This tag is associated with 21 posts

Selling of flats – No privity of contract – no deficiency of service- contract between Res. No. 2 and Complainant – Complainant paid amount to Res. 2 – there is no direct contract between Res.1 and complainant – in absence of privity of contract – in the absence of consideration – Res.1 is not liable to refund the amount as the memorandum of agreement was terminated between Res. 2 and Res.1 and as per the termination , the Res.2 has to refund the amount taken from complainants – Res. No.2 not filed any appeal , Res. 1 directed to recover the same from Res. 2 – all revisions are allowed = M/s. Shree Construction Versus 1. Mr. Suryakanth Parshuram Sawant 2. M/s. Vastu Promoters & Consultants … Respondents/Complainants= published in ncdrcrep/judgement/00131202135111612RP2259-258408.htm

Selling of flats – No privity of contract – no deficiency of service- contract between Res. No. 2 and Complainant – Complainant paid amount to Res. 2 – there is no direct contract between Res.1 and complainant – in absence of privity of contract – in the absence of consideration – Res.1 is not liable to refund the … Continue reading

The Protection of Women from Domestic Violence Act, 2005 (for short “the DV Act”) – live in relationship in the nature of marriage – A concubine can not be considered as live in relationship in the nature of marriage – not entitled for any relief under the Act = Indra Sarma … Appellant Versus V.K.V. Sarma … Respondent = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=41007

The Protection of Women from Domestic Violence Act, 2005 (for short  “the DV Act”) – live in relationship in the nature of marriage – A concubine can not be considered as live in relationship in the nature of marriage – not entitled for any relief under the Act = whether  a  “live-in relationship” would amount to … Continue reading

Whether the second wife married during the life time of first wife can file a maintenance case under sec. 125 Cr.P.C. – yes , if she was kept in dark about first marriage = Badshah ….Petitioner Versus Sou.Urmila Badshah Godse & Anr. …Respondents – judis.nic.in/supremecourt/filename=40886

Whether the second wife married during the life time of first wife can file a maintenance case     under sec. 125 Cr.P.C. – yes , if she was kept in dark about first marriage =       the judgments of  this  Court  in  Adhav  and         Savitaben cases would apply only … Continue reading

Section 306 refers to abetment of suicide. It says that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment for a term which may extend to 10 years and shall also be liable to fine. = Suicide note completely exonerates A-1, which states that he was not responsible for death of the deceased. On the other hand, the deceased described herself as extremely selfish, egoist and, therefore, not a match for A-1. She entertained the belief that her husband A-1 was in love with A-2 and wanted to marry A-2. Note states it was for their happiness she had decided to end her life. She also wanted to have the marriage of A-1 and A-2 solemnized with pomp and gaiety. On reading the suicide note, one can infer that the deceased was so possessive of her husband, and was always under an emotional stress that she might lose her husband. Too much of possessiveness could also lead to serious emotional stress, over and above the fact that she had one abortion and her daughter died after few days of birth. No evidence is forthcoming in this case to show that A-2 ever evinced any interest to marry A-1. On the other hand, during the subsistence of the alleged relationship, A-2 herself got married. 29. We are, therefore, of the considered view that the relationship A-1 had with A-2 was not of such a nature which under normal circumstances would drive one to commit suicide or that A-1 by his conduct or otherwise ever abetted or intended to abet the wife to commit suicide. Courts below, in our view, have committed serious error in holding that it was due to the extra marital relationship A-1 had with A-2 that led the deceased to take the extreme step to commit suicide, and A-1 was instrumental for the said act. In the circumstances, we are inclined to allow this appeal and set aside the order of conviction and sentence imposed on the appellant, and he is set at liberty. Ordered as above.

