Shama Sharma Vs Kishan Kumar on 10 Jan 2024

Posted on January 29, 2024 by ShadesOfKnife

A division bench of Apex Court passed following order prohibiting mentioning of caste/religion of any litigant either before it or the courts below, while allowing the transfer of a RCR case from Rajasthan to Punjab.

From Para 7,

7. Further, liberty is granted to the respondent-husband to move an appropriate application before the transferee Court for permission to participate in the proceedings virtually. If such a request is made, the transferee Court may grant such permission and direct the personal presence of the respondent-husband only when it is absolutely necessary. Further, if examination of outstation witnesses is required and a request is made for recording the evidence through a Court Commissioner, the transferee Court shall consider the same and pass appropriate orders.

From Paras 10-12,

10. Before parting with this matter, we have noted with surprise that the caste of both the parties has been mentioned in the memo of parties, besides their other details. Learned counsel for the petitioner submits that if the memo of parties as filed before the courts below is changed in any manner, the Registry raises an objection and in the present case as the caste of both the parties was mentioned before the court below, he had no option but to mention their caste in the Transfer Petition.
11. We see no reason for mentioning the caste/religion of any litigant either before this Court or the courts below. Such a practice is to be shunned and must be ceased forthwith. It is therefore deemed appropriate to pass a general order directing that henceforth the caste or religion of parties shall not be mentioned in the memo of parties of a petition/proceeding filed before this Court, irrespective of whether any such details have been furnished before the courts below. A direction is also issued to all the High Courts to ensure that the caste/religion of a litigant does not appear in the memo of parties in any petition/suit/proceeding filed before the High Court or the Subordinate Courts under their respective jurisdictions.
12. The above directions shall be brought to the notice of the members of the Bar as well as the Registry for immediate compliance. A copy of this order shall be placed before the Registrar concerned for perusal and for circulation to the Registrar Generals of all the High Courts for strict compliance.

Shama Sharma Vs Kishan Kumar on 10 Jan 2024

Payal Sethi Vs Rohit Sethi on 09 Jan 2024

Posted on January 27, 2024 by ShadesOfKnife

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,

25. 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.

Payal Sethi Vs Rohit Sethi on 09 Jan 2024

Index of Divorce Judgments is here.

NCV Aishwarya Vs AS Saravana Karthik Sha on 18 Jul 2022

Posted on January 20, 2024 by ShadesOfKnife

A division bench of Apex Court said that wife’s convenience which must be looked at while considering transfer.

From Paras 8-11,

8. It is not disputed that the appellant is the resident of Chennai and that the appellant’s husband-respondent herein is the resident of Vellore and he is employed. The appellant who is 21 years old does not have any source of income of her own as she is not employed and is totally dependent on her parents for her livelihood. In order to attend the court proceedings of the case filed by her husband at Vellore she has to travel alone all the way from Chennai to Vellore as her parents are not in a position to accompany her on account of their old age. Secondly, the appellant has also filed a petition, H.M.O.P. No.1741 of 2021, for restitution of conjugal rights and another petition, M.C. Sr. No.672 of 2021, for her maintenance before the Family Court at Chennai.
9. The cardinal principle for exercise of power under Section 24 of the Code of Civil Procedure is that the ends of justice should demand the transfer of the suit, appeal or other proceeding. In matrimonial matters, wherever Courts are called upon to consider the plea of transfer, the Courts have to take into consideration the economic soundness of both the parties, the social strata of the spouses and their behavioural pattern, their standard of life prior to the marriage and subsequent thereto and the circumstances of both the parties in eking out their livelihood and under whose protective umbrella they are seeking their sustenance to life. Given the prevailing socio-economic paradigm in the Indian society, generally, it is the wife’s
convenience which must be looked at while considering transfer.
10. Further, when two or more proceedings are pending in different Courts between the same parties which raise common question of fact and law, and when the decisions in the cases are interdependent, it is desirable that they should be tried together by the same Judge so as to avoid multiplicity in trial of the same issues and conflict of decisions.
11. As noticed above, the appellant is a young lady aged about 21 years, staying alone along with her aged parents. Under the above circumstances, it is difficult for her to travel all the way from Chennai to Vellore to attend the court proceedings of the case filed by the respondent seeking annulment of marriage. Further, it is also just and proper to club all the three cases together to avoid multiplicity of the proceedings and conflict of decisions. Therefore, the High Court was not justified in rejecting transfer petition bearing TR.C.M.P.No.473 of 2020, filed by the appellant herein.
12. Resultantly, the appeal succeeds and is accordingly allowed. The Order dated 19.11.2020 passed by the High Court in TR.C.M.P. NO.473 of 2020 is set aside. We direct transfer of F.C.O.P. No.125 of 2020 pending consideration before the Family Court, Vellore to the jurisdictional Family Court at Chennai. We also direct the clubbing of the aforementioned three cases so that a common order may be passed by the concerned Family Court at Chennai.

