Bom HC- Permanent Alimony cancelled – court acknowledges Perjury by wife but lets her off

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FAMILY COURT APPEAL NO. 116 OF 2002

WITH

FAMILY COURT APPEAL NO. 47 OF 2007.

Arun Kashinath Deshpande.... ..... .... Appellant.

V/s

Smt.Inumati Ramchandra Deo .... ..... .... Respondent.

Mr.Prasad Kulkarni i/by Mr.P.S.Dani, Adv. For the appellant.

Ms.Shilpa A. Joshi, Adv. For the respondent.

CORAM: A.P.DESHPANDE

AND

SMT. R.P. SONDURBALDOTA, JJ.

8th April, 2010.

ORAL JUDGMENT: (Per Deshpande, J.)

Both these appeals question the legality and validity of the judgment and order passed by the Family Court and the parties being common the appeals are heard together and are being disposed of by this common judgment. The family court as well has disposed of P.A.No.77/01 and MA No.7/01 by common judgment.

Family Court Appeal No.116/02 is filed by the husband whereas Family Court Appeal No.47/07 is filed by the wife. Parties to these appeals would be referred to as the husband and wife.

2. Marriage between the parties took place on 27.9.1984. The husband filed petition for divorce against the respondent being PA No.431/90 in the family court at Pune on the ground of cruelty. Family court passed decree of divorce in favour of the husband on 5.8.91. While passing decree of divorce the family court granted permanent alimony to the wife at the rate of Rs.600/­ per month by exercising discretionary powers under section 25(1) of the Hindu Marriage Act, 1955. The wife thereafter filed PA No.764/1995 for enhancement of quantum of permanent alimony and the court vide its order dated 30.6.96 enhanced the amount of permanent alimony from Rs.600/­ per month to Rs.800/­ per month. At a later point of time the husband filed FA No.77/01 for cancellation of permanent alimony awarded to the wife in PA No.431/90 which was enhanced in PA No.764/95. The main ground on which the husband moved the petition for cancellation of permanent alimony was that the wife had suppressed her income and had obtained the order of permanent alimony by misrepresenting the court that she has no source of income. In Petition No.77/01 the husband has averred that the wife has been carrying on business since long. It is also claimed that she has a shop of her own wherein she is carrying on business. She also has STD booth in her name at Nashik and has also share in the properties situated at Nashik. On the said pleadings it was emphasized that as an order of permanent alimony was obtained by misrepresentation the order be cancelled. Besides filing the said petition for cancellation of permanent alimony the husband also filed MA No.7/01 requesting the court to take action against the wife by lodging a complaint for the offences under sections 193, 182, 196, 199, 200 and 201 of IPC, as the respondent wife had given false evidence before the court in earlier proceedings. The family court decreed FA No.77/01 and thereby cancelled the order of grant of permanent alimony from the date of filing of petition. The incidental relief claimed by the husband which is in the nature of direction for return of amount of maintenance paid by the husband to the wife came to be rejected. The court also rejected the MA No.7/01 for taking action against the respondent wife for leading false evidence before the Court. Dissatisfied by the judgment and order passed by the family court in refusing to issue direction to respondent wife to return the amount of maintenance paid earlier and aggrieved by refusal to take action against the respondent wife for having led false evidence before the court the husband has filed the FCA No.116/02 whereas the wife being aggrieved by the judgment and order passed by family court cancelling the permanent alimony has filed FCA No.47/07. It is relevant to note that the wife has filed the appeal as late as in the year 2007 whereas the appeal filed by the husband is of the year 2002. Thus the questions for determination which arises in these appeals are (i) as to whether the family court is justified in cancelling the order of grant of permanent alimony and in refusing to issue direction against the wife to return the amount of maintenance already received? (ii) Is the court justified in rejecting the request made by the husband to take action against the respondent wife for leading false evidence? The appellant husband has examined in all five witnesses out of which witness Abhijit Bhalchandra Dakwe is the key witness and his evidence has been considered by the trial court in great details. The said witness is examined with a view to establish the fact that the respondent wife carries on business in a shop located in front of Nigdi bus stop at Bombay Pune road. This witness has visited the shop and has seen the respondent wife working therein. He has also made some purchases from the shop and receipts are passed in acknowledgment of having received the amount towards the goods sold by the respondent wife. Besides the oral evidence of Abhijit recorded at Ex.66 other important documents are at Exs.37, 38 and 39. Ex.37 is an application made by the respondent wife to the Pimpri Chinchwad municipal corporation with view to seek allotment of shop admeasuring 20 x 25 sq. ft. The said application is stated to have been submitted by the respondent wife in the presence of witness Abhijit. A format is annexed to the application which is at Ex.38 and Ex.39 is an affidavit accompanying the application at Ex.37. All the three documents i.e. the application, format and the affidavit constitute a proposal submitted by the respondent wife with a view to obtain shop premises from the corporation. The wife had initially denied the execution of the said documents which not only bear the signature of the respondent wife but also a photograph of the respondent is affixed thereon. The said three documents which have bearing on the question involved in these appeals are written in the hand writing of the respondent wife.
As stated herein above though the respondent has denied the writing and the execution of these documents, she was thoroughly cross examined touching the said documents by the advocate for the appellant. From the answers given by the respondent wife to the questions put in searching cross examination by advocate for the husband it can be seen that she has tried to contend that she is not sure as to whether the writing and the signature on the said documents belong to her. The court on comparison of the signatures which could be said to be disputed signatures at Exs.37 to 39 with admitted signatures of the respondent wife has come to a definite conclusion that the writings so also the signature on Exs.37 to 39 are that of the respondent 4 wife. The family court has also obtained specimen of writing and signature of the respondent wife and after comparing the same with the admitted writing and signature has reached the definite conclusion that the said three documents are executed by the respondent wife herself. What is stated by the applicant in the application and the affidavit is that she is educated woman industrialist and has past experience of running an industry so also experience of service rendered prior in point of o time. Touching her income and the sources from which she is receiving the same it is categorically mentioned that she owns one Laxmi Store from which monthly income is Rs.1200 to 1500/­.
It is then stated that she owns a STD booth/general store at Nashik under the name of Vasundhara Enterprises from which she is earning income of Rs. 4000 to 5000. The business place is stated to be owned by her. It is also stated that from typing business she earns more than Rs. 2500/­.

