Sunday, October 31, 2010

SC lays down conditions for women seeking maintenance in live-in relationships

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
*CRIMINAL APPEAL NOS. 2028-2029__OF 2010*
[Arising out of Special Leave Petition (Crl.) Nos.2273-2274/2010]
D. Velusamy .. Appellant
-versus-
D. Patchaiammal .. Respondent
*
J U D G M E N T*
*Markandey Katju, J.*
1. Leave granted.
2. Heard learned counsel for the appellant. None has appeared for the
respondent although she has been served notice. We had earlier requested Mr.
Jayant Bhushan, learned Senior counsel to assist us as Amicus Curiae in the
case, and we record our appreciation of Mr. Bhushan who was of considerable
assistance to us.
3. These appeals have been filed against the judgment of the Madras High
Court dated 12.10.2009.
4. The appellant herein has alleged that he was married according to the
Hindu Customary Rites with one Lakshmi on 25.6.1980. Out of the wedlock with
Lakshmi a male child was born, who is now studying in an Engineering college
at Ooty. The petitioner is working as a Secondary Teacher in Thevanga
Higher Secondary
School, Coimbatore.
5. It appears that the respondent-D. Patchaiammal filed a petition under
Section 125 Cr.P.C. in the year 2001 before the Family Court at Coimbatore
in which she alleged that she was married to the appellant herein on
14.9.1986 and since then the appellant herein and she lived together in her
father’s house for two or three years. It is alleged in the petition that
after two or three years the appellant herein left the house of the
respondent’s father and started living in his native place, but would visit
the respondent occasionally.
6. It is alleged that the appellant herein (respondent in the petition under
Section 125 Cr.P.C.) deserted the respondent herein (petitioner in the
proceeding under Section 125 Cr.P.C.) two or three years after marrying her
in 1986. In her petition under Section 125 Cr.P.C. she alleged that she did
not have any kind of livelihood and she is unable to maintain herself
whereas the respondent (appellant herein) is a Secondary Grade Teacher
drawing a salary of Rs.10000/- per month. Hence it was prayed that the
respondent (appellant herein) be directed to pay Rs.500/- per month as
maintenance to the petitioner.
7. In both her petition under Section 125 Cr.P.C. as well as in her
deposition in the case the respondent has alleged that she was married to
the appellant herein on 14.9.1986, and that he left her after two or three
years of living together with her in her father’s house.
8. Thus it is the own case of the respondent herein that the appellant left
her in 1988 or 1989 (i.e. two or three years after the alleged marriage in
1986). Why then was the petition under Section 125 Cr.P.C. filed in the year
2001, i.e. after a delay of about twelve years, shall have to be
satisfactorily explained by the respondent. This fact also creates some
doubt about the case of the respondent herein.
9. In his counter affidavit filed by the appellant herein before the Family
Court, Coimbatore, it was alleged that the respondent (appellant herein) was
married to one Lakshmi on 25.6.1980 as per the Hindu Marriage rites and
customs and he had a male child, who is studying in C.S.I. Engineering
college at Ooty. To prove his marriage with Lakshmi the appellant produced
the ration card, voter’s identity card of his wife, transfer certificate of
his son, discharge certificate of his wife Lakshmi from hospital,
photographs of the wedding, etc.
10. The learned Family Court Judge has held by his judgment dated 5.3.2004
that the appellant was married to the respondent and not to Lakshmi. These
findings have been upheld by the High Court in the impugned judgment.
11. In our opinion, since Lakshmi was not made a party to the proceedings
before the Family Court Judge or before the High Court and no notice was
issued to her hence any declaration about her marital status vis-àvis the
appellant is wholly null and void as it will be violative of the rules of
natural justice. Without giving a hearing to Lakshmi no such declaration
could have validly be given by the Courts below that she had not married the
appellant herein since such as a finding would seriously affect her rights.
And if no such declaration could have been given obviously no declaration
could validly have been given that the appellant was validly married to the
respondent, because if Lakshmi was the wife of the appellant then without
divorcing her the appellant could not have validly married the respondent.
12. It may be noted that Section 125 Cr.P.C. provides for giving maintenance
to the wife and some other relatives. The word `wife’ has been defined in
Explanation (b) to Section 125(1) of the Cr.P.C. as follows :
“Wife includes a woman who has been divorced by, or
has obtained a divorce from, her husband and has not
remarried.”
13. In *Vimala (K) *vs. *Veeraswamy (K) *[(1991) 2 SCC 375], a three - Judge
Bench of this Court held that Section 125 of the Code of 1973 is meant to
achieve a social purpose and the object is to prevent vagrancy and
destitution. Explaining the meaning of the word ‘wife’ the Court held:
“..the object is to prevent vagrancy and destitution. It
provides a speedy remedy for the supply of food,
clothing and shelter to the deserted wife. When an
attempt is made by the husband to negative the claim of
the neglected wife depicting her as a kept-mistress on the
specious plea that he was already married, the court
would insist on strict proof of the earlier marriage. The
term ‘wife’ in Section 125 of the Code of Criminal
Procedure, includes a woman who has been divorced by
a husband or who has obtained a divorce from her
husband and has not remarried. The woman not having
the legal status of a wife is thus brought within the
inclusive definition of the term ‘wife’ consistent with the
objective. However, under the law a second wife whose
marriage is void on account of the survival of the first
marriage is not a legally wedded wife, and is, therefore,
not entitled to maintenance under this provision.”
14. In a subsequent decision of this Court in *Savitaben Somabhat Bhatiya *
vs*. State of **Gujarat** and others*, AIR 2005 SC 1809, this Court held
that however desirable it may be to take note of the plight of an
unfortunate woman, who unwittingly enters into wedlock with a married man,
there is no scope to include a woman not lawfully married within the
expression of ‘wife’. The Bench held that this inadequacy in law can be
amended only by the Legislature.
15. Since we have held that the Courts below erred in law in holding that
Lakshmi was not married to the appellant (since notice was not issued to her
and she was not heard), it cannot be said at this stage that the respondent
herein is the wife of the appellant. A divorced wife is treated as a wife
for the purpose of Section 125 Cr.P.C. but if a person has not even been
married obviously that person could not be divorced. Hence the respondent
herein cannot claim to be the wife of the appellant herein, unless it is
established that the appellant was not married to Lakshmi.
16. However, the question has also be to be examined from the point of view
of The Protection of Women from Domestic Violence Act, 2005. Section 2(a) of
the Act states :
“*2(a) *“aggrieved person” means any woman who is, or
has been, in a domestic relationship with the respondent
and who alleges to have been subjected to any act of
domestic violence by the respondent”;
Section 2(f) states :
“*2(f) *“domestic relationship” means a relationship
between two persons who live or have, at any point of
time, lived together in a shared household, when they are
related by consanguinity, marriage, or through a
relationship in the nature of marriage, adoption or are
family members living together as a joint family”;
Section 2(s) states :
“*2(s) *“shared household” means a household where the
person aggrieved lives or at any stage has lived in a
domestic relationship either singly or along with the
respondent and includes such a household whether
owned or tenanted either jointly by the aggrieved person
and the respondent, or owned or tenanted by either of
them in respect of which either the aggrieved person or
the respondent or both jointly or singly have any right,
title, interest or equity and includes such a household
which may belong to the joint family of which the
respondent is a member, irrespective of whether the
respondent or the aggrieved person has any right, title or
interest in the shared household.”
Section 3(a) states that an act will constitute domestic violence in case
it-
“*3(a) *harms or injures or endangers the health, safety,
life, limb or well-being, whether mental or physical, of
the aggrieved person or tends to do so and includes
causing physical abuse, sexual abuse, verbal and
emotional abuse and economic abuse;” or
(emphasis supplied)
17. The expression “economic abuse” has been defined to include :
“(a) deprivation of all or any economic or financial
resources to which the aggrieved person is entitled
under any law or custom whether payable under an
order of a court or otherwise or which the aggrieved
person requires out of necessity including, but not
limited to, household necessities for the aggrieved
person and her children, if any, *stridhan, *property,
jointly or separately owned by the aggrieved person,
payment of rental related to the shared household
and maintenance”.
(emphasis supplied)
18. An aggrieved person under the Act can approach the Magistrate under
Section 12 for the relief mentioned in Section 12(2). Under Section 20(1)(d)
the Magistrate can grant maintenance while disposing of the application
under Section 12(1).
19. Section 26(1) provides that the relief mentioned in Section 20 may also
be sought in any legal proceeding, before a civil court, family court or a
criminal court.
20. Having noted the relevant provisions in The Protection of Women from