NCV Aishwarya Vs AS Saravana Karthik Sha on 18 Jul 2022

Citations:

Other Sources:

Index of Transfer Judgments is here.

E.Thilagavathy Vs M.Punniyamoorthi on 22 Dec 2023

Posted on January 19, 2024 by ShadesOfKnife

A Division bench at Madurai of Madras High Court held as follows

From Para 17,

17. Whether the wife has committed cruelty by levelling such allegation is the point for consideration. The wife is always ready and willing to live with the husband along with two children. It is the husband, who is running away from the matrimonial home without discharging his duty and responsibility as a husband. It is the specific plea of the wife as well as in her evidence that they have not even availed the facilities offered by the Southern Railway for the last 15 years. The husband has not even included the name of the wife and children in the Service Register so as to enjoy certain facilities offered by the railways to the staff of the family. This attitude of the husband assumes significance inasmuch as he never intended to lead a peaceful/joint life with the wife and children by taking care of them as a dutyful husband. In the absence of any specific plea regarding alleged desertion and in the absence of the proof with regard to desertion for continuous period of two years by the wife, without reasonable cause, the trial Court has gone and discussed in detail and treated the same as cruelty. None of the allegation that was averred by the husband as cruelty and nor proved in the manner known to law. On the contrary, the wife has clearly demonstrated before this Court through her pleadings and her evidence and by way of suggestion during the cross-examination of P.W.1-husband that the husband has not discharged his duties and he is the one, who has not come to the matrimonial home, even when the wife is willing to lead a peaceful life and therefore, we find that she has demonstrated the cruelty at the hands of the husband to the effect that he is not interested to live with the wife and children by not giving any financial assistance and has not included the wife and children in the service register in the railways so as to enjoy the facilities as a family member. These admitted facts would go to show that it is the husband, who has committed cruelty and therefore, the wife was forced to live in the house of her father. The reason assigned by the wife is found to be reasonable and acceptable.

E.Thilagavathy Vs M.Punniyamoorthi on 22 Dec 2023

Divorce judgments here.

Amit Kumar Vs Suman Beniwal on 11 Dec 2021

Posted on January 17, 2024 by ShadesOfKnife

In addition to the guidelines issue in Amardeep Singh Vs Harveen Kaur here, Additional guidelines/factors were issued in this case.

From Para 27,

27. For exercise of the discretion to waive the statutory waiting period of six months for moving the motion for divorce under Section 13B (2) of the Hindu Marriage Act, the Court would consider the following amongst other factors:
(i) the length of time for which the parties had been married;
(ii) how long the parties had stayed together as husband and wife;
(iii) the length of time the parties had been staying apart;
(iv) the length of time for which the litigation had been pending;
(v) whether there were any other proceedings between the parties;
(vi) whether there was any possibility of reconciliation;
(vii) whether there were any children born out of the wedlock;
(viii) whether the parties had freely, of their own accord, without any coercion or pressure, arrived at a genuine settlement which took care of alimony, if any, maintenance and custody of children, etc.

Amit Kumar Vs Suman Beniwal on 11 Dec 2021

Index of Divorce cases is here.