published in    http://judis.nic.in/supremecourt/imgst.aspx?filename=40742 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPEALLATE JURISDICTION CRIMINAL APPEAL NO.811 OF 2004 Pinakin Mahipatray Rawal Appellant Versus State of Gujarat Respondent   J U D G M E N T K.S. RADHAKRISHNAN, J. 1. We are in this case concerned with the question as to whether the relationship … Continue reading

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

Hindu Law–Marriage between Hindu and former Christian–Proof of conversion to Hinduism–No formal purification ceremony necessary–Bona fide intention accompanied by unequivocal conduct sufficient. Madras Hindu (Bigamy Prevention and Divorce) Act 6 of 1949- Act applicable only to those domiciled in Madras. Indian Evidence Act 1 of 1872, s. 112–Presumption as to legitimacy of child. =One Perumal Nadar, a Hindu, married Annapazham, daughter of an Indian Christian, on November 29, 1950 at Kannimadam in the State of Travancore-Cochin according to Hindu rites. Of the two children born of the marriage one died. The younger child, a son born in 1958, acting through his mother, the afoResaid Annapazham, as his guardian, filed an action in the Court of the Subordinate Judge, Tirunelveli, for separate possession of a half share in the properties of the joint family held by his father Perumal. The ‘suit was defended by Perumal. The trial court decreed the suit and the High Court confirmed the decree. In appeal to this Court by certificate Perumal, the appellant, contended : (i) that Annapazham was an Indian Christian and a marriage between a Hindu and an Indian Christian must be regarded as void; (ii) that the marriage was invalid because the appellant was already married .before he married Annapazham and bigamous marriages were prohibited by Madras Act 6 of 1949; (iii) that the appellant and Annapazham were living apart for a long time before the birth of the plaintiff and on that account the plaintiff could not be regarded as a legitimate child of the appellant. HELD : (i) The question whether marriage between a Hindu male and a Christian female is valid or not did not arise for consideration in the present case because the finding of the Courts below that Annapazham was converted to Hinduism before her marriage with Perumal was amply supported by evidence. [52 D-E] A person may be a Hindu by birth or conversion. A mere theoretical allegiance to the Hindu faith by a person born in another faith does not convert him into a Hindu, nor is a bare declaration that he is a Hindu sufficient to convert him to Hinduism. But a bona,fide intention to be converted to the Hindu faith, accompanied by conduct unequivocally expressing that intention may be sufficient evidence of conversion. No formal ceremony of purification or expiration is necessary to effectuate conversion. [52 E-F] Muthusami Mudaliar v. Musilamani alias Subramania Mudaliar I.L.R. 33 Mad. 342 and Goona Durgaprasada Rao v. Goona Sudarasanaswami, I.L.R. (1940) Mad. 653, referred to. The evidence in the present case established that the parents of Annapazham arranged the marriage. The marriage was performed 50 according to Hindu rites and ceremonies in the presence of relatives who were invited to attend : customary ceremonies peculiar to a marriage between Hindus were performed : no objection was raised to the marriage and after the marriage Annapazham was accepted by the local Hindu Nadar community as belonging to the Hindu faith; and the plaintiff was also treated as a Hindu. On the evidence there could be no doubt that Annapazham bona fide intended to contract marriage with Perumal. Absence of specific expiatory or purificatory ceremonies would not be sufficient to hold that she was not converted to Hinduism before the marriage ceremony was performed. The fact that the appellant chose to go through the marriage ceremony according to Hindu rites with Annapazham in the presence of a large number of persons clearly indicated that he accepted that Annapazham was converted to Hinduism before the marriage ceremony was performed. [53 C-E] (ii) On the facts and pleadings the High Court was right in holding that it was not proved that the appellant was domiciled in the State of Madras at the date of his marriage with Annapazham. He could not therefore rely upon the provisions of the Madras Hindu (Bigamy Prevention and Divorce) Act 6 of 1949. [54 F] (iii) There was a concurrent finding by the courts below that there was no evidence to establish that the appellant living in the same village as Annapazham had no access to her during the time when the plaintiff could have been begotten. Therefore, in view of s. 112 of the Indian Evidence Act it could not be held that the plaintiff was an illegitimate child. [55 A-B] Chilukuri Venkateswarlu v. Chilukuri Venkatanarayana, [1954] S.C.R. 425, Karapaya v. Mayandi, I.L.R. 12 Rang. 243 (P.C) and Ammathayee v. Kumaresain, [1967] 1 S.C.R. 363, applied. =1971 AIR 2352, 1971( 1 )SCR 49, , ,

