//
archives

Divorce

This tag is associated with 7 posts

Hindu Marriage Act, 1955: Section 19. Dissolution of marriage-Court to which petition should be presented-Parties marrying in India under Hindu Law-Husband’s petition for dissolution of marriage in Foreign Court-Fraud-Incorrect representation of jurisdictional facts-Husband neither domiciled nor had intention to make the foreign state his home but only technically satisfying the requirement of residence of 90 days for the purpose of obtaining divorce- Divorce decree by foreign court on a ground not available under the 1955 Act-Enforceability of. Civil Procedure Code, 1908: Section 13. Matrimonial dispute-Foreign judgment-When not conclusive. Clause (a)-“Court of competent jurisdiction”-Which is. Clause (b)-Judgment on merits-What is. Clause (c)-Judgment founded on a ground not recognised by Law of India-Effect of. Clause (d)-Judgment obtained in proceedings opposed in principles of natural justice-Effect of-Principles of natural justice-Scope of. Clause (e)-`Fraud’-Scope of-Judgment obtained by fraud- Effect of. Clause (f)-Judgment founded on a breach of law in force in India-Effect of. Section 14-Presumption as to foreign judgments- Expression “Certified copy of a foreign judgment”-Should be read consistent with requirement of Section 86 of Indian Evidence Act. Indian Evidence Act, 1872. Section 41-“Competent court”-Which is. 822 Section 63(1)(2), 65(e)(f), 74(1)(iii), 76, 77 and 86. Foreign judgment-Photostat copy-Admissibility of. Private International Law-Matrimonial dispute- Recognition of foreign judgment-Rules for recognition of foreign matrimonial judgment laid down-Hague convention of 1968 on the recognition of divorce and legal separations- Article 10-Judgment Convention of the European Community. Words and phrases “Residence-Meaning of”. The first appellant and the first respondent were married at Tirupati on 27.2.1975 according to Hindu Law. They separated in July 1978. The appellant-husband filed a petition for dissolution of the marriage in the Sub-Court of Tirupati stating that he was a resident of South Claiborn Avenue, New Orleans, Louisiana, and that he was a citizen of India and that he and his wife last resided together at New Orleans, Louisiana. Subsequently he filed another petition for dissolution of marriage in the Circuit Court St. Louis Country, Missouri, USA alleging that he has been a resident of the State of Missouri for 90 days or more immediately preceding th filing of the petition by refusing to continue to live with the appellant in the US and particularly in the State of Missouri. But from the averments made by him in the petition before the Sub-Judge, Tirupati it was obvious that he and his wife had last resided together at New Orleans, Louisiana and never within the jurisdiction of th Circuit Court of St. Louis Country in the State of Missouri. The respondent-wife filed her reply raising her objections to the maintainability of the petition. She also clearly stated that her reply was without prejudice to her contention that she was not submitting to the jurisdiction of the foreign court. The Circuit Court Missouri assumed jurisdiction on the ground that the 1st Appellant had been a resident of the State of Missouri for 90 days next preceding the commencement of the action in the Court. In the absence of the respondent-wife the Circuit Court, Missouri passed a decree for dissolution of marriage on the only ground that the marriage has irretrievably down. Subsequent to the passing of the decree by the Circuit Court, Missouri, the appellant filed an application for dismissal of his earlier petition before the Sub-Court of Tirupati and the same was dismissed. 823 On 2nd November 1981 the last appellant married appellant No. 2. Thereafter, the 1st-respondent filed a criminal complaint against the appellants for the offence of bigamy. The appellants filed an application for their discharge in view of the decree for dissolution of marriage passed by the Circuit Court, Missouri. The Magistrate discharged the appellants by holding that the complainant-wife had failed to make out a prima facie case against the appellants. The respondent preferred a Criminal Revision Petition before the High Court which set aside the order of the Magistrate by holding (i) that a photostat copy of the judgment of Missouri Court was not admissible in evidence; (ii) since the Learned Magistrate acted on the photostat copy of the judgment, he was in error in discharging the accused. Accordingly the High Court directed the Magistrate to dispose of the petition filed by the appellants for their discharge afresh in accordance with law. Aggrieved by the decision of the High Court the appellants filed appeal in this Court. Dismissing the appeal, this Court, HELD: 1. The decree dissolving the marriage passed by the foreign court is without jurisdiction according to the Hindu Marriage Act as neither the marriage was celebrated nor the parties last resided together nor the respondent resided within the jurisdiction of that Court. Further, irretrievable breakdown of marriage is not one of the grounds recognised by the Act of dissolution of marriage. Hence, the decree of the divorce passed by the foreign court was on a ground unavailable under the Act which is applicable to the marriage. Since with regard to the jurisdiction of the forum as well as the ground on which it is passed the foreign decree in the present case is not in accordance with the Act under which the parties were married, and the respondent had not submitted to the jurisdiction of the court or consented to its passing, it cannot be recognised by the courts in this country and is therefore, unenforceable. [828H, 829A, 828E, 834H, 835A] 2. Residence does not mean a temporary residence for the purpose of obtaining a divorce but habitual residence or residence which is intended to be permanent for future as well. [829E] Smt. Satya v. Teja Singh, [1975] 2 S.C.R. 1971, referred to. 3. The rules of Private International Law in this country are not codified and are scattered in different enactments such as the Civil Procedure Code, the Contract ACt, the Indian Succession Act, the Indian Divorce Act, the Special Marriage Act etc. In addition, some 824 rules have also been evolved by judicial decisions. In matters of status or legal capacity of natural persons, matrimonial disputes, custody of children, adoption, testamentary and intestate succession etc. the problem in this country is complicated by the fact that there exist different personal laws and no uniform rule can be laid down for all citizens. Today more than ever in the past, the need for definitive rules for recognition of foreign judgments in personal and family matters, and particularly in matrimonial disputes has surged to the surface. A large number of foreign decrees in matrimonial matters is becoming the order of the day. A time has, therefore, come to ensure certainty in the recognition of the foreign judgments in these matters. The minimum rules of guidance for securing the certainty need not await legislative initiative. This Court can accomplish the modest job within the frame-work of the present statutory provisions if they are rationally interpreted and extended to achieve the purpose. Though the proposed rules of guidance in this area may prove inadequate or miss some aspects which may not be present to us at this juncture, yet a begining has to be made as best as one can, the lacunae and the errors being left to be filled in and corrected by future judgments. [829H, 830A, 831C, F-H] 4. The relevant provisions of Section 13 of the CPC are capable of being interpreted to secure the required certainty in the sphere of this branch of law in conformity with public policy, justice, equity and good conscience, and the rules so evolved will protect the sanctity of the institution of marriage and the unity of family which are the corner stones of our social life. [832A] 4.1 On an analysis and interpretation of Section 13 of CPC the following rule can be deduced for recognising a foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may be as follows; (i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties. [834B-D] 825 5. The High Court erred in setting aside the order of the learned Magistrate only on the ground that the photostat copy of the decree was not admissible in evidence. In the instant case photostat copies of the judicial record of the Court of St. Louis is certified for th Circuit Clerk by the Deputy clerk who is a public officer having the custody of the document within the meaning of Section 76 of the Indian Evidence Act also in the manner required by the provisions of the said section. Hence the photostat copy per se is not inadmissible in evidence. It is inadmissible because it has not further been certified by the representative of our Central Government in the United States as required by Section 86 of the Act. Therefore the document is not admissible in evidence for want of the certificate under Section 86 of the Act and not because it is a photostat copy of the original as held by the High Court. [835B, E, F-G] 6. The Magistrate is directed to proceed with th matter pending before him according to law as expeditiously as possible, preferably within four months. [835G] , 1991( 2 )SCR 821, 1991( 3 )SCC 451, 1991( 2 )SCALE1 , 1991( 3 )JT 33

PETITIONER: Y. NARASIMHA RAO AND ORS. Vs. RESPONDENT: Y. VENKATA LAKSHMI AND ANR. DATE OF JUDGMENT09/07/1991 BENCH: SAWANT, P.B. BENCH: SAWANT, P.B. MISRA, RANGNATH (CJ) CITATION: 1991 SCR (2) 821 1991 SCC (3) 451 JT 1991 (3) 33 1991 SCALE (2)1 ACT: Hindu Marriage Act, 1955: Section 19. Dissolution of marriage-Court to which petition should … Continue reading

for issuing a passport , it is not necessary to mention always the name of the biological parents in the application form, adoptive parents name can be mentioned.

LPA.No.357/2012 Page 1 of 16 *IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 11 th May, 2012 + LPA No.357/2012 MS. TEESTA CHATTORAJ THROUGH HER MOTHER/NATURAL GUARDIAN SMT. RAJESHWARI CHATTORAJ ….. Appellant Through: Mr. M. Dutta, Advocate Versus UNION OF INDIA ….. Respondent Through: Mr. Ruchir Mishra, Advocate. CORAM :- … Continue reading

what is cruelty apex court defined=No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of “mental cruelty”. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive: (i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty. (ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party. (iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable. (iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty. (v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse. (vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty. (vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty. (viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty. (ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not 10 be adequate for grant of divorce on the ground of mental cruelty. (x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty. (xi) If a husband submits himself for an operation of sterilisation without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty. (xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty. (xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty. (xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.”

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5010 OF 2007 Gurbux Singh …. Appellant (s) Versus Harminder Kaur …. Respondent(s) J U D G M E N T P. Sathasivam, J. 1) The appellant, a Principal in ITI College, Sirhali, Amritsar, has approached this Court against the judgment and … Continue reading

Muslim Law : Muslim Women (Protection of Rights on Divorce) Act, 1986: Constitution validity-Act excluded Muslim divorced woman from the provisions of Section 125 Cr.P.C.-Further, under S.3 Muslim divorced woman was entitled to reasonable and fair provision and maintenance within the period of iddat by her former husband-Held: The Act is constitutionally valid-Reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period-Liability of Muslim husband to pay maintenance to his divorced wife is not confined to iddat period-A divorced Muslim woman, who has not remarried, may proceed against her relatives for her maintenance-If relatives unable to pay maintenance State Wakf Board to pay such maintenance-The Act does not offend Arts. 14, 15 and 21-Constitution of India, 1950 Arts. 14, 15 and 21-Code of Criminal Procedure, 1973, S.I25. Interpretation of Statutes: Rule of construction-Provisions of a Statute-Possibility of two constructions-Preference of-Held: That construction, if permissible, which makes the Statute effective and operative has to be preferred-Whereas that construction which renders the Statute ultra vires or unconstitutional has to be rejected. Words & Phrases : “Divorce woman”: and “iddat period”-Meaning of-In the context of S.2(a) of the Muslim Woman (Protection of Rights on Divorce) Act, 1986. “Maintenance:, “provision” and “mahr”-Meaning of-In the context of S.3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The Petitioners filed a writ petition before this Court challenging the constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986. On behalf of the petitioners it was contended that the Act was un-Islamic, unconstitutional and it undermined the secular character which was the basic feature of the Constitution; that there was no rhyme or reason to deprive the Muslim women from the applicability of Section 125 of the Code of Criminal Procedure, 1973 and consequently the Act must be held to be discriminatory and violative of Articles 14 and 21 of the Constitution. On behalf of the respondents it was contended that a reasonable and fair provision and maintenance for the divorced Muslim woman had been provided under Section 3 of the Act; that personal law was a legitimate basis for discrimination; that the Act was good enough to take care of the vagrancy of Muslim divorced woman; that the interpretation of the Act should be in consonance with the Muslim Personal Law; that the social ethos of the Muslims should be borne in mind while interpreting the Act; that the Act resolved all issues and, therefore, the Act was not invalid or unconstitutional. =Dismissing the petition, the Court HELD : 1. In interpreting the provisions where matrimonial relationship is involved, one has to consider the social conditions prevalent in the Indian society. In Indian society, whether one belongs to the majority or the minority group, what is apparent is that there exists a great disparity in the matter of economic resourcefulness between a man and a woman. Indian society is male dominated both economically and socially and women are assigned, invariably, a dependent role, irrespective of the class of society to which she belongs. A woman on her marriage very often, though highly educated, gives up her all other avocations and entirely devotes herself to the welfare of the family, in particular she shares with her husband, her emotions, sentiments, mind and body , and her investment in the marriage is her entire life – a sacramental sacrifice of her individual self and is far too enormous to be measured in terms of money. When a relationship of this nature breaks up, in what manner one could compensate her so far as emotional fracture or loss of investment is concerned, there can be no answer,. It is a small solace to say that such a woman should be compensated in terms of money towards her livehood and such a relief which partakes basic human rights to secure gender and social justice is universally recognised by persons belonging to all religions and it is difficult to perceive that Muslim law intends to provide a different kind of responsibility by passing on the same to those unconnected with the matrimonial life such as the heirs who were likely to inherit the property from her or the Wakf Boards. Such an approach appears to be a kind of distortion of the social facts. Solutions to such societal problems of universal magnitude pertaining to horizons of basic human rights, culture, dignity and decency of life and dictates of necessity in the pursuit of social justice should be invariably left to be decided on considerations other than religion or religious faith or beliefs or national, sectarian, racial or communal constraints. Bearing this aspect in mind, one has to interpret the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 in question. [435-B-G] 2. The provisions of the Act would indicate that a divorced woman is entitled to a reasonable and fair provisions for maintenance. The word `provision’ indicates that something is provided in advance for meeting some needs. In other words, at the time of divorce the Muslim husband is required to contemplate the future needs and make preparatory arrangements in advance for meeting those needs. Reasonable and fair provision may include provision for her residence, her food, her cloths and other articles. The Act would mean that on or before the expiration of the iddat period, the husband is bound to make and pay maintenance to the wife and if he fails do so then the wife is entitled to recover it by filing an application before the Magistrate as provided in Section 3(3); but nowhere the Parliament has provided that reasonable and fair maintenance is limited only for the iddat period and not beyond it. It would extend to the whole life of the divorced wife unless she gets married for a second time. [439- A-D] 3.1. The provisions of the Act depriving the divorced Muslim woman of a right to maintenance from her husband providing for her maintenance to be paid by the former husband only for the period of iddat and thereafter to make her run from pillar to post in search of her relatives one after the other and ultimately to knock at the doors of the Wakf Board does not appear to be reasonable and fair substitute of the provisions of Section 125 of the Code of Criminal Procedure, 1973. Such deprivation of the divorced Muslim women of their right to maintenance from their former husbands under the beneficial provisions of the Code which are otherwise available to all other women in India cannot be stated to have been effected by a reasonable, right, just and fair law and, if these provisions are less beneficial than the provisions of Chapter IX of the Code, a divorced Muslim woman has obviously been unreasonably discriminated against and has got out of the protection of the provisions of the general law as indicated under the Code which are available to Hindu, Buddhist, Jain, Parsi or Christian women or women belonging to any other community. The provisions prima facie, therefore, appear to be violative of Article 14 of the Constitution mandating equality and equal protection of law to all persons otherwise similarly circumstanced and discrimination on the ground of religion as the act would obviously apply to Muslim divorced women only and solely on the ground of their belonging to the Muslim religion. [442-E- H] 3.2. It is well settled that on a rule of construction a given statute will become `ultra vires or `unconstitutional’ and, therefore, void, whereas on another rule of construction which is permissible, the statute remains effective and operative the court will prefer the latter on the ground that Legislature does not intend to enact unconstitutional laws. The latter interpretation should be accepted and, therefore, this interpretation results in upholding the validity of the Act. It is well settled that when by appropriate reading of an enactment the validity of the Act can be upheld, such interpretation is accepted by courts and not the other way. [443-A-B] 4. While upholding the validity of the Act, the conclusions are summed up as follows : (a) A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife, which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(1)(a) of the act. (b) Liability of Muslim husband to his divorced wife arising under Section 3(l)(a) of the Act to pay maintenance is not confined to iddat period. [444-G-H] (c) A divorced Muslim woman who has not remarried and who is not able to maintain herself after the iddat period can proceed as provided under Section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance. (d) The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India. [445-A-B] Mohd Ahmed Khan v. Shah Bano Begum, [1985] 2 SCC 556; Bai Tahira v. ALi Hussain Fidaalli Chothia, [1979] 2 SCC 316; Fuzlunbi v. K. Khader Vali, [1980] 4 SCC 125; Aga Mahomed Jaffer Bindaneem v. Koulsom Bee Bee, 241A 196; Olga Tellis v. Bombay Municipal Corporation, [1985] 3 SCC 545 and Maneka Gandhi v. Union of India, [1978] 1 SCC 248, referred to. Arab Ahmadhia Abdulla v. Arab Bail Mohmuna Saiyadhbhai, AIR (1988) (Guj) 141; Ali v. Sufaira, [1988] 3 Crimes 147, K. Kunhashed Hazi v. Amma, (1995) Crl. L.J. 337; K. Zunaideen v. Ameena Begum, (1998) II DMC 468, Karim Abdul Shaik v. Shenaz, Karim Shaik, (2000) Crl. L.J. 3560, Jaitunbi Mubarak Shaikh v. Mubarak Fakruddhi Shaikh, (1999) M.L.J. 694 and Kaka v. Hassan Bano, II (1998) DMC 85 (Pun) (FB), approved. Umar Khan Bahamami v. Fathimnurisa, (1990) Cr. L.J. 1364; Abdul Rashid v. Sultana Begum, [1992] Cr.L.J. 76; Abdul Haq v. Yasima Talat, (1998) Cr. L.J. 3433 and Md. Marahim v. Raiza Begum, (1993) 1 DMC 60, overruled. CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 868 of 1986. Under Article 32 of the Constitution of India. WITH W.P.(C) Nos. 996, 1001,1055, 1062, 1236, 1259, 1281/86, TC. (C) No. 22/87, 86, 68/88, T.P. (C) No. 276-77/87, Crl. A. No. 702/90, SLP (Crl.) Nos. 655/88, 596-97/92, W.P. (C) No. 12273/84 SLP (Crl.) No. 2513/94, Crl. A. Nos. 508, 843/95, 102-103/89, 292/90, SLP(Crl.) Nos. 2165/96, 3786, 2462/99. =2001 AIR 3958, 2001( 3 )Suppl.SCR 419, 2001( 7 )SCC 740, 2001( 6 )SCALE537 , 2001( 8 )JT 218

CASE NO.: Writ Petition (civil) 868 of 1986 PETITIONER: DANIAL LATIFI & ANR. RESPONDENT: UNION OF INDIA DATE OF JUDGMENT: 28/09/2001 BENCH: G.B.PATTANAIK & S.RAJENDRA BABU & D.P.MOHAPATRA & DORAISWAMY RAJU & S.V.PATIL JUDGMENT: JUDGMENT With [WP(C) Nos. 996/86, 1001/86, 1055/86, 1062/86, 1236/86, 1259/86, 1281/86, T.C. (C) 22/87, 86/88, 68/88, T.P. (C) No. 276-77/87, Crl. … Continue reading

Muslim Personal Law-Concept of divorce-Whether, on the pronounccments of “talaq” and on the expiry of the period of iddat a divorced wife ceases to be a wife. Code of Criminal Procedure Code, 1973 (Act II of 1974) Sections 125(1) (a) and Explanation (b) thereunder, Section 125 (3) and the Explanation, under the proviso thereto and section 127 (3) (b), scope and interpretation of-Correctness of three Judges.’ Bench decision reported in (1979) 2 SCR 75 and (1980) 3 SCR 1127 to the effect that section 125 of the code applies to Muslims and divorced Muslim wife is entitled to maintenance-Whether there is any conflict between the provisions of section 125 and that of the Muslim Personal Law on the liability of the Muslim husband to provide for the maintenance of his divorced wife. Code of Criminal Procedure, 1973, section 127 (3) (b) read with section 2 of the Shariat Act XXVI of 1937-Whether section 127 (3) (b) debars payment of maintenance to a divorced wife, once the Mahar or dower is paid-Whether the liability of the husband to maintain a divorced wife is limited to the period of “iddat” Nature of Mahr or dower-Whether Mehr is maintenance. = Under section 125 (1) (a), if any person, having sufficient means neglects or refuses to maintain his wife, unable to maintain herself, a Magistrate of the first class may, upon proof of such neglect or refusal order such person to make a monthly allowance for the maintenance of his wife at such monthly rate not exceeding five hundred rupees in the whole. Under Explanation (b) thereunder ‘ wife” includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried. Under the explanation below sub section 3 of section 125, if a husband has contracted marriage with another woman or keeps a mistress it shall be considered to be a just ground for his wife’s refusal to live with him. Keeping this in view, if in the trial arising out of 845 an application made under section 125, and if the husband offers to maintain his wife on condition of living with him, the Magistrate may consider any of the grounds of the wife’s refusal to live with her husband before ordering the maintenance. Under section 127 (3) (b), the Magistrate shall cancel the order passed by him under section 125, in favour of a woman who has been divorced by, or has obtained a divorce from her husband if the woman who has been divorced by her husband has received, whether before or after the date of the said order, the whole of the sum, which, under any customary or personal law applicable to the parties was payable on such divorce. The appellant. who is an advocate by profession was married to the respondent in 1932. Three ions and two daughters were born of that marriage In 1975, the appellant drove the respondent out of the matrimonial home. In April 1978, the respondent filed a petition against the appellant under section 125 of the Code of Criminal Procedure, in the Court of the Judicial Magistrate (First class) Indore, asking for maintenance at the rate of Rs. 500 per month, in view of the professional income of the appellant which was about Rs. 60,000 per annum. On November 6, 1978, the appellant divorced the respondent by an irrevocable “talaq” and took up the defence that she had ceased to be his wife by reason of the divorce granted by him; that he was, therefore, under no obligation to provide maintenance for her; that he had already paid maintenance for her at the rate of Rs. 200 per month for about two years, and that, he had deposited a sum of Rs. 3,000 in the court by way of “dower or Mahr” during the period of “iddat”. In August 1979, the Magistrate directed the appellant to pay a princely sum of Rs. 25 per month to the respondent by way of maintenance. In a revisional application Sled by the respondent the High Court of Madhya Pradesh enhanced the amount of maintenance to Rs. 179.20 per month. Hence the appeal by special leave by the husband. The view taken in the earlier two three Judges’ Benches of the Supreme Court presided over by Krishna Iyer, J. and reported in [1979] 2 SCR 75, and [1980] 3 SCR 1127, to the effect that section 125 of the Code applies to Muslims also and that therefore, the divorced Muslim wife is entitled to apply for maintenance was doubted, by the Bench consisting of Fazal Ali and Varadarajan, JJ., since in their opinion the said decisions required reconsideration by a larger Bench consisting of more than three judges as the decisions are not only in direct contravention of the plain and unambiguous language of section 127 (3) (b) of the Code which far from overriding the Muslim law on the subject protects and applies the same in case where a wife has been divorced by the husband and the dower specified has been paid and the period of iddat has been observed but also militates against the fundamental concept of divorce by the husband and its consequences under the Muslim law which has been expressly protected by section 2 of the Muslim Personal Law (Shariat) Application Act, 1937-an Act which was not noticed in the said two decisions. Dismissing the appeals, the Court ^ Held: (Per Chandrachud, C. J.) 1. The Judgments of the Supreme Court in Bai Tahira (Krishna lyer, J., Tulzapurkar, J. and Pathak, J.) and Fazlunbi (Krishna pyer, J, Chinnappa 846 Reddy, J. and A.P. Sen, J.) are correct, except to the extent that the statement at page 80 of the report in Bal Tahira made in the context of section 127 (3) (b) namely, “payment of Mahr money, as a customary discharge is within the cognizance of that provision”. Justice Krishna Lyre who spoke for the Court in both these cases, relied greatly on the teleological and schematic method of interpretation 90 as to advance the purpose of the law. These constructional techniques have their own importance in the interpretation of statutes meant to ameliorate the conditions of suffering sections of the society.A divorced Muslim wife is, therefore, entitled to apply for maintenance under section 125 of the Code. [865H, 866A-C] 2.1 Clause (b) of the Explanation to section 125 (1) of the Code, which defines “wife” as including a divorced wife, contains no words of limitation to justify the exclusion of Muslim women from its scope. Wife, means a wife as defined, irrespective of the religion professed by her or by her husband. Therefore, a divorced Muslim woman so long as she has not married, is a wife for the purpose of section 125. [855A-B: 854B] 2.2 Under section 488 of the Code of 1898, the wife’s right to maintenance depended upon the continuance of her married status. Therefore, that right could be defeated by the husband by divorcing her unilaterally as under the Muslim Personal Law, or by obtaining a decree of divorce against her under the other systems of law. It was in order to remove this hardship that the Joint Committee recommended that the benefit of the provisions regarding maintenance should be extended to a divorced woman, so long as she has not re married after the divorce. That is the genesis of clause (b) of the Explanation to section 125 (I). Section 125 of the Code is truly secular in character. Section 125 was enacted in order to provide a quick and summary remedy to a class of persons who are unable to maintain themselves. Whether the spouses are Hindus or Muslims, Christians or Parsis, Pagans or Heathens, is wholly irrelevant in the application of these-provisions. The reason for this is axiomatic, in the sense that section 125 is a part of the Code of Criminal Procedure not of the Civil Laws which define and govern the rights and obligations of the parties belonging to particular relations, like the Hindu Adoptions and Maintenance Act, The Shariat, or the Parsi Matrimonial Act. It would make no difference as to what ii the religion professed by the neglected wife, child or parent. [834D-E: 855E-G] 2.3 Neglect by a person of sufficient means to maintain these and the inability of these persons to maintain themselves are the objective criteria which determine the applicability of section 125. Such provisions, which are essentially of a prophylactic nature, cut across the barriers of religion. True that they do not supplant the personal law of the parties but, equally, the religion professed by the parties or the state of the personal law by which they are governed, cannot have any repercussion on the applicability of such laws unless, within the framework of the Constitution, their application is restricted to a defined category of religious groups or classes The liability imposed by section 125 to maintain close relatives who are indigent is founded upon the indi- 847 viduals’ obligation to the society t a prevent vagrancy and destitution. That is the moral edict of the law and morality cannot be clubbed With relation. [834G-Hl That the right conferred by section 125 can be exercised irrespective of the personal law of the parties, is fortified, especially in regard to Muslims, by the provision contained in the Explanation to the second proviso to section 125 (3) of the Code. The explanation confers upon the wife the right to refuse to live with her husband if he contracts another marriage leave alone, three or four other marriages, which a Mohammedan may have under the Islamic law. Further it shows unmistakably, that section 125 overrides the personal law, if there is any conflict between the two [836B-C,F-G] Jagir Kaur v. Jaswant Singh, [1964] 2 SCR 73,84, Nanak Chand v. Shri Chandra Kishore Agarwala, 11970] I SCR 56C applied. 3.1 The contention that, according to Muslim Personal Law the husband’s liability to provide for the maintenance of his divorced wife is limited to the period of iddat. despite the fact that she is unable to maintain herself cannot be accepted, since that law does not contemplate or countenance the situation envisaged by section 125 of the Code. Whether a husband is liable to maintain his wife, which includes a divorced wife, in all circumstances, and at all events is not the subject matter of section 125. Section 125 deals with cases in which a person who is possessed of sufficient means neglects or refuses to maintain amongst others, his wife who is unable to maintain herself. [838H, 851A-B] 3.2 One must have regard to the entire conspectus of the Muslim Personal Law in order to determine the extent, both in quantum and in duration, of the husband’s liability to provide for the maintenance of an indigent wife who has been divorced by him. Under that law, the husband is bound to pay Mahr to the wife as a mark of respect to her. True, that he may settle any amount he likes by way of dower upon his wife, which cannot be less than 10 Dirhams which is equivalent to three or four rupees. But one must have regard to the realities of life. Mahr is a mark of respect to the wife. The sum settled by way of Mahr is generally expected to take care of the ordinary requirements of the wife, during the marriage and after. But these provisions of the Muslim Personal Law do not countenance cases in which the wife is unable to maintain herself after the divorce. The application of those statements of law to the contrary in text-books on Muslim Law must be restricted to that class of cases, in which there is no possibility of vagrancy or destitution arising out of the indigence of the divorced wife. [858D-G] 3.3 The true position is that, if the divorced wife is able to maintain herself, the husband’s liability to provide maintenance for her ceases with the expiration of the period of iddat. If she is unable to maintain herself, she is entitled to take recourse to section 125 of the Code. Thus there is no conflict between the provisions of section 125 and those of the Muslim Personal Law on the question of the Muslim husband’s obligation to provide maintenance for a divorced wife 848 who is unable to maintain herself. Aiyat No. 241 and 242 of ‘the Holy Koran’ fortify that the Holy Koran imposed an obligation on the Muslim husband to make provision for or to provide maintenance to the divorced wife. The contrary argument does less than justice to the teachings of Koran. [859C-D; 862C-D] 3.4 Mahr is not the amount payable by the husband to the wife on divorce and therefore, does not fall within the meaning of section 127 (3) (b) of the Code and the facile answer of the All India Muslim Law Board that the Personal Law has devised the system of Mahr to meet the requirements of women and if a woman is indigent, she must look to her relations, including nephews and cousins, to support her is a most unreasonable view of law as well as of life. [863E-F, 866E-F] 3.5 It is true under the Muslim Personal Law, the amount of Mahr is usually split into two parts, one of which is called ‘prompt” which is payable on demand, and the other is called “deferred”, which is payable on the dissolution of the marriage by death or by divorce. But, the fact that deferred Mahr is payable at the time of the dissolution of marriage, cannot justify that it is payable ‘on divorce’. even assuming that, in a given case, the entire amount of Mahr is of the deferred variety payable on the dissolution of marriage by divorce, it cannot be said that it is an amount which is payable on divorce. [863B-D] 3.6 Divorce may be a convenient or identifiable point of time at which the deferred amount has to be paid by the husband to the wife. But, the payment of the amount is not occasioned by the divorce, which is what is meant by the expression ‘on divorce’, which occurs in section 127 (3) (b) of the Code. If Mahr is an amount which the wife is entitled to receive from the husband in consideration of the marriage, that is the very opposite of the amount being payable in consideration of divorce. Divorce dissolves the marriage. Therefore. no amount which is payable in consideration of the marriage can possibly be described as an amount payable in consideration of divorce. The alternative premise that Mahr is an obligation imposed upon the husband as a mark of respect for the wife, is wholly detrimental to the stance that it is an amount payable to the wife on divorce.A man may marry a woman for love, looks, learning or nothing at all. And, he may settle a sum upon her as a mark of respect for her. But he does not divorce her as a mark of respect. Therefore, a sum payable to the wife out of respect cannot be a sum payable on divorce’. Thus, the payment of Mahr may be deferred to a future date as, for example, death or divorce. But, that does not mean that the payment of the deferred dower is occasioned by these events. [863D-G] Similarly, the provision contained in section 127 (3) (b) may have been introduced because of the misconception that dower is an amount payable ‘on divorce.’ But, that again cannot convert an amount payable as a mark of respect for the wife into an amount payable on divorce. [863H] Hamira Bibi v. Zubaida Bibi, 43 Indian Appeal 294; Syed Sabir Hussain v. Farzand Hasan, 65 Indian Appeal 119 and 127 referred to. 849 OBSERVATION (Article 44 of our Constitution has remained a dead letter. There is no evidence of any official activity for framing a common civil code for the country.A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. It is the State which incharged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so.A beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap between personal laws cannot take the place of a common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case.) =1985 AIR 945, 1985( 3 )SCR 844, 1985( 2 )SCC 556, 1985( 1 )SCALE767 ,

PETITIONER: MOHD. AHMED KHAN Vs. RESPONDENT: SHAH BANO BEGUM AND ORS. DATE OF JUDGMENT23/04/1985 BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) MISRA RANGNATH DESAI, D.A. REDDY, O. CHINNAPPA (J) VENKATARAMIAH, E.S. (J) CITATION: 1985 AIR 945 1985 SCR (3) 844 1985 SCC (2) 556 1985 SCALE (1)767 CITATOR INFO : F 1986 SC 587 … Continue reading

Constitution of India-Article 44-Uniform Civil Code- Necessity of-Emphasised. Indian Divorce, Act, 1869-Ss. 18, 19 and 22-Petition by wife-Allegation of impotence of husband-Nullity of marriage or judicial separation sought-High Court rejecting prayer for nullity, but granting judicial separation on account of cruelty-Validity of order-Supreme Court holding irretrievable break-down of marriage. Hindu Marriage Act, 1955 ss. 10 and 13B-Special Marriage Act, 1954-Ss. 23 to 28-Parsi Marriage and Divorce Act, 1936-Ss. 31 to 34-Dissolution of Muslim Marriage Act, 1939-S. 2-Grounds for dissolution of marriage not uniform- Necessity for uniform Civil Code-Stressed. = The petitioner belonged to the ‘Khasi Tribe’ of Maghalaya and was born and brought up as a Presbytarian Christian. She is now a member of the Indian Foreign Service. The respondent-husband is a Sikh. They were married under the Indian Christian Marriage Act 1872. The petitioner filed a petition in 1980, for declaration of nullity of marriage or judicial separation under ss. 18, 19 and 22 of the Indian Divorce Act, 1869, on the ground of the impotence of her husband. A Single Judge of the High Court rejected the prayer for declaration of nullity of marriage, but granted a decree for judicial separation on the ground of cruelty. Division Bench affirmed the decision of the Single Judge on appeal. In the special leave petition filed by wife, ^ HELD: (1) A comparison of the relevant provisions of the Christian Marriage Act 1872, Hindu Marriage Act 1955, Special Marriage Act 1954, Parsi Marriage and Divorce Act 1936, Dissolution of Muslim Marriage Act, 1939, show that the law relating to judicial separation, divorce and nullity of marriage is far, far from uniform. [717 B] (2) Under the Hindu Marriage Act, a decree for the judicial separation may be followed by a decree for the dissolution of marriage on the lapse of 705 one year or upwards from date of the passing of a decree for judicial separation, if meanwhile there has been no resumption of cohabitation. There is no corresponding provision under the Indian Divorce Act and a person obtaining a decree for judicial separation will have to remain content with that decree and cannot seek to follow it up with a decree of divorce, after the lapse of any period of time. [711 B-C] (3) In the instant case, the marriage appears to have broken down irretrievably. If the findings of the High Court stand, there is no way out for the couple. They will continue to be tied to each other since neither mutual consent nor irretrievably break-down of marriage is a ground for divorce, under the Indian Divorce Act. There is no point or purpose to be served by the continuance of a marriage which has so completely and signally broken down. The parties are bound together by a marital tie which is better untied. [717 B-C] (4) Time has now come for the intervention of the legislature to provide for a uniform code of marriage and divorce as envisaged by Article 44 and to provide by law for a way out of the unhappy situations in which couples find themselves in. It is necessary to introduce irretrievably break-down of marriage, and mutual consent as grounds of divorce in all cases. [717 C-D] =1985 AIR 935, 1985( 1 )Suppl.SCR 704, 1985( 3 )SCC 62, 1985( 1 )SCALE952 ,

PETITIONER: MS. JORDAN DIENGDEH Vs. RESPONDENT: S.S. CHOPRA DATE OF JUDGMENT10/05/1985 BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) MISRA, R.B. (J) CITATION: 1985 AIR 935 1985 SCR Supl. (1) 704 1985 SCC (3) 62 1985 SCALE (1)952 ACT: Constitution of India-Article 44-Uniform Civil Code- Necessity of-Emphasised. Indian Divorce, Act, 1869-Ss. 18, 19 … Continue reading

In the decision of the Hon’ble Supreme Court in Samar Ghosh v. Jaya Ghosh, [(2007) 4 SCC 511], at paragraph No.101, some instances of human behaviour, which may be relevant in dealing with the case of mental cruelty have been enumerated and the relevant paragraph runs as follows: “101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of The term ‘Cruelty’ mentioned in Clause (i-a) denotes and includes both physical and mental cruelty. It is be noted that a Hindu Marriage Act, 1955 is silent as regards the nature or degree of cruelty which needs to be established any matrimonial case as per the decision Poonam Mehta alias Poonam Prasad V. Naresh Prasad, [AIR 2009 (N.O.C.) 505 (Orissa)]. If the cruelty is physical, it is an aspect of degree which is essential. However, if it is mental, an enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the other party whether it caused reasonable apprehension that it would be injurious or harmful to live with the other party. Finally, it is matter of inference to be deduced by taking into account the nature of the conduct and its effect on the complaining spouse.

IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:29.08.2011 Coram THE HONOURABLE Mr. JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE Mr. JUSTICE M.VENUGOPAL C.M.A.Nos.3769 and 1775 of 2010 and M.P.Nos.1 and 2 of 2011 in C.M.A.No.1775 of 2010 R.Natarajan … Appellant in both CMAs Vs. Sujatha Vasudevan … Respondent in both CMAs Prayer: Appeals filed … Continue reading

Blog Stats

  • 2,884,003 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,905 other followers

Follow advocatemmmohan on WordPress.com