Neeta Amar Vs Vipul Amar on 20 Dec 2023

Posted on December 25, 2023 by ShadesOfKnife

A division bench of Delhi High Court held as follows,

From Para 50,

50. Hence, it is no more res integra that such reckless, defamatory, humiliating and unsubstantiated allegations by one spouse, which has the impact of publically tarnishing the image of the other spouse, is nothing but acts of extreme cruelty. In the present case as well, the appellant always had doubts on the fidelity of her husband which necessarily led to harassment resulting in mental cruelty to the respondent/husband. The strongest pillars on which any marriage stands is trust, faith and respect, and thus, no person can reasonably be expected to put with such disrespectful conduct of their “significant other” who lacks faith in her partner. Any spouse not only expects their partner to respect them but also envisions that in times of need, the spouse would act as a shield to protect their image and reputation. Unfortunately, here is a case where the husband himself is being publically harassed, humiliated and verbally-attacked by his wife, who had gone to the extent of levelling allegation of infidelity during his office meetings in front of all his office staff/guests. She even took to harassing the woman workers of his office and left no stone unturned to portray him as a womanizer in the office. This behaviour is but an act of extreme cruelty to the respondent/husband.

From Paras 56 and 57,

56. The other act of cruelty relied upon by the respondent was that the appellant/wife used to allege that the respondent/husband was impotent. She compelled him to go for Doppler‟s Impotency Test in which he was found to be fit. Such allegations caused mental cruelty to the respondent.
57. This version has been explained by the appellant who asserted that the respondent/husband suffered losses in his business on account of change of Government policies in regard to the business with European countries because of which he went into depression and took to smoking and drinking. She, out of concern for his health, insisted on his visiting the Doctor. She denied that she got the Impotency Test conducted of the respondent/ husband. The appellant while fanning ignorance about the test being conducted, herself gave the explanation that the respondent had visited the Doctor to address his problem of not being able to perform sexually when under intoxication and irritated and frustrated. The admissions of the appellant establish that the respondent was made to undergo the Impotency Test in which he was found to be fit. Clearly, such averments and allegations about the manhood of a person would not only be depressive but also mentally traumatic for any person to accept.

From Para 58,

58. The appellant had made serious allegations of respondent being abusive, quarrelsome and erratic in his behaviour. However, in her cross-examination she admitted that the respondent used to provide everything to her and the child and that he never made any dowry demands. The allegations of dowry demands by the respondent and his family members clearly get demolished by her own admissions. Learned Addl. Principal Judge has rightly concluded that levelling of such allegations of dowry demands would certainly cause mental cruelty to the respondent and his family members.

From Para 60,

60. In the case of Prabin Gopal v. Meghna, 2021 SCC OnLine Ker 2193 in a similar situation, the Kerala High Court observed that the mother had intentionally distanced the child from the father and had deprived the child from the parental love and affection. It was a case of parental alienation where the child, who was in the custody of one parent, had been psychologically manipulated against the estranged parent. It was a strategy whereby one parent intentionally displayed to the child unjustified negativity aimed at the other parent, with the intent to damage the relationship between the child and the estranged parent and to turn the child emotionally against the parent. It was further observed that the child has a right to love and affection of both the parents and likewise, the parents also have a right to receive love and affection of the child. Any act of any parent calculated to deny such affection to the other parent, amounts to alienating the child which amounts to mental cruelty. Since the child was in the custody of the mother, it was held that the mother had breached her duty which she owed as a custodian parent to instil love, affection and feelings in the child for the father. Nothing more can be more painful than experiencing one’s own flesh and blood i.e., the child, rejecting him or her. Such wilful alienation of the child by a parent amounts to mental cruelty to the other parent.

Neeta Amar Vs Vipul Amar on 20 Dec 2023

Citations:

Other Sources:

Rajib Kumar Roy Vs Sushmita Saha on 21 Aug 2023

Posted on December 20, 2023 by ShadesOfKnife

A division bench of Apex Court terminated a dead marriage u/A 142 of Constitution of India and said as follows,

