If wedlock turns deadlock, grant divorce, HC says

Judgment Text Awaited

If wedlock turns deadlock, grant divorce, HC says

As on Manish Raj, TNN | Jun 29, 2014, 04.49AM IST

CHENNAI: It is inhuman to compel two people to live together when their "wedlock has become a deadlock," the Madras high court has held. Allowing a divorce based on a man's complaint that he was being tortured by his wife who kept filing police complaints, the court recently said the sanctity of marriage cannot be left at the whims of one of the annoying spouses. Setting aside the order of a family court, the court granted divorce on grounds of mental cruelty and desertion by the wife. 

Arun Kumar Jain alias Bunty and Geeta got married in March 2001 and the couple had a male child. Disputes arose in the marriage after he found that his wife was elder to him. He moved the family court in 2004 seeking divorce. In his petition, he said Geeta insulted him often citing the educational qualification of his family members and threatened to book them under false charges of demanding dowry and attempt to murder. In November 2002, she lodged a police complaint saying her brother-in-law had tried to outrage her modesty and her in-laws had tried to kill her, Bunty said, seeking divorce on grounds of cruelty and desertion. 

Denying the allegations, Geeta said Bunty was jealous of her educational qualifications and he along with his family abused her in filthy language. In its verdict in December 2010, the family court denied divorce saying the charges of cruelty and desertion were not proved. The next year, Bunty moved the Madras high court. In its order, the bench of Justice S Rajeswaran and Justice S Vaidyanathan pointed to the events after the family court quashed the divorce petition. It said Bunty had subsequently sent a letter and a telegram asking Geeta to come back. Also, after Bunty's family was acquitted in the dowry harassment case, Geeta filed a case under the Domestic Violence Act following which Bunty and his family were arrested, the bench said. 

Instead of solving the disputes amicably, Geeta had continuously initiated criminal proceedings against Bunty which meant she made all attempts to ensure he could not live in peace, the bench said. The fact that she was living apart from her husband for more than nine years showed that Geeta had subjected her husband to mental cruelty and deserted him, the bench said, granting divorce.

Source - http://timesofindia.indiatimes.com/india/If-wedlock-turns-deadlock-grant-divorce-HC-says/articleshow/37425302.cms

Marriage between 1st cousins illegal.Live-in with cousin? Bombay high court on the fence

 

FULL TEXT AWAITED

Marriage between 1st cousins illegal.Live-in with cousin? Bombay high court on the fence

14 sep 2010

Can first cousins marry each other? Such a union, except for some communities, is void under the Hindu Marriage Act (HMA), 1955. However, while disposing of a habeas corpus petition filed by Inderpal Walia, 37, the Bombay high court on Monday said the decision of a girl to live with her cousin would be at her discretion.

In his petition, Walia said he fell in love with his first cousin Harmandeep Kaur, 19, when he met her in Amritsar in March 2008. He had also lived with Harmandeep as “husband and wife” at her parents’ house before they got married in Mumbai on January 21, 2009. Walia says though her parents initially agreed to their marriage, Harmandeep was forcibly taken away from him in September 2009.

Walia had pleaded before the court to allow Harmandeep to live with him since he fears his wife would be married off to an NRI. “Considering the changes in the modern world, the friendship and the union of the petitioner (Walia) with Harmandeep is a necessity and it is no more a kind of foolishness,” Walia’s petition stated.

A division bench of justices AM Khanwilkar and UD Salvi, however, refused to grant permission for their live-in relationship. “The court cannot be expected to put a seal on an arrangement which is not recognised in law,” justice Khanwilkar said. The judges held that the purpose of the habeas corpus petition was served as Harmandeep had been brought before the court and she was “hale and hearty”. The judges said the girl was an adult and she could take decisions on her own.

They also agreed that this was “not an ordinary case”.
Walia’s advocate, Bhavesh Parmar, told the court that Walia was not aware Harmandeep was his first cousin when they got married before a registrar in the Mira-Bhayander court. He got to know from legal experts that their marriage was null and void under Section 5 of the HMA after Harmandeep was taken away by her family. “I have advised my client to challenge the order in the Supreme Court,” Parmar said.

http://www.dnaindia.com/india/report_live-in-with-cousin-bombay-high-court-on-the-fence_1437597

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14 Sep 2010

MUMBAI: The Bombay high court on Monday rejected one Harmant Singh's plea that his "wife" Hardeep, who is also his first cousin, be allowed to live with him. The Hindu Marriage Act disallows marriage between first cousins.

