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hindu marriage act 1955
ACQUITTAL under Section 302 read with Section 201 of the Indian Penal Code 1860 (hereinafter referred to as the ‘IPC’).= Admittedly, there was a divorce between the parties. Therefore, the question of demand of dowry or ill-treatment or harassment could not arise after 8 years of divorce decree by the court. The mother of Ratna has deposed about the illicit relationship of the appellant and another woman and the appellant wanted to marry that woman. In case the parties had separated by a divorce through court, we fail to understand how Ratna (deceased) or her parents were concerned about such a relationship. 15. It is a settled legal proposition that in case there are apparent discrepancies in two dying declarations, it would be unsafe to convict the accused. In such a fact-situation, the accused gets the benefit of doubt. In case of plural/multiple dying declarations, the court has to scrutinise the evidence cautiously and must find out whether there is consistency particularly in material particulars therein. In case there are inter-se discrepancies in the depositions of the witnesses given in support of one of the dying declarations, it would not be safe to rely upon the same.= whether they are material or not and while scrutinising the contents of various dying declarations, the court has to examine the same in the light of the various surrounding facts and circumstances. In case of dying declaration, as the accused does not have right to cross-examine the maker and not able to elicit the truth as happens in the case of other witnesses, it would not be safe to rely if the dying declaration does not inspire full confidence of the court about its correctness, as it may be result of tutoring, prompting or product of imagination. The court has to be satisfied that the maker was in a fit state of mind and had a clear opportunity to observe and identify the assailant (s). – In exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court’s acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. The High Court did not consider the matter in correct perspective nor observed the parameters laid down by this court to interfere against the order of acquittal. In view of the above, the appeal is allowed and the judgment and order of the High Court is set aside. The judgment and order of the Sessions Court is restored. The appellant is on bail. His bail bonds stand discharged.
Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.248 of 2007 Bhadragiri Venkata Ravi …Appellant Versus Public Prosecutor High Court of A.P., Hyderabad …Respondent J U D G M E N T Dr. B.S. CHAUHAN, J. 1. This appeal has been filed against the judgment and order dated … Continue reading
custody of children given to the paternal grandfather a retd.professor providing visitation rights to the mother to see the children once in a month at the costs of the father.
NON- REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4308 OF 2012 (Arising out of Special Leave Petition (C) No. 13254 of 2011) Shaleen Kabra Appellant Vs. Shiwani Kabra Respondent With CIVIL APPEAL NO.4309 OF 2012 (Arising out of Special Leave Petition (C) No. 15819 of 2011) JUDGMENT ANIL … Continue reading
Code of Criminal Procedure, 1973: ss.482 and 468 – Customary divorce – Agreement for, registered – Permanent alimony to wife – Ten years thereafter, wife filed complaint petition against husband and parents-in-law before the Women Cell on the ground that the husband had married for the second time – FIR lodged – Husband and parents-in-law filed application for quashing of the FIR – High Court, in exercise of jurisdiction u/s.482 CrPC, allowed the application – Justification of – Held: Justified – Since parties living separately for more than ten years, case under s.498A IPC not made out at such a distant point of time, particularly in view of the bar of limitation as contained in s.468 CrPC – Even otherwise, on facts, it is unbelievable that the wife was really harassed by her husband or in-laws – Though there does not exist any period of limitation in respect of offence under s.494, but no allegation was made out in regard to commission of said offence so far as the parents-in-law are concerned – If it is a case of customary divorce, question in regard to existence of good custom may have to be gone into, in a