Domestic Violence Act, 2005, we may point out that the expression `domestic
relationship’ includes not only the relationship of marriage but also a
relationship `in the nature of marriage’. The question, therefore, arises as
to what is the meaning of the expression `a relationship in the nature of
marriage’. Unfortunately this expression has not been defined in the Act.
Since there is no direct decision of this Court on the interpretation of
this expression we think it necessary to interpret it because a large number
of cases will be coming up before the Courts in our country on this point,
and hence an authoritative decision is required.
21. In our opinion Parliament by the aforesaid Act has drawn a distinction
between the relationship of marriage and a relationship in the nature of
marriage, and has provided that in either case the person who enters into
either relationship is entitled to the benefit of the Act.
22. It seems to us that in the aforesaid Act of 2005 Parliament has taken
notice of a new social phenomenon which has emerged in our country known as
live-in relationship. This new relationship is still rare in our country,
and is sometimes found in big urban cities in India, but it is very common
in North America and Europe. It has been commented upon by this Court in *S.
Khushboo *vs. *Kanniammal & Anr. *(2010) 5 SCC 600 (vide para 31).
23. When a wife is deserted, in most countries the law provides for
maintenance to her by her husband, which is called alimony. However, earlier
there was no law providing for maintenance to a woman who was having a
live-in relationship with a man without being married to him and was then
deserted by him.
24. In USA the expression `palimony’ was coined which means grant of
maintenance to a woman who has lived for a substantial period of time with a
man without marrying him, and is then deserted by him (see ‘palimony’ on
Google). The first decision on palimony was the well known decision of the
California Superior Court in *Marvin *vs. *Marvin *(1976) 18 C3d660. This
case related to the famous film actor Lee Marvin, with whom a lady Michelle
lived for many years without marrying him, and was then deserted by him and
she claimed palimony. Subsequently in many decisions of the Courts in USA,
the concept of palimony has been considered and developed. The US Supreme
Court has not given any decision on whether there is a legal right to
palimony, but there are several decisions of the Courts in various States in
USA. These Courts in USA have taken divergent views, some granting palimony,
some denying it altogether, and some granting it on certain conditions.
Hence in USA the law is still in a state of evolution on the right to
palimony.
25. Although there is no statutory basis for grant of palimony in USA, the
Courts there which have granted it have granted it on a contractual basis.
Some Courts in USA have held that there must be a written or oral agreement
between the man and woman that if they separate the man will give palimony
to the woman, while other Courts have held that if a man and woman have
lived together for a substantially long period without getting married there
would be deemed to be an implied or constructive contract that palimony will
be given on their separation.
26. In *Taylor** *vs. *Fields *(1986) 224 Cal. Rpr. 186 the facts were that
the plaintiff Taylor had a relationship with a married man Leo. After Leo
died Taylor sued his widow alleging breach of an implied agreement to take
care of Taylor financially and she claimed maintenance from the estate of
Leo. The Court of Appeals in California held that the relationship alleged
by Taylor was nothing more than that of a married man and his mistress. It
was held that the alleged contract rested on meretricious consideration and
hence
was invalid and unenforceable. The Court of Appeals relied on the fact that
Taylor did not live together with Leo but only occasionally spent weekends
with him. There was no sign of a stable and significant cohabitation between
the two.
27. However, the New Jersey Supreme Court in *Devaney *vs. *L’ Esperance *195
N.J., 247 (2008) held that cohabitation is not necessary to claim palimony,
rather “it is the promise to support, expressed or implied, coupled with a
marital type relationship, that are indispensable elements to support a
valid claim for palimony”. A law has now been passed in 2010 by the State
legislature of New Jersey that there must be a written agreement between the
parties to claim palimony.
28. Thus, there are widely divergent views of the Courts in U.S.A. regarding
the right to palimony. Some States like Georgia and Tennessee expressly
refuse to recognize palimony agreements.
29. Written palimony contracts are rare, but some US Courts have found
implied contracts when a woman has given up her career, has managed the
household, and assisted a man in his business for a lengthy period of time.
Even when there is no explicit written or oral contract some US Courts have
held that the action of the parties make it appear that a constructive or
implied contract for grant of palimony existed.
30. However, a meretricious contract exclusively for sexual service is held
in all US Courts as invalid and unenforceable.
31. In the case before us we are not called upon to decide whether in our
country there can be a valid claim for palimony on the basis of a contract,
express or implied, written or oral, since no such case was set up by the
respondent in her petition under Section 125 Cr.P.C.
32. Some countries in the world recognize common law marriages. A common law
marriage, sometimes called de facto marriage, or informal marriage is
recognized in some countries as a marriage though no legally recognized
marriage ceremony is performed or civil marriage contract is entered into or
the marriage registered in a civil registry (see details on Google).
33. In our opinion a ‘relationship in the nature of marriage’ is akin to a
common law marriage. Common law marriages require that although not being
formally married :-
(a) The couple must hold themselves out to society as being akin to spouses.
(b) They must be of legal age to marry.
(c) They must be otherwise qualified to enter into a legal marriage,
including being unmarried.
(d) They must have voluntarily cohabited and held themselves out to the
world as being akin to spouses for a significant period of time.
(see ‘Common Law Marriage’ in Wikipedia on Google)
In our opinion a ‘relationship in the nature of marriage’ under the 2005 Act
must also fulfill the above requirements, and in addition the parties must
have lived together in a ‘shared household’ as defined in Section 2(s) of
the Act. Merely spending weekends together or a one night stand would not
make it a ‘domestic relationship’.
34. In our opinion not all live in relationships will amount to a
relationship in the nature of marriag8e to get the benefit of the Act of
2005. To get such benefit the conditions mentioned by us above must be
satisfied, and this has to be proved by evidence. If a man has a ‘keep’ whom
he maintains financially and uses mainly for sexual purpose and/or as a
servant it would not, in our opinion, be a relationship in the nature of
marriage’
35. No doubt the view we are taking would exclude many women who have had a
live in relationship from the benefit of the 2005 Act, but then it is not
for this Court to legislate or amend the law. Parliament has used the
expression `relationship in the nature of marriage’ and not `live in
relationship’. The Court in the grab of interpretation cannot change the
language of the statute.
36. In feudal society sexual relationship between man and woman outside
marriage was totally taboo and regarded with disgust and horror, as depicted
in Leo Tolstoy’s novel `Anna Karenina’, Gustave Flaubert’s novel `Madame
Bovary’ and the novels of the great Bengali writer Sharat Chandra
Chattopadhyaya.
37. However, Indian society is changing, and this change has been reflected
and recognized by Parliament by enacting The Protection of Women from
Domestic Violence Act, 2005.
38. Coming back to the facts of the present case, we are of the opinion that
the High Court and the learned Family Court Judge erred in law in holding
that the appellant was not married to Lakshmi without even issuing notice to
Lakshmi. Hence this finding has to be set aside and the matter remanded to
the Family Court which may issue notice to Lakshmi and after hearing her
give a fresh finding in accordance with law. The question whether the
appellant was married to the respondent or not can, of course, be decided
only after the aforesaid finding.
39. There is also no finding in the judgment of the learned Family Court
Judge on the question whether the appellant and respondent had lived
together for a reasonably long period of time in a relationship which was in
the nature of marriage. In our opinion such findings were essential to
decide this case. Hence we set aside the impugned judgment of the High Court
and Family Court Judge, Coimbatore and remand the matter to the Family Court
Judge to decide the matter afresh in accordance with law and in the light of
the observations made above. Appeals allowed.
……………..……………….J.
(MARKANDEY KATJU)
.…………………………..….J.
(T. S. THAKUR)
NEW DELHI;
21st OCTOBER, 2010

http://www.indiankanoon.org/doc/1521881/

***********************************************************

‘Offensive’ SC judgment cites Wikipedia to define legal term

http://www.legallyindia.com/201010231445/Bar-Bench-Litigation/offensive-sc-judgment-cites-wikipedia-to-define-legal-term

A Supreme Court of India judgment, while defining “Common Law Marriage”, cited as a source Wikipedia, the online encyclopaedia anyone can edit. The same judgment on live-in relationships was also slammed by additional solicitor general Indira Jaisingh for using gender biased terms “one night stand” and “keep”.

