A division bench of Delhi High Court held as follows,
From Para 57,
57. Each and every individual is entitled to basic resources like food, shelter, clothing, education, medical expenses and other necessities required to live a dignified life. Morally and legally, it the obligation of both the parents to provide these amenities, according to the status of life being led by them, to their children by way of maintenance.
Index of Maintenance Orders under HMA here.
A division bench of Delhi High Court caught a liar in a HMA 24 proceeding.
From Para 6,
6. It is not in dispute that the appellant was M. Phil at the time of her marriage and was pursuing Ph.D which she has completed and is now having the qualification of Ph.D (Management) with professional qualification in Computers. While on the other hand the respondent is a simple graduate. It is also not denied that appellant was working at the time of her marriage at a Diamond Jewellery Showroom and was getting Rs.12,000/- per month. She had left her job since she was unable to attend her office since 22.05.2015.
7. From the submissions it is evident that not only is the appellant highly qualified but had been working even at the time of her marriage.
From Para 8,
8. The second aspect of significance is that the respondent had claimed that the appellant is working in the office of M.P. Udit Raj in Connaught Place and her claim that she is unemployed, is incorrect. In support of his assertions he had relied upon a CD showing the appellant working in the office of Mr. Udit Raj and also marking her attendance in the Register. The appellant who had initially taken a stand that she was not working, when confronted with this CD, gave an explanation that she has a friend working in the office of Mr. Udit Raj and at times when she goes to visit her friend, she also looks after the office work.
Citations: [2023 SCC OnLine Del. 5624]
Other Sources:
https://indiankanoon.org/doc/116590874/
https://www.casemine.com/judgement/in/650084c876bd087c6be01592
https://www.courtkutchehry.com/Judgement/Search/t/5125330-niharika-ghosh-niharika-kundu
Index of Maintenance Orders under HMA here.
A division bench of Supreme Court held as follows,
On behalf of the petitioner, it has been urged that the provision of Order V Rule 2 of the Code of Civil Procedure requires service of summons with
plaint.
We accept the petitioner’s argument on the legal proposition that service contemplated in terms of Order V Rule 2 of the Code would imply service of summons along with the copy of the plaint.
A division bench of Delhi High Court granted divorce to a couple who are separated for over 17 years…
From Para 17,
17. The divorce has been sought on the ground of cruelty. While “physical cruelty” is visible and easy to comprehend and determine, the more challenging aspect is “mental agony” which has been recognized as part of “cruelty” which once established, is a valid ground of divorce. The contours of “mental cruelty” were defined in case of V. Bhagat v. D. Bhagat (1994) 1 SCC 337, wherein the Hon’ble Supreme Court held that mental cruelty in Section 13(1)(ia) of the Act, 1956 can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put-up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the party.What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case.
From Paras 22 and 23,
22. During the trial, the allegations had not been established as held by the Order of Ld. Mahila Court, South District and amounts to a clear and categorical character assassination of the appellant as well as his family members.
23. It is not under challenge that the criminal proceedings under Section 107/151 Cr.P.C. were initiated against the parties. A Police Station is not the best of places for anyone to visit. It is a source of mental harassment and trauma each time he was required to visit the Police Station, like the “Damocles Sword” hanging over his head, not knowing when a case would be registered against him and he would be arrested. The respondent had done everything to get the appellant and his family entrapped in the criminal case. Such conduct of making false allegations and constant threat of being summoned to Police Station are the acts which severely impact the mental balance and all the acts of cruelty.
From Para 27,
27. A law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the “Fault theory”, guilt has to be proved; divorce courts are presented with concrete instances of human behaviour as they bring the institution of marriage into disrepute. We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of the fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period continuous separation, it may be fairly surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. The Family Court ought to have visualised that preservation of such a marriage is totally unworkable which has ceased to be effective and would be a greater source of misery for the parties. The Family Court ought to have considered that a human problem can be properly resolved by adopting a human approach. In the instant case, not to grant a decree of divorce would be disastrous for the parties. Otherwise, there may be a ray of hope for the parties that after a passage of time (after obtaining a decree of divorce) the parties may psychologically and emotionally settle down and start a new chapter in life.
Citations: [2023 SCC ONLINE DEL 5122]
Other Sources:
https://indiankanoon.org/doc/186009176/
https://www.casemine.com/judgement/in/64e4d541d2752322a69ddb3d
https://www.verdictum.in/court-updates/high-courts/constant-threat-of-arrest-and-wifes-false-allegations-has-become-source-of-mental-cruelty-delhi-hc-grants-divorce-to-aggrieved-husband-1491232
Index of Divorce Judgments here.
A division bench of Apex Court declared the act of imposing cost of DV complainant to examine witnesses.
The appellant is the complainant in a case under the Protection of Women from Domestic Violence Act, 2005. In the trial, the right of the appellant to lead evidence was closed and the complaint was rejected. Therefore, the appellant had filed an appeal. The Appellate Court allowed the appeal directing the trial court to reopen the case and allow the appellant to lead evidence subject to her paying cost of Rs.20,000/- per witness. When the appellant moved the High Court against the said order, the High Court reduced the cost to Rs.10,000/- per witness. In addition, the Appellate Court as well as the High Court said that the appellant will not be entitled to maintenance during the said period.
