 3 1651], [2014 ALLCC 87 299], [2014 SCJ 9 159], [2014 ALT CRL AP 3 531], [2014 ALLMR CRI SC 3782], [2014 AJR 4 387], [2015 LW CRL 1 229], [2014 CCR SC 3 577], [2014 PLJR 4 176], [2014 MLJ CRL SC 4 113], [2014 ALL LJ 6 82]
Other Sources :
https://indiankanoon.org/doc/118305084/
https://www.casemine.com/judgement/in/5609af4be4b0149711416134
Y. Sulochana Rani Vs Union of India (Seeking Shared Parenting)
News:
https://www.barandbench.com/news/absence-of-joint-parentage-violates-fundamental-rights-plea-in-sc-challenges-laws-on-custody-guardianship-of-children
https://www.barandbench.com/news/does-absence-of-joint-parentage-violate-fundamental-rights-supreme-court-notice-in-challenge-to-laws-on-custody-childre
https://www.livelaw.in/top-stories/sc-issues-notice-on-plea-challenging-provisions-allowing-exclusive-custody-of-child-to-one-of-the-parents-149243
Rosy Jacob Vs Jacob A. Chakramakkal on 05 Apr 1973
The Full Bench of Apex Court held as follows, with regards to Custody of minor children under GW Act 1890,
15. In our opinion. Section 25 of the Guardians and Wards Act contemplates not only actual physical custody but also constructive custody of the guardian which term includes all categories of guardians. The object and purpose of this provision being ex facie to ensure the welfare of the minor ward, which necessarily involves due protection of the right of his guardian to properly look after the ward’s health, maintenance and education, this section demands reasonably liberal interpretation so as to effectuate that object. Hyper-technicalities should not be allowed to deprive the guardian the necessary assistance from the Court in effectively discharging his duties and obligations towards his ward so as to promote the latter’s welfare. If the Court under the Divorce Act cannot make any order with respect to the custody of Ajit alias Andrew and Maya alias Mary and it is not open to the Court under the Guardians and Wards Act to appoint or declare guardian of the person of his children under Section 19 during his lifetime, if the Court does not consider him unfit, then, the only provision to which the father can have resort for his children’s custody is Section 25. Without, therefore, laying down exhaustively the circumstances in which Section 25 can be invoked, in our opinion, on the facts and circumstances of this case the husband’s application under Section 25 was competent with respect to the two elder children. The Court was entitled to consider all the disputed questions of fact or law properly raised before it relating to these two children. With respect to Mahesh alias Thomas, however, the Court under the Divorce Act is at present empowered to make suitable orders relating to his custody, maintenance and education. It is, therefore, somewhat difficult to impute to the legislature an intention to set up another parallel Court to deal with the question of the custody of a minor which is within the power of a competent Court under the Divorce Act. We are unable to accede to the respondent’s suggestion that his application should be considered to have been preferred for appointing or declaring him as a guardian. But whether the respondent’s prayer for custody of the minor children be considered under the Guardians and Wards Act or under the indian divorce act, as observed by Maharajan, J., with which observation we entirely agree, “the controlling consideration governing the custody of the children is the welfare of the children concerned and not the right of their parents”. It was not disputed that under the indian divorce act this is the controlling consideration. The Court’s power under Section 25 of the Guardians and Wards Act is also, in our opinion, to be governed primarily by the consideration of the welfare of the minors concerned. The discretion vested in the Court is, as is the case with all judicial discretions to be exercised judiciously in the background of all the relevant facts and circumstances. Each case has to be decided on its own facts and other cases can hardly serve as binding precedents, the facts of two cases in this respect being seldom — if ever — identical. The contention that if the husband is not unfit to be the guardian of his minor children, then, the question of their welfare does not at all arise is to state the proposition a bit too broadly and may at times be somewhat misleading. It does not take full notice of the real core of the statutory purpose. In our opinion, the dominant consideration in making orders under Section 25 is the welfare of the minor children and in considering this question due regard has of course to be paid to the right of the father to be the guardian and also to all other relevant factors having a bearing on the minor’s welfare. There is a presumption that a minor’s parents would do their very best to promote their children’s welfare and, if necessary, would not grudge any sacrifice of their own personal interest and pleasure. This presumption arises because of the natural, selfless affection normally expected from the parents for their children. From this point of view, in case of conflict or dispute between the mother and the father about the custody of their children, the approach has to be somewhat different from that adopted by the Letters Patent Bench of the High Court in this case. There is no dichotomy between the fitness of the father to be entrusted with the custody of his minor children and considerations of their welfare. The father’s fitness has to be considered, determined and weighed predominantly in terms of the welfare of his minor children in the context of all the relevant circumstances. If the custody of the father cannot promote their welfare equally or better than the custody of the mother, then, he cannot claim indefeasible right to their custody under Section 25 merely because there is no defect in his personal character and he has attachment for his children—which every normal parent has. These are the only two aspects pressed before us, apart from the stress laid by the husband on the allegations of immorality against the wife which, in our firm opinion, he was not at all justified in contending. Such allegations, in view of earlier decisions, had to be completely ignored in considering the question of custody of the children in the present case. The father’s fitness from the point of view just mentioned cannot override considerations of the welfare of the minor children. No doubt, the father has been presumed by the statute generally to be better fitted to look after the children — being normally the earning member and head of the family — but the Court has in each case to see primarily to the welfare of the children in determining the question of their custody, in the background of all the relevant facts having a bearing on their health, maintenance and education. The family is normally the heart of our society and for a balanced and healthy growth of children it is highly desirable that they get their due share of affection and care from both the parents in their normal parental home. Where, however, family dissolution due to some unavoidable circumstances becomes necessary the Court has to come to a judicial decision on the question of the welfare of the children on a full consideration of all the relevant circumstances. Merely because the father loves his children and is not shown to be otherwise undesirable cannot necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him as against the wife who may also be equally affectionate towards her children and otherwise equally free from blemish, and, who, in addition, because of her profession and financial resources, may be in a position to guarantee better health, education and maintenance for them. The children are not mere chattels : nor are they mere play-things for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them. The approach of the learned Single Judge, in our view, was correct and we agree with him. The Letters Patent Bench on appeal seems to us to have erred in reversing him on grounds which we are unable to appreciate.