PETITIONER: PERUMAL NADAR (DEAD) BY L.R.S. Vs. RESPONDENT: PONNUSWAMI DATE OF JUDGMENT: 17/03/1970 BENCH: SHAH, J.C. BENCH: SHAH, J.C. HEGDE, K.S. GROVER, A.N. CITATION: 1971 AIR 2352 1971 SCR (1) 49 ACT: Hindu Law–Marriage between Hindu and former Christian–Proof of conversion to Hinduism–No formal purification ceremony necessary–Bona fide intention accompanied by unequivocal conduct sufficient. Madras … Continue reading

Hindu law : Hindu Marriage Act, 1955 : Section 16. Void marriage-Children-Legitimacy of-Second marriage-Contract of-During subsistence of first marriage-Prior to commencement of Act-Void under S. 5 of Madras Marumakkattayam Act, 1932 then in force-Held : Children born of void second marriage entitled to inherit share in the properties of their parents by operation of amended S. 16. Section 16-Amendment-Legitimacy-Nature of-Pre-amended S. 16-Classified illegitimate children into two groups-Those born of void marriages contracted before Act-And those born of void marriages contracted after Act came into force-Held : Section 16 violative of Article 14 of the Constitution. Section 16-Amendment of-Position thereafter-Amendment removed the mischief and also delinked S. 11 from S. 16-Hence, amended S. 16 was constitutionally valid-It enacted legal fiction whereby illegitimate children were deemed legitimate-Thereby entitling them to succeed to properties of their parents. Madras Marumakkattayam Act, 1932 : Section 5-Polygamy-Void under-Act repealed by S. 7(2) of Kerala Joint Family System (Abolition) Act, 1975-Effect of–Contract of second marriage during lifetime of first wife-Prohibition under S. 5 would operate-Such second mamage would not be affected by the repeal by virtue of S. 4 of Kerala Interpretation and General Clauses Act, 1925-Kerala Joint Hindu Family System (Abolition) Act, 1975, S. 7(2)-Kerala Interpretation and General Clauses Act, 1925, S. 4. Constitution of India, 1950 : Article 14 : Statute-Constitutionality of-Presumption in favour of-Burden of proof is on person challenging constitutionality-To show arbitrary discrimination between persons similarly circumstanced-Presumption-Displacing of-By showing discrimination was apparent and manifest-Duty of Court to look to the statute as a whole to see if classification was valid having nexus with object sought to be achieved. Interpretation of Statutes : Interpretation-Subsidiary rules of-Legal fiction-Purpose of-Parties between whom it was to operate-To be ascertained by Court to give full effect to legislative intent and to carry the purpose to its logical end. Mischief Rule–Language having more than one meaning-Applicability of-Rule in Heydon’s case-When and how to be invoked-Non-obstante clause-Operation and interpretation of. RN contracted a second marriage with Appellant No. 1 during the lifetime of his first wife who was the mother of Respondents 1 to 9, in contravention of the prohibition of such a second marriage under Section 5 of Madras Marumakkattayam Act, 1932 which was then in force. The question before this Court was whether Appellants 2 to 6, who were the children born of the second marriage, would inherit any share in the properties left behind by RN after his death. =Allowing the appeal, this Court HELD : 1.1. Section 7(2) of Kerala Joint Hindu Family System (Abolition) Act, 1975 by which the Madras Marumakkattayam Act, 1