In the criminal appeal of D. Velusamy v D. Patchaiammal (arising out of Special Leave Petition (Crl.) Nos.2273-2274/2010) Justice Markandey Katju ruled on Thursday (21 October) in a landmark case that determined the ambit of “live-in relationships” for the purpose of falling under the Domestic Violence Act 2005.

Katju said in the judgment, which is available on Indiankanoon.org: “If a man has a ‘keep’ whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage.”

He added in paragraph 33 of the judgment: “Merely spending weekends together or a one night stand would not make it a ‘domestic relationship’.”

Jaisingh, who was one of the architects of the Domestic Violence Act, objected to the use of “keep” and “one night stand”, which she said were derogatory of women, reported the Times of India.

Jaisingh told the court: “Supreme Court judgments are cited across the world. But this one possibly will tell the world that in India, women are regarded as `keep' or `rakhels'. I strongly object to the use of these words in your judgment. I do not expect this from the Supreme Court in the 21st century. I feel offended by it.”

Katju’s also cited Wikipedia for the definition of “Common Law Marriage”. Wikipedia is an online encyclopaedia that anyone can edit any time and content can therefore not be guaranteed to always be accurate or properly sourced. A Mint editorial from yesterday noted: “Wikipedia is mutable, easily changed by its users; the Wikipedia page seen by judges when preparing a verdict can be different from that seen by readers 10 minutes or six months or seven years hence. A court that can quote Flaubert and Tolstoy should surely be able to call up more lasting, reliable resources than Wikipedia.”

According to a search for the word Wikipedia on Indiankanoon.org, the online encyclopaedia has been cited as a source at least 63 times by Indian courts, which was first posted on Twitter by @gkjohn. US courts too have cited Wikipedia in the past, according to the New York Times, although apparently not to define legal terms.

The Wikipedia entry on Common Law Marriage has not been edited since 13 October. Katju’s judgment only paraphrased parts of the Wikipedia article but did not appear to have copied and pasted any wording.

Excerpt from judgment:

“33. In our opinion a ‘relationship in the nature of marriage’ is akin to a common law marriage. Common law marriages require that although not being formally married :-
(a) The couple must hold themselves out to society as being
akin to spouses.
(b) They must be of legal age to marry.
(c) They must be otherwise qualified to enter into a legal
marriage, including being unmarried.
(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
(see ‘Common Law Marriage’ in Wikipedia on Google)”

***********************************************************

When Is It Appropriate to Cite to Wikipedia?

posted by Daniel Solove

Wikipedia, the online encyclopedia that anybody can edit, is frequently getting cited by courts and academics. The New York Times reports:

A simple search of published court decisions shows that Wikipedia is frequently cited by judges around the country, involving serious issues and the bizarre — such as a 2005 tax case before the Tennessee Court of Appeals concerning the definition of “beverage” that involved hundreds of thousands of dollars, and, just this week, a case in Federal District Court in Florida that involved the term “booty music” as played during a wet T-shirt contest.
More than 100 judicial rulings have relied on Wikipedia, beginning in 2004, including 13 from circuit courts of appeal, one step below the Supreme Court. (The Supreme Court thus far has never cited Wikipedia.)
“Wikipedia is a terrific resource,” said Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit, in Chicago. “Partly because it so convenient, it often has been updated recently and is very accurate.” But, he added: “It wouldn’t be right to use it in a critical issue. If the safety of a product is at issue, you wouldn’t look it up in Wikipedia.”

Paul Caron writes:

I asked my crack research assistant, Drew Marksity, to determine how many times law professors have cited Wikipedia in law review articles. Using Westlaw’s JLR database, Drew found that 545 articles cite Wikipedia. (An additional 125 articles mention Wikipedia but do not cite it as authority.)

Brian Leiter writes:

[Caron] discreetly, does not list the names of the authors of these articles, all of whom should presumably be blacklisted from scholarly careers (unless, of course, the citation was in the context of, “Wikipedia reflects the popular prejudice that…” or “Wikipedia records this error as though it were fact, proving yet again the unreliability of the Internet…” or “In this instance, actual scholarly sources confirm what Wikipedia reports…”).

Inside Higher Ed reports that some schools are barring students from citing to Wikipedia:

While plenty of professors have complained about the lack of accuracy or completeness of entries, and some have discouraged or tried to bar students from using it, the history department at Middlebury College is trying to take a stronger, collective stand. It voted this month to bar students from citing the Web site as a source in papers or other academic work. All faculty members will be telling students about the policy and explaining why material on Wikipedia — while convenient — may not be trustworthy.

When is it appropriate to cite to Wikipedia?

I am generally against categorical bans, as the issue really depends upon the context. I did a search of some of the Westlaw citations, and below the fold I’ll list a few.

1. From 59 Stan. L. Rev. 257, in a footnote: “For an overview of the use of modification or “mod” software in computer gaming, see generally Mod (Computer Gaming), WIKIPEDIA, http:// en.wikipedia.org/wiki/Mod_%28computer_gaming%29.”

2. From 116 Yale L.J. 226, in a footnote: “Between 1965 and 1974, the government of Sweden, a nation of roughly 4 million households, supervised the construction of 1 million housing units (the “Million Programme”), a majority of which were subsidized apartments. See Christopher Caldwell, Islam on the Outskirts of the Welfare State, N.Y. Times Mag., Feb. 5, 2006, at 55, 56; Wikipedia, Million Programme, http://en.wikipedia.org/wiki/Million_Programme (last visited Sept. 1, 2006).”

3. From 41 Ga. L. Rev. 1, in a footnote: “Spyware is malicious software that takes control of a user’s computer for the benefit of a third party and can be used to surreptitiously monitor the user’s online activity. Wikipedia, Spyware, http:// en.wikipedia.org/wiki/Spyware (last visited Aug. 25, 2006).”

4. From 10 Lewis & Clark L. Rev. 673, in a footnote: “For example, after premature and unverifiable claims of cold fusion by Stanley Pons and Martin Fleischmann were discredited, both Pons and Fleischmann were driven from their academic positions. See, e.g., Wikipedia, Stanley Pons, http://en.wikipedia.org/wiki/Stanley_Pons (last visited Apr. 11, 2006) (noting that both Pons and Fleischmann moved to France and accepted jobs for the Toyota Corporation after their cold fusion work was discredited).”

5. From 4 Ohio St. J. Crim. L. 223, in the text: “Ridgway, the most prolific serial killer in American history, pleaded guilty to forty-eight charges of aggravated first degree murder. King County Prosecuting Attorney Norm Maleng then congratulated himself: ‘This agreement was the avenue to the truth. And in the end, the search for the truth is still why we have a criminal justice system.’ [FN]” From the footnote: “See Wikipedia entry on Gary Ridgway, at http:// en.wikipedia.org/wiki/Gary_Ridgway (last visited Mar. 23, 2006).”

6. From 37 Loy. U. Chi. L.J. 753, in a footnote: “Ebert & Roeper gives a “Thumbs Up” (favorable review) or a “Thumbs Down” (unfavorable review). Wikipedia: Ebert & Roeper, http://en.wikipedia.org/wiki/Ebert_&_ Roeper (last visited Feb. 6, 2006).”

7. From 79 S. Cal. L. Rev. 945, defining the term “netizen”: “See Wikipedia, Netizen, http://en.wikipedia.org/wiki/Netizen (last visited May 19, 2006). A Netizen (a portmanteau of Internet and citizen), also known as a cybercitizen, is a person actively involved in online communities for the purpose of giving and receiving viewpoints, furnishing information, fostering the Internet as an intellectual and a social resource, and making choices for self-assembled communities. See id.”