Citations : [1973 AIR SC 2090], [1973 SCC 1 840], [1973 SCR 3 918], [1974 MLJ 2 34], [1973 AIR 2090]
Other Sources :
https://indiankanoon.org/doc/270778/
https://www.casemine.com/judgement/in/5609ab9ae4b014971140ce1a
https://www.indianemployees.com/judgments/details/rosy-jacob-vs-jacob-a-chakramakkal
Shahada Khatoon and Ors Vs Amjad Ali and Ors on 7 Apr 1999
A division bench of Supreme Court held that,
The short question that arises for consideration is whether the learned Single Judge of the Patna High Court correctly interpreted sub-section (3) of Section 125 of CrPC by directing that the Magistrate can only sentence for a period of one month or until payment, if sooner made. The learned counsel for the appellants contends that the liability of the husband arising out of an order passed under Section 125 to make payment of maintenance is a continuing one and on account of non-payment there has been a breach of the order and therefore the Magistrate would be entitled to impose sentence on such a person continuing him in custody until payment is made. We are unable to accept this contention of the learned counsel for the appellants. The language of sub-section (3) of Section 125 is quite clear and it circumscribes the power of the Magistrate to impose imprisonment for a term which may extend to one month or until the payment, if sooner made. This power of the Magistrate cannot be enlarged and therefore the only remedy would be after expiry of one month. For breach or non-compliance with the order of the Magistrate the wife can approach the Magistrate again for similar relief. By no stretch of imagination can the Magistrate be permitted to impose sentence for more than one month. In that view of the matter the High Court was fully justified in passing the impugned order and we see no infirmity in the said order to be interfered with by this Court. The appeal accordingly fails and is dismissed.
Indiankanoon Version:
Casemine Version:
Citations : [1999 MHLJ SC 3 290], [1999 SCC CRI 1029], [1999 SUPREME 9 396], [1999 MPLJ SC 2 448], [1999 AIR SC 4880], [1999 SCC 5 672], [1999 BOMCR SC SUPP 1 978], [2000 ALD CRI 1 305], [1999 CRILJ 5060], [2000 DMC SC 1 313], [2000 KLT SC 1 696], [2000 MPHT 2 1], [1999 OLR SC 2 333], [1999 JT SC 10 260], [1999 AIR SCW 4880]
Other Sources :
https://indiankanoon.org/doc/517650/
https://www.casemine.com/judgement/in/5609ad57e4b01497114111fb
Index of 125 CrPC maintenance cases is here.
Shantha @ Ushadevi and Anr Vs B.G.Shivananjappa on 6 May 2005
Division bench of Apex Court held as follows:
It is true that the amount of maintenance became due by virtue of the Magistrate’s order passed on 20th January, 1993 and in order to seek recovery of the amount due by issuance of warrant, application shall be made within a period of one year from the date the amount became due. In the present case, the application, namely, Crl. Misc. Petition No. 47 of 1993 was filed well within one year. As no amount was paid even after the disposal of the matter by the High Court, the appellant filed IA No. 1 in Crl. Misc. Petition No. 47 of 1993 wherein the arrears due up to that date were calculated and sought recovery of that amount under Section 125(3). Thus, IA No. 1 was filed even when Crl. Misc. Petition No. 47 of 1993 was pending and no action to issue warrant was taken in that proceeding. Crl. Misc. Petition No. 47 of 1993 which was filed within one year from the date the amount became due was kept alive and it was pending throughout. The purpose of filing IA on 16-6-1998 was only to mention the amount due up to date. The fact that the additional amount was specified in the IA does not mean that the application for execution of the order by issuing a warrant under Section 125(3) was a fresh application made for the first time. As already noticed, the main petition filed in the year 1993 was pending and kept alive and the filing of subsequent IA in 1998 was only to specify the exact amount which accrued due up to that date. Such application is only supplementary or incidental to the petition already filed in 1993 admittedly within the period of limitation. The fact that only a sum of Rs 5365 representing the arrears of eight months was mentioned therein does not curtail the scope of criminal miscellaneous petition filed in 1993 more so when no action was taken thereon and it remained pending.