Other particulars are also furnished by the respondent wife such as estimated initial capital to be invested in the premises proposed to be taken on lease from the Corporation and the expected income from the said business. If the statements made in the affidavit are taken to be true and correct then definitely the Respondent wife has suppressed material facts while obtaining an order of permanent alimony. Nondisclosure of relevant facts and suppression of material facts have induced the family court to award permanent alimony of Rs.600/­ on 5.8.91 so also enhancing to Rs.800/­ per month in the year 1995. The trial court being of the view that the respondent wife has deliberately suppressed her income and thus obtained an order from the court by misrepresentation has proceeded to cancel the grant of permanent  alimony with effect from the date of filing of the petition by the husband. We have perused the judgment and order passed by family court under section 25(2) of the act. We do not see any reason to interfere with the appreciation of evidence by the family court touching the income of the respondent wife.
The view taken is very much possible view. It does not call for any interference.

3. Learned counsel for the appellant husband has submitted that the family court ought to have issued necessary direction against the respondent wife to for return of the amount received by her towards maintenance. The amount received is trivial sum of Rs. 600/­ per month from the year 1991 to 1995 and thereafter to Rs. 800/­ from 1995 onwards. The respondent wife was neither granted nor has she received any huge amount which necessitates directing recovery of that amount, more so, having regard to the fact that the parties were husband and wife by relation. It is then submitted that the Court ought to have taken action against the respondent for having led false evidence. The trial court has taken a pragmatic view of the matter in not permitting scope of dispute being widened between the parties. There is no point in forcing the parties in further litigation that too of criminal nature. Though the wife has stated in the affidavit that she is earning a sum of Rs.4000 to 5000 per month by way of income it is hardly a substantial amount. In our considered view, the approach of the family court is just and reasonable. Hence no interference is called for. In the result both the appeals stand dismissed with no order as to costs. Needless to mention that interim order, if any, stands vacated.

8.4.2010.

http://bombayhighcourt.nic.in/data/judgements/2010/CFCA4185302.pdf

SC- Divorce cannot be purchased by husband. But can only wife sell it at her price ?