8. From 115 Yale L.J. 1699, in the text: “So perhaps he won’t take offense if I call him a bricoleur, defined by Wikipedia as “a person who creates things from scratch, is creative and resourceful: a person who collects information and things and then puts them together in a way that they were not originally designed to do. [FN]” From the footnote: “Bricolage, in Wikipedia, http://en.wikipedia.org/wiki/Bricolage (last visited Dec. 7, 2005).”

The examples above include several by well-known law professors and a judge. I’m curious which citations readers find appropriate or inappropriate and why.

UPDATE: Mary Dudziak (law, USC) weighs in over at Legal History Blog about Wikipedia’s accuracy in history articles.

http://www.concurringopinions.com/archives/2007/02/when_is_it_appr.html

Wednesday, October 13, 2010

Delhi HC- PWDVA-an aggrieved person does not have liberty to make every relative of the husband as a respondent. Prerequisite considerations for Magistrate to follow. Analysis of Domestic incident report and form 1 of the schedule 2 of Domestic violence Rules must before summoning

Crl.MC No. 1766/10 & 1773/10

IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: September 24, 2010 Date of Order: 8th October, 2010

Bhupender Singh Mehra ... Petitioner
Through: Mr. Brajesh Kumar, Advocate

Versus

State NCT of Delhi & Anr. ... Respondent
Through: Mr. Anurag, Advocate for R-2

Diwan Singh Mehra ... Petitioner
Through: Mr. Brajesh Kumar, Advocate
Versus

State NCT of Delhi & Anr. ... Respondent
Through: Mr. Anurag, Advocate for R-2

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?

JUDGMENT

By the present petition, the petitioners have assailed order dated 5th November, 2009 passed by the learned Metropolitan Magistrate on an application under Section 12 of The Protection of Women from Domestic Violence Act, 2005 (in short Domestic Violence Act) made by the respondent. Petitioners are father-in-law and brother-in-law (elder brother of husband) of respondent. The husband in this case was working in New Zealand and had come to India for marriage. It seems that the marriage did not take off at all. The allegations made by the parties against each other are not relevant for deciding these petitions.

2. The respondent in her application under Section 12 of Domestic Violence Act made husband, father-in-law and brother-in-law (jeth) and another brother-in-law (nandoi) as respondents giving a common address. On making of this application, the learned Metropolitan Magistrate, on the very first day, passed the impugned order directing that the complaint be checked and registered as per rules and issued notice to the Protection
Officer for filing DIB and directed respondents to be served through Protection Officer with or without help of police/Nazarat branch.

3. Section 12 of the Domestic Violence Act reads as under:

12. Application to Magistrate.-

(1) An aggrieved person or a Protection Officer or any
other person on behalf of the aggrieved person may
present an application to the Magistrate seeking one or
more reliefs under this Act:
Provided that before passing any order on such
application, the Magistrate shall take into consideration any
domestic incident report received by him from the
Protection Officer or the service provider.

(2) The relief sought for under sub-section (1) may include
a relief for issuance of an order for payment of
compensation or damages without prejudice to the right of
such person to institute a suit for compensation or
damages for the injuries caused by the acts of domestic
violence committed by the respondent:
Provided that where a decree for any amount as
compensation or damages has been passed by any court
in favour of the aggrieved person, the amount, if any, paid
or payable in pursuance of the order made by the
Magistrate under this Act shall be set off against the
amount payable under such decree and the decree shall,
notwithstanding anything contained in the Code of Civil
Procedure, 1908 (5 of 1908), or any other law for the time
being in force, be executable for the balance amount, if
any, left after such set off.

(3) Every application under sub-section (1) shall be in such
form and contain such particulars as may be prescribed or
as nearly as possible thereto.

(4) The Magistrate shall fix the first date of hearing, which
shall not ordinarily be beyond three days from the date of
receipt of the application by the court.

(5) The Magistrate shall endeavour to dispose of every
application made under sub-section (1) within a period of
sixty days from the date of its first hearing.

4. It is apparent from the above provision of Domestic Violence Act that before passing an order on application, the magistrate has to take into consideration the domestic incident report received from him by Protection Officer or Service Provider. The order dated 5th November, 2009 of learned MM shows that before serving notice to the respondent, the learned MM did not take into consideration anything and did not even consider the contents of the application and did not try to find out as to whether respondents mentioned in the application satisfied the definition of respondent under Section 2(q) of Domestic Violence Act.

Section 2(q) reads as under:

2(q) “respondent” means any adult male person who is or
has been in a domestic relationship with the aggrieved
person and against whom the aggrieved person has sought
any relief under this Act:
Provided that an aggrieved wife or female living in a
relationship in the nature of a marriage may also file a
complaint against a relative of the husband or the male
partner.

5. An application under Section 12 of Domestic Violence Act has to be treated in accordance with provisions given under the Domestic Violence Act. Domestic Violence Act provides for obtaining domestic incident report. The domestic incident report proforma is given in form 1 of the schedule 2 of Domestic Violence Rules. This proforma is in detailed analytical form wherein the details of each incident of domestic violence are to be entered with date, time and place of violence and person who caused domestic violence. The purpose is that all allegations made in application must be specific and the Court should not exercise jurisdiction without considering domestic incident report since it is necessary for the Court to know before issuing any notice to respondent as to who was the respondent who caused domestic violence and what was the nature of violence and when it was committed. The proforma specifies different heads of physical violence, sexual violence, verbal and emotional abuse, economic violence, dowry related harassment and other forms of violence. The proforma also provides for filing of documents in support of the application like medico-legal certificate, list of istridhan and other documents. This domestic incident report has to be signed by the aggrieved person. The application under Section 12 is required to be made in form 2 of the Rules wherein the details of various kinds of reliefs and expenses are to be given. Section 27 of the Domestic Violence Act provides which judicial magistrate Court can have jurisdiction to entertain an application under Section 12 of the Act. Where marriage took place outside Delhi and the parties have lived outside Delhi, it is incumbent upon the applicant invoking jurisdiction of Delhi Court to specify how jurisdiction of Delhi Court was made out. No doubt Section 28(2) gives power to the MM of
laying down its own procedure for disposal of an application under Section 12 or under Sub-Section 23(2) but the procedure an MM can adopt cannot be violative of the Act itself or violative of principles of natural justice. The procedure adopted by the learned MM of issuing notice to the respondent without even considering domestic incident report and without going through the contents of the application and without specifying as to why each of the respondent named by the applicant was to be summoned, is contrary to the Act. Only those persons can be summoned who have been in domestic relationship with aggrieved person. Under The Protection of Women from Domestic Violence Act, 2005 an aggrieved person does not have liberty to make every relative of the husband as a respondent.

6. The order dated 5th November, 2009 passed by the learned MM is therefore set aside. The learned MM is directed to consider the domestic incident report and consider the contents of the application and find out whether the respondents (petitioners herein) had any domestic relationship with the applicant and could be fitted in the definition of the “respondent” as given in Section 2(q) of the Protection of Women from Domestic Violence Act, 2005 and then only issue notice to them.

September , 2010 SHIV NARAYAN DHINGRA, J.
vn

http://lobis.nic.in/dhc/SND/judgement/08-10-2010/SND08102010CRLMM17732010.pdf

Delhi HC – Maintenance formula evolved by judges for wife and child – PWDVA

Crl. MC No.2853/09 & Crl. Rev.P 581.09

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: September 16th, 2010

Date of Order: September 22nd , 2010 Crl. M.C. No.2853/2009 22.09.2010

Joginder ...Petitioner

Versus

State NCT of Delhi & Anr. ...Respondents

Counsels:
Mr. K.K. Manan, Mr. Nipun, Mr. Safdar Ali and Mr. Ashish George for petitioner.
Mr. O.P. Saxena, APP for State/respondent.