 
"If the request was to be considered, it would be putting a seal of approval on a relationship which isn't permitted in law," said a division bench of Justice A M Khanwilkar and Justice U D Salvi. The judges allowed Hardeep to go with her parents. "She is an adult and free to take her own decisions," said the judges, adding that Hardeep could decide her plans in consultation with her parents.

Harmant's lawyer made repeated pleas the court ask Hardeep with whom she wished to go. The judges, however, pointed out that "the law doesn't permit you and her to stay together."

Additional public prosecutor Ajay Gadkari told the court that in a habeas corpus proceeding the scope was limited to producing the person concerned before the court and that they had brought Hardeep from Amritsar.

Section 5 of the Hindu Marriage Act bans, among other things, marriage between a brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters. The marriage is void, unless the custom of the community permits it.

Harmant, who claimed to be a marine officer, said he had met Hardeep in Amritsar. They married at an Arya Samaj temple in Mumbai in January 2009. Nine months later, her family called her home on the pretext that her father was sick. Subsequently, he wasn't allowed to meet her. Harmant, admitted that she was his first cousin, and under the law the marriage was void.

(Names of the couple have been changed to protect their identities)

http://timesofindia.indiatimes.com/india/Marriage-between-1st-cousins-illegal-says-HC/articleshow/6550296.cms#ixzz0zV8IVhWs

SC- 'No alimony for woman who desert husband'

SC- No alimony for woman who desert husband

   Court No.10             SECTION IIA

             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 (Crl)... 2009  CRLMP.NO(s). 18899

(From the judgement and order dated 19/03/2009 in CRM No.24684/2008 of The HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH)

POONAM                                                Petitioner(s)

                   VERSUS

MAHENDER KUMAR                                        Respondent(s)

(With appln(s) CRLMP 18899/2009 c/delay in filing SLP

Date: 16/11/2009    This Petition was called on for hearing today.

CORAM :

          HON'BLE MR. JUSTICE V.S. SIRPURKAR

          HON'BLE MR. JUSTICE B. SUDERSHAN REDDY

For Petitioner(s)     Mr. S.N.Pandey, Adv.

                      Mr. Chander Shekhar Ashri,Adv.

For Respondent(s)

             UPON hearing counsel the Court made the following

                                 O R D E R

              Delay condoned.

              The special leave petition is dismissed.

           (Shashi Sareen)                       (Shashi Bala Vij)

             Court Master                           Court Master

http://courtnic.nic.in/supremecourt/temp/pr%201889909p.txt

Here is the full text of the Punjab & Haryana HC judgment upheld by SC

IN THE HIGH COURT OF STATE OF PUNJAB AND HARYANA AT CHANDIGARH

Criminal Misc. No.M-24684 of 2008 (O&M)

POONAM   …PETITIONER

VERSUS

MAHENDER KUMAR   …RESPONDENT


Criminal Misc. No.M-24684 of 2008 (O&M)


Present:           Mr.P.L. Goyal,  Advocate,  for the  petitioner.

                       Mr. S.D. Bansal,  Advocate, for the  respondent.

Marriage of Poonam (petitioner) with Mohinder Kumar (respondent) took place on 23.1.1998. Two sons were born out of the wedlock, who are residing with the respondent. The petitioner is residing with her parents. A case under Sections 406/ 498-A/ 149/ 506 of the Indian Penal Code was registered at the instance of the petitioner against the respondent and others vide F.I.R. No.52 dated 17.2.2000 at Police Station City, Jind. The petitioner filed a petition under Section 125 of the Code of Criminal Procedure (hereinafter referred to as vthe Code') claiming maintenance from the respondent alleging that he was running wholesale business of sale and purchase of utensils in the name and style of M/s. Laxmi Metal Store and was earning Rs. 10,000/- per month. This petition was contested by the respondent on the ground that the petitioner left her matrimonial house on her own accord and that she was earning about Rs.10,000/- per month as she was M.A.B.Ed. The Judicial Magistrate 1st Class, Jind, vide order dated 9.6.2007 dismissed the petition filed by the petitioner under Section 125 of the Code. The petitioner went in revision against the order passed by the trial Magistrate. The same was also dismissed vide judgment dated 5.8.2008 passed by the Sessions Judge, Jind, although holding that the husband has not been able to prove that the wife has sufficient means to maintain herself and, at the  same  time,   affirming  the  finding    recorded    by  the     trial Magistrate that the petitioner-wife left the company of the respondent on her own accord. Hence this petition under Section 482 of the Code by the petitioner seeking reversal of the orders passed by both the Courts below.