                                               REPORTABLE
                  IN THE SUPREME COURT OF INDIA
                   CIVIL APPELLATE JURISDICTION

                CIVIL APPEAL NOS. 8196-8197 OF 2010
           (Arising out of S.L.P. (Civil) Nos.5289-5290 of 2010)

Sanjeeta Das                                                     ....Appellant

                                    Versus

Tapan Kumar Mohanty                                             ....Respondent

                                JUDGMENT

AFTAB ALAM, J.

1. Leave granted.

2. The order of a division bench of the Orissa High Court that is before us in this appeal, though passed in a judicial proceeding, appears to us to be completely alien to the law. The relevant facts to see the impugned order in perspective may be stated thus.

3. The respondent and the appellant were married in accordance with the Hindu religious rites. About three years after the marriage, he filed a petition (Civil Proceeding No.136 of 1997) before the Family Court, Rourkela for 2

dissolution of his marriage with the appellant on grounds of cruelty and desertion [clauses (ia) and (ib) of section 13(1) of the Hindu Marriage Act, 1955]. The appellant strongly resisted the grounds taken by the respondent for dissolution of their marriage and took the plea that in reality she had been deserted and subjected to cruelty by the respondent. For the purpose of the present appeal, there is no need for us to go into the details of the allegations made by the respondent in his petition or the counter-allegations made against him in the written statement filed by the appellant. Suffice it to note that on the basis of the evidences adduced before it, the Family Court in its judgment dated October 29, 2005 arrived at findings against the respondent on both the issues of desertion and cruelty.Invoking, however, the provision of section 23A of the Act, it directed the appellant to resume cohabitation with her husband, the respondent, within 3 months from the date of the judgment. The operative order of the Family Court is as follows: "In the ultimate analysis, while rejecting the prayer of the petitioner seeking for grant of dissolution of his marriage with the respondent by a decree of divorce, I pass a decree of restitution of the conjugal life of the parties. Accordingly, the respondent-wife is directed to restitute her conjugal life with the petitioner-husband within 3 months, hence on the event of the respondent coming to the fold of the petitioner to restitute her conjugal life with the latter, he shall co-operate with the former and that consequent upon success of the restitution of conjugal life between the parties, the impact/gravity of the criminal proceeding u/s. 498A IPC started against the petitioner and his family members at the instance of the respondent shall be loosen"

4. Against the judgment and order passed by the Family Court, the respondent preferred appeal (MATA No.59 of 2005) before the Calcutta High Court. The appeal was disposed of by a division bench of the High Court by order dated September 2, 2009. From that order it appears that the respondent filed an affidavit before the court declaring his willingness to pay a sum of Rs.10,00,000.00 (rupees ten lakhs only) as life term maintenance of the appellant and for the expenses of marriage of their daughter Kumari Ayushi Mohanty (Richi), in consideration of the dissolution of his marriage with the appellant by a decree of divorce and compounding of a criminal case instituted against him by the appellant. The respondent further stated in the affidavit that he would pay the sum of Rs.5,00,000.00 (rupees five lakhs only) within 4 months from the date of passing of the decree of divorce and the balance amount of Rs.5,00,000.00 (rupees five lakhs only) in 4 equal installments spread over a period of 2 years from the date of the passing of the decree of divorce. The High Court in its order dated September 2, 2009 simply paraphrased the statements made in the affidavit filed by the respondent and made it the order of the court. The order dated September 2, 2009 was later modified by order dated November 20, 2009 to the further advantage of the respondent. It was clarified that the payment of Rs.10,00,000.00 (rupees ten lakhs only) was not only for the lifetime maintenance of the appellant but also for the maintenance of the daughter, Kumari Ayushi Mohanty (Richi) till she got married besides the expenses that might be incurred for her marriage.

5. These two orders passed by the High Court, by which it purported to grant a decree of divorce for dissolution of the respondent's marriage with the appellant are now before us in appeal and plainly speaking we are unable to put any meaning to the order of the High Court. The marriage between the respondent and the appellant was admittedly solemnized in accordance with the Hindu religious rites. A Hindu marriage can be dissolved only on any of the grounds plainly and clearly enumerated under section 13 of the Hindu Marriage Act. The law does not permit the purchase of a decree of divorce for consideration, with or without the consent of the other side.