From Para 5,

…
…
Continued bitterness, dead emotions and long separation, in the given facts and circumstances of a case, can be construed as a case of “irretrievable breakdown of marriage”, which is also a facet of “cruelty”. In Rakesh Raman v. Kavita reported in 2023 SCC OnLine SC 497, this is precisely what was held, that though in a given case cruelty as a fault, may not be attributable to one party alone and hence despite irretrievable breakdown of marriage keeping the parties together amounts to cruelty on both sides. Which is precisely the case at hand.
Whatever may be the justification for the two living separately, with so much of time gone by, any marital love or affection, which may have been between the parties, seems to have dried up. This is a classic case of irretrievable breakdown of marriage. In view of the Constitution Bench Judgment of this court in Shilpa Sailesh v. Varun Sreenivasan reported in 2023 SCC OnLine SC 544 which has held that in such cases where there is irretrievable breakdown of marriage then dissolution of marriage is the only solution and this Court can grant a decree of divorce in exercise of its power under Article 142 of the Constitution of India.

Rajib Kumar Roy Vs Sushmita Saha on 21 Aug 2023

Mahalakshmi and Ors Vs State of Karnataka on 30 Nov 2023

Posted on December 13, 2023 by ShadesOfKnife

A division bench of the Apex Court passed this Order, whereby the allegations in the complaint are held to be vague and therefore case against the petitioners was Quashed.

Super Specific Allegations:

We have perused the complaint, as well as the charge sheet. In the complaint, the informant/respondent no. 2 – Rekha Bhaskaran had alleged that in February 2016, appellant no.1 – Mahalakshmi commented on her physical appearance and on 20.09.2016, Mahalakshmi had thrown the personal belongings of Rekha Bhaskaran in the dustbin. In the charge sheet, however, the only allegation that was found to be substantiated was the second allegation, that is, the appellant no. 1 – Mahalakshmi had thrown some of the personal belongings of the informant/respondent no. 2 – Rekha Bhaskaran on the ground, as they were not kept at the proper place. Further, appellant no. 1 – Mahalakshmi had cursed the informant/respondent no. 2 – Rekha Bhaskaran in foul words.

Visits to India:

It is the contention of appellant no. 1 – Mahalakshmi that the assertions made in the complaint are false and incorrect. However, it is accepted that she was living and working in Canada. Further,sometime in March 2016, she visited India to attend her friend’s wedding in Mysore and stayed there for nearly twenty days. Again,in September 2016, she had remained in India for almost 12 days when her father, accused no.2 – Surendra Prasad, was operated and hospitalized under critical care for two to three weeks.

Reasoning and Decision:

Having considered the charge sheet filed, we are of the view that the assertions made therein are very vague and general. One instance unless portentous, in the absence of any material evidence of interference and involvement in the marital life of the complainant, may not be sufficient to implicate the person as having committed cruelty under section 498A of the IPC. Given that the appellants were not residing at the marital home, and appellant no.1 was not even living in India, the absence of specific details that constitute cruelty, we would accept the present appeal.
Accordingly, we quash the criminal proceedings against the appellants. However, we clarify that if any material comes on record during the recording of evidence, it will be open to the trial court to take recourse to Section 319 of the Code and proceed following the law.

Mahalakshmi and Ors Vs State of Karnataka on 30 Nov 2023

Citations:

Other Sources:

https://www.indianemployees.com/judgments/details/mahalakshmi-versus-the-state-of-karnataka

https://www.latestlaws.com/latest-news/498a-ipc-sc-one-instance-unless-portentous-not-sufficient-to-implicate-a-person-for-cruelty-read-order-209416

https://www.lawinsider.in/news/supreme-court-quashes-section-498a-case-against-husbands-sisters-cousins

https://lawtrend.in/supreme-court-quashes-498a-case-against-husbands-relative-says-one-trivial-instance-not-sufficient-for-cruelty/

https://www.lawyersclubindia.com/judiciary/court-dismisses-498a-case-against-husband-s-relative-ruling-that-one-minor-incident-is-insufficient-to-establish-cruelty-supreme-court-in-mahalakshmi-ors-v-the-state-of-karnataka-anr–7056.asp

Omprakash Sahni Vs Jai Shankar Chaudhary and Anr on 02 May 2023

Posted on November 26, 2023 by ShadesOfKnife

A division bench of Apex Court held that, Sentence can be suspended in appeal only if convict has fair chances of acquittal.