AND
Crl. Rev. P. No.581/2009

Usha ...Petitioner

Versus

State & Ors. ...Respondents

Counsels:
Mr. Amit Khanna for petitioner.
Mr. O.P. Saxena, APP for State/respondent.

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?

JUDGMENT

1. These two petitions, one preferred by husband and one by wife are against an order dated 18th July, 2009 passed by learned Sessions Judge, Delhi whereby the leaned Sessions Judge dismissed the appeal of both the parties against an order passed by learned Metropolitan Magistrate fixing an interim maintenance for wife and the child @ Rs.5,000/- per month under Domestic Violence Act and the order refusing to pass a residence order in favour of wife.

2. The husband assailed the order on the ground that he was employed with BSES as a diploma engineer and his total salary at the time of passing the order was hardly Rs.6,491/- and presently it was around Rs.7,000/- per month. He has placed on record the salary certificate issued by his employer i.e. BSES which shows that his gross salary in June, 2009 was Rs.7,000/- and after statutory deductions of labour welfare fund, provident fund, insurance, ESI, his net salary comes to Rs.6491.25. His latest salary certificate shows that his gross salary in the month of June and July 2010 was Rs.7,500/- per month and the net salary after statutory deductions was Rs.6976.25 per month.

3. I consider that while passing the interim order for maintenance, the court has to keep in mind the means and earning of the husband and the law in respect of grant of maintenance to wife and child. Over the times, the courts have evolved a formula that if there are three dependents on the salary of husband, the husband would be entitled to half of the salary and the other two dependents would be entitled to remaining half. In the present case, when the salary of the husband was around Rs.6500/-, granting of interim maintenance of Rs.5,000/- for wife and child was unjust and improper. I, therefore, consider that the order of learned Metropolitan Magistrate and learned ASJ needs modification. The impugned order passed by learned MM and learned ASJ is modified to the extent that the interim maintenance payable to wife and child instead of Rs.5,000/- shall be half of the salary of husband which comes to around Rs.3400/- per month.

4. With above modification, the petition of husband is allowed partly and the petition filed by wife for enhancement of maintenance and for residence order is hereby dismissed being not maintainable in view of the circumstances.

September 22, 2010 SHIV NARAYAN DHINGRA, J
rd

http://lobis.nic.in/dhc/SND/judgement/23-09-2010/SND22092010CRLMM28532009.pdf

Tuesday, October 12, 2010

Guardian and ward act- Jurisdiction of Indian courts NRI children NRI parents – Sanjeev Ruchi Majoo case

Brief backgorund

498a/406 case filed by ruch majoo was quashed by Justice dhingra

http://legalmanthan498adowrymisuse.blogspot.com/2010/10/delhi-hc-nri-498a-quash-jurisdictional.html

This is same woman who had filed Guardianship case and was dismissed by Justice Dhingra on Jurisdictional grounds and later the Mother and WCD/NCW challenged the HC (Dhingra’s) order in SC where it is still pending

here is the GWA case http://lobis.nic.in/dhc/SND/judgement/09-03-2010/SND08032010CMM4482009.pdf

Latest Related news on the case

Latest on the GWA CASE Pending in SC

http://courtnic.nic.in/supremecourt/temp/dc%20922010p.txt

ITEM NO.1                   COURT NO.6                 SECTION XIV


              S U P R E M E       C O U R T   O F    I N D I A
                               RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Civil) No(s).9220/2010

(From the judgment and order dated 08/03/2010 in            CMM No. 448/2009   of
The HIGH COURT OF DELHI AT N. DELHI)

RUCHI MAJOO                                                 Petitioner(s)

                   VERSUS

SANJEEV MAJOO                                               Respondent(s)

(With appln(s) for permission to place addl. documents on record and
prayer for interim relief ))


Date: 05/10/2010    This Petition was called on for hearing today.


CORAM :
          HON'BLE MR. JUSTICE MARKANDEY KATJU
          HON'BLE MR. JUSTICE T.S. THAKUR


For Petitioner(s)        Ms.   Indira Jaising, ASG
                         Mr.   Sanjay Parikh, Adv.
                         Mr.   Anish R. Shah, Adv.
                         Ms.   Mamta Saxena, Adv.
                         Mr.   Ashish Bhan, Adv.
                         Ms.   Soumya Ray, Adv.
                         Mr.   A. N. Singh, Adv.
                         Ms.   Anitha Shenoy,Adv.


For Respondent(s)        Mr. Pallav Shisodia, Adv.
                         Mr. Mukul Kumar,Adv.



            UPON hearing counsel the Court made the following
                                O R D E R

                         In this case, the parties, who are of

                Indian origin, had gone to USA and had a child

                there,   who    having   been   born   in   USA   has   US

                citizenship.
                                    -1-


SLP(Civil) No.9220/2010

                The parties also took up           US citizenship.

       Thereafter, the petitioner (wife) returned to

       India    and    filed   a     petition     for   custody   and

       guardianship,        which     is    pending     before    the

       District Court, Delhi.              At the same time, the

       husband also filed a petition for guardianship

       in the Superior Court of California, USA which

       has been allowed.        The District Judge III (west)

       Delhi dismissed the husband's application for

       dismissing the wife's petition.

                The    Delhi   High       Court   has   allowed   the

       petition filed by the husband-respondent herein,

       and dismissed the Guardianship petition filed by

       the wife on the ground that the District Judge,

       Delhi has no jurisdiction to entertain the said

       petition.

                This      matter           pertains     to   private

       International law.           Hence, we would like to get

       the     assistance      of     the    Indian     Society    of

       International law, Bhagwan Das Road, New Delhi,

       as it has expertise in the matter.               Issue notice

       to the Indian Society of International Law which

       is requested to assist us as amicus curiae in

       the matter.        The Indian Society of International
Law     is    requested     to       depute     some    expert       in

private international law to appear before us to

assist us in the matter.

                            -2-



                               -3-

         In the meantime, the interim order passed

by    this Court will continue.                     Copies of the

proceedings      and    other        relevant       papers    may    be

forwarded       forthwith      by     the     Registry       of   this

Court    to    the   Indian      Society       of    International

Law, Bhagwan Das Road, New Delhi.




         Mr. Sanjay Parikh, learned senior counsel

has    stated    that     he    recuses       himself    from       any

exercise      undertaken       by     the    Indian    Society       of

International Law, since, he is a member of the

executive       council    of       the     Society    and    he     is

appearing for the petitioner in this case.



         List this matter on 9th November, 2010.




(Deepak Joshi)                                  (Indu Satija)
  Sr. P.A.                                       Court Master

---------------------------------------------------------------------------------------------------------------------------------------------

ITEM NO.1                   COURT NO.11                SECTION XIV
              S U P R E M E     C O U R T   O F    I N D I A
                             RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Civil) No(s).9220/2010
(From the judgement and order dated 08/03/2010 in CMM No. 448/2009 of
the HIGH COURT OF DELHI AT NEW DELHI)
RUCHI MAJOO                      Petitioner(s)
                   VERSUS
SANJEEV MAJOO                    Respondent(s)
(With prayer for interim relief)
Date: 15/09/2010    This Petition was called on for hearing today.
CORAM :
          HON'BLE MR. JUSTICE AFTAB ALAM
          HON'BLE MR. JUSTICE CHANDRAMAULI KR. PRASAD
For Petitioner(s)
Ms.    Indira Jai Sing, ASG
                     Mr.    Sanjay Parekh, Adv.
                     Mr.    Anish R. Shah, Adv.
                     Ms.    Soumya Ray, Adv.
                     Mr.    Ashish Bhan, Adv.
                     Ms.    Mamta Saxena, Adv.
                     Ms.    Smidhi Sinha, Adv.
                     Ms.    Sonam Anand, Adv.
                     Mr.    Mukul Kumar, Adv. (NP)
For Respondent(s)
                     Mr.    Pallav Shishodia, Sr. Adv.
                     Mr.    Dhruv Mehta, Sr. Adv.
                     Mr.    Mukul Kumar, Adv.
                     Mr.    Sudhir Pal Singh, Adv.
                     Ms.    Anitha Shenoy, Adv. (NP)
UPON hearing counsel the Court made the following
O R D E R
                 Put up before a Bench of which one of us (Aftam
          Alam, J.) is not a member.
            (N.S.K. Kamesh)                          (S.S.R. Krishna)
              Court Master                             Court Master