6. Leaned counsel appearing for the respondent urged us not to interfere in the matter submitting that the respondent and the appellant had lived together barely for four months. He stated that the marriage had taken place on April 29, 1994 and from August 24, 1994 they are living separately. He also tried to argue that the order of the High Court was passed with the consent of the parties and for that reason also this Court should not interfere in the matter. We are not prepared to accept the submission for a moment. First, there is nothing to indicate that the order was passed with the consent of the appellant. All that is said in the order is as under: "On consideration of such affidavit and the submission of the learned counsel appearing for the parties, we dispose both these appeals with the following directions" (Emphasis added)

7. The affidavit referred to in the order is the one filed by the respondent and consideration of submission of counsel for the parties does not indicate that the appellant had given her consent for dissolution of her marriage with the respondent on payment of Rs.10,00,000.00 (rupees ten lakhs only). Secondly, and more importantly, the consent of the parties is of no relevance in the matter. No court can assume jurisdiction to dissolve a Hindu marriage simply on the basis of the consent of the parties de hors the grounds enumerated under section 13 of the Act, unless of course the consenting parties proceed under section 13B of the Act.

8. In the light of the discussions made above, we find the order of the High Court completely unsustainable. It is set aside and the appeal against the judgment and order passed by the Family Court is restored to its file. The High Court must now hear and dispose of the appeal along with the connected appeal afresh, in accordance with law. Since the matter is somewhat old, the High Court may give the appeals some priority and dispose them of at an early date.

9. In the result, the appeals are allowed with costs, quantified at Rs.15,000.00 (rupees fifteen thousand only).

.....................................J (AFTAB ALAM)

.......................................J (R.M. LODHA)

New Delhi

September 22, 2010.

SOURCE - http://judis.nic.in/supremecourt/chejudis.asp

Irretrievable breakdown of marriage as new clause for divorce – Bill amending the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954.

source ;- http://164.100.24.219/BillsTexts/RSBillTexts/asintroduced/marrge%20law%20as%20intro.pdf

AS INTRODUCED IN THE RAJYA SABHA

Bill No. XLI of 2010

THE MARRIAGE LAWS (AMENDMENT) BILL, 2010

A

BILL

further to amend the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954.

BE 

it enacted by Parliament in the Sixty-first Year of the Republic of India as follows:—

CHAPTER I

PRELIMINARY

Short title and commencement.

1. (1) This Act may be called the Marriage Laws (Amendment) Act, 2010.
   (2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette.appoint.

CHAPTER II

AMENDMENTS TO THE HINDU MARRIAGE ACT, 1955

Amendment of section 13B.

2. In the Hindu Marriage Act, 1955 (hereafter in this Chapter referred to as the Hindu Marriage Act), in section 13B, in sub-section (2), for the words, brackets and figure “On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime”, the words, brackets and figure "Upon receipt of a petition under sub-section (1)" shall be substituted.

Insertion of new sections 13C, 13D and 13E.

3. After section 13B of the Hindu Marriage Act, the following sections shall be inserted, namely:—

Divorce on ground of irretrievable breakdown of marriage.

13C (1) A petition for the dissolution of marriage by a decree of divorce may be presented to the district court by either party to a marriage [whether solemnized before or after the commencement of the Marriage Laws  (Amendment) Act, 2010], on the ground that the marriage has broken down irretrievably.
(2) The court hearing a petition referred to in sub-section (1) shall not hold the marriage to have broken down irretrievably unless it is satisfied that the parties to the marriage have lived apart for a continuous period of not less than three years immediately preceding the presentation of the petition.
(3) If the court is satisfied, on the evidence, as to the fact mentioned in sub- section (2), then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall, subject to the provisions of this Act, grant a decree of divorce.
(4) In considering, for the purpose of sub-section (2), whether the period for which the parties to a marriage have lived apart has been continuous, no account shall be taken of any one period (not exceeding three months’ in all) during which the parties resumed living with each other, but no other period during which the parties lived with
each other shall count as part of the period for which the parties to the marriage lived apart.
(5) For the purposes of sub-sections (2) and (4), a husband and wife shall be treated as living apart unless they are living with each other in the same household, and reference in this section to the parties to a marriage living with each other shall be construed as reference to their living with each other in the same household.