8. We are, therefore, of the view that in the peculiar circumstances of the case, the bar under Section 125(3) cannot be applied and the High Court has erred in reversing the order of the Sessions Judge. It must be borne in mind that Section 125 CrPC is a measure of social legislation and it has to be construed liberally for the welfare and benefit of the wife and daughter. It is unreasonable to insist on filing successive applications when the liability to pay the maintenance as per the order passed under Section 125(1) is a continuing liability.
Note: The last line of para 8 (underlined) is against the law laid down by the Apex Court in Shahada Khatoon and Ors Vs Amjad Ali and Ors.
Citations : [2005 SCC 4 468], [2005 SCC CRI 1089], [2005 AIR SC 2410], [2005 CRI LJ 2615], [2005 KANTLJ 4 208], [2005 CRIMES SC 2 225], [2005 AIR SC 0 2613], [2005 RCR CRI 2 796], [2005 AIOL 264], [2005 BOMCR CRI SC 2 548], [2005 CRLJ SC 2615], [2005 JT 5 347], [2005 SCALE 4 742], [2005 SCC 4 463], [2005 SCC CRI 1098], [2005 SCR 153], [2005 SUPREME 4 93], [2005 SCC CR 1098], [2005 SCJ 4 553], [2005 AD SC 5 319], [2005 BCR 2 548], [2005 MLJ CRI 1 665], [2005 SRJ 6 238], [2005 ALT CRI 2 282], [2005 CRLR 356], [2005 CALLJ 2 233], [2005 ALD CRI 1 370], [2005 CALCRILR 2 1], [2005 CCC 2 430], [2005 ALL MR CRI 179], [12005 DMC 2 1], [2005 JCRIC 2 753], [2005 SLT 4 292], [2005 CCR 2 231], [2005 MLJ CRL 1 665], [2005 AIR SCW 0 2613], [2005 AIR SCW 2613], [2005 CRIMES 2 225], [2005 CRLJ 2615], [2005 BCR CRI 2 548]
Other Sources :
https://indiankanoon.org/doc/1928800/
https://www.casemine.com/judgement/in/5609ae1ce4b0149711412fec
Dr Nalini Kanta Tripathy Vs Dr Pradyuti Dash on 02 Aug 2021
A working knife is denied interim maintenance in a HMA 24 proceedings!!!
On 24 Jan 2020, SCI order the Appellant to pay interim maintenance of 10K instead of 16K as ordered by Orissa HC, only to the child and denied maintenance to working knife.
The Lower Court (Orissa High Court) decision is here.
Yuvraj Digvijay Singh Vs Yuvrani Pratap Kumari on 2 May, 1969
The division bench of Apex Court held as follows regarding how to prove non-consummation of marriage under Hindu Marriage Act 1955.
A party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility. The condition must be one, according to the statute, which existed at the time of the marriage and continued to be so until the institution of the proceedings. In order to entitle the appellant to obtain a decree of nullity, as prayed for by him, he will have to establish that his wife, the respondent, was impotent at the time of the marriage and continued to be so until the institution of the proceedings.
Citations : [1970 AIR SC 137], [1969 SCC 2 279], [1970 SCR 1 559], [1970 AIR SC 1373]
Other Sources :
https://indiankanoon.org/doc/1514023/
https://www.casemine.com/judgement/in/5609ab60e4b014971140c4a5
The UK case law is here.
The Index is here.
Virsa Singh Vs State of Punjab on 11 Mar 1958
A Full bench of Apex Court held in a murder case as follow…
To put it shortly, the prosecution must prove the following before it can bring a case under s. 300 Indian Penal Code third clause.
(1) It must establish, quite objectively, that a bodily injury is present.
(2) The nature of the injury must be proved; these are purely objective investigations.
(3) It must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.
(4) It must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature.This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under s. 300, 3rdly. It does not matter that there was no intention to cause death. It does not matter that there was Do intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only
escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional.
Citations : [1958 AWR 28 572], [1958 MYSLJ SC 36 723], [1958 SCR 1 1495], [1958 SCR 0 1495], [1958 SCJ 0 772], [1958 AIR SC 458], [1958 AIR SC 463], [1958 SCR 0 1945], [1958 AIR SC 365], [1958 SCR 0 1450], [1958 CRLJ SC 818], [1958 AIR SC 465]
Other Sources :
https://indiankanoon.org/doc/1296255/
https://www.casemine.com/judgement/in/5609aafee4b014971140b6ea