Court restrains Interpol from taking custody of child from NRI

Press Trust of India, Friday March 26, 2010, New Delhi

A Bench of Chief Justice K G Balakrishnan, Justices J M Panchal and Deepak Verma directed "status quo" on the custody of the child and posted the matter for further hearing to April 1.
The apex court passed the interim order on an SLP filed by Ruchi Majoo, a dentist and an American now domiciled in Delhi.
Ruchi had filed the SLP through counsel Ashish Bhan against a Delhi High Court order, which had held that since the divorced couple was US citizens, the custodial battle for the child should be fought in that country's court. The high court had passed the order while setting aside the district's order granting custodial rights to the mother.
However, Ruchi's husband, armed with a US court order, sought the help of the Interpol to take custody of the child and came to India, following which the woman moved the apex court. (Custody battle: A child's wait for justice)
In an unusual appearance, Additional Solicitor General Indira Jaising, on behalf of Ruchi urged, the apex court to take up the matter for early hearing as according to her the issue "was of great significance involving jurisdictional powers of Indian courts" over such matrimonial disputes involving people of Indian origin.
Normally, government counsel, more so those holding high ranking law officer posts like Additional Solicitor Generals, do not appear in private disputes except without the permission of the Attorney General.
Jaising complained the Interpol was attempting to take away the child from the mother's custody and sought a restrain on it.
However, the husband's senior counsel Pallav Sisodia told the Bench that Ruchi had deliberately foisted false cases of 498A (harassment of wife by husband/relatives) against Sanjeev to harass him. He pointed out that there is a growing tendency among such estranged NRI wives to come to India and file false 498A cases as such provisions were not available in other countries. The Supreme Court on Friday restrained the Interpol from taking custody of a minor boy from his NRI mother's possession and decided to examine the crucial question whether Indian courts can entertain matrimonial disputes if the couple is foreign citizens.
A Bench of Chief Justice K G Balakrishnan, Justices J M Panchal and Deepak Verma directed "status quo" on the custody of the child and posted the matter for further hearing to April 1.
The apex court passed the interim order on an SLP filed by Ruchi Majoo, a dentist and an American now domiciled in Delhi.
Ruchi had filed the SLP through counsel Ashish Bhan against a Delhi High Court order, which had held that since the divorced couple was US citizens, the custodial battle for the child should be fought in that country's court. The high court had passed the order while setting aside the district's order granting custodial rights to the mother.
However, Ruchi's husband, armed with a US court order, sought the help of the Interpol to take custody of the child and came to India, following which the woman moved the apex court.
In an unusual appearance, Additional Solicitor General Indira Jaising, on behalf of Ruchi urged, the apex court to take up the matter for early hearing as according to her the issue "was of great significance involving jurisdictional powers of Indian courts" over such matrimonial disputes involving people of Indian origin.
Normally, government counsel, more so those holding high ranking law officer posts like Additional Solicitor Generals, do not appear in private disputes except without the permission of the Attorney General.
Jaising complained the Interpol was attempting to take away the child from the mother's custody and sought a restrain on it.
However, the husband's senior counsel Pallav Sisodia told the Bench that Ruchi had deliberately foisted false cases of 498A (harassment of wife by husband/relatives) against Sanjeev to harass him. He pointed out that there is a growing tendency among such estranged NRI wives to come to India and file false 498A cases as such provisions were not available in other countries.

http://www.ndtv.com/news/india/court-restrains-interpol-from-taking-custody-of-child-from-nri-18497.php

Court restrains Interpol from taking custody of child from NRI

The Supreme Court on Friday restrained the Interpol from taking custody of a minor boy from his NRI mother's possession and decided to examine the crucial question whether Indian courts can entertain matrimonial disputes if the couple is foreign citizens.
A Bench of Chief Justice K G Balakrishnan, Justices J M Panchal and Deepak Verma directed "status quo" on the custody of the child and posted the matter for further hearing to April 1.
The apex court passed the interim order on an SLP filed by Ruchi Majoo, a dentist and an American now domiciled in Delhi.
Ruchi had filed the SLP through counsel Ashish Bhan against a Delhi High Court order, which had held that since the divorced couple was US citizens, the custodial battle for the child should be fought in that country's court. The high court had passed the order while setting aside the district's order granting custodial rights to the mother.
However, Ruchi's husband, armed with a US court order, sought the help of the Interpol to take custody of the child and came to India, following which the woman moved the apex court. (Custody battle: A child's wait for justice)
In an unusual appearance, Additional Solicitor General Indira Jaising, on behalf of Ruchi urged, the apex court to take up the matter for early hearing as according to her the issue "was of great significance involving jurisdictional powers of Indian courts" over such matrimonial disputes involving people of Indian origin.
Normally, government counsel, more so those holding high ranking law officer posts like Additional Solicitor Generals, do not appear in private disputes except without the permission of the Attorney General.
Jaising complained the Interpol was attempting to take away the child from the mother's custody and sought a restrain on it.
However, the husband's senior counsel Pallav Sisodia told the Bench that Ruchi had deliberately foisted false cases of 498A (harassment of wife by husband/relatives) against Sanjeev to harass him. He pointed out that there is a growing tendency among such estranged NRI wives to come to India and file false 498A cases as such provisions were not available in other countries. The Supreme Court on Friday restrained the Interpol from taking custody of a minor boy from his NRI mother's possession and decided to examine the crucial question whether Indian courts can entertain matrimonial disputes if the couple is foreign citizens.
A Bench of Chief Justice K G Balakrishnan, Justices J M Panchal and Deepak Verma directed "status quo" on the custody of the child and posted the matter for further hearing to April 1.
The apex court passed the interim order on an SLP filed by Ruchi Majoo, a dentist and an American now domiciled in Delhi.
Ruchi had filed the SLP through counsel Ashish Bhan against a Delhi High Court order, which had held that since the divorced couple was US citizens, the custodial battle for the child should be fought in that country's court. The high court had passed the order while setting aside the district's order granting custodial rights to the mother.
However, Ruchi's husband, armed with a US court order, sought the help of the Interpol to take custody of the child and came to India, following which the woman moved the apex court.
In an unusual appearance, Additional Solicitor General Indira Jaising, on behalf of Ruchi urged, the apex court to take up the matter for early hearing as according to her the issue "was of great significance involving jurisdictional powers of Indian courts" over such matrimonial disputes involving people of Indian origin.
Normally, government counsel, more so those holding high ranking law officer posts like Additional Solicitor Generals, do not appear in private disputes except without the permission of the Attorney General.
Jaising complained the Interpol was attempting to take away the child from the mother's custody and sought a restrain on it.
However, the husband's senior counsel Pallav Sisodia told the Bench that Ruchi had deliberately foisted false cases of 498A (harassment of wife by husband/relatives) against Sanjeev to harass him. He pointed out that there is a growing tendency among such estranged NRI wives to come to India and file false 498A cases as such provisions were not available in other countries.

Saturday, October 9, 2010

Maintenance for live-in woman: issue for larger Bench

The Supreme Court has referred to a larger Bench a question of law whether a man and woman living together for long, without a valid marriage, would raise a presumption of valid marriage entitling her to maintenance under Section 125 Cr.PC.

A Bench of Justices G.S. Singhvi and A.K. Ganguly, though prima facie held the view that women in live-in relationships would be entitled to maintenance, referred the issue to Chief Justice of India S.H. Kapadia for determination by a larger Bench having regard to the provisions of the Protection of Women from Domestic Violence Act, 2005, which provided for maintenance.