From Paras 33 to 36,

33. Bearing in mind the aforesaid principles of law, the endeavour on the part of the Court, therefore, should be to see as to whether the case presented by the prosecution and accepted by the Trial Court can be said to be a case in which, ultimately the convict stands for fair chances of acquittal. If the answer to the above said question is to be in the affirmative, as a necessary corollary, we shall have to say that, if ultimately the convict appears to be entitled to have an acquittal at the hands of this Court, he should not be kept behind the bars for a pretty long time till the conclusion of the appeal, which usually take very long for decision and disposal. However, while undertaking the exercise to ascertain whether the convict has fair chances of acquittal, what is to be looked into is something palpable. To put it in other words, something which is very apparent or gross on the face of the record, on the basis of which, the Court can arrive at a prima facie satisfaction that the conviction may not be sustainable. The Appellate Court should not reappreciate the evidence at the stage of Section 389 of the CrPC and try to pick up few lacunas or loopholes here or there in the case of the prosecution. Such would not be a correct approach.
34. In the case on hand, what the High Court has done is something impermissible. High Court has gone into the issues like political rivalry, delay in lodging the FIR, some over-writings in the First Information Report etc. All these aspects, will have to be looked into at the time of the final hearing of the appeals filed by the convicts. Upon cursory scanning of the evidence on record, we are unable to agree with the contentions coming from the learned Senior Counsel for the convicts that, either there is absolutely no case against the convicts or that the evidence against them is so weak and feeble in nature, that, ultimately in all probabilities the proceedings would terminate in their favour. For the very same reason we are unable to accept the contention coming from the convicts through their learned Senior Counsel that, it would be meaningless, improper and unjust to keep them behind the bars for a pretty long time till they are found not to be guilty of the charges.
35. In the overall view of the matter, we are convinced that the High Court committed a serious error in suspending the substantive order of sentence of the convicts and their release on bail pending the final disposal of their criminal appeals.
36. In fact, it was expected of the State as the prosecuting agency to challenge the order passed by the High Court, but for some reason or the other, the State thought fit not to do anything further. Ultimately, it is the original first informant (brother of the deceased) who had to come before this Court.

Omprakash Sahni Vs Jai Shankar Chaudhary and Anr on 02 May 2023

Citations:

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Chetram Mali Vs Karishma Saini on 21 Nov 2023

Posted on November 23, 2023 by ShadesOfKnife

A division bench of Delhi High Court held as follows:

From Para 6,

6. XX
…
It may be noticed that though respondent claims to have no independent source of income but has reasonable educational background being a graduate from Delhi University. She appears to have voluntarily undertaken social work as claimed despite there being no impediment for undertaking a meaningful employment. The spouse having a reasonable capacity of earning but who chooses to remain unemployed and idle without any sufficient explanation or indicating sincere efforts to gain employment should not be permitted to saddle the other party with one sided responsibility of meeting out the expenses. The equivalence does not have to be with mathematical precision but with the objective to provide relief to the spouse by way of maintenance pendente lite and litigation expenses, who is unable to maintain and support during the pendency of proceedings and to ensure that party should not suffer due to paucity of source of income. The provision is gender neutral and the provisions of Section 24 & 25 of HMA provide for the rights, liabilities and obligations arising from marriage between the parties under HMA.

Chetram Mali Vs Karishma Saini on 21 Nov 2023

Citations:

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Shades of Knife

True Colors of a Vile Wife

Tag: 2-Judge (Division) Bench Decision

Shama Sharma Vs Kishan Kumar on 10 Jan 2024

Payal Sethi Vs Rohit Sethi on 09 Jan 2024

NCV Aishwarya Vs AS Saravana Karthik Sha on 18 Jul 2022

E.Thilagavathy Vs M.Punniyamoorthi on 22 Dec 2023

Neeta Amar Vs Vipul Amar on 20 Dec 2023

Rajib Kumar Roy Vs Sushmita Saha on 21 Aug 2023

Mahalakshmi and Ors Vs State of Karnataka on 30 Nov 2023

Omprakash Sahni Vs Jai Shankar Chaudhary and Anr on 02 May 2023

Chetram Mali Vs Karishma Saini on 21 Nov 2023