LegalManthanDivorce

Tuesday, September 14, 2010

RULES OF VARIOUS HIGH COURTS UNDER HINDU MARRIAGE ACT, 1955

RULES OF VARIOUS HIGH COURTS UNDER HINDU MARRIAGE ACT, 1955 PART VII

6. DELHI HIGH COURT HINDU MARRIAGE RULES, 1979

1. Short title.—These rules may be called the Hindu Marriage Rules, 1979.

2. Commencement.—The rules shall come into force from the date of their publication in the Delhi Gazette.

3. Definitions.—In these rules unless there is anything repugnant in the subjct or context:

(a) ‘Act’ means the Hindu Marriage Act, 1955 (No.25 of 1955) as amended from time to time.

(b) ‘Code’ means the Code of Civil Procedure, 1908 as from time to time modified or amended.

(c) ‘Court’ means the Court mentioned in Section 3(W of the Act.

(d) ‘Form’ means a form appended to these rules.

(e) ‘Section ‘ and sub-section mean respectively Section and sub-section of the Act.

(f) All other terms and expressions used herein but not defined shall have the meanings respectively assigned to them in the Act.

4. Petitions.—(a) Every petition under the Act shall be accompanied by either a certified extract from the Hindu Marriage Register maintained under Section 8 of the Act, where the marriage has been registered under the Act or in the absence of the same, an affidavit to the effect that the petitioner was married to the respondent (unless the certificate or affidavit is alreay on the record or is for sufficient cause dispensed with by the Court.)

(b) Every petition for divorce on any of the grounds mentioned in clauses (i) and (ii) of sub-section (1-A) of Section 13 of the Act shall be supported by a certified copy of the decree for judicial separation or for restitution of conjugal rights, as the case may be.

5. Forms of proceedings.—The following proceedings under the Act shall be initiated by petition :

(i) under Section 9 for restitution of conjugal rights;

(ii) under sub-section (1) of Section 10 for judicial separation;

(iii) under sub-section (2) of Section 10 for rescinding a decree for judicial

separation;

(iv) under Section 11 for declaring a marriage null and void;

(v) under Section 12 for annulment of marriage by a decree of nullity.

(vi) under Section 13 for divorce;

(vii) under Section 13-B for divorce by mutual consent;

(viii) under Section 14 for leave to present a petition for divorce before the expiration of one year from the date of marriage;

(ix) under Section 26 for making, revoking, suspending or varying orders and provisions with respect to the custody, maintenance and education of minor children.

6. Petition by or against a person suffering from mental disorder.—A

person suffering from mental disorder will be treated in all respects as a person of unsound mind for the purpose of Order XXXII of the Code.

Vide No.262/Gazette OSD (R) Delhi, 16th October, 1979.

7. Contents of petition.—In addition to the particulars required to be given under Order VII, Rule I of the Code and Section 20 (1) of the Act, all petitions under Secs.9 to 13 shall state—

(a) the place and date of marriage;

(b) whether the petitioner and the respondent were Hindu by religion at the time of the marriage and whether they continue to be so up to the date of filing of the petition;

(c) the name, status and domicile of the wife and the husband before the marriage and at the time of filing the petition;

(d) the address where the parties of the marriage reside at the time of the presentation of the petition and last resided, together;

(e) the names of children, if any, of the marriage, their sex and their dates of birth or ages;

(/) if prior to the date of the petition there has been any proceeding under the Act between the parties to the petition, full particulars thereof;

(g) the matrimonial offence or offences alleged or other ground, upon which the relief is sought, setting out with sufficient particularity the time and places of the acts alleged and other facts relied upon, but not the evidence by which they are intended to be proved , e.g.—

(i) if the petition is for restitution of conjugal rights the-date on or from which and the circumstances under which the respondent withdraw from the society of the petitioner;

(ii) if the petition is for a decree of nullity of marriage on the grounds specified in clauses (c) and (d) of sub-section (1) of Section 12 of the Act, the particulars of force or fraud and the circumstances in which force or fraud had been practised along with the time when the facts relied upon ~ were discovered and whether or not marital intercourse with the consent of the petitioner took place after the discovery of the said facts;

(iii) in every petition for judicial separation/divorce by either the husband or the wife on the ground that the other party has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse, the petitioner shall state the name, occupation and place of residence of such person or persons so far as they can be ascertained, the specific acts of sexual intercourse and the occasion when and the place where such acts were committed.

(iv) in the case of alleged desertion, the date and the circumstances in which it began, in the case of cruelty the specific acts of cruelty and the occasion when and the place where such acts were committed;

(v) in the case of unsoundness of mind or mental disorder the time when such unsoundness of mind or mental disorder began to manifest itself and the nature and the period of the curative steps taken;

(vi) in the case of virulent and incurable form of leprosy or venereal disease in communicable form, when such ailment began to manifest and the nature and the period of the curative steps taken;

(vii) if the petition is on the ground specified in Section 13 (1), the date of renunciation and the particulars of the religious order which the respondent has entered into;

(viii) if the petition is on the ground specified in Section 13 (1) (vii), the date and the place where “the respondent was last seen or heard of alive and the steps, if any, taken to ascertain his or her whereabouts;

(ix) where the petition is founded on the ground of rape or sodomy, the

occasion when, the place where and the names and the addresses of

persons with whom, such acts were committed. In case of conviction

for committing rape or sodomy, the particulars thereof;

(_x) where the petition is founded on the ground of bestiality,
the occasion when, the place where and the particulars, of
the beast with whom, the husband had been guilty of
bestiality;

(xi) in the case of divorce under Section 13(2) (iii) of the Act, particulars of the decree under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 or of order under Section 125 of the Code of Criminal Procedure, 1973 (or under the corresponding Section 488 of the Code of

Criminal Procedure, 1998), together with an affidavit that since the passing of such decree, or order, cohabitation between the parties has not been resumed for one year or upwards;

(xii) in the case of divorce under Section 13(2) the date and the place of birth of the wife together with the date and the place of reputation and its mode;

(h) the property mentioned in Section 27 of the Act, if any;

(i) the relief or reliefs, prayed for.

8. Affidavit of non-collusion.—Every petition excepting petitions under Section 11 shall be accompanied by an affidavit to the effect that it is not presented or prosecuted in collusion with the respondent. In the petition seeking judicial separation/divorce on the ground that the party has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse, it will also state that the petitioner has not, in any manner, been accessory to or connived at the acts complained of.

9. Affidavit of non-condonation.—Where the ground of the petition is the ground specified in clause (i) of sub-section (1) of Section 13 or where the ground for the petition is cruelty, the petition shall be accompanied by an affidavit to the effect that the petitioner has not condoned the act or acts complained of or not in any manner condoned the cruelty.

10. Affidavit of non-cohabitation.—Every petition under Section 13 (1-A) (i) of the Act shall be accompanied by an affidavit made by the petitioner that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties.

11. Affidavit of non-restitution of conjugal rights.—Every petition under Section 13 (1-A) (ii) of the Act shall be accompanied by an affidavit made by the petitioner of the fact that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.

12. Necessary parties.—(a) In every petition for divorce/judicial separation on the ground that the respondent has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse, the petitioner shall make the alleged adulterer or adultress a co-respondent to the petition. The petitioner may, however, apply to the Court, on application supported by affidavit for leave to dispense with the joinder of such person as a co-respondent on any of the following grounds;

(i) that the name of such person is unknown to the petitioner although he/she has made due efforts for discovery;

(ii) that such person is dead;

(iii) that the respondent being the wife is leading a life of a prostitute and that the petitioner knows of no person with whom voluntary sexual intercourse has been committed; or

(iv) any other reason that the Court considers sufficient.

(b) In every petition under Section 13 (2) (i) of the Act the petitioner shall make the “other wife” mentioned in that Section a co-respondent.

(c) In every petition under Section 11 of the Act on the ground that the condition in Section 5 (i) is contravened the petitioner shall make the spouse alleged to be living at the time of the marriage a co-respondent.

13. Application for leave under Section 14 of the Act.—(1) In support of an application for leave under Section 14 of the Act there shall be filed an affidavit by the applicant stating the grounds on which the application is made, the particulars of the exceptional hardship or exceptional depravity alleged, whether there has been any previous application under the said Section , whether there are living any children of the marriage, if so, the names and dates of birth or ages of such children, their sex, where and with whom they are residing, whether any and, if so, what attempts at reconciliation have been made under any circumstances which may assist the Court to determine the question whether there is reasonable probability of a reconciliation between the parties.

(2) Notices of the application shall be given to the respondent who may contest the same by filing affidavit in opposition.

(3) In exceptional circumstances the Court may, if necessary, order a deponent to be cross-examined on his or her affidavit.

(4) The application shall be accompanied by the petition intended to be filed.

(5) When the Court grants leave, the petition shall be deemed to have been duly filed on the date of the said order, provided proper Court-fee thereon is paid within the time allowed by the Court.

14. Notices.—The Court shall issue notice in Form ‘A’ accompanied by a copy of petition to the respondent and the co-respondent, if any. The notice shall require, unless the Court otherwise directs the respondent or correspondent to file his or her written statement in Court on or before the date fixed in the notice.

15. Written statement in answer to petition.—Where a counter-claim is made in terms of Section 23-A, it shall comply with the Rules applicable to petitions on the like grounds.

16. Application for alimony and maintenance.—Every application for maintenance pendente lite, permanent alimony and maintenance, or for custody, maintenance and education expenses of minor children, shall be supported by an affidavit and shall state the average monthly income of the petitioner

and the respondent, the sources of their income, particulars, of other movable and immovable property owned by them jointly or severally, the details of their liabilities, if any, along with the number of their dependants, if any, and the names and ages of such dependants.

17. Supply of certified copy of the decree to the parties.—(1) In every cause where a marriage is dissolved by a decree of divorce, the Court passing the decree shall give a copy thereof free of cost to each of the parties. The copy so supplied shall be authenticated as ‘true copy’ by the Court passing the decree.

(2) The Court shall maintain a register where the particulars of the decree shall be incorporated and signatures of the parties or their Advocates or agents shall be obtained in token of their having received a copy of the decree.

18. Forms.—The forms given in the Appendix to these rules with such variations as the circumstances of each case may require, shall be used.

FORM A

In the District Court at. ………………

Matrimonial and Divorce Jurisdiction Case No. ………….

Date of institution. …………………

………………………………………………………….. Petitioner

Versus

…………………………………………………. Respondent

………………………………………………,…. Co-respondent

Whereas. ……………….. .has presented a petition/application

against you for………………… .under section_,………… .of

the Hindu Marriage Act, 1955 (No.25 of 1955) (a copy of the said petition/ application is sent herewith), you a*re hereby summoned to appear in this Court on the. …………… at 10 o’clock in the forenoon to answer the

said petition/application on……………either in person or by recognized

agent duly instructed and able to answer all material questions relating to the case or who shall be accompanied by some other person able to answer all such questions or by an advocate, similarly instructed or accompanied and you are directed to produce on that day all documents upon which you intend to rely in support of your defence. You should file a written statement/ answer to the petition/application on the date mentioned above.

You are further informed that in default of your appearance on the …. ,

. . day. ………… .and in the manner above-mentioned, the petition/.

application shall be heard and determined in your absence.

Given under my hand and the seal of this Court, this…………….

day of………….. Two thousand and…………..

Dated. …………….. District Judge at. ……………

FORM B

In the District Court at. ……………….

………………………………………………………………………………..Petitioner

Versus …………………………………………………………………………….Respondent

Petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 (No.25 of 1955)

The petitioner prays as follows :

1. A marriage was solemnized between the parties according to Hindu rites and ceremonies on………………….at………………….The said marriage is

registered with the Registrar of Marriages. A certified copy of the relevant extract from the Hindu Marriage Register………………….is filed herewith and

an affidavit duly attested.

2. The status and place of residence of the parties to the marriage before the marriage and at the time of filing the petition were as follows :

————————————————————————————————————–

Husband Wife

Status
Age Place of residence

Status
Age Place of reside ce

(i) Before marriage

(ii) (ii) At the time of filing the petition

—————————————————————————————————————-

(Whether a party is a Hindu by religion or not is a part of his or her status).

3. (In this paragraph state the names of the children, if any, of the marriage together with their sex, dates of birth or ages.)

4. The respondent has, without reasonable excuse, withdrawn, from the society of the petitioner with effect from………………….

(The circumstances under which the respondent withdrew from the society of the petitioner be stated).

5. The petition is not presented in collusion with the respondent.

6. There has not been any unnecessary or improper delay in filing the petition.

7. There is no other legal ground why the relief should not be granted.

8. There has not been any previous proceeding with regard to the marriage by or on behalf of any party.

Or,

There have been the following previous proceedings with regard to the marriage by or on behalf of the parties :

Result

Serial No.

Names of parties

Nature of proceedings with Section of the Act

Number and year of the case

Name and location of the Court

(i)

(ii)

(iii)

(iv)

9. The marriage was solemnized at………………….The parties last resided

together at………………….The parties are now residing at………………….(within

the local limits of the ordinary original jurisdiction of this Court).

10. The petitioner submits that this Hon’ble Court has jurisdiction to try and entertain this petition.

11. The petitioner prays for a decree for restitution of conjugal rights against the respondent.

(Signature)

Verification

The above named petitioner states on solemn affirmation that paras 1 to………………….of the petition are true to the petitioner’s knowledge and

paras ………………….to ………………….are true to the petitioner’s information

received and believed to be true by him/her.

Verified………………….(place)

Dated………………….

Petitioner

FORM C

In the District Court at. ………………..

…………………………………………………………………………………………..Petitioner

Versus

………………………………………………………………………………………..Respondent

……………………………………………………………………………………Co-Respondent

Petition for judicial separation under Section 10 of the Hindu Marriage Act, 1955 (No. 25 of 1955)

The petitioner prays as follows :

A marriage was solemnized between the parties/petitioner and ther respondent according to Hindu rites and ceremonies on………………….

at………………….The said marriage is registered with the Registrar of

Marriages. A certified copy of the relevant extract from the Hindu Marriage Register………………….is filed herewith.

An affidavit is duly attested.

2. The status and place of residence of the parties to the marriage before the marriage and at the time of filing the petition were as follows.

Husband Wife

Status Age Place of Status Age Place of
residence residence

(i) Before marriage

(ii) At the time of filing the petition

(Whether a party is a Hindu by religion or not is a part of his or her status.)

3. (In this paragraph state the names of the children, if any, of the marriage together with their sex, dates of birth or ages.)

4. The respondent has………….(any one or more of the grounds available

under Section 10 may be pleaded here. The matrimonial offences charged should be set out in separate paragraphs with times and places of their alleged commission. The facts on which the claim to relief is founded should be stated in accordance with the Rules and as distinctly as the nature of the case permits).

5. Where the ground of petition is on the ground specified in clause (1) of Section 13(1), the petitioner has not in any manner been accessory to or connived at or condoned the acts complained of.

6. (Where the ground of petition is cruelty). The petitioner has not in any manner condoned the cruelty.

7. The petition is not presented in collusion with the respondent.

8. There has not been any unnecessary or improper delay in filing the petition.

9. There is no other legal ground why the relief should not be granted.

10. There have not been any previous proceedings with regard to the marriage by or on behalf of any party.

Or,

There have been the following previous proceedings with regard to the marriage by or on behalf of the parries.

Result

Serial No.

Names of parties

Nature of proceedings with Section of the Act

Number and year of the case

Name and location of the Court

(i)

(ii)

(iii)

(iv)

11. The marriage was solemnised at………………..The parties last resided

together at………………..The parties are now residing at ………………..(within

the local limits of the ordinary original jurisdiction of this Court)

12. The petitioner submits that this Hon’ble Court has jurisdiction to try and entertain this petition.

13. The petitioner, therefore, prays for a decree for judicial separation against the respondent.

Petitioner

Verification

The above-named petitioner states on solemn affirmation that paras 1 to……………………of the petition are true to the petitioner’s knowledge and

paras………………..to………………..are true to the petitioner’s information

received and believed to be true by him/her.

Verified at………………..(place)

Dated………………..

Petitioner

FORMD

In the District Court at. ……………….

…………………………………….. Petitioner

Versus

………………………………………… Respondent

Petition for a decree of nullity of marriage under Section 11 of the Hindu Marriage Act, 1955 (No.25 of 1955).

The petitioner prays as follows^_______

1. A marriage was solemnized between the parties according to Hindu_ rites and ceremonies after the commencement of the Hindu Marriage Act on………………..at………………..A certified copy of the relevant extract from

the Hindu Marriage Register is filed.

An affidavit is duly attested herewith.

2. The status and place of residence of the parties to the marriage before the marriage and at the time of filling the petition were as follows.

Husband Wife

Status
Age Place of residence

Status
Age Place of reside ce

(iii) Before marriage

(iv) At the time of filing the petition

——————————————————————————————————

(Whether a party is a Hindu by religion or not is a part of his or her

status).

3. (In this paragraph state the names of the children, if any, of the marriage together with their sex, dates of birth or ages.)

4. The respondent had a spouse living at the time of the marriage (give full particulars).

The parties are within the degrees of prohibited relationship and there is no custom or usage governing each of them which permits of a marriage between the two. (Specify the exact relationship between the parties).

The parties are sapindas of each other and there is no custom or usage governing each of them which permits of a marriage between the two. (Specify the exact relationship between the parties).

(One or more of the above grounds may be pleaded, and portions which are not applicable should be scored out. Facts on which the claim to relief is founded should be stated in compliance with the Rles and as distinctly as the nature of the case permits.)

5. There has not been any unnecessary or improper delay in filing the petition.

6. There is no other legal ground why relief should not be granted.

7. There have not been any previous proceedings with regard to the marriage by or on behalf of any party.

Or,

There have been the following previous proceedings with regard to the

marriage by or on behalf of the parties.

Serial No.
Names of
Nature oL
Number
Name and
Result

parties- —
proceedings with Section
and year of the case
location of the Court

of the Act

(i)

(ii)

(iii)
-

(iv)

8. The marriage was solemnized at………………..The parties last resided

together at………………..The parties are now residing at ………………..(within

the local limits of the ordinary original jurisdiction of this Court).

9. The petitioner submits that this Hon’ble Court has jurisdiction to try and entertain this petition.

10. The petitioner, therefore, prays that the marriage solemnized between the parties being null and void may be so declared by the Court by a decree of nullity.

Verification

The above named petitioner states on solemn affirmation that paras 1 to………………..of the petition are true to the petitioner’s knowledge and

paras………………..to………………..are true to the petitioner’s information

received and believed to be true by him/her.

Verified at………………..(place)

Dated………………..

Petitioner

FORM E

In the District Court at. ……………….

……………………………………………….. Petitioner

Versus

…………………………………………………….. Respondent

……………………………………………………… Co-respondent

Petition for a decree of nullity of marriage under Section 11 of the Hindu Marriage Act, 1955 (No.25 of 1955).

The petitioner prays as follows :

1. A marriage was solemnized between the parties according to Hindu rites and ceremonies after the commencement of the Hindu Marriage Act on………………..at………………..A certified copy of the relevant extract from

the Hindu Marriage Register is filed herewith.

An affidavit is duly attested.

2. The status and place of residence of the parties to the marriage before the marriage and at the time of filling the petition were as follows.

Husband Wife

Status
Age Place of residence

Status
Age Place of reside ce

(v) Before marriage

(vi) At the time of filing the petition

——————————————————————————————————

(Whether a party is a Hindu by religion or not is a part of his or her ^: status).

3. (In this paragraph state the names of the children, if any, of the marriage together with their sex, dates of birth or ages.)

4. (One or more of the grounds as specified in Section 12 of the Act may be pleaded here. Facts on which the claim to relief is founded should be stated in accordance with the Rules and as distinctly as the nature of the case permits.)

5. The petition is not instituted in collusion with the respondent.

6. There has not been any unnecessary or improper delay in filing the petition.

7. There is no other legal ground why relief should not be granted.

8. There have not been any previous proceedings with regard to the marriage by or on behalf of any parties.

Or,

There have been the following previous, proceedings with regard to the marriage by or on behalf of the parties.

Serial No.
Names of
Nature of
Number
Name and
Result

parties
proceedings with Section
and year of the case
location of the Court

of the Act

(i)

(ii)

(in)

(iv)

9. The marriage was solemnised at………………..The parties last resided

together at………………..The parties are now residing at ………………..(within

the local limits of the ordinary original jurisdiction of this Court).

10. The petitioner submits that this Hon’ble Court has jurisdiction to try and entertain this petition.

11. The petitioner, therefore, prays that the marriage between the parties being voidable may be anulled by the Court by a decree of nullity.

Petitioner Verification

The above-named petitioner states on solemn affirmation that paras 1 to………………..of the petition are true to the petitioner’s knowledge and

paras………………..to……………….are true to the petitioner’s information

received and believed to be true by him/her.

Verified at………………..(place)

Dated……………….. Petitioner

FORM F

In the District Court at. ……………….

……………………………………………………………………………Petitioner

Versus

……………………………………………………………………….Respondent

…………………………………………………………………..Co-respondent

Petition of dissolution of marriage by a decree of divorce under Section 13 of the Hindu Marriage Act, 1955 (No.25 of 1955).

The petitioner prays as follows :

1. A marriage was solemnized between the parties according to Hindu rites and ceremonies after the commencement of the Hindu Marriage Act, 1955 on ……………….at……………….

A certified copy of the relevant extract from the Hindu Marriage Register is filed herewith.

An affidavit is duly attested.

2. The status and place of residence of the parties to the marriage before the marriage and at the time of filing the petition were as follows :

Husband Wife

1
1
1
1

Status Age
Place of
Status Age Place of

residence
residence

(i) Before marriage (ii) At the time of filing the petition

(Whether a party is a Hindu by religion or not is a part of his or her status.)

3. (In this paragraph state the names of the children, if any, of the marriage together with their sex, dates of birth or ages).

4. The respondent……………….(one or more of the grounds specified in

Section 13 may be pleaded here. The facts on which the claim to relief is founded should be stated in accordance with the Rules and as distinctly as the nature of the case permits. If the ground as specified in clause (i) of Section 13 (1) is pleaded, the petitioner should give particulars as nearly as he can, of facts of voluntary sexual intercourse alleged to have been committed. The matrimonial offence /of fences charged should be set out in separate paragraphs with the times and places of their alleged commission).

5. (Where the ground of petition is the ground specified-m clause (i) of sub-section (1) of Section 13, the petitioner has not in any manner been accessory to or connieved at or condoned the act (s) complained of.]

6. (Where the ground of petition is cruelty). The petitioner has not in any manner condoned the cruelty.

7. The petition is not presented in collusion with the respondent.

8. There has not been any unnecessary or improper delay in filing the petition.

9. There is no other legal ground why the relief should not be granted.

10. There have not been any previous proceedings with regard to the marriage by or on behalf of any party.

Or,

There have been the following previous proceedings with regard to the marriage by or on behalf of the parties :

Serial No.
Names of
Nature of
Number
Name and
Result

parties
proceedings with Section
and year of the case
location of the Court

of the Act

(i)

(ii)

(iii)

(iv)

11. The marriage was solemnized at………….. ….The parties last resided

together at………………….The parties are now residing at……………….(within

the local limits of the ordinary original jurisdiction of this Court).

12. The petitioner submits that this Hon’ble Court has jurisdiction to entertain this petition.

13. The petitioner, therefore, prays that the marriage between the petitioner and the respondent may be dissolved by a decree of divorce.

Petitioner Verification

The above-named petitioner states on solemn affirmation that paras 1 .of the petition are true to the petitioner’s knowledge and paras………………….to………………….are true to the petitioner’s information

received and believed to be true by him/her.

Verified at………………….(place)

Dated………………….

Petitioner

In the District Court at………………….

…………………………………………………………………………Petitioner No.l

…………………………………………………………….Petitoner No. 2

Petition for dissolution of marriage by a decree of divorce by mutual consent under Section 13-B (1) of the Hindu Marriage Act, 1955 (No.25 of 1955) as amended by the Marriage Laws (Amendment) Act, 1976.

The petitioners prays as follows.

1. A marriage was solemnized between the parties according to Hindu rites and ceremonies on………………….at………………….A certified copy of the

relevant extract from the Hindu Marriage Register is filed herewith. An affidavit is duly attested.

2. The status and place of residence of the parties to the marriage before the marriage and at the time of filling the petition were as follows.

Husband Wife

Status
Age Place of residence

Status
Age Place of reside ce

(vii) Before marriage

(viii) At the time of filing the petition

——————————————————————————————————

(Whether a party is a Hindu by religion or not is a part of his or her status.)

3. (In this paragraph state the place where the parties to the marriage last resided together and the names of the children, if any, of the marriage together with their sex, dates of birth or ages.)

4. The parties to the petition have been living separately since………………….and have not been able to live together since then.

5. The parties to the petition have mutually agreed that their marriage should be dissolved.

6. The mutual consent has not been obtained by force, fraud or undue influence.

7. The petition is not presented in collusion with each other.

8. There has not been any unnecessary or improper delay in instituting the proceedings.

9. There is no other legal ground why relief should not be granted.

10. The petitioners submit that this Court has jurisdiction to entertain this petition.

11. The petitioners, therefore, pray that the marriage between the parries may be dissolved by a decree of divorce.

Petitioners

Verification

The above-named petitioners state on solemn affirmation that paras 1 to………………….to the petition are true to petitioners knowledge and paras

………………….to………………….are true to the petitioners information received

and believed to be true by them.

Verified at………………….(place)

Dated………………….

Petitioners

FORM H

In the District Court at………………….

……………………………………………………………………………Petitioner

Versus

………………………………………………………………………….Respondent

Petition under Section 14 of the Hindu Marriage Act, 1955 (No.25 of 1955) praying that a petition for divorce may be allowed to be presented within one year of the marriage.

The petitioner prays as under :

1. A marriage was solemnized between the parries according to Hindu rites and ceremonies on………………….at………………….

A certified copy of the relevant extract from the Hindu Marriage Register is filed herewith. An affidavit is duly attested.

2. The status and place of residence of the parties to the marriage before the marriage and at the time of filing the petition were as follows :

Husband Wife

Status
Age Place of residence

Status
Age Place of reside ce

(ix) Before marriage

(x) At the time of filing the petition

——————————————————————————————————

(Whether a party is a Hindu by religion or not is a part of his or her status).

3. (In this paragraph state the names of the children, if any, of the marriage together with their sex, dates of birth or ages.)

4. This is a case of exceptional hardship of the petitioner/exceptional depravity on the part of the respondent (state here in accordance with the Rules and as distinctly as the nature of the case permits all the particulars about the exceptional hardship or depravity, as the case may be).

5. The marriage was solemnized at………………….The parties last resided

together at………………….(within the local limits of the ordinary original

jurisdiction of this Court).

6. The petitioner submits that this Hon’ble Court has jurisdiction to try and entertain the application.

7. The petitioner, therefore, prays that he/she may be allowed to present a petition for divorce within one year of the marriage.

Petitioner

Verification

The above-named petitioner states on solemn affirmation that paras 1 to ………………….of the petition are true to the petitioner’s knowledge and

information received and believed to be true by him/her.

Verified at………………….(place).

Dated………………….

Petitioner

FORM I

In the District Court at……………………………………………………………………….

…………………………………………………………………………………Petitioner

Versus

……………………………………………………………………………..Respondent

Petition for maintenance pendente lite and for expenses of proceedings under Section 24 of the Hindu Marriage Act, 1955 (Act No.25 of 1955).

The petitioner prays as follows :

1. A proceeding for………………….under Section ………………….of the Hindu

Marriage Act, 1955 is pending between the parties in this Court, .the next date of hearing whereof is………………….

2. The petitioner owns no other movable or immovable property and has no other source of income except the following………………….(give full

particulars of the petitioner’s property and income).

3. The petitioner has no independent income sufficient for his/her support and the necessary expenses of the proceeding. The respondent has not made any provision for the petitioner’s maintenance.

4. The respondent has sources of income and owns movable and immovable property mentioned below.

………………….(give full particulars of respondent’s income and property).

5. The only person dependent upon the respondent is the petitioner himself/herself and (give here the details, of the liabilities, if any, of the parties along with the details of the dependants, if any, and the names and ages of such dependants.)

6. The petitioner submits that having regard to the respondent’s own

-income and his/her property and having regard to the conduct of the

respondent and the petitioner, a sum of Rs…………………..per month as and

by way of maintenance and support is the just proper amount for the maintenance and support of the petitioner.

7. The petitioner prays that the respondent should be ordered to pay a sum of Rs…………………..as the petitioner’s expenses of the proceedings and a

sum of Rs………………….monthly for petitioner’s maintenance during the

proceedings.

Petitioner

Verification

The above-named petitioner states on solemn affirmation that paras 1 to………………….of the petition are true to the petitioner’s knowledge and

paras………………….to………………….are true to the petitioner’s information

received and believed to be true by him/her.

Verified at………………….(place)

Dated………………….

Petitioner

FORM J

In the District Court at. ………………

……………………………………………………………. Petitioner

Versus

……………………………………………………………… Respondent

Application for permanent alimony and maintenance under Section 25 of the Hindu Marriage Act, 1955 (No.25 of 1955).

The applicant prays as follows.

1. A proceeding between the parties for………………….under Section

………………….of the Hindu Marriage Act, 1955, is pending in this Court, was

decided, particulars of which are given below :

(In case main proceedings give only the next date of hearing)

Remarks

Name and year of the case

Names of parties

Date of decision

2. The applicant owns no other movable or immovable property and has no other source of income except the following………………….(give full

particulars about applicant’s income and property).

3. The respondent has sources of income and owns movable and immovable property mentioned below.

………………….(give full particulars of respondents income and property).

4. The only person dependent upon the respondent is the applicant himself/ herself or the applicant and (give here the details of the liabilities, if any, of the parties along with the details of the dependants).

5. The respondent has not made any provision for the applicant’s maintenance.

6. The applicant has not remarried and has not been guilty of any conduct which would disentitle him/her to receive maintenance from the respondent.

7. The applicant submits that he/she is entitled to alimony for his/her maintenance and support in any amount sufficient to maintain the standard of life to which he/she is accustomed.

8. The applicant prays that having regard to the income of the parties, their conduct and other circumstances of the case, the respondent may be ordered to pay to the applicant for his/her maintenance and support until death or remarriage a gross/monthly/periodical sum of Rs…………………..(score

out portion not necessary) and such payment may be secured by a charge on the immovable property of the respondent.

Applicant

Verification

The above-named applicant states on solemn affirmation that paras 1 to………………….of the application are true to the applicant’s knowledge and

paras………………….to………………….are true to the applicants information

received and believed to be true by him/her.

Verified at………………….(place)

Dated………………….

Applicant

http://www.divorcelawyerindia.com/updates/hindu-marriage-act-1955-delhi-law-house-part-vii.html

Welfare of child is of utmost importance in giving custody: SC – custody denied to Father but given to maternal grandparents

                                REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2817 OF 2008
Shyamrao Maroti Korwate        .... Appellant (s)
Versus
Deepak Kisanrao Tekam              .... Respondent(s)
J U D G M E N T
P. Sathasivam, J.
1) This   appeal, pertaining   to   the   custody   of   a minor
child,   is directed against   the   final   judgment   and order
dated 17.10.2007 passed by the High Court of Judicature
at Bombay, Nagpur Bench, Nagpur in First appeal No. 501
of 2007 whereby the High Court   reversed the judgment
and order dated 16.04.2007 passed by the District Judge,
Yavatmal, Maharashtra.
12) Brief facts:
(a) On 03.06.2002, the marriage of the respondent was
solemnized with   Kaveri,   the   daughter   of   the   appellant
herein.    Out of the said wedlock, on 23.03.2003, a son,
namely, Vishwajeet @ Sangharsh was born.    After giving
birth to son, on the same day, the respondent’s wife died
due to excessive bleeding. Vishwajeet is residing with the
appellant–maternal grandfather and his family since his
birth.     After   the   death   of   his   wife,   the   respondent
contracted second marriage and also has a son from the
second marriage.
(b) On 07.08.2003,   the appellant–maternal grandfather
of the minor filed an application in the Court of District
Judge II, Yavatmal, Maharashtra under Section 7 of the
Guardians and Wards Act, 1890 (hereinafter referred to as
‘Act 1890’) being M.J.C. No. 10 of 2003 for appointing him
as guardian of the minor Vishwajeet. The said application
was opposed by the respondent and, on 15.10.2003, he
also filed an application under Section 25 of the Act 1890
2being M.J.C. No. 12 of 2003 for the custody of his son.
The   District   Judge   by   a   common   judgment   dated
16.04.2007   in   both   the   proceedings,   allowed   the
application filed by   the appellant herein and appointed
him as a Guardian of Vishwajeet till he attains the age of
12   years   and   directed   him   to   deposit   the   amounts
inheritable by the minor due to the demise of his mother,
in any Nationalized Bank in Fixed deposit in the name of
minor, which may be renewed from time to time till he
attains   majority   and   also   directed   that   nobody   can
withdraw the principal or interest amount without prior
permission   of   the   Court.     The   District   Judge   further
directed   the   newly   appointed   guardian   to   allow   the
respondent-father to meet the minor once in a month. The
application filed by the respondent was dismissed by the
District Judge with the liberty to file such application after
completion of the age of 12 years by the minor.
(c)    Aggrieved by the said order,   the   respondent herein
filed First Appeal No. 501 of 2007 in the High Court of
3Bombay, Nagpur Bench, Nagpur.    On   17.10.2007,   the
learned single Judge of the High Court allowed the appeal
filed by the respondent herein and directed the appellant
herein   to   hand   over   the   custody   of   the   child   to   the
respondent. Challenging the said order, the appellant has
preferred   this   appeal   by   way   of   special   leave   petition
before this Court.
3) Heard Mr.   Anantbhushan   Kanade,   learned   senior
counsel   for   the   appellant   and Ms.   Anagha   S.   Desai,
learned counsel for the respondent.
4) The appellant herein is the maternal grandfather of
the child and the respondent   is the father of   the child.
Since we have already narrated the events for filing the
petition for custody/guardian of the child, there is no need
to traverse the same once again.    Before considering the
claim of   both   sides,   it   is useful   to   refer   the   statutory
provisions relevant for our purpose.
5) The   Act   1890   consolidates   and   amends   the   law
relating   to   guardians   and wards.   Section   4   of   the Act
4defines “minor” as “a person who has not attained the age
of majority”. “Guardian” means “a person having the care
of the person of a minor or of his property, or of both his
person and property”.   “Ward”   is defined as “a minor for
whose person or property or both there is a guardian”.
Sections 5 to 19 of   the Act   relate   to   appointment   and
declaration   of   guardians.   Section   7   thereof   deals with
“power of   the Court   to make order as to guardianship”
which reads as under:
“7. Power of the court to make order as to guardianship.
—(1) Where the court is satisfied that it is for the welfare of a
minor that an order should be made—
(a) appointing a guardian of his person or property, or both,
or
(b) declaring a person to be such a guardian, the court may
make an order accordingly.
(2) An order under this section shall   imply the removal of
any guardian who has not been appointed by will or other
instrument or appointed or declared by the court.
(3) Where a guardian has been appointed by will or other
instrument or appointed or declared by the Court, an order
under this section appointing or declaring another person to
be guardian in his stead shall not be made until the powers
of   the   guardian   appointed   or   declared   as   aforesaid   have
ceased under the provisions of this Act.”
6) Section   8   of   the   Act   1890   enumerates   persons
entitled to apply for an order as to guardianship. Section
59   empowers   the Court   having   jurisdiction   to   entertain
application for guardianship. Sections 10 to 16 deal with
procedure   and   powers   of Court. Section 17   is   another
material provision and may be reproduced hereunder:
“17. Matters to be considered by the court in appointing
guardian.—(1) In appointing or declaring the guardian of a
minor,   the   court   shall,   subject   to   the   provisions   of   this
section,   be   guided   by what,   consistently with the   law to
which the minor is subject, appears in the circumstances to
be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor,
the Court shall have regard to the age, sex and religion of the
minor, the character and capacity of the proposed guardian
and his nearness of kin to the minor, the wishes, if any, of a
deceased parent, and any existing or previous relations of
the proposed guardian with the minor or his property.
(3) If   the   minor   is   old   enough   to   form   an   intelligent
preference, the court may consider that preference.
     Xxx xxx xxx
(5) The Court shall not appoint or declare any person to be a
guardian against his will.”
7) The   Hindu Minority   and   Guardianship   Act,   1956
(hereinafter referred to as ‘Act 1956’) is another important
statute relating to minority and guardianship among the
Hindus.   Section 4 defines “minor” as “a person who has
not   completed   the   age   of   eighteen   years”.   “Guardian”
means “a person having the care of the person of a minor
or of his property or of both his person and property”, and
6includes a “Natural guardian”. “Natural guardian” means
any of   the guardians mentioned in Section 6 of   the Act
1956.
8) Section   6   enacts   as   to who   can   be   said   to   be   a
“Natural guardian”. It reads thus:
“6. Natural guardians of a Hindu minor.—The natural
guardians of a Hindu minor,   in respect of   the minor’s
person as well   as   in respect   of   the minor’s property
(excluding his or her undivided interest in joint family
property), are—
(a) in the case of a boy or an unmarried girl — the
father, and after him, the mother: Provided that the
custody of a minor who has not completed the age of
five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boy or an illegitimate
unmarried   girl — the mother,   and   after   her,   the
father;
(c) in the case of a married girl — the husband:
Provided that no person shall be entitled to act as the
natural guardian of a minor under the provisions of
this section—
(a) if he has ceased to be a Hindu, or
(b)   if he has   completely and finally   renounced the
world   by   becoming   a   hermit   (vanaprastha)   or   an
ascetic (yati or sanyasi).
Explanation.—In this   section,   the   expressions   ‘father’
and   ‘mother’   do   not   include   a   stepfather   and   a
stepmother.”
79) Section   8   thereof   enumerates   powers   of   natural
guardian   and   Section   13   deals   with   welfare   of minor
which reads thus:
“13. Welfare   of   minor   to   be   paramount
consideration.—
(1) In the appointment or declaration of any person as
guardian of a Hindu minor by a court, the welfare of the
minor shall be the paramount consideration.
(2) No person shall be entitled to the guardianship by
virtue of the provisions of this Act or of any law relating
to guardianship in marriage among Hindus, if the court
is of opinion that his or her guardianship will not be for
the welfare of the minor.”
10) If we analyze the above provisions, one thing is clear
that   in   a   matter   of   custody   of   a   minor   child,   the
paramount consideration is the “welfare of the minor” and
not rights of the parents or relatives under a statute which
are in force. The word “welfare” used in Section 13 of the
Act 1956 has to be construed literally and must be taken
in its widest sense.
11) In Gaurav Nagpal vs. Sumedha Nagpal,   (2009) 1
SCC 42, this Court held:
“51. The word “welfare” used in Section 13 of the Act has to
be construed literally and must be taken in its widest sense.
The moral and ethical welfare of the child must also weigh
with the court as well as its physical well-being. Though the
provisions of the special statutes which govern the rights of
8the parents or guardians may be taken into consideration,
there is nothing which can stand in the way of   the court
exercising   its parens   patriae jurisdiction   arising   in   such
cases.”
12) In the light of the above background, let us consider
whether the custody of the minor is to be entrusted with
the maternal grandfather as ordered by the District Court
or with the father as directed by the High Court. We have
already   referred   to   the   fact   that   on   23.03.2003,   after
giving birth to the child,   the mother died and the child
was   taken by   the maternal   grandfather.    The maternal
grand-father   filed a petition for   custody   on 07.08.2003
and father also made a similar petition for   custody   on
15.10.2003.   Before the District Judge, it was highlighted
that   immediately   after   the   death   of   his   wife,   the
respondent-husband married   another   woman   and   also
has a son from his second marriage.    Though the exact
date   of marriage   is   not mentioned   anywhere,   the   fact
remains that within a period of one year after the death of
Kaveri, daughter of the appellant herein, the respondent-
husband married another woman.     It   is also highlighted
9by   the appellant   that   the   respondent   is working as an
Operator in the Maharashtra State Electricity Board at a
distance of 90 kms from his residence. It is further stated
that   the place where   respondent   is   residing   is   a   rural
village and there is lack of better educational facilities.   It
is   the   claim of   the maternal   grandfather   that   he   is   a
pensioner getting sizeable income by way of pension and
other retiral benefits and also own agricultural properties.
It   is his further claim that he is living with his wife i.e.
maternal   grandmother   of   the   child   and   other   relatives
such as sons and a daughter. It is also his claim that he
is   residing   in   a   Taluk   Centre where   good   educational
facilities are available.
13) Though several allegations have been made by the
parties against each other, we feel that in the absence of
any specific finding by the Courts below on either of them,
it   is unnecessary to refer   to the   same.     It   is   true   that
under   the Act 1890,   the   father   is   the   guardian of   the
minor child until he is found unfit to be a guardian of the
10minor. In deciding such question, this Court consistently
held that the welfare of the minor child is the paramount
consideration   and   such   a   question   cannot   be   decided
merely on the basis of the rights of the parties under the
law.   This principle is reiterated in Anjali Kapoor (Smt.)
vs. Rajiv Baijal, (2009) 7 SCC 322.
14) Though father is the natural guardian in respect of a
minor   child,   taking note of   the   fact   that welfare of   the
minor to be of paramount consideration inasmuch as the
respondent-father   got married   within   a   year   after   the
death   of   his   first   wife-Kaveri   and   also   having   a   son
through the second marriage, residing in a rural village,
working at a distance of 90 kms and of the fact that the
child was all along with the maternal grand-father and his
family since birth, residing in a Taluka Centre where the
child is getting good education, we feel   that   the District
Judge was justified in appointing the appellant maternal
grandfather as guardian of the minor child till the age of
12 years.
1115) The High Court   reversed   the   said   conclusion   and
appointed father of the child as his guardian.     It is true
that   the   learned single Judge   interacted with both the
parties and the child separately and noted that “the child
could not be unhappy, uncomfortable and unsafe in the
custody of the father”.    However, there is no material to
show that at any point of time the respondent-father had
attempted to meet the child when he was in the custody of
maternal   grandfather.     No   doubt,   it   is   true   that   on
attaining the age of 12 years by the minor, the father is
free   to make a fresh application and depending on the
welfare   and wish of   the   child,   further   order has   to be
passed in the matter of custody. It is said that as on date,
the child is aged about 8 years.   Our anxiety is that after
four years, i.e., after attaining the age of 12 years whether
the   child would   show any   inclination   to   join with   his
father. It is relevant to note that the maternal grandfather
is   aged   about   63   years   and   if   his   sons   are married,
12undoubtedly   the   child   cannot   get   the   same   love   and
affection from him and his family.
16) Inasmuch as the child has continuously been living
with the maternal   grandfather and his   family   from the
date   of   his   birth   i.e.   23.03.2003   and   getting   good
education at their hands, taking note of the position of the
father of the child who is working 90 kms. away from his
house in a rural village, we modify the order of the High
Court and permit   the appellant grandfather   to have the
custody of the child Vishwajeet @ Sangharsh till the age of
12 years as   ordered by the District Judge.    The above
conclusion is based on welfare of the minor as provided in
Section 13 of   the Act 1956.    Since on completion of 12
years, a fresh decision is to be taken about entrusting the
custody of the minor child, while modifying the order of
the High Court as mentioned above, we issue the following
directions about the visitation rights of the father:
1) During long holidays/vacations covering more
than two weeks the child will be allowed to be in
13the company of the father for a period of seven
days.
(2) The period shall be fixed by the father after
due intimation to the maternal grandfather who
shall permit the child to go with the father for
the aforesaid period.
(3)   In addition to the same,   twice in a month
preferably on Saturday or Sunday or a festival
day, maternal grand-father shall allow the child
to   visit   the   father   from morning   to   evening.
Father shall take the child and leave him back
at   the maternal   grand-father’s   place   on   such
days.’
(4) The father is free to provide facilities such as
payment of school   fees, books, dress materials,
eatables   etc.   during   this   period   to   develop   a
conducive relationship with the child.
1417) With the above direction, the impugned order of the
High   Court   is   modified.     The   appellant-maternal
grandfather   is permitted to continue the custody of   the
child till   the age of 12 years as ordered by the District
Judge. The decision regarding investment in the name of
minor   child   is   also   restored.   To   the   extent mentioned
above, the appeal is allowed. No costs.
...…………………………………J.
                 (P. SATHASIVAM)
...…………………………………J.
         (DR. B.S. CHAUHAN)
NEW DELHI;
SEPTEMBER 14, 2010.
15

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

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

---------

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

Sunday, September 12, 2010

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

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

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

THE IMPORTANCE OF MITAKSHARA IN THE 21ST CENTURY

*
By Justice Markandey Katju+
Cite as : (2005) 7 SCC (J) 3

When I was informed of the topic: "The importance of Mitakshara in the 21st century" my initial reaction was that Mitakshara has hardly got any importance today except with regard to coparcenary property rights of Hindus. As you all know, most of the old Hindu laws were replaced by parliamentary statutes in 1955 and 1956 viz. the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Adoptions and Maintenance Act, 1956, the Hindu Minority and Guardianship Act, 1956, etc. These Acts have substituted the Mitakshara and the Dayabhaga law except with regard to succession to ancestral property, which continues to be covered by the Mitakshara vide Section 6 of the Hindu Succession Act, 1956.

This is a practical age. Lawyers are interested in knowing the law which will help them in their cases, and they are hardly interested in purely academic matters which have little practical application. Hence, hardly anyone reads the Mitakshara or Dayabhaga today, as they have largely been superseded by the statutes made by Parliament.

However, I wish to speak on the topic from a somewhat different angle.

As is well known, the Mitakshara prevailed all over India except in Bengal and Assam where the Dayabhaga prevailed. The Mitakshara is a commentary on only one Smriti called Yajnavalkya Smriti, whereas Dayabhaga is a digest of all the Smritis.

Although Hindu law is regarded as having emanated from the Vedas (Shruti) the truth is that there is scarcely any law in the Veda (Shruti) and the Hindu law that has really emanated from the Smritis. There were large number of Smritis of which the surviving ones are of Manu, Yajnavalkya, Vishnu, Narada, Apastamba, Gautam, Parasara, Vashist, Katyayana, etc.

As I have mentioned, the Mitakshara is a commentary only on the Yajnavalkya Smriti. The question therefore which arises is as to why Vijnaneshwara chose only the Yajnavalkya Smriti for his commentary. There was Manu Smriti which was held in even greater respect than Yajnavalkya Smriti, but Vijnaneshwara preferred to write his commentary on the Yajnavalkya Smriti rather than on Manu Smriti.

We can get the answer to this question if we compare Manu Smriti with Yajnavalkya Smriti. Manu Smriti is not a systematic treatise. It does not have a clear-cut division between religion and law, as in Yajnavalkya Smriti. If we read the Manu Smriti, we will find that there is one shloka on religion, the next shloka on law, third on morality, etc. Everything is jumbled up. On the other hand the Yajnavalkya Smriti is divided into three chapters. The first chapter is called Achara which deals with religion, the second chapter is called Vyavahara which deals with law, and the third chapter is called Prayaschit which deals with penance. Thus, there is a clear demarcation between law and religion in Yajnavalkya Smriti, which is not to be found in the Manu Smriti. This demarcation between law and religion itself is a great advance over the Manu Smriti. Thus, the Yajnavalkya Smriti marks a tremendous advance in law over the Manu Smriti. Law is now clearly separated from religion. This is analogous to the Roman law or to the positivist jurisprudence in the 19th century of Bentham and Austin.

Also, the Yajnavalkya Smriti is shorter and more liberal, particularly towards women than the Manu Smriti. It was perhaps for this reason that Vijnaneshwara preferred the Yajnavalkya Smriti to the Manu Smriti for writing his commentary.

As is well known, the Mitakshara was written by Vijnaneshwara during the reign of Vikramarka, a Chalukya ruler of the 11th century A.D. Although, the Mitakshara was written by a South Indian, its remarkable feature is that its authority spread all over India except Bengal and Assam (where too it has great respect) and it was accepted as the authoritative text on Hindu law even in North India.

Mitakshara was certainly not a law made by Parliament. In fact, in those days there was no Parliament and the law consisted of treatises of learned jurists. The Mitakshara was accepted as an authoritative text on Hindu law not due to promulgation by any sovereign authority such as the King or Parliament, but due to its tremendous scholarship, logical analysis and the sheer force of intellect of its author.

The importance of the Mitakshara therefore is that it teaches us to have respect for intellect and learning wherever it may come from. As the Rig Veda says,

"Let noble thoughts come to us from every side."

or as it is said:

Lons'ks iwT;rs jktk

fo}ku loZ= iwT;rs

which means "A king is worshipped only in his own country, but a learned man is worshipped everywhere."

This is the lesson which the Mitakshara teaches us in the 21st century. If India has to rise as a nation we must not be sectarian or chauvinists but all must feel like Indians living like a united family and must respect each other, whether we come from North or South, East or West.

The second importance of Vijnaneshwara's Mitakshara in India in the 21st century is the great progress it made in traditional Hindu law by making it secular. In this connection it may be mentioned that in ancient India there was not only great development in Philosophy, Mathematics and Science, but there was also great advancement in the field of law.

Until the Mitakshara of Vijnaneshwara came into existence, Smritis and commentaries were largely religious and not secular. It was the Mitakshara which was the first to make the laws of property and inheritance secular.

The bifurcation of the Mitakshara and Dayabhaga was due to two different interpretations given to a single word "sapinda". Manu has written that when a man dies, his property goes to his nearest "sapinda". The question is therefore what is the meaning of the word "sapinda". That depends upon the meaning of the word "pinda". According to Dayabhaga, "pinda" means the rice balls which are offered in the Shraddha ceremony to one's deceased ancestors. On the other hand, according to the Mitakshara the word "pinda" does not mean the rice balls offered at the Shraddha ceremony at all but it means the particles of the body of the deceased.

The term "sapinda" as used in the Smritis and by the commentators before Vijnaneshwara meant only those connected with the funeral obligations. Vijnaneshwara's definition of "sapinda" as one connected by the particles of the same body was apparently unknown to any previous commentator. He cites no Smriti in support of his view, but only the Vedic texts on the theory of heredity which do not mention "pinda" or "sapinda" at all. As Nilakantha says in "Samskara Mayukha":

"Vijnaneshwara abandoned the theory of connection through the rice-ball offering and accepted the theory of transmission of constituent particles."

In this connection the Mitakshara may be contrasted to the Dayabhaga system. In the chapter which deals with the subject of succession, Dayabhaga appeals to the doctrine of religious efficacy at every step, testing the claims of rival heirs by their numbers and nature of their respective offerings. On the other hand, the Mitakshara never once alludes to such a test, as noted by the Privy Council in Balasubrahmanya Pandya Thalaivar v. M. Subbayya Tevar1, IA at p. 102. The claims of rival heirs are determined primarily by the test of degrees of propinquity and not religious efficacy. Even persons who confer no religious benefits to the deceased are admitted as heirs for the reason of affinity. Vijnaneshwara states emphatically that "sapinda" relationship does not depend upon the relationship of the deceased through the offering of the "pindas" and his getting it or not, but it depends upon having the same particles of one's body. Vijnaneshwara's new definition was therefore revolutionary. It divested the word "sapinda" of its religious meaning, and was in keeping with the new orientation which he gave to the Vyavahara or civil law by treating property and inheritance as purely secular matters, like the Roman lawyers. He rested the rules of law on purely practical and rational considerations. Combating the view that the wealth of a regenerate man is designed for religious uses exclusively, Vijnaneshwara says:

"If that were so, other purposes of opulence and gratification, which are to be effected by means of wealth, must remain unaccomplished and if that be the case, there is an inconsistency in the following passages of Yajnavalkya, Gautama and Manu, 'Neglect not religious duty, wealth or pleasure in the proper season.' "

As stated above, Vijnaneshwara relies on no Smriti authority in support of his contention that the word "sapinda" has a secular and not religious connotation. Instead, Vijnaneshwara displayed his creative brilliance by relying for this purpose on Jaimini's Lipsa Sutras as he calls the 3rd Adhikarana of Chapter I Book IV of Jaimini's Sutras.

According to Vijnaneshwara, the origin of property is popular recognition, and hence the basis of inheritance and succession is relationship by blood. While Jimutavahana makes the text of Manu on the subject the foundation of his principle of inheritance (because Manu emphasises the spiritual aspect), Vijnaneshwara mainly relies on the text of Yajnavalkya, because the latter prefers the matter of factual aspect. Vijnaneshwara utilises the Mimansa Adhikarana as interpreted by Prabhakara who is reputed to be an heterodox propounder of the Mimansa Sutras, while the orthodox interpretation of the Adhikarana as given by Savaraswami and Kumarila Bhatta gives no support to Vijnaneshwara's views.

Thus, we see that Vijnaneshwara utilises the Mimansa principles, particularly, the Prabhakara school, for striking out a new, secular path in the field of law.

This new, revolutionary change in the law which Vijnaneshwara effected by his new definition of the word "sapinda" had remarkable practical effects. For instance, Jimutavahana who wrote the Dayabhaga, did not permit inheritance to a son at birth. This is because Dayabhaga followed the traditional rule that only the person who can perform Shraddha for his ancestor can inherit the property.

In the book called Parvana Shraddha the list of persons who can perform Shraddha is mentioned. At Serial No. 1 of the list is the son. At Serial No. 2 is the son's son, etc. The general rule is that if a person at a higher position in the list is available, then one cannot go down the list, and the list terminates there. For instance, if the son is alive, then the son's son (i.e. grandson of the deceased) has no right to perform the Shraddha, because the grandson is at Serial No. 2 in the list given in Parvana Shraddha, whereas the son is at Serial No. 1. Hence, the grandson of the deceased has no right to inherit the property when the son is alive, because the grandson has no right to perform Shraddha when the son is alive. It is for this reason that there is no inheritance at birth in Dayabhaga when the father is alive. This is in sharp contrast to the Mitakshara in which the son inherits a share in the ancestral property at birth.

Similarly, in Dayabhaga the unborn son in the mother's womb cannot inherit a share in the property, because an unborn son cannot perform Shraddha. On the other hand, in the Mitakshara an unborn son in the mother's womb gets a share in the ancestral property. Dayabhaga prefers the father to the mother, because he presents two oblations in which the deceased son participates, while the mother presents none. Vijnaneshwara takes exactly the opposite view on the ground that "her propinquity is greatest". The view of Vijnaneshwara is reflected in the Hindu Succession Act, 1956 because the mother of a deceased Hindu is a Class I heir, and is hence automatically entitled to a share in the property of her deceased son, whereas the father is only a Class II heir, and will only get the property if there is no Class I heir. Thus even today a mother's position is higher than the father so far as succession is concerned, and this is in accordance with Vijnaneshwara's view.

Similarly, the right of a daughter to succeed is rested by Jimutavahana upon the funeral oblations which may be hoped for from her son, and the exclusion of widowed, or barren, or sonless daughters, is the natural result. The Mitakshara follows Brihaspati in basing her claim upon simple consanguinity. As a son, so does the daughter of a man proceed from his several limbs. How then can any other person take her father's wealth? And he excludes neither the widowed nor the barren daughter, but prefers one to another, accordingly as she is unmarried or married, poor or rich, that is, according as she has the best natural claim to be provided for.

The right of a daughter's son when he succeeds on the death of the widow and daughter certainly rests far more upon consanguinity than on religious efficacy. The preference of the daughter's son to agnates, whose claims based upon pinda offerings are stronger, can only be explained by propinquity. No doubt, according to Manu, Vishnu and Yajnavalkya, a daughter's son should perform Shraddha for the maternal grandfather. But, from the way Vishnu expresses it, the rule appears to be recommendatory. According to the Mitakshara, the Shraddha of the maternal grandfather is not obligatory but is only optional, except when the mother's sapindikarana has taken place with the maternal grandfather.

The express view laid down in the Mitakshara on the Shraddha rites that sapinda-relationship with the deceased is wholly independent of his being benefited by the pindas or not, is decisive and is consistent only with the conclusion that propinquity must be judged without reference to the grades, number or quality of the funeral offerings.

The conclusion therefore is irresistible that the Mitakshara does not admit religious efficacy either as a basis of heirship or as a measure of propinquity. The rules governing the right to perform Shraddhas or the offering of pindas, though in part determined by propinquity, are also in part influenced by different considerations. Religious efficacy as deduced from these rules can therefore furnish no safe or satisfactory test as regards the order of succession.

The above discussion shows that Vijnaneshwara struck a totally new note in the development of Hindu law and made it secular. This has great importance for the 21st century when secularism is absolutely essential for the unity and progress of the nation.

India is a country with tremendous diversity, innumerable religions, castes, languages, ethnic groups, cultures, etc. Hence only secularism and respect for everybody can keep the country together and make it progress. That is also the mandate of the Constitution, vide Articles 25 to 30 of the Constitution.

Apart from the above, the Mitakshara of Vijnaneshwara liberalised the law with regard to women. He provided for maintenance not only of the chaste wife but also the unchaste wife and unchaste widow. Also, while earlier writers circumscribed women's property within the narrow limits prescribed by Manu, Vijnaneshwara included all property however acquired within the definition. In this connection his liberal views evoked protests from conservative scholars, one writer going so far as to say that a particular rule was evolved by Vijnaneshwara out of his brain (LodiksydfYir) and hence deserved no consideration. However, ultimately all scholars recognised and accepted his views. Due to his progressive views women became entitled to hold and inherit property.

Hence, even though the Mitakshara may not be in vogue today except in matters of Hindu coparcenary property, yet the path it has shown is the path which India should pursue for its progress and prosperity.

I will conclude by quoting the Mitakshara:

uklhnfLr Hkfo(;fr f{kfrrys dY;k.kdYia iqaj

rks g(V% Jqr ,o ok f{kfrifr% JhfodzekdksZie%A

foKkus'ojif.Mrks u Hktrs fdapkU;nU;ksieJkdYi

fLFkjeLrq dYiyfrdkdYia rnsr=;aAA

(There neither was, nor is, nor will ever be a city like Kalyana, or a king like Vikrama or a pandit like Vijnaneshwara. May these three live for ever.)

* Speech delivered at a function held in honour of the great jurist Vijnaneshwara at Gulbarga University, Gulbarga, Karnataka on 31-12-2004.

+ Chief Justice, Madras High Court.

(1938) 65 IA 93