In a complaint filed under the Protection of women from Domestic Violence Act, 2005, it is not open to the Court to impose such onerous conditions upon the appellant, who claims to be a victim of domestic violence. What the Appellate Court and the High Court have ordered are actually in the nature of penalty for the appellant not proceeding with the trial. In the first instance, it is impermissible in law.
Therefore, the appeal is allowed and that portion of the order of the Appellate Court and the High Court imposing the cost upon the appellant for examination of every witness and also depriving the appellant of interim maintenance is set aside.
The trial court shall permit the appellant to lead evidence without imposing the onerous conditions.
Physical presence of the parents-in-law of the appellant, who are also the respondents herein, shall be dispensed with by the trial court.
Index of DV cases is here.
A Division bench of Apex Court discussed the distinction between Ratio Decidendi and Obiter Dicta.
The distinction between obiter dicta and ratio decidendi in a judgment, as a proposition of law, has been examined by several judgments of this Court, but we would like to refer to two, namely, State of Gujarat & Ors. vs. Utility Users’ Welfare Association & Ors.8 and Jayant Verma & Ors. vs. Union of India & Ors.9
Testing for Ratio Decidendi:
The first judgment in State of Gujarat (supra) applies, what is called, “the inversion test” to identify what is ratio decidendi in a judgment. To test whether a particular proposition of law is to be treated as the ratio decidendi of the case, the proposition is to be inversed, i.e. to remove from the text of the judgment as if it did not exist. If the conclusion of the case would still have been the same even without examining the proposition, then it cannot be regarded as the ratio decidendi of the case.
What is vital for decision making?
In Jayant Verma (supra), this Court has referred to an earlier decision of this Court in Dalbir Singh & Ors. vs. State of Punjab10 to state that it is not the findings of material facts, direct and inferential, but the statements of the principles of law applicable to the legal problems disclosed by the facts, which is the vital element in the decision and operates as a precedent, albeit operates as res judicata. Even the conclusion does not operate as a precedent. Thus, it is not everything said by a Judge when giving judgment that constitutes a precedent. The only thing in a Judge’s decision binding as a legal precedent is the principle upon which the case is decided and, for this reason, it is important to analyse a decision and isolate from it the obiter dicta.
A division bench of Delhi High Court held as follows,
From Para 12,
12. Marriages under old Hindu Law are considered as a sacrament and did not recognize the concept of divorce. Once this union of marriage was established, the ties were for the entire life of the spouses which could not be severed under any circumstances. Complete shift of paradigm from the social ethos happened with the enactment of the Act, 1955 which not only introduced the concept of ‘monogamy’ but also defined certain grounds on which alone divorce could be granted. Despite this phenomenal change in the social ethos, the Act, 1955 recognises the ground of divorce only on “Fault Theory”. Unless the opposite party was shown to be at fault, whether it was for ‘Adultery’, ‘Cruelty’, ‘Desertion’ or other grounds as specified under Section 13 of the Act, 1955, no divorce can be granted. With the passage of time, experience has shown that many a times, the marriages do not work because of incompatibility and temperamental differences, for which neither party can be blamed. However, since only Fault Theory prevails, these parties end up warring with each other for years to come only because they have no way of exiting this relationship. While many debates have been held to introduce “Irretrievable Breakdown of Marriage” as a ground, it has not met the approval and consent of the legislation. We are bound by limits as defined under the Act, 1955 and unless the fault of the other spouse is shown, the parties are left to suffer acrimonious relationship with no way to exit. In this backdrop, the facts of the present case may be considered.
From Para 30,
30. We conclude that in the present case the parties are living separately for 15 years now; there is no chance of reconciliation between the parties and such long separation peppered which false allegations, police reports and criminal trial has become a source of mental cruelty and any insistence either to continue this relationship or modifying the Family Court’s order would only be inflicting further cruelty upon both the parties. Living together in a marriage is not an irreversible act. But marriage is a tie between two parties and if this tie is not working under any circumstances, we see no purpose in postponing the inevitability of the situation.
Citations: [2023 DHC 6384-DB]
Other Sources:
Index of Divorce judgments here.
Relying on the landmark decision in Lalita Kumari case here, a division bench of Apex Court held that when a complaint disclosed cognizable offence, a FIR has to be registered u/s 154(1) CrPC and proceeded with investigation.
In view of the decision rendered by the Constitution Bench in the case of “Lalita Kumari vs. State of Uttar Pradesh & Ors.,” reported in (2014) 2 SCC 1, we are of the opinion that the registration of FIR is mandatory under Section 154 of CrPC, if the information discloses commission of cognizable offence. We may reiterate summary of law stated therein: –
“120. In view of the aforesaid discussion, we hold:
120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
120.3 If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
120.4 The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
120.5 The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
120.6 As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/ family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without
satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
120.7 While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and, in any case, it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
120.8 Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information
relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.”
Citations:
Other Sources:
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