civil proceeding – But criminal prosecution shall not lie – It was initiated mala fide – If allowed to continue, same shall be abuse of the process of Court – Penal Code, 1860 – ss. 498A and 494 – Hindu Marriage Act, 1955 – s.13(1)(a) – Abuse of Court. The parties entered into an agreement for divorce in 1996 which was registered in the office of the Joint Sub-Registrar. The said divorce purportedly took place in terms of the custom prevailing in the community to which the parties belong. Appellant-wife also received a sum of Rs.25,000/- towards permanent alimony which was acknowledged by granting a stamped receipt therefor. Respondent No.1 married again in 1998. In 2006, Appellant filed a complaint petition against Respondent Nos. 1, 2 and 3, i.e., her husband and parents-in-law before the Women Cell, inter alia, on the premise that Respondent No.1 had married for the second time which fact she came to learn on receipt of summons in respect of a petition filed by Respondent No.1 under s.13(1)(a) of the Hindu Marriage Act, 1955. A First Information Report (FIR) was lodged pursuant to the said complaint. Respondents were thereafter arrested. An application for quashing the said FIR was filed before the High Court. By reason of the impugned judgment, the said application has been allowed. Appellant submitted before this Court, that in a case of this nature, where investigation into the allegations made in the complaint has been going on, the High Court should not have passed the impugned judgment, upon entering into the purported defence raised by the Respondents, particularly when the State itself, in its counter affidavit filed before the High Court, categorically stated that a prima facie case had been made out for investigation. Respondent Nos.1, 2 and 3, however, submitted that mala fide on the part of Appellant was evident in view of the fact that the complaint petition was filed 10 years after the divorce and that such complaint petition should be considered to be an abuse of the process of the Court. The question which arose for consideration before this Court is as to whether the High Court, in a case of this nature, could exercise its jurisdiction under s.482, CrPC. Dismissing the appeal, the Court HELD: 1. The customary divorce may be legal or illegal. The fact that such an agreement had been entered into or the Appellant had received a sum of Rs.25,000/- by way of permanent alimony, however, stands admitted. The document is a registered one. Appellant being in the legal profession must be held to be aware of the legal implication thereof. If the contents of the said agreement are taken to be correct, indisputably the parties had been living separately for more than ten years. How then a case under s.498A of IPC can be said to have been made out and that too at such a distant point of time is the question, particularly in view of the bar of limitation as contained in s.468 of CrPC. Even otherwise it is unbelievable that the Appellant was really harassed by her husband or her in-laws. [Para 10] [941-G,H, 942-A,B] 2. Though there does not exist any period of limitation in respect of an offence under s.494, as the maximum period of punishment which can be imposed therefor is seven years, but no allegation has been made out in the present case in regard to commission of the said offence so far as the Respondent Nos. 2 and 3 are concerned. If, even for exercising its jurisdiction under s.482 of CrPC, the High Court has taken into consideration an admitted document, there is no legal infirmity therein. If it is a case of customary divorce, the question in regard to the existence of good custom may have to be gone into in a civil proceeding. But a criminal prosecution shall not lie. It was initiated mala fide. Thus, if it is allowed to continue, the same shall be an abuse of the process of Court. [Para 12] [942-C-F] Gurukrishna Kumar, Srikala Gurukrishna Kumar and T. Senthil Kumar for the Appellant. V. Karoagaraj, R. Shnmugasundaram, S. Thananjayan, V.G. Pragasam, S.J. Aristotlc and Praburama Subramanian for the Respondents. , 2008(9 )SCR937 , , 2008(9 )SCALE411 , 2008(7 )JT245
CASE NO.: Appeal (crl.) 967 of 2008 PETITIONER: M.Saravana Porselvi RESPONDENT: A.R. Chandrashekar @ Parthiban & Ors. DATE OF JUDGMENT: 27/05/2008 BENCH: S.B. Sinha & Lokeshwar Singh Panta JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No.1641 of 2007) REPORTABLE S.B. Sinha, J. 1. Leave granted. 2. Appellant is … Continue reading