The Bench framed questions including “whether a marriage performed according to customary rites and ceremonies, without strictly fulfilling the requisites of Section 7(1) of the Hindu Marriage Act, 1955, or any other personal law would entitle the woman to maintenance under Section 125 Cr.PC. We think the larger Bench may also consider the provisions of the Domestic Violence Act. This Act assigns a very broad and expansive definition to the term `domestic abuse' to include even economic abuse. Therefore, women in live-in relationships are also entitled to all reliefs given under the Act.” Writing the judgment, Justice Ganguly quoted from the rulings of the House of Lords and the Privy Council to hold that cohabitation, with the required repute, as husband and wife was proof that the parties between themselves had mutually contracted the matrimonial relationship. The Bench noted that in the instant case both appellant Chanmuniya and first respondent Virendra Kumar Singh Kushwaha were related and lived in the same house and by a social custom were treated as husband and wife. Their marriage was solemnised with ‘katha' and ‘sindur'. “Therefore, following the ratio of the decisions of the House of Lords, this court thinks there is a very strong presumption in favour of marriage.”

http://www.thehindu.com/news/national/article820299.ece

Abuse on spur of moment ( normal wear and tear )not valid ground for divorce - SC

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5010 OF 2007

Gurbux Singh .... Appellant (s)

Versus

Harminder Kaur .... Respondent(s)

J U D G M E N T

P. Sathasivam, J.

1) The appellant, a Principal in ITI College, Sirhali,

Amritsar, has approached this Court against the judgment

and final order dated 11.05.2007 of the High Court of

Punjab & Haryana at Chandigarh in FAO No. 252-M of

2006 whereby the learned single Judge dismissed the

appeal filed by him against the judgment and order dated

11.10.2006 of the Additional District Judge (Ad hoc),

Amritsar, dismissing the petition filed under Section 13 of

the Hindu Marriage Act, 1955 (hereinafter referred to as

"the Act") for a decree of divorce against the respondent-

wife, who is working as a Librarian in Government

Institute DIET at Verka, Amritsar on the ground of

`cruelty'. Both the courts have rejected the claim of the

appellant herein on the ground that he has failed to prove

`cruelty' sufficient for grant of a decree of divorce.

The case of the Appellant

2) (a) On 23.11.1997, the appellant got married with the

respondent at Amritsar according to Sikh rites and

customs. Even on the date of marriage, the respondent

had been working as a Librarian in a Government

Institute DIET at Verka, Amristar. From the very

beginning, the respondent expressed her dislike towards

the appellant and his family and gradually started

misbehaving with them. She started exhibiting short-

tempered behaviour and treated the parents of the

appellant with cruelty and disrespect. The father of the

appellant is aged about 80 years and his mother is more

than 75 years. In the month of January 1998, on the first

Lohri festival after their marriage, the respondent being

annoyed with the appellant on a trivial issue, abused his

mother in filthy language in the presence of their relatives

and neighbours causing immense pain to the entire

family. Since then, the respondent started insisting that

she cannot live with the parents of the appellant who are

mental and nuisance in her life and pressed upon the

appellant to have a separate abode from his parents.

(b) On 15.05.1999, a male child was born out of the

wedlock. Even after the birth of the child, there was no

improvement in the behaviour of the respondent. She

always insisted that she being financially independent is

not in need of the appellant and his family.

i.e. on 10.05.2002, the respondent, without any justifiable

reason left the matrimonial home leaving the child

unattended and went to her parents house and staying

there since then. The appellant having failed in his efforts

to bring back the respondent to the matrimonial home

and in view of the consistent cruelty filed HMA Case No.

19 of 2003 before the Addl. District Judge, Amritsar,

praying for a decree of divorce under Section 13 of the Act.

The stand of the Respondent

3) In reply to the divorce petition, while denying all the

averments made by the appellant, the respondent has

stated that the appellant is a greedy person and not

satisfied with the dowry articles received in marriage. He

always misbehaved and maltreated her and abused on

several occasions. She alleged that the appellant is a

habitual drinker and used to threaten her to kill with

poison. She also alleged that the appellant pulled her hair

and gave merciless beatings in the presence of his

parents.

Decision of the District Court and High Court

4) By judgment dated 11.10.2006, the Additional District

Judge, Amritsar, after analyzing the plea of both the

parties, oral and documentary evidence concluded that

the appellant-husband failed to substantiate the

allegations of `cruelty' and dismissed his divorce petition.

Aggrieved by the same, the appellant approached the High

Court by filing FAO No. 252-M of 2006. The learned single

Judge of the High Court, by the impugned order dated

11.05.2007, while agreeing with the conclusion of the

Additional District Judge dismissed the appeal filed by

the appellant. Questioning the above said orders, the

appellant has filed the present appeal by way of special

leave petition.

5) Heard Mr. Vinay Kumar Garg, learned counsel for the

appellant and Mr. Seeraj Bagga, learned counsel for the

respondent.

6) The only question for consideration in this appeal is

whether the appellant-husband has made out a case for

divorce on the ground of `cruelty' by the respondent-wife.

7) Section 13 of the Act specifies the grounds on which a

decree for divorce may be obtained by either party to the

marriage. Though in the divorce petition filed before the

Additional District Judge, Amritsar in HMA No. 19 of

2003, the appellant had sought divorce merely mentioning

Section 13 of the Act for dissolution of marriage by decree

of divorce, and did not specify the grounds on which he is

entitled to decree of divorce. In the petition, the appellant

has highlighted only one aspect, namely, that after the

marriage, in the month of January 1998, on first festival

of Lohri, when they were enjoying the festival, the

respondent-wife abused his mother and the father in the

presence of relatives and neighbours. In para 6 of the

petition, the appellant has alleged that:

".....She called nuisance, idiot and mental to the parents of

the petitioner and the respondent openly said that she did

not want to live with the petitioner if he live with his old

parents."

In para 10, the appellant has stated:

"That on 10th May of 2002, the respondent left her

matrimonial home without giving any information to any

member and she also left her child in the matrimonial home

this shows that the respondent did not have any love and

affections towards petitioner and his family members. She is

living in her parental house for the last more than one year.

Hence, the necessity has been arisen to file the present

petition....."

Except the above allegations, the appellant has not

highlighted any other instance(s) about cruelty by the

respondent. Though learned counsel for the appellant

attempted to argue "desertion", in the absence of any

plea/evidence and material, we disallowed him to pursue

the said point.

8) In the reply to the petition under Section 13 of the Act,

the respondent has highlighted her stand and in fact

denied all the allegations against her. She also projected

her case that the custody of the child was forcibly taken

by the appellant when she returned from her matrimonial

home. She also highlighted that the appellant used to

force her to bring cash from her parents as he wanted to

purchase a car in the month of February 2000. When she

refused to bring cash, she was mercilessly beaten by the

appellant. She also stated that in February 4, 2000, her

parents gave Rs. 50,000/- to the appellant and thereafter

the appellant agreed to keep the respondent in her

matrimonial home. She also alleged that the appellant is

habitual of taking liquor and under influence of liquor, he

used to beat her. She further alleged that the appellant's

maternal uncle's daughter used to interfere in their family

affairs.

9) Apart from the above pleadings, both parties filed

statement in the form of an affidavit/petition and also let

in evidence reiterating their respective pleas. As

discussed earlier, the only instance highlighted by the

appellant for divorce was that the respondent-wife abused

his parents on the day of festival of Lohri in the presence

of relatives and neighbours.

10) In Samar Ghosh vs. Jaya Ghosh, (2007) 4 SCC 511,

a three-Judge Bench of this Court while considering

Section 13(1)(i-a) of the Act laid down certain guidelines.

The analysis and ultimate conclusion are relevant which

reads as under:-

"98. On proper analysis and scrutiny of the judgments of

this Court and other courts, we have come to the definite

conclusion that there cannot be any comprehensive

definition of the concept of "mental cruelty" within which all

kinds of cases of mental cruelty can be covered. No court in

our considered view should even attempt to give a

comprehensive definition of mental cruelty.

99. Human mind is extremely complex and human

behaviour is equally complicated. Similarly human ingenuity

has no bound, therefore, to assimilate the entire human

behaviour in one definition is almost impossible. What is

cruelty in one case may not amount to cruelty in other case.

The concept of cruelty differs from person to person

depending upon his upbringing, level of sensitivity,

educational, family and cultural background, financial

position, social status, customs, traditions, religious beliefs,

human values and their value system.