I have heard Mr.P.L. Goyal, Advocate, appearing for the petitioner and Mr. S.D. Bansal, Advocate, appearing for the respondent and  have gone through the records of the case.

The trial Magistrate, after framing issues, recording evidence, both oral and documentary, and hearing the learned counsel for the parties, came to the conclusion that the petitioner has not been able to prove on record that she was ill-treated by the respondent or he was cruel towards her in any manner. Except her statement, the petitioner failed to examine any other witness in support of her case to prove ill-treatment, dowry demand and other allegations made in the petition. Even the parents of the petitioner did not come forward to support her case. The petitioner failed to join her husband even after the petition filed by him for restitution of conjugal rights was accepted by the Court of competent jurisdiction. Petition filed under Section 13 of the Hindu Marriage Act, which was filed by the petitioner, was declined by the Court by holding that there was no desertion on the part of the respondent, rather the petitioner deserted her husband due to her own personal reasons. The petitioner did not take care of her sons, who are residing with the respondent. There is no allegation in the petition that she had ever asked the respondent for giving her the custody of the sons. The petitioner appears to be interested only  in  getting maintenance allowance and  taking divorce from the respondent. The respondent is solely taking care of the children. To bring up two children single handedly is an onerous duty, which the respondent is performing and the petitioner is shirking. The petitioner, in her cross-examination, stated that after she left her matrimonial house, she never tried to contact the respondent or her kids. In the case of Smt.Rohtash Singh v. Ramendri (Smt.), 2000 (2) R.C.R (Criminal) 286, it was held by the Hon'ble Supreme Court that a wife is not entitled to maintenance who has deserted her husband, but a wife who has divorced on account of her desertion is entitled to maintenance from decree of divorce. Failure of the petitioner-wife to prove sufficient grounds justifying her staying away from the respondent-husband and two kids shows that she had left the society of the respondent on her own accord. In these circumstances, both the Courts below were justified in declining the petition filed by the petitioner under Section 125 of the Code.

In view of the  above,    the present petition   is  dismissed being  without any merit.

March  19  , 2009.

(   MOHINDER  PAL )
ak    JUDGE

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

>>>>>>>>>>>>>>>>>>.

SUPREME COURT OF INDIA 

Case Status  DISPOSED 

Status of : Special Leave Petition (Criminal)    8854    Of   2009 

POONAM   .Vs.   MAHENDER KUMAR 

Pet. Adv. : MR. CHANDER SHEKHAR ASHRI 

Subject Category : CRIMINAL MATTERS - MATTERS RELATING TO MAINTENANCE UNDER SECTION 125 OF CR.P.C. 

Date of Disposal : 16/11/2009 

Last updated on Sep 10 2010  Click Here for Latest Order        

  NIC

......

ITEM NO.31                   Court No.10             SECTION IIA

             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 (Crl)... 2009

                                             CRLMP.NO(s). 18899

(From the judgement and order dated 19/03/2009 in CRM No.

24684/2008 of The HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH)

POONAM                                                Petitioner(s)

                   VERSUS

MAHENDER KUMAR                                        Respondent(s)

(With appln(s) CRLMP 18899/2009 c/delay in filing SLP

Date: 16/11/2009    This Petition was called on for hearing today.

CORAM :

          HON'BLE MR. JUSTICE V.S. SIRPURKAR

          HON'BLE MR. JUSTICE B. SUDERSHAN REDDY

For Petitioner(s)     Mr. S.N.Pandey, Adv.

                      Mr. Chander Shekhar Ashri,Adv.

For Respondent(s)

             UPON hearing counsel the Court made the following

                                 O R D E R

              Delay condoned.

              The special leave petition is dismissed.

           (Shashi Sareen)                       (Shashi Bala Vij)

             Court Master                           Court Master

http://courtnic.nic.in/supremecourt/temp/pr%201889909p.txt

…………………..

'No alimony for woman who desert husband'

New Delhi, Nov 18 , 2010, DHNS:

In an observation with far-reaching implications, the Supreme Court has said that a woman who deserted her husband and the matrimonial home and refused to return despite repeated requests was not entitled to maintenance.

Upholding a decision of the Punjab and Haryana High Court, a bench headed by Justice V S Sirpurkar said the law of the land did not allow maintenance in cases where the wife deserted her husband, children and the matrimonial home.

In the case before the Punjab and Haryana High Court, Poonam, who was married to Mahender Kumar of Jind on January 23, 1992, left her matrimonial home on March 18, 1998, alleging harassment and dowry demands. She also left her children.

Poonam later moved the family court, seeking divorce on grounds of cruelty. But Mahender Kumar filed an application before the court on February 20, 2002, praying for restoration of conjugal rights under the Hindu Marriage Act.

She did not respond to the application, and Kumar was granted ex parte decree as it was construed that Poonam would not return to her matrimonial home.

Fresh appeal

Two years later, Poonam approached the family court again, seeking divorce — on the ground that she was living separately — and demanding maintenance.

Though the court granted her divorce, her appeal for maintenance was turned down.

The Supreme Court bench said: “You left the matrimonial home on your own, and now you want maintenance. Is this the law of the country? What is the justification for your staying separately?”

No ill-treatment

When the case reached the Supreme Court, Poonam challenged the Punjab and Haryana High Court’s decision, seeking maintenance of Rs 4,000 per month from Mahender.

The high court judgment said she had failed to prove that she was ill-treated by her former husband. Additionally, the court observed: “Failure of the petitioner-wife to justify her decision to stay away from the respondent-husband and two kids shows that she had left society of the respondent on her own accord.”

http://www.deccanherald.com/content/36709/no-alimony-woman-desert-husband.html

Bombay HC saves man from impotency tag

JUDGMENT AWAITED

 

Bombay HC saves man from impotency tag

8 sep 2010

MUMBAI: Marital discord continues to flounder in a sea of legalese as harried courts try to reconcile differences between partners who don't even share a bed. The newest issue before Bombay HC in this territory is: can the police force a man to undergo medical tests to prove his manhood?

The issue arose before the Bombay high court when a Peddar Road-based woman sought the annulment of her 12-year-old marriage, claiming that it was never consummated. In her plea, she also complained of marital cruelty stemming from "his frustration".

On Monday, playing arbiter, the court suggested the couple, Shyam Talreja and Sunidhi Patel (names changed), divorce through mutual consent. But the proposition created further disagreements between the two: Patel insisted the consent terms mention her husband's "impotency", a demand Talreja opposed.

The judges, in a bid to avoid tainting the man with the stigma "no prudent person might agree to", offered a more "amiable phrase". "You may say 'there was no physical relationship between the parties' rather than 'non-consummation'," they said. The court has now asked the couple to sleep over its suggestion and return next Monday to settle the matter, failing which it is prepared to hear the husband's plea on merit.

The couple -- both in their late 30s -- hail from business families.

According to his lawyer, Edith Dey, Talreja worked for his father-in-law's stockbroking company but was sacked last year when marital trouble began. Late last year, Patel filed a complaint of physical cruelty against her husband and in-laws under Section 498-A of the Indian Penal Code (IPC). She alleged the physical violence was because of "his frustration arising out of impotency". The police arrested Talreja and his parents, but released them on bail.

Last month, Talreja said, when the police sought a change in his reporting schedule, he realised it was to have him tested for impotency at Nair Hospital. Aggrieved, he objected and got a medical report to show "all is well" from a private charitable hospital. But the police refused to accept Talreja's private report, forcing him to move the high court. A bench headed by Justice B H Marlapalle barred the medical tests.

Patel's lawyer Aabad Ponda on Monday said that a divorce which did not mention Talreja's "impotency" might mar her chances of remarriage and undermine the harassment she faced "for the last seven years". On her part, Dey questioned the "12-year delay in raising the impotency issue".

 

http://timesofindia.indiatimes.com/india/HC-saves-man-from-impotency-tag/articleshow/6516082.cms

Delhi Court expresses concern over misuse of Domestic Violence Act

 

judgment awaited

 

Delhi Court expresses concern over misuse of Domestic Violence Act

New Delhi, Aug 29 (PTI) A Delhi court has expressed its concern over the misuse of the Domestic Violence Act to settle civil dispute between sparring couples with the use of women as "pawn" by the male relatives.

"The misuse and abuse of the Protection of Women from Domestic Violence Act, 2005 is a matter of serious concern for the courts which are required to be careful and ensure that a woman petitioner is not made a puppet or pawn in the hands of her male relatives so as to manipulate the Act and use it for ulterior motives," Additional Sessions Judge Kamini Lau said.
The court said the purpose of passing the welfare law was to protect the family value system and not to create a civil right.
"The provisions of special legislation in favour of women cannot be abused as the short cut for establishing a civil rights where none exists," the court said.

"The intent of the Act is to protect the value system and institution of family and save it from destruction. This being so, the provisions of the Act have to be so interpreted to ensure that the existing family system is preserved," it said.
The court made the observation while dismissing an appeal of a woman who challenged an order rejecting her plea to be given a wholesome right to reside in a shanty also being occupied by her brother-in-law and sister-in-law.

"It is evident that the attempt of the appellant (woman) is to ensure the division of the property and create her independent right in the same under the garb of the present petition," the court said.

It also noted that the woman as well as her husband have "collusively" filed the petition by "camouflaging a dispute" and have sought the invocation of the Protection of Women from the Domestic Violence Act, 2005, with the sole object of seeking the removal of her brother-in-law and sister-in-law from the property in question.

"This court cannot be a party to any such attempt of the parties to abuse the special legislation enacted to grant immediate relief to women who are victims of Domestic Violence. The right of one woman (the appellant) cannot be implemented by infringing upon a similar right of another woman i.e. sister-in-law/jethani in the same property," ASJ Lau said.

http://www.dnaindia.com/india/report_delhi-court-expresses-concern-over-misuse-of-domestic-violence-act_1430257

http://www.asianage.com/delhi/need-check-misuse-dv-act-says-court-359

Domestic Violence Act: Court pulls up woman

 

A Delhi court has slammed a woman petitioner for misusing of the Protection of Women from Domestic Violence Act 2005.

Noting that Sunita Devi connived with her husband to file the petition against her in-laws, Additional Sessions Judge Kamini Lau said: “The intent of the Act is to protect the value system and institution of family. The misuse and abuse of the Act is a matter of serious concern for courts who must ensure that a woman petitioner is not made a puppet in the hands of her male relatives so as to manipulate the Act and use it for ulterior motives.”

The court was hearing the appeal of Sunita, who had appealed against the March order of a Metropolitan Magistrate, dismissing her petition under the Act.

The appellant said that her brother-in-law and sister-in-law requested shelter at her Delhi house in July 2008. Since then they abused her verbally and physically and with the brother-in-law even tried to kill her under the influence of alcohol, she claimed.

Alleging that they also looted Rs 7,700 from her, Sunita requested the court for grant of maintenance, compensation and also to pass protection orders under the Act.

The brother-in-law pleaded that it was his property and he had allowed Sunita and her husband to live there, but the papers of his ownership had been lost.

The court noted that none of the parties have papers to establish their ownership over the property constructed by DDA, and the home in which Sunita was living with her husband was separate from the one that her in-laws were residing in.

The domestic incident report also revealed that when Sunita came to live in the house, her husband and in-laws were already residing there.

The court said, “The attempt of the appellant is to ensure division of property and create her right under the garb of the petition. It is clear that she and her husband have collusively filed the petition by camouflaging a dispute. Such kind of abuse of the special legislation should be checked at the earliest.”

http://www.indianexpress.com/news/domestic-violence-act-court-pulls-up-woman/674243/0