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
Hindu Marriage Act, 1955 : Section 16 as amended by Amendment Act 68 of 1976-Pre-conditions under S. 12 done away with-No need for declaration of earlier marriage as nullity- Consequentially as if the marriage had been valid, the child shall be legitimate whether it was born before or after the commencement of the Amending Act, 1976-Hence the child is entitled to her share in her father’s property. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1542 of 1975. =, 1996( 2 )SCR 322, 11996( 2 )SCC 567, 1996( 2 )SCALE382 , 1996( 5 )JT 664
PETITIONER: SMT. GURNAM KAUR & ANR. Vs. RESPONDENT: PURAN SINGH & ORS. DATE OF JUDGMENT: 08/02/1996 BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J) CITATION: 1996 SCC (2) 567 JT 1996 (5) 664 1996 SCALE (2)382 ACT: HEADNOTE: JUDGMENT: O R D E R In this appeal, the only question is whether the appellant … Continue reading
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
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
Code of Civil Procedure, 1908: Order IX Rule 13, second proviso – Ex parte decree, when can be set aside – Held: An ex-parte decree can be set aside if the defendant satisfies the court that summons were not duly served or he was prevented by sufficient cause from appearing when the suit was called for hearing – However, the court shall not set aside the said decree on mere irregularity in the service of summons or in a case where defendant had notice of the date and sufficient time to appear in the court – In order to determine the application under Order IX, Rule 13, the test that has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called for hearing and did his best to do so – Sufficient cause is to be judged by reasonable standard of cautious man – In the instant case, trial court passed ex parte decree for divorce in favour of the husband – High Court set aside the ex parte decree without dealing with the issue of service of summons – High Court held that presumption stood rebutted by a bald statement made by the respondent/wife that she was living at different address with her brother – Order of the High Court not sustainable – However, in order to meet the ends of justice, a sum of Rs.10 lakhs awarded to wife as a lump sum amount for maintenance – Compromise/Settlement. Order XLIII, Rule 2 – Appeal from orders – Power of appellate court to interfere with an ex-parte order – Held: The first appeal is a valuable right and the parties have a right to be heard both on question of law and on facts – The first appellate court should not disturb and interfere with the valuable rights of the parties which stood crystallised by the trial court’s judgment without opening the whole case for re-hearing both on question of facts and law – More so, the appellate court should not modify the decree of the trial court by a cryptic order without taking note of all relevant aspects, otherwise the order of the appellate court would fall short of considerations expected from the first appellate court in view of the provisions of Order XLI, Rule 31 and such judgment and order would be liable to be set aside – The manner in which the language of the second proviso to Order IX, Rule 13 has been couched by the legislature makes it obligatory on the appellate Court not to interfere with an ex-parte decree unless it meets the statutory requirement. Evidence Act, 1872: s.114, Illustration (f) – Presumption of service – Registered letter – Held: There is a presumption of service of registered letter – However, the presumption is rebuttable on a consideration of evidence of impeccable character – General Clauses Act, 1897 – s.27. ss.101, 103 – Burden of proof of facts – Held: Rests on the party who substantially asserts it and not on the party who denies it – Burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any special law that the proof of that fact shall lie on any particular person. Practice and procedure: Technicalities of the law should not prevent the court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it – Code of Civil Procedure, 1908. Words and phrases: “Sufficient”, “Sufficient Cause” – Meaning of. The appellant-husband filed a divorce petition against the respondent-wife. A notice of petition was sent to her by court