Wife’s right to oppose petition on ground of hardship.
13D. (1) Where the wife is the respondent to a petition for the dissolution of marriage by a decree of divorce under section 13C, she may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial hardship to her and that it would in all the circumstances be wrong to dissolve the marriage.
(2) Where the grant of a decree is opposed by virtue of this section, then,—
(a) if the court finds that the petitioner is entitled to rely on the ground set out in section 13C; and
(b) if, apart from this section, the court would grant a decree on the petition, the court shall consider all the circumstances, including the conduct of the parties to the marriage and the interests of those parties and of any children or other persons concerned, and if, the court is of the opinion that the dissolution of the marriage shall
result in grave financial hardship to the respondent and that it would, in all the circum- stances, be wrong to dissolve the marriage, it shall dismiss the petition, or in an appropriate case stay the proceedings until arrangements have been made to its satis- faction to eliminate the hardship.

Restriction on decree for divorce affecting children
13E. The court shall not pass a decree of divorce under section 13C unless the court is satisfied that adequate provision for the maintenance of children born out of the marriage has been made consistently with the financial capacity of the parties to the marriage.
Explanation.— In this section, the expression “children” means—
(a) minor children;
(b) unmarried or widowed daughters who have not the financial resources to support themselves; and
(c) children who, because of special condition of their physical or mental health, need looking after and do not have the financial resources to support themselves.’.

Amendment of section 21A.

4. In section 21A of the Hindu Marriage Act, in sub-section (1), after the word and figures “section 13”, at both the places where they occur, the words, figures and letter “or section 13C” shall be inserted.

Amendment of section 23.

5. In section 23 of the Hindu Marriage Act, in sub-section (1), in clause (a), after the word and figure “section 5”, the words, figures and letter “or in cases where the petition is presented under section 13C” shall be inserted.

CHAPTER III

AMENDMENTS TO THE SPECIAL MARRIAGE ACT, 1954 – Act 43 of 1954.

Amendment of section 28.

6. In the Special Marriage Act, 1954 (hereafter in this Chapter referred to as the Special Marriage Act), in section 28, in sub-section (2), for the words, brackets and figure “On the motion of  both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime” the words, brackets and figure "Upon receipt of a petition under sub-section (1)" shall be substituted.

Insertion of new sections 28A, 28B and 28C.

7. After section 28 of the Special Marriage Act, the following sections shall be inserted, namely:—

Divorce on ground of irretrievable breakdown of marriage.

‘28A. (1) A petition for the dissolution of marriage by a decree of divorce may be presented to the district court by either party to a marriage [whether solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 2010] on the ground that the marriage has broken down irretrievably.

(2) The court hearing a petition referred to in sub-section (1) shall not hold the marriage to have broken down irretrievably unless it is satisfied that the parties to the marriage have lived apart for a continuous period of not less than three years immedi-ately preceding the presentation of the petition.
(3) If the court is satisfied, on the evidence, as to the fact mentioned in sub-section (2), then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall, subject to the provisions of this Act, grant a decree of divorce.
(4) In considering, for the purpose of sub-section (2), whether the period for which the parties to a marriage have lived apart has been continuous, no account shall be taken of any one period (not exceeding three months in all) during which the parties resumed living with each other, but no other period during which the parties lived with each other shall count as part of the period for which the parties to the marriage lived apart.
(5) For the purposes of sub-sections (2) and (4), a husband and wife shall be treated as living apart unless they are living with each other in the same household, and reference in this section to the parties to a marriage living with each other shall be construed as reference to their living with each other in the same household.

Wife’s right to oppose petition on ground of hardship.

28B. (1) Where the wife  is the respondent to a petition for the dissolution of marriage by a decree of divorce under section 28A, she may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial hardship to her and that it would, in all the circumstances, be wrong to dissolve the
marriage.
(2) Where the grant of a decree is opposed by virtue of this section, then,—
(a) if the court finds that the petitioner is entitled to rely on the ground set out in section 28A; and
(b) if apart from this section the court would grant a decree on the petition, the court shall consider all the circumstances, including the conduct of the parties to the marriage and the interests of those parties and of any children or other persons concerned, and if, the court is of the opinion that the dissolution of the marriage shall
result in grave financial hardship to the respondent and that it would in all the circum- stances be wrong to dissolve the marriage, it shall dismiss the petition, or in an appro-priate case stay the proceedings until arrangements have been made to its satisfaction to eliminate the hardship.