100. Apart from this, the concept of mental cruelty cannot

remain static; it is bound to change with the passage of time,

impact of modern culture through print and electronic media

and value system, etc. etc. What may be mental cruelty now

may not remain a mental cruelty after a passage of time or

vice versa. There can never be any straitjacket formula or

fixed parameters for determining mental cruelty in

matrimonial matters. The prudent and appropriate way to

adjudicate the case would be to evaluate it on its peculiar

facts and circumstances while taking aforementioned factors

in consideration.

101. No uniform standard can ever be laid down for

guidance, yet we deem it appropriate to enumerate some

instances of human behaviour which may be relevant in

dealing with the cases of "mental cruelty". The instances

indicated in the succeeding paragraphs are only illustrative

and not exhaustive:

(i) On consideration of complete matrimonial life of the

parties, acute mental pain, agony and suffering as would not

make possible for the parties to live with each other could

come within the broad parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire matrimonial life

of the parties, it becomes abundantly clear that situation is

such that the wronged party cannot reasonably be asked to

put up with such conduct and continue to live with other

party.

(iii) Mere coldness or lack of affection cannot amount to

cruelty, frequent rudeness of language, petulance of manner,

indifference and neglect may reach such a degree that it

makes the married life for the other spouse absolutely

intolerable.

(iv) Mental cruelty is a state of mind. The feeling of deep

anguish, disappointment, frustration in one spouse caused

by the conduct of other for a long time may lead to mental

cruelty.

(v) A sustained course of abusive and humiliating treatment

calculated to torture, discommode or render miserable life of

the spouse.

(vi) Sustained unjustifiable conduct and behaviour of one

spouse actually affecting physical and mental health of the

other spouse. The treatment complained of and the resultant

danger or apprehension must be very grave, substantial and

weighty.

(vii) Sustained reprehensible conduct, studied neglect,

indifference or total departure from the normal standard of

conjugal kindness causing injury to mental health or

deriving sadistic pleasure can also amount to mental cruelty.

(viii) The conduct must be much more than jealousy,

selfishness, possessiveness, which causes unhappiness and

dissatisfaction and emotional upset may not be a ground for

grant of divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of

the married life which happens in day-to-day life would not

be adequate for grant of divorce on the ground of mental

cruelty.

(x) The married life should be reviewed as a whole and a few

isolated instances over a period of years will not amount to

cruelty. The ill conduct must be persistent for a fairly

lengthy period, where the relationship has deteriorated to an

extent that because of the acts and behaviour of a spouse,

the wronged party finds it extremely difficult to live with the

other party any longer, may amount to mental cruelty.

(xi) If a husband submits himself for an operation of

sterilisation without medical reasons and without the

consent or knowledge of his wife and similarly, if the wife

undergoes vasectomy or abortion without medical reason or

without the consent or knowledge of her husband, such an

act of the spouse may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for

considerable period without there being any physical

incapacity or valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after

marriage not to have child from the marriage may amount to

cruelty.

(xiv) Where there has been a long period of continuous

separation, it may fairly be concluded 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. In such like situations,

it may lead to mental cruelty."

11) A Hindu marriage solemnized under the Act can only

be dissolved on any of the grounds specified therein. We

have already pointed out that in the petition for

dissolution of marriage, the appellant has merely

mentioned Section 13 of the Act and in the body of the

petition he highlighted certain instances amounting to

cruelty by the respondent-wife. Cruelty has not been

defined under the Act. It is quite possible that a

particular conduct may amount to cruelty in one case but

the same conduct necessarily may not amount to cruelty

due to change of various factors, in different set of

circumstances. Therefore, it is essential for the appellant,

who claims relief, to prove that a particular/part of

conduct or behaviour resulted in cruelty to him. No prior

assumptions can be made in such matters. Meaning

thereby that it cannot be assumed that a particular

conduct will, under all circumstances, amount to cruelty,

vis-`-vis the other party. The aggrieved party has to make

a specific case that the conduct of which exception is

taken amounts to cruelty. It is true that even a single act

of violence which is of grievous and inexcusable nature

satisfies the test of cruelty. Persistence in inordinate

sexual demands or malpractices by either spouse can be

cruelty if it injures the other spouse. There is no such

complaint by the appellant. In the case on hand, as stated

earlier, the appellant has projected few instances in

which, according to him, the respondent abused his

parents. We have verified all the averments in the

petitions, reply statement, written submissions as well as

the evidence of both parties. We are satisfied that on the

basis of such instances, marriage cannot be dissolved.

12) The married life should be assessed as a whole and a

few isolated instances over certain period will not amount

to cruelty. The ill-conduct must be precedent for a fairly

lengthy period where the relationship has deteriorated to

an extent that because of the acts and behaviour of a

spouse, one party finds it extremely difficult to live with

the other party no longer may amount to mental cruelty.

Making certain statements on the spur of the moment and

expressing certain displeasure about the behaviour of

elders may not be characterized as cruelty. Mere trivial

irritations, quarrels, normal wear and tear of married life

which happens in day to day life in all families would not

be adequate for grant of divorce on the ground of cruelty.

Sustained unjustifiable and reprehensible conduct

affecting physical and mental health of the other spouse

may lead to mental cruelty. Both the appellant and

respondent being highly qualified persons, the appellant

being Principal in ITI College, the respondent working as a

Librarian in a Government Institute, an isolated friction

on some occasion like festival of Lohri even in the presence

of others cannot be a valid ground for dissolving the

marriage.

13) Learned counsel appearing for the appellant by

drawing our attention to certain allegations made by the

respondent-wife in the reply to the petition under Section

13 of the Act before the Addl. District Judge submitted

that by considering all these aspects it is just and

reasonable to consider and grant divorce on the ground of

cruelty. In support of the same, he relied on the decision

of this Court in Vijaykumar Ramchandra Bhate vs.

Neela Vijaykumar Bhate, (2003) 6 SCC 334. No doubt,

in that decision, this Court has held that allegations made

in the written statement or suggested in the course of

examination and by way of cross-examination satisfying

the requirement of law has also to be taken note of while

considering the claim of either party. In the case on hand,

it is true that the respondent-wife has made certain

allegations against her husband-appellant. However,

admittedly based on the same, the trial Court has not

framed any issue and no evidence let in in support of the

same. In such circumstances, the said decision is not

helpful to our case. Admittedly, no such issue was framed

by the trial Court or any point determined by the High

Court based on such averments in the reply/written

statement. Accordingly, we reject the said contention.

14) As regards the allegations about beating her child

and not feeding him, the High Court, after analyzing the

entire materials, disbelieved the same. It is also brought

to our notice that the appellant condoned the alleged act

of cruelty as he wanted to bring back the respondent to

his house. As such, the allegations of cruelty do not

appear to be truthful. It is also proved that the appellant

is not interested to keep the respondent as his wife and he

wants divorce by any means. As observed earlier, except

the grounds enumerated in Section 13, a Hindu marriage

solemnized under the Act cannot be dissolved on any

other grounds.

15) Finally, a feeble argument was made that both the

appellant and respondent were living separately from 2002

and it would be impossible for their re-union, hence this

Court exercising its jurisdiction under Article 142 of the

Constitution their marriage may be dissolved in the

interest of both parties. Though, on a rare occasion, this

Court has granted the extraordinary relief de hors to the

grounds mentioned in Section 13 in view of the fact that

the issue has been referred to a larger Bench about

permissibility of such course at present, we are not

inclined to accede to the request of the appellant. If there

is any change of law or additional ground included in

Section 13 by the act of Parliament, the appellant is free to

avail the same at the appropriate time.

16) In the light of the above discussion, we are unable to

accept the claim of the appellant, on the other hand, we

are in entire agreement with the conclusion arrived at by

the Addl. District Judge as well as the High Court.

Consequently, the appeal fails and the same is dismissed

with no order as to costs.

..........................................J.

(P. SATHASIVAM)

..........................................J.

(DR. B.S. CHAUHAN)

NEW DELHI;

OCTOBER 8, 2010.

http://judis.nic.in/supremecourt

news @http://www.thehindu.com/news/national/article820303.ece