which she allegedly refused to accept. The notice was sent again on 7.8.1989, which the respondent again refused to accept. The notice sent by registered AD was also returned to the court with report of refusal. Under the court’s order, summons were affixed at the house of the respondent, but she did not appear. She was also served through public notice published in a newspaper, which was also sent to her. Thereafter, on 08.11.1989, the respondent was proceeded ex parte and ex parte judgment was passed in favour of the appellant and the marriage between the parties was dissolved. Two years after the passing of the decree of divorce, the appellant got married and became father of two sons from the said marriage. The respondent, after the expiry of 4 years of the passing of the ex-parte decree of divorce filed an application under Order IX Rule 13, CPC for setting aside the same on the grounds that ex-parte decree had been obtained by fraud and collusion with the postman etc., to get the report of refusal and that she had not been served notice even by substituted service and also that even subsequent to obtaining decree of divorce, the appellant did not disclose the fact of grant of divorce to her during the proceedings of maintenance under Section 125 Cr.P.C. The said application was accompanied by an application under Section 5 of the Limitation Act, 1963, for condonation of delay. The trial court dismissed the applications. The High Court set aside the order of the trial court. The instant appeal was filed challenging the order of the High Court. =Allowing the appeal, the Court Held: 1.1. An ex-parte decree against a defendant has to be set aside if the party satisfies the court that summons had not been duly served or he was prevented by sufficient cause from appearing when the suit was called on for hearing. However, the court shall not set aside the said decree on mere irregularity in the service of summons or in a case where the defendant had notice of the date and sufficient time to appear in the court. It is not permissible for the court to allow the application in utter disregard of the terms and conditions incorporated in the second proviso to Order IX Rule 13, CPC. “Sufficient Cause” is an expression which has been used in large number of statutes. The meaning of the word “sufficient” is “adequate” or “enough”, in as much as may be necessary to answer the purpose intended. Therefore, word “sufficient” embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a cautious man. In this context, “sufficient cause” means that party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been “not acting diligently” or “remaining inactive”. However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. [Paras 8 and 9] [662-A-G] Ramlal & Ors. v. Rewa Coalfields Ltd. AIR 1962 SC 361; Sarpanch, Lonand Grampanchayat v. Ramgiri Gosavi & Anr. AIR 1968 SC 222; Surinder Singh Sibia v. Vijay Kumar Sood AIR 1992 SC 1540; Oriental Aroma Chemical Industries Limited v. Gujarat Industrial Development Corporation & Another (2010) 5 SCC 459);Arjun Singh v. Mohindra Kumar & Ors. AIR 1964 SC 993; Brij Indar Singh v. Lala Kanshi Ram & Ors. AIR 1917 P.C. 156; Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee & Ors. AIR 1964 SC 1336; Mata Din v. A. Narayanan AIR 1970 SC 1953 – relied on. 1.2. While deciding whether there is a sufficient cause or not, the court must bear in mind the object of doing substantial justice to all the parties concerned and the technicalities of the law should not prevent the court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it. [Para 11] [663-C-E] State of Bihar & Ors. v. Kameshwar Prasad Singh & Anr. AIR 2000 SC 2306; Madanlal v. Shyamlal AIR 2002 SC 100; Davinder Pal Sehgal & Anr. v. M/s. Partap Steel Rolling Mills (P) Ltd. & Ors. AIR 2002 SC 451; Ram Nath Sao alias Ram Nath Sao & Ors. v. Gobardhan Sao & Ors. AIR 2002 SC 1201; Kaushalya Devi v. Prem Chand & Anr. (2005) 10 SCC 127; Srei International Finance Ltd. v. Fair growth Financial Services Ltd. & Anr. (2005) 13 SCC 95; Reena Sadh v. Anjana Enterprises AIR 2008 SC 2054) – relied on. 1.3. In order to determine the application under Order IX, Rule 13 CPC, the test that has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the court with a reasonable defence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a strait- jacket formula of universal application. [Para 12] [663-F-H] 2.1. In view of the provisions of Section 114 Illustration (f) of the Evidence Act, 1872 and Section 27 of the General Clauses Act, 1897 there is a presumption that the addressee has received the letter sent by registered post. However, the presumption is rebuttable on a consideration of evidence of impeccable character. The provisions of Section 101 of the Evidence Act provide that the burden of proof of the facts rests on the party who substantially asserts it and not on the party who denies it. In fact, burden of proof means that a party has to prove an allegation before he is entitled to a judgment in his favour. Section 103 provides that burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any special law that the proof of that fact shall lie on any particular person. The provision of Section 103 amplifies the general rule of Section 101 that the burden of proof lies on the person who asserts the affirmative of the facts in issue. The High court did not deal with the issue of service of summons or as to whether there was “sufficient cause” for the wife not to appear before the court at all, nor did it set aside the said findings recorded by the trial court. The High Court held that presumption stood rebutted by a bald statement made by the respondent/wife that she was living at different address with her brother and this was duly supported by her brother who appeared as a witness in the court. The High Court erred in not appreciating the facts in the correct perspective as substituted service is meant to be resorted to serve the notice at the address known to the parties where the party had been residing last. More so, it was nobody’s case that respondent/wife made any attempt to establish that there had been a fraud or collusion between the appellant and the postman. Not a single document was summoned from the post office. No attempt was made by the respondent/wife to examine the postman. It is nobody’s case that the “National Herald” daily newspaper published from Delhi did not have a wide circulation in Delhi or in the area where the respondent/wife was residing with her brother. In such a fact-situation, the impugned order of the High Court was liable to be set aside. [Paras 13,15, 17, 18 and 19] [664-B-C; G- H; 665-A-B; 666-G-H; 667-A-C] Greater Mohali Area Development Authority & Ors. v. Manju Jain & Ors. AIR 2010 SC 3817; Dr. Sunil Kumar Sambhudayal Gupta & Ors. v. State of Maharashtra, JT 2010 (12) SC 287; Gujarat Electricity Board & Anr. v. Atmaram Sungomal Poshani AIR 1989 SC 1433 and Rabindra Singh v. Financial Commissioner, Cooperation, Punjab & Ors. (2008) 7 SCC 663 – relied on. 2.2. The appellate court has to decide the appeal preferred under Section 104 CPC following the procedure prescribed under Order XLIII, Rule 2 CPC, which provides that for that purpose, procedure prescribed under Order XLI shall apply, so far as may be, to appeals from orders. Order XLI, Rule 31 CPC provides for a procedure for deciding the appeal. The law requires substantial compliance of the said provisions. The first appellate court being the final court of facts has to formulate the points for its consideration and independently weigh the evidence on the issues which arise for adjudication and record reasons for its decision on the said points. The first appeal is a valuable right and the parties have a right to be heard both on question of law and on facts. [Para 20 and 21] [667-D- G] Moran Mar Basselios Catholicos & Anr. v. Most Rev. Mar Poulose Athanasius & Ors. AIR 1954 SC 526; Thakur Sukhpal Singh v. Thakur Kalyan Singh & Anr. AIR 1963 SC 146; Santosh Hazari v. Purshottam Tiwari AIR 2001 SC 965; Madhukar v. Sangram AIR 2001 SC 2171; G. Amalorpavam & Ors. v. R.C. Diocese of Madurai & Ors. (2006) 3 SCC 224; Shiv Kumar Sharma v. Santosh Kumari (2007) 8 SCC 600; Gannmani Anasuya & Ors. v. Parvatini Amarendra Chowdhary & Ors. AIR 2007 SC 2380 – relied on. 2.3. The first appellate court should not disturb and interfere with the valuable rights of the parties which stood crystallised by the trial court’s judgment without opening the whole case for re-hearing both on question of facts and law. More so, the appellate court should not modify the decree of the trial court by a cryptic order without taking note of all relevant aspects, otherwise the order of the appellate court would fall short of considerations expected from the first appellate court in view of the provisions of Order XLI, Rule 31 CPC and such judgment and order would be liable to be set aside. In view of the said statutory requirements, the High Court was duty bound to set aside at least the material findings on the issues, in spite of the fact that approach of the court while dealing with such an application under Order IX, Rule 13 CPC would be liberal and elastic rather than narrow and pedantic. However, in case the matter does not fall within the four corners of Order IX, Rule 13 CPC, the court has no jurisdiction to set aside ex-parte decree. The manner in which the language of the second proviso to Order IX, Rule 13 CPC has been couched by the legislature makes it obligatory on the appellate Court not to interfere with an ex-parte decree unless it meets the statutory requirement. The High Court has not set aside the material findings recorded by the trial court in respect of service of summons by process server/registered post and substituted service. The High Court failed to discharge the obligation placed on the first appellate court as none of the relevant aspects have been dealt with in proper perspective. It was not permissible for the High Court to take into consideration the conduct of the appellant subsequent to passing of the ex-parte decree. More so, the High Court did not consider the grounds on which the trial Court had dismissed the application under Order IX, Rule 13 CPC filed by the respondent/wife. The appeal has been decided in a casual manner. [Paras 22, 23 and 24] [668-G-H; 669-A] B.V. Nagesh & Anr. v. H.V. Sreenivassa Murthy, JT (2010) 10 SC 551 – relied on. 3. In view of the fact that the appellant got married in 1991 and has two major sons, it would not be possible for him to keep the respondent as a wife. A lump sum amount of Rs. 5 lakhs had been offered by the counsel for the appellant to settle the issue. However, the demand by the respondent/wife had been of Rs. 50 lakhs. Considering the income of the appellant as he had furnished the pay scales etc. An award of Rs. 10 lakhs to the wife would meet the ends of justice as a lump sum amount of maintenance for the future. The said amount be paid by the appellant to the respondent in two equal instalments within a period of six months from today. [Para 25] [669-B-E] Case Law Reference: AIR 1962 SC 361 Relied on Para 9 AIR 1968 SC 222 Relied on Para 9 AIR 1992 SC 1540 Relied on Para 9 (2010) 5 SCC 459) Relied on Para 9 AIR 1964 SC 993 Relied on Para 10 AIR 1917 P.C. 156 Relied on Para 10 AIR 1964 SC 1336 Relied on Para 10 AIR 1970 SC 1953 Relied on Para 10 AIR 2000 SC 2306 Relied on Para 11 AIR 2002 SC 100 Relied on Para 11 AIR 2002 SC 451 Relied on Para 11 AIR 2002 SC 1201 Relied on Para 11 (2005) 10 SCC 127 Relied on Para 11 (2005) 13 SCC 95 Relied on Para 11 AIR 2008 SC 2054) Relied on Para 11 AIR 2010 SC 3817 Relied on Para 13 JT 2010 (12) SC 287 Relied on Para 13 AIR 1989 SC 1433 Relied on Para 14 (2008) 7 SCC 663) Relied on Para 18 AIR 1954 SC 526 Relied on Para 21 AIR 1963 SC 146 Relied on Para 21 AIR 2001 SC 965 Relied on Para 21 AIR 2001 SC 2171 Relied on Para 21 (2006) 3 SCC 224 Relied on Para 21 (2007) 8 SCC 600 Relied on Para 21 AIR 2007 SC 2380) Relied on Para 21 JT (2010) 10 SC 551) Relied on Para 22 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1467 of 2011. From the Judgment & Order dated 17.7.2007 of the High Court of Delhi at New Delhi in FAO No. 63 of 2002. Vikrant Yadav, Vishal Malik, Piyush Kant Roy, Gaurav Dhingra, M.C. Dhingra for the Appellant. Geeta Dhingra, Chander Shekhar Ashri for the Respondent.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO…1467… OF 2011 (Arising out of S.L.P.(C) NO. 19632 of 2007) Parimal … Appellant Versus Veena @ Bharti …Respondent J U D G M E N T Dr. B.S. CHAUHAN, J. 1. Leave granted. 2. This appeal has been preferred against the judgment … Continue reading
WHETHER ALL MARRIAGES IN Goa, Daman & Diu, ARE CIVIL CONTRACTS AS PER CIVIL CODE OF THAT STATE ?
As far as the Civil Code as enacted on 25th December, 1910, and the provisions of the law of Marriage as a Civil Contract in Goa, Daman and Diu which came into force on 26th May, 1911, are concerned, we are unable to agree with Ms. Aggarwal that all marriages performed within the territory of … Continue reading
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