Restriction on decree for divorce affecting children.

28C. The court shall not pass a decree of divorce under section 28A unless the court is satisfied that adequate provision for the maintenance of children born out of the marriage has been made consistently with the financial capacity of the parties to the marriage.
Explanation.— In this section, the expression “children” means—
(a) minor children;
(b) unmarried or widowed daughters who have not the financial resources to support themselves; and
(c) children who, because of special condition of their physical or mental health, need looking after and do not have the financial resources to support themselves.’.

Amendment of section 40A.

8. In section 40A of the Special Marriage Act, in sub-section (1), after the word and figures “section 27”, at both the places where they occur, the words, figures and letter “or section 28A” shall be inserted.

STATEMENT OF OBJECTS AND REASONS

The Hindu Marriage Act, 1955 was enacted on the 18th May,  1955 to amend and codify the law relating to marriage among Hindus. Similarly, the Special Marriage Act, 1954 was enacted on the 9th October, 1954 to provide a special form of marriage in certain cases, for the registration of such and certain other marriages and for divorce. The provisions of the said Acts have proved to be inadequate to deal with the issue where there has been irretrievable breakdown of marriage and therefore a need has been felt for certain amendments therein.

2. In view of the demand from various quarters for making irretrievable breakdown of marriage as a ground for divorce under the Hindu Marriage Act, 1955, the Central Government referred the matter to the Law Commission of India for its consideration. The Law Commission in its 71st  Report titled "The Hindu Marriage Act, 1955 — Irretrievable Breakdown of Marriage as a Ground of Divorce" submitted in April, 1978 had examined the
issue in detail and recommended amendments to the Hindu Marriage Act, 1955 to make irretrievable breakdown of marriage as a new ground for granting a decreee of divorce among the Hindus. Accordingly, a Bill, namely, the Marriage Laws (Amendment) Bill, 1981, further to amend the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954, was introduced in Lok Sabha on the 27th February, 1981. However, before the Bill could be considered and passed by Lok Sabha, the Seventh Lok Sabha was dissolved on 31st December, 1984, and
hence the Bill lapsed.

3. Subsequently, the Hon'ble Supreme Court in Ms. Jorden Diengdeh vs. S.S. Chopra (AIR 1985 SC 935) had pointed out the necessity to introduce irretrievable breakdown of marriage and mutual cosent as grounds for grant of divorce in all cases. Similarly in Naveen Kohli vs. Neelu Kohli (AIR 2006 SC 1675), the Hon'ble Supreme Court recomended to the Union of India to seriously consider bringing an amendment in the Hindu Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground for divorce.

4. Further, the 18th  Law Commission of India suo motu took up the mater and in its 217th Report titled 'Irretrievable Breakdown of Marriage —Another Ground for Divorce' presented to the Government in March, 2009 recommended that 'Irretrievable breakdown of marriage' should be incorporated as another ground for grant of a decree of divorce under the afore- said Acts.

5. Having regard to the recommendations of the Law Commission of India and the observations of the Hon'ble Supreme Court as aforesaid and the demand from various quarters, it is proposed to amend the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 so as to provide for irretrievable breakdown of marriage as a ground of divroce thereunder subject to certain safeguards to the wife and affected children.
 

6. At present, a petition for grant of a decreee of divorce on the ground of mutual consent could be presented by both the parties to the marriage together before the court under sub-section (1) of section 13B of the Hindu Marriage Act, 1955 and similarly under sub-section (1) of section 28 of the Special Marriage Act, 1954. Under sub-section (2) of section 13B and that of section 28 respectively, the parties have to move a motion jointly not
earlier than six months after the date of presentation of the petition referred in sub-section (1) and not later than eighteen months after the said date for the said purpose. It has been observed that in several cases one of the parties do not turn up for filing the motion jointly with the other party under sub-section (2) of section 13B of the Hindu Marriage Act, 1955 or under sub-section (2) of section 28 of the Special Marriage Act, 1954, as the case may be, leading the party desirous of obtaining a decree of divorce hapless and remediless. In order
to mitigate such hardships and to allow divorce in cases of complete failure of such marriages, it is proposed to amend sub-section (2) of section 13B of the Hindu Marriage Act, 1955 and sub-section (2) of section 28 of the Special Marriage Act, 1954, respectively, by doing away with the aforesaid condition of moving motion subsequently.

7. In case the wife happens to be the respondent in respect of a petition for grant of a decree of divorce on the ground of irretrievable breakdown of marriage under the proposed new section 13C of the Hindu Marriage Act, 1955 or under the proposed new section 28A of the Special Marriage Act, 1954, as the case may be, the wife is entitled to oppose the grant of a decree of divorce on the ground that a dissolution of the marriage will result in grave financial hardship to her. Similarly, provision has been made to restrict grant of a decree of divorce on the ground of irretrievable breakdown of marriage if the court is satisfied that adequate provision for the maintence of children born out of the marriage has not been made consistently with the financial capacity of the parties to the marriage.

8. The Bill seeks to achieve the above objects.

NEW DELHI;M. VEERAPPA MOILY.

The 13th July, 2010.ANNEXURE
EXTRACTS  FROM  THE  HINDU  MARRIAGE  ACT,  1955
( 25 OF 1955)
*****
13B. (1)   *****
(2)     On the motion of both the parties made not earlier than six months after the date
of the presentation of the petition referred to in sub-section (1) and not later than eighteen
months after the said date, if the petition is not withdrawn in the meantime, the court shall, on
being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a
marriage has been solemnized and that the averments in the petition are true, pass a decree
of divorce declaring the marriage to be dissolved with effect from the date of the decree.
*****
21A. (1) Where—
(a) a petition under this Act has been  presented to a district court having
jurisdiction by a party to a marriage praying for a decree for judicial separation under
section 10 or for a decree of divorce under section 13, and
(b) another petition under this Act has been presented thereafter by the other
party to the marriage praying for a decree for judicial separation under section 10 or for
a decree of divorce under section 13 on any ground, whether in the same district court
or in a different district court, in the same State or in a different State,
the petitions shall be dealt with as specified in sub-section (2).
*****
23. (1) In any proceeding under this Act, whether defended or not, if the court is
satisfied that—
(a)  any of the grounds for granting relief exists and the petitioner   except  in
cases where the relief is sought by him on the ground specified in sub-clause (a),
sub-clause (b) or sub-clause (c) of clause (ii) of section 5 is  not in any way taking
advantage of his or her own wrong or disability for the purpose of such relief, and
*****
then, and in such a case, but not otherwise, the court shall decree such relief accordingly.
*****
EXTRACTS  FROM THE SPECIAL MARRIAGE ACT, 1954
( 43 OF 1954)
*****
28. (1)   *****
(2) On the motion of both the parties made not earlier than six months after the date of
the presentation of the petition referred to in sub-section (1) and not later than eighteen
months after the said date, if the petition is not withdrawn in the meantime, the district court
shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks
fit, that a marriage has been solemnized under this Act, and that the averments in the petition
Divorce by
mutual
consent.
Power to
transfer
petitions in
certain cases.
Decree in
proceedings.
Divorce by
mutual
consent.
78
are true, pass a decree declaring the marriage to be dissolved with effect from the date of the
decree.
*****
40A. (1) Where—
(a)  a petition under this Act has been presented to the district court having
jurisdiction by a party to the marriage praying for a decree for judicial separation under
section 23 or for a decree of divorce under section 27, and
(b)  another petition under this Act has been presented thereafter by the other
party to the marriage praying for decree for judicial separation under section 23, or for
decree of divorce under section 27 on any ground whether in the same district court or
in a different district court, in the same State or in a different State,
the petition shall be dealt with as specified in sub-section (2).
*****
Power to
transfer
petitions in
certain cases.RAJYA   SABHA
A
BILL
further to amend the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954.
————
(Shri M. Veerappa Moily, M.P.)
GMGIPMRND—3365RS(S4)—30-07-2010.

Status of parents of Husband NOT to be considered for Wife’s MAINTENANCE- Delhi HC

 

CM(M) No.1045/2008                                                                

* IN THE HIGH COURT  OF  DELHI  AT  NEW  DELHI
+     CM(M) No.1045/2008 & CM No.13003/2008
                Date of Decision : July 02, 2010

  SMT. SUSHILA DEVI         ..... Petitioner
        Through:      Mr.K.Sunil,  Advocate
             with Petitioner in person.

      versus

  SHRI JOGINDER KUMAR           ..... Respondent
        Through:  Mr.Saurabh Tiwari,  
             Advocate with Respondent
             in person.
 
  CORAM:
  HON’BLE MS. JUSTICE ARUNA SURESH

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

J U D G M E N T
ARUNA SURESH, J. 

1.     Impugned in this petition is the order of the Trial  Court dated 8th  August  2008, whereby while allowing application of the petitioner (respondent in the main petition) filed under Section 24 of  the Hindu Marriage Act  (hereinafter referred  to  as  ‘the Act’),  it awarded her maintenance @ Rs.3,000/-per month, besides litigation  expenses of Rs.5,100/-.Being dissatisfied by the said order, she has filed this petition.

2.    Mr.K. Sunil, counsel appearing on behalf of the petitioner has submitted that the court awarded meagre amount of maintenance without considering income of the respondent (petitioner in the main petition) in the correct perspective as he is a man of means and therefore, she should have been awarded maintenance as claimed by her i.e. at least Rs.8,000/- to Rs.10,000/- per month.  He further submitted that respondent-husband owns agricultural land measuring 12  Bighas    and 17  Biswas  in village Nizampur, Delhi and the total annual income of the parents of the petitioner is about Rs.8,60,000/-.  Besides, he owns two residential houses in the name of his father in old Lal Dora Mundaka, in which
there is a  godown  and a factory and he has income from the said business.

3.    Mr.Saurabh Tiwari, counsel appearing on behalf of the respondent has submitted that the entire properties, as detailed by the petitioner, are owned by parents of the  respondent and there is no property in his name.  He has no right in the properties of his parents and is presently unemployed and  has  no earnings.  He further submitted that petitioner is earning Rs.10,000/-  per month from  tailoring and embroidery work and she is living in her matrimonial home.  Despite differences,  she is being provided with all  comforts and her necessary expenses including her medical needs which  are being taken care of by the respondent.

4.    It is an admitted fact that petitioner is residing in her matrimonial home.  Therefore, she  is being provided with a residential accommodation and she is not to bear any expenses for her residence.  Petitioner has denied that she has any independent income from tailoring and embroidery work.  Court, therefore,
rightly did not believe the submissions of the respondent that petitioner was earning about Rs.10,000/- per month.  Petitioner has not disclosed any source of income of the respondent.  She has only referred to the immovable properties including  the agricultural land, which, admittedly, are in the name of  the parents of the respondent.  Nothing was placed on record to show that respondent owned any property  in his name independent of the immovable assets of his parents.  Being a son, may be that he is living with his parents, the fact remains that he can be made liable to pay maintenance only from his earnings and not from the properties, unless these properties give him some rental income.  In this case, neither respondent owned any property nor has any rental income. 

5.    Disbelieving the respondent that he was unemployed, Court awarded maintenance of Rs.3,000/- per month to the petitioner keeping in view the financial status of both the parties. In  ‘Smt. Jasbir Kaur  Sehgal  Vs. District   Judge,  Dehradun and Ors., MANU/SC/0835/1997,  it was observed that no set formula can be laid for fixing the amount of maintenance.  It has,  in very nature of things, to depend on the facts and circumstances of each case.  While fixing the maintenance, Court has to consider the status of the parties, their respective needs, capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and those he is obliged under the law and statutory but not voluntary payments or deductions.  While awarding maintenance, Court also has to consider that amount fixed for the wife is such that she  can have reasonable comfort in her life considering her status and living style which she maintained while living with her husband.  

6.  In this case, since  Trial Court was not provided with any specific information regarding source of income of the respondent.  It had to adopt a probable formula to award maintenance to the wife. Status of the parents of the husband, in no manner, can be considered by the Court while awarding maintenance to his wife.   It is the duty of the husband to maintain the wife and not of his parents. 

7.    In view of my discussion as above, I find no reason to interfere in the impugned order of the Trial Court dated 8th  August, 2008.  

Hence, petition is accordingly dismissed. 
CM No.13003/2008 (for stay)

8.    With dismissal of the petition itself, this application has become infructuous.  It is accordingly dismissed. 

ARUNA SURESH
           (JUDGE)
JULY  02, 2010
sb

http://lobis.nic.in/dhc/AS/judgement/03-07-2010/AS02072010CMM10452008.pdf