Family Court

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Hindu Marriage Act – Jurisdiction of Indian court in respect of couples who applied for foreign citizenship =Whether the petition by the wife for judicial separation under Section 10 of the Hindu Marriage Act and custody of the children is not maintainable. ? Since the marriage was taken place at India and since the wife is of Indian Domicile and since the husband failed to prove that he is domicle of Australia and also failed to prove of his giving up of indian Domicle = “the husband has miserably failed to establish that he ever abandoned Indian domicile and/or intended to acquire domicile of his choice”.- “A conjoint reading of Ss. 1 and 2 of the Act would indicate that so far as the second limb of S. 1(2) of the Act is concerned its intra territorial operation of the Act applied to those who reside outside the territories. First limb of sub-section (2) of S. 1 and Cls. (a) and (b) of S.2(1) would make it clear that the Act would apply to Hindus reside in India whether they reside outside the territories or not.”- Hindu marriage Act sec. (2) It extends to the whole of India except the State of Jammu and Kashmir, and applies also to Hindus domiciled in the territories to which this Act extends who are outside the said territories.”; The general principle underlying the sovereignty of States is that laws made by one State cannot have operation in another State. A law which has extra territorial operation cannot directly be enforced in another State but such a law is not invalid and saved by Article 245 (2) of the Constitution of India. Article 245(2) provides that no law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation. – whether a nexus with something in India is necessary.= In our opinion, this extra-territorial operation of law is saved not because of nexus with Hindus but Hindus domiciled in India.; “It is, thus, clear that a condition of a domicile in India, as contemplated in Section 1(2) of H.M.Act, is necessary ingredient to maintain a petition seeking reliefs under the H.M.Act. In other words, a wife, who is domiciled and residing in India when she presents a petition, seeking reliefs under H.M.Act, her petition would be maintainable in the territories of India and in the Court within the local limits of whose ordinary civil jurisdiction she resides.”- Therefore, in our considered opinion, the Act will apply to Hindu outside the territory of India only if such a Hindu is domiciled in the territory of India.; law permits raising of alternative plea but the facts of the present case does not permit the husband to take this course. = It is specific case of the appellant that he is a Swedish citizen domiciled in Australia and it is the Australian courts which shall have jurisdiction in the matter. In order to succeed, the appellant has to establish that he is a domicile of Australia and, in our opinion, he cannot be allowed to make out a third case that in case it is not proved that he is a domicile of Australia, his earlier domicile of choice, that is Sweden, is revived. ; Domicile of origin is not necessarily the place of birth. The birth of a child at a place during temporary absence of the parents from their domicile will not make the place of birth as the domicile of the child.; Domicile of origin prevails until not only another domicile is acquired but it must manifest intention of abandoning the domicile of origin.- when we consider the husband’s claim of being domicile of Australia we find no material to endorse this plea. The residential tenancy agreement is only for 18 months which cannot be termed for a long period. Admittedly, the husband or for that matter, the wife and the children have not acquired the Australian citizenship. In the absence thereof, it is difficult to accept that they intended to reside permanently in Australia. The claim that the husband desired to permanently reside in Australia, in the face of the material available, can only be termed as a dream. It does not establish his intention to reside there permanently. Husband has admitted that his visa was nothing but a “long term permit” and “not a domicile document”. Not only this, there is no whisper at all as to how and in what manner the husband had abandoned the domicile of origin. In the face of it, we find it difficult to accept the case of the husband that he is domiciled in Australia and he shall continue to be the domicile of origin i.e. India. In view of our answer that the husband is a domicile of India, the question that the wife shall follow the domicile of husband is rendered academic. For all these reasons, we are of the opinion that both the husband and wife are domicile of India and, hence, shall be covered by the provisions of the Hindu Marriage Act, 1955. As on fact, we have found that both the husband and wife are domicile of India, and the Act will apply to them, other contentions raised on behalf of the parties, are rendered academic and we refrain ourselves to answer those. In the result, we do not find any merit in the appeal and it is dismissed accordingly but without any order as to costs. CIVIL APPEAL NO.487 OF 2007 In view of our decision in Civil Appeal No. 4629 of 2005 (Sondur Gopal vs. Sondur Rajini) holding that the petition filed by the appellant for judicial separation and custody of the children is maintainable, we are of the opinion that the writ petition filed by the respondent for somewhat similar relief is rendered infructuous. On this ground alone, we allow this appeal and dismiss the writ petition filed by the respondent.


HINDU MARRIAGE ACT SEC. 13 [1] [1A] & [III]She merely suffered from cognitive deficiency. which is not a ground for granting divorce = the appellant-husband Darshan Gupta had never given the respondent, moral or emotional support, during the time of her distress. Despite the request of her treating doctor, he never accompanied her during the course of her consultations with doctors. The Family Court expressed the view, that the appellant husband Darshan Gupta himself, was responsible for the state of affairs of his wife-Radhika Gupta, inasmuch as, he did not heed the advise of the gynecologist, after the abortion of her first pregnancy in June 1999. The consulting Gynecologist had advised the couple against planning any further conception, for a period of at least two years. Despite the aforesaid advice, Darshan Gupta impregnated his wife Radhika Gupta, just after eight months of the said abortion. His desires had overridden, the health advisory of the gynecologist. The Family Court also concluded, that the appellant-husband had failed to establish, that the mental unsoundness of mind or mental disorder of the respondent-wife was of such degree, that he could not be expected to live with her.= Darshan Gupta had not been able to prove, that his wife was suffering from any incurable unsoundness of mind and/or mental disorder. Insofar as the solitary expert witness produced by the appellant-husband Darshan Gupta is concerned, Dr. M. Veera Raghawa Reddy-PW4, had admitted that while examining Radhika Gupta, he did not observe any signs of aggressiveness in the respondent-wife. On the contrary, he affirmed, that she was having a smiling face, and also,observed a calm and cool conduct.= Radhika Gupta left the company of the appellant-husband Darshan Gupta on 3.10.2011. On the said date itself, Radhika Gupta addressed a letter to the Registry of this Court. The said letter read thus : “The Hon’ble Supreme Court, by the order dated 19.09.2011 directed us to live happily for a period of six months. In pursuance to the directions of the Hon’ble Supreme Court, my husband taken me into his matrimonial company on 29.09.2011 and kept me separately at his row (sic) house situated at Jubilee Hills. However, I am reporting from that day i.e. 29.09.2011 my husband is not behaving properly with me. Instead of showing love and affection, he is abusing me with filthy language without any reason. He is calling me “PAGAL” as and when he is addressing me. He is further saying that I have no sense and intelligence. Further he repeating me to leave him by taking money. He is further saying that even though his appeal before Supreme Court is dismissed he is not going to live with me. My in-laws also compelling me to agree for divorce by accepting money. My husband threatening me to agree for Divorce. The torture of my husband is beyond my tolerance. Hence under the above compelling circumstances I am leaving to my mothers’ place.”= whether the relief sought by the learned counsel for the appellant, on the ground of irretrievable breakdown of marriage is available to him. The reason for us to say so, is based on a judgment rendered by this Court in Vishnu Dutt Sharma vs. Manju Sharma, (2009) 6 SCC 379, wherein this Court has held as under:- “10. On a bare reading of Section 13 of the Act, reproduced above, it is crystal clear that no such ground of irretrievable breakdown of the marriage is provided by the legislature for granting a decree of divorce. This Court cannot add such a ground to Section 13 of the Act as that would be amending the Act, which is a function of the legislature.= We would, in our endeavour to determine the issue in hand, examine the matter, by reversing the roles of the parties. We will examine the matter as if, the wife had approached the Family Court seeking divorce, on the ground that her husband had suffered brain damage leading to cognitive deficiencies. Yet, despite the said deficiencies, his working memory had returned to “near normal” after treatment. And his mental condition was such, that it would not have any effect on his matrimonial obligations. And the wife’s family is agreeable to pay an amount to be determined by this Court (just as the husband-Darshan Gupta, has offered), so as to enable their daughter to break away, and find a more suitable match. Should she have been granted freedom from her matrimonial ties, in the given facts, in order to do complete justice to the parties? We would ask ourselves, whether the husband would have accepted such a plea, in the facts denoted above? In such situation, if this Court had, in exercise of its jurisdiction under Article 142 of the Constitution of India, granted compensation to the husband, and had dissolved his marriage on the pretext of doing complete justice between the parties, would the same be acceptable to the husband? We have no doubt in our mind, that on a reversal of roles, the husband, without any fault of his own, would have never accepted as just, the dissolution of his matrimonial ties, even if the couple had been separated for a duration, as is the case in hand. Specially, if the husband had, right from the beginning, fervently expressed the desire to restore his matrimonial relationship with his wife, and to live a normal life with her.= For the reasons recorded hereinabove, we find no merit in these appeals, and the same are accordingly dismissed.

‘ published in ‘ http://courtnic.nic.in/supremecourt/qrydisp.asp “REPORTABLE” IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 6332-6333 OF 2009 Darshan Gupta … Appellant Versus Radhika Gupta … Respondent J U D G M E N T Jagdish Singh Khehar, J. 1. The marriage between the appellant-husband, Darshan Gupta and the respondent-wife, Radhika Gupta, was solemnized … Continue reading

SECOND MARRIAGE NOT A BAR IN ALLOWING SET ASIDE EXPARTE DIVORCE DECREE = = Order – IX Rule 13 CPC with a prayer to set aside the ex parte decree OF DIVORCE. Since there was delay of 153 days in filing it, she filed I.A No.480 of 2006.= The very fact that the proceedings are pending in the Courts at Raipur and Visakhapatnam, discloses that the relationship was not cordial and the acts resorted to by the respondent in obtaining the ex parte decree and then immediately contacting second marriage can not at all be countenanced, much less the Court can put a seal of approval upon it. Though the status of the second marriage contacted by the respondent may be at a stake, it cannot outwit the gross injustice done to the petitioner. 6. Reliance is placed upon the judgment of the Rajasthan High Court in Surendra Kumar v. Kiran Devi1. It is difficult to treat that as a precedent for the proposition that whenever one of the spouses contacts second marriage, after obtaining a decree for divorce, the decree cannot be set aside thereafter. Further, in the instant case, the trial Court did not record any finding to the effect that the notice in the O.P. was served upon the petitioner. 7. Hence, the Civil Revision Petition is allowed and the delay of 153 days in filing the application to set aside the ex parte decree is condoned. Since the reasons that weigh with the Court for condonation of delay would hold good for setting aside the ex parte decree, the I.A. filed under Order – XXXIX Rule – 13 CPC was allowed. REPORTED/PUBLISHED IN http://judis.nic.in/judis_andhra/filename=9784

HONOURABLE SRI JUSTICE L. NARASIMHA REDDY CIVIL REVISION PETITION No. 6034 OF 2010 03-04-2013 Smt. Rachokonda Parvathi W/o. Venkata Subrahmanyam Rachakonda Venkata Subrahmanyam S/o.late R. Venkata Ramana. Counsel for the Petitioners: Sri Ravi Cheemalapati Counsel for the Respondent: Sri G. Ram Gopal <Gist: >Head Note: ?Cases referred AIR 1997 Rajasthan 63 ORDER: Petitioner is the … Continue reading

The High Court noticed the fact that the appellant – husband has filed two suits. In one suit, he is seeking divorce from the wife. In the other suit, he is seeking permanent injunction as well as temporary injunction, restraining the wife from entering the matrimonial home of the couple. It is also noticed by the High Court that in the second suit, ex parte ad interim order of injunction as well as hearing of both the suits until the appeal is heard and decided. In our opinion, the aforesaid order cannot be sustained. The High Court has granted a relief which was not even prayed for by the respondent, who was the appellant before the High Court. At best, the High Court could have directed that both the suits filed by the husband shall be consolidated and tried together. Mr. Dhruv Mehta, learned Senior Advocate appearing for the appellant, submits that the relations between husband and wife have deteriorated to such an extent that it would not be possible for the appellant to spend any time with the respondent – wife. Therefore, it would not be appropriate to order that wife be permitted entry into the matrimonial home. We are of the considered opinion that it would not be appropriate for the High Court or for this Court to make any observations on the merits of the controversy involved between the parties as the same shall have to be decided by the appropriate Court where the proceedings are pending. We, therefore, set aside the order passed by the High Court. We allow the appeal filed by the respondent before the High Court. Both the suits filed by the husband are consolidated and shall be tried together as prayed for by the respondent wife. We also direct the Court which is designated to decide the aforesaid two matters to decide the same as expeditiously as possible. The appeals are disposed of in the above terms. No costs.

Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.3884-3886 OF 2013 [Arising out of Special Leave Petition (Civil) Nos. 33744-33746 of 2012] ARVIND KUMAR SHARMA …APPELLANT VERSUS VINEETA SHARMA & ANR. …RESPONDENTS ORDER Leave granted. The original prayer made by the respondent No.1 before the Principal Judge, Family Court, Dehradun … Continue reading

Section 498-A of the IPC could be made compoundable, – a complaint under Section 498-A of the IPC presents difficulty because the said offence is not compoundable except in the State of Andhra Pradesh where by a State amendment, it has been made compoundable. – We, therefore, feel that though offence punishable under Section 498-A of the IPC is not compoundable, in appropriate cases if the parties are willing and if it appears to the criminal court that there exist elements of settlement, it should direct the parties to explore the possibility of settlement through mediation. – 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 10Page 11 wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party. (iii) xxx xxx xxx (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) xxx xxx xxx (viii) xxx xxx xxx (ix) xxx xxx xxx (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. 11Page 12 (xi) xxx xxx xxx (xii) xxx xxx xxx (xiii) xxx xxx xxx (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.” It is pertinent to note that in this case the husband and wife had lived separately for more than sixteen and a half years. This fact was taken into consideration along with other facts as leading to the conclusion that matrimonial bond had been ruptured beyond repair because of the mental cruelty caused by the wife. – directions, which the courts dealing with the matrimonial matters shall follow: (a) In terms of Section 9 of the Family Courts Act, the Family Courts shall make all efforts to settle the matrimonial disputes through mediation. Even if the 36Page 37 Counsellors submit a failure report, the Family Courts shall, with the consent of the parties, refer the matter to the mediation centre. In such a case, however, the Family Courts shall set a reasonable time limit for mediation centres to complete the process of mediation because otherwise the resolution of the disputes by the Family Court may get delayed. In a given case, if there is good chance of settlement, the Family Court in its discretion, can always extend the time limit. (b) The criminal courts dealing with the complaint under Section 498-A of the IPC should, at any stage and particularly, before they take up the complaint for hearing, refer the parties to mediation centre if they feel that there exist elements of settlement and both the parties are willing. However, they should take care to see that in this exercise, rigour, purport and efficacy of Section 498-A of the IPC is not diluted. Needless to say that the discretion to grant or not to 37Page 38 grant bail is not in any way curtailed by this direction. It will be for the concerned court to work out the modalities taking into consideration the facts of each case. (c) All mediation centres shall set up pre-litigation desks/clinics; give them wide publicity and make efforts to settle matrimonial disputes at pre-litigation stage. 37. The appeal is disposed of in the aforestated terms.

Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1794 OF 2013 (Arising out of Special Leave Petition (Civil) No. 4782 of 2007) K. SRINIVAS RAO … APPELLANT Versus D.A. DEEPA … RESPONDENT JUDGMENT (SMT.) RANJANA PRAKASH DESAI, J. 1. Leave granted. 2. This appeal, by special leave, has been … Continue reading

foreign divorce, – The short lived marriage which got solemnized on 24.6.1999 was dissolved on 17.4.2000 by a decree passed by Superior Court of California, County San Diego, Family Division, in Case No.D.454571 ABC, filed by the husband/appellant herein. 1.1. The wife filed the suit before the 1st Additional Principal Family Court, Chennai, for a declaration that the decree of divorce passed by the Superior Court of California is abinitio void, inoperative and not binding on the plaintiff, which came to be decreed. What is crucial is that the wife has challenged jurisdiction of the Foreign Courts. Only, if a party applies for leave to participate in the proceedings without challenging the jurisdiction one can infer that the party has submitted to the jurisdiction of the Court. But, in this case, the wife on receipt of summons has challenged the jurisdiction of the Foreign Court.

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.02.2012 CORAM: THE HONOURABLE MRS. JUSTICE R.BANUMATHI and THE HONOURABLE MRS. JUSTICE S.VIMALA C.M.A.No.929 of 2002 against O.S.No.38 of 2000 Bhashyam Ramesh @ Rajagopalan rep. by Power Agent Mr.V.S.Vhasyam … Appellant/Defendant .. Vs .. R.Saroja @ K.K.Saroja 35/2, T.P.Koil Street, Triplicane, Chennai-5. … Respondent/Plaintiff Civil Miscellaneous … Continue reading

transfer petition, child visitations rights, exemption from personal appearance in criminal cases to the old couple accused.

1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CRL.) NO.5213 Of 2010 Deepti Bhandari … Petitioner Vs. Nitin Bhandari & Anr. … Respondents WITH TRANSFER PETITION (C) NO.856-857 OF 2010 O R D E R ALTAMAS KABIR, J. 1. The Petitioner and the Respondent No.1 were married to each … Continue reading

divorce on plea of second marriage ? customary divorce ?= whether the marriage of the respondent and PW.2 was dissolved before the elders of their caste, according to PW.2, he himself and the respondent belonged to scheduled caste and customary divorce has been prevailing in their community. The respondent has examined RW.4 L. Malleswara Rao. He has categorically deposed that he and the respondent belonged to scheduled caste community and that customary divorce has been prevailing since time immemorial in their caste and that remarriages are also accepted and recognized in their community. During the course of arguments, it is not disputed that the customary divorce is prevailing in the scheduled caste communities in Andhra Pradesh. The respondent has also examined RW.3. RW.3 is the grand father of the respondent. He is also related to PW.2 Kanithi Jacob. Rw.3 has categorically deposed that PW.2 obtained divorce from the respondent and that he has also signed as a witness in the divorce deed in Ex.B1. He denied the suggestion that Ex.B1 is a fabricated document. Thus, the evidence on record proves that the respondent had obtained divorce from her former husband PW.2 before the elders of their community and the customary divorce is prevailing in their community. The version of the petitioner that he came to know about the earlier marriage of the respondent with Kanithi Jacob just before filing the petition for divorce also appears to be not correct. Admittedly, the marriage of the petitioner and the respondent was solemnized on 10.11.1997. Admittedly, the petition for divorce was filed in the year 1999, and it appears to be most unnatural and improbable to say that the petitioner could not come to know about the earlier marriage of the respondent with Kanithi Jacob for about two years. We have gone through the judgment of the learned Judge, Family Court. It is unfortunate to note that the learned Judge, Family Court, had simply extracted the evidence of all the witnesses one after another and then gave his conclusions which are not supported by any reason. It is the primary duty of the Court to examine the entire evidence in proper perspective and then analyze the same. Mere extracting the evidence of witnesses one after another and then simply saying that the evidence proves the case of one party cannot be said to be the proper method of appreciating the evidence. It is the duty of the Court to apply its mind and to draw just and reasonable conclusions from the evidence. The Court must examine whether the version of a witness is truthful or probable and whether the same is in conformity with the normal human conduct and acceptable. The Court must examine whether the version of a party is consistent with other oral and documentary evidence, whether a witness stood the test of cross-examination. When the Court examines the contradictions, it must ascertain whether the contradictions go to the root of the matter and whether the evidence is shaken in cross-examination and whether those contradictions make the version of a witness unacceptable and the witness unreliable and untrustworthy. Thus, a great responsibility lies on the Presiding Officer of a Court to analyze the evidence. The learned Judge, Family Court, gave his findings without assigning any valid reasons for his conclusions. All the conclusions must be arrived on evidence and for arriving to such conclusions valid reasons have to be assigned. Any order which is not supported by reasons on the face of it would become perverse order. In view of the above, it is clear that the impugned order passed by the lower Court cannot stand to scrutiny and the same is liable to be set aside. Accordingly, the same is set aside.

THE HON’BLE SRI JUSTICE N.V. RAMANA AND THE HON’BLE SRI B. CHANDRA KUMAR F.C.A.No.90 of 2010 04-03-2011 Smt.Potnuru Sugunavani Potnuru Krupanandam Counsel for Appellant :Smt. M. Bhaskara Lakshmi Counsel for respondent : Sri K.A. Narasimham :Judgment: (per Hon’ble Sri Justice B. Chandra Kumar) This appeal is directed against the order and decree dated 09.03.2009 made … Continue reading

interim maintenance =Though a lengthy counter is filed, the appellant never stated about his actual salary received by him and no document is filed to that effect. Therefore, the Court below was of the opinion that though there was no record with regard to the rental income from the house, the appellant herein has not filed any document to prove that he is not drawing a net salary of Rs.75,000/-. Therefore, the Court below has taken into account that the appellant herein has been drawing net salary of Rs.75,000/- per month. However, the Court below granted interim maintenance @Rs.3,500/- only per month to each of the respondents, totaling Rs.10,500/- per month from the date of petition pending disposal of the main OP. Therefore, it cannot be said that the interim maintenance granted by the Court below is exorbitant and excessive. We do not see any infirmity legal or otherwise to interfere with the impugned order.


mere filing of criminal case does not amount to treating the petitioner with cruelty unless it is substantiated that it was filed with false allegations to harass the petitioners about which there is no evidence. On the other hand, if the allegations made in the Criminal case are true it amounts to that the petitioner treated the respondent with cruelty.

THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE G. KRISHNA MOHANREDDY   FAMILY COURT APPEAL No.56 OF 2011 JUDGEMENT :(Per Hon’ble Sri Justice. G. Krishna Mohan Reddy)  This Family Court Appeal filed under Section 19 of the Family Courts Act is directed against order of dismissal dated 24-01-2011, passed in O.P. No.284 of … Continue reading

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