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Tag: 2-Judge (Division) Bench Decision
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
Abdul Gafaoor Vs Hameema Khatoon and Ors on 15 Sep 2003
Relying on Supreme Court decision here, a division bench of AP High Court held that, a husband cannot be sentenced indefinitely for breach of maintenance orders.
From Para 3,
3. From bare perusal of this provision, it becomes clear that a person against whom an order under Section 125(3) of the Code is made does not become liable to imprisonment on passing of an order of maintenance, his liability to suffer imprisonment only starts if he fails to respond to a warrant issued under Section 125 (3) of the Code for payment of maintenance. A warrant has to be issued under Section 125(3) of the Code for payment of maintenance, when an application is made by the person who has been held entitled to maintenance under section 125 of the code. When such a warrant is issued for making payment of maintenance, it has to be levied as the amount due in the manner provided for levying fines and if this warrant is not responded by making the payment, then the Magistrate can order imprisonment and the imprisonment in no case can exceed one month. Therefore, it is immaterial whether there were arrears of 12 months or of any other duration. The material question is whether a warrant under Section 125(3) been issued or not and in case of one warrant issued under Section 125(3) of the Code, there can only be one imprisonment and the maximum imprisonment would be one month. So in case a person chooses to file an application under Section 125(3) of the Code on every successive month on failure to get maintenance, she may get successive orders of imprisonment if the person against whom the warrant is issued fails to make the payment. But if a person chooses to make an application after several months, then again she will be able to get an order of imprisonment on failure to make the payment which will be only a maximum imprisonment of one month. We are fortified in our view by a judgment of the Supreme Court reported in Shahada Khatoon v. Amjad Ali, 1999 SCC (Cri) 1029 : (1999 Cri LJ 5060).
Indiankanoon Version:
Casemine Version:
Citations : [2004 DMC 1 693], [2003 ALD CRI 2 902], [2003 SCC ONLINE AP 894], [2004 AP LJ 1 154], [2004 CRI LJ 1280], [2004 CCR 2 332], [2004 HLR 1 332]
Other Sources :
https://indiankanoon.org/doc/1923858/
https://www.casemine.com/judgement/in/5608f838e4b0149711141ca7
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.
Zeba Khalil and Ors Vs State of U.P and Ors on 18 Nov 2005
A division bench of Allahabad High Court held as follows, regards to a set of 340 CrPC applications filed by the knife.
From Para 15-17,
15. It is a fact that Professor F.A Ansari himself did not file any affidavit to say that invigilation duty certificate in question was forged and the same did not contain his signatures. It has to be kept in mind that necessary, prelude for action under section 340, Cr. P.C is that the Court should be of the opinion that it is expedient in the interest of justice to do so. Action under section 340, Cr. P.C should be taken only when the Court on objective consideration of the entire facts and circumstances, is of the belief and opinion that the interest of justice so requires. The Court may act suo motu also. It is for the Court to decide whether to take action and initiate proceedings. Even when an application is made by one of the parties, it becomes a matter between the Court and the alleged perjurer. Action under section 340, Cr. P.C is undertaken in the interest of justice and not to satisfy the private grudge of a litigant. Every case of perjury need not result in prosecution.
16. An action of law should not be equated to a game of chess. Indeed, the wife cannot rely on the sheer technicality that no rejoinder affidavit has been filed by the petitioners in criminal Writ Petition No. 822 of 2000. It is for the Court to consider the entire material and the attending circumstances to come to a right decision to be taken in the matter. The action cannot be permitted to be used by a party as a tool to derive sadistic pleasure in nailing his opponent.
17. On cumulative consideration that charge-sheets in both the cases have been submitted in Court setting the law on its course with regard to the alleged offences and that Professor F.A Ansari himself did not file any affidavit to support the contention of the wife designating the invigilation duty certificate in question to be forged and fictitious, we do not think it to be expedient in the interest of justice to accede to the prayer of Arsi Yusuf (wife) to take any action under section 340, Cr. P.C Hence, the applications under section 340, Cr. P.C are liable to be rejected.
Indiankanoon Version:
Casemine Version:
Citations : [2005 SCC ONLINE ALL 1164], [2006 ACC 54 354]
Other Sources :
https://indiankanoon.org/doc/912009/
https://www.casemine.com/judgement/in/5ac5e5314a93261ae6b58865
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
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.
Rahim Pathan Vs State of Maharashtra on 04 Jun 2019
Single bench judge of Bombay High Court held as follows, while acquitting a husband from the allegations of strangulating his wife.
From Para 16,
16. Perusal of aforesaid findings reflect that the learned Sessions Judge kept implicit reliance on the evidence of PW-2 Sayed Bandeali as well as recitals of the FIR, scribed by PW-9 Gauri More to arrive at the conclusion of guilt of the accused. The approach of learned Sessions Judge appears superficial and erroneous one. He drawn the conclusion that the death of victim was custodial death and it was imperative for the accused husband to explain how the deceased Rubina died. It reveals that the learned Sessions Judge overlooked or glossed over serious legal infirmities in this case. It was fallacious to appreciate that the shop of accused was located at a distance of 3. k.m. from his residential house. Therefore, there was ample opportunity for him to visit to the house from his shop for committing crime. This sort of speculative findings rests on assumption is totally impermissible and inadmissible in law. There is no evidence available on record about the last scene together of the accused in the company of deceased wife Rubina at the relevant time. In contrast, kith and kin of Rubina turned hostile and refused to cast aspersion on the appellant-accused for her homicidal death.
Citations :
Other Sources :
https://indiankanoon.org/doc/141994995/
Adv KG Suresh Vs UOI and Ors on 30 Mar 2021
A division bench of Kerala High Court struck down Sec 17 of Senior Citizens Act 2007 as it was ultravires with Sec 30 of Advocates Act 1961.
From Para 57,
57. As Section 30 of the Advocates Act, 1961 has been brought into force from 15.06.2011, Advocates enrolled under the said Act have been conferred with an absolute right thereof, to practice before all the Courts and Tribunals. By virtue of Section 30 of the Advocates Act, 1961, coming into force, from 15.06.2011, the restriction imposed is taken away and in such circumstances, Article 19 of the Constitution of India, which guarantees the freedom to practice any profession, enables the Advocates to appear before all the Courts and the Tribunals, subject to Section 34 of the Advocates Act, 1961.
In the light of the above discussion and decisions, Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, is declared as ultra vires of Section 30 of the Advocates Act, 1961 and thus, the petitioner is entitled for a declaration that he has a right to represent the parties before the Tribunal/ Appellate Tribunal/Court, constituted under Act 56 of 2007. Accordingly, this writ petition is allowed.
Citations :
Other Sources :
https://thedailyguardian.com/advocates-entitled-to-appear-in-maintenance-tribunals-bar-on-legal-representation-unconstitutional-kerala-high-court/
https://www.legalservicesindia.com/law/article/1924/39/Advocates-Entitled-To-Appear-In-Maintenance-Tribunals;-Bar-On-Legal-Representation-Unconstitutional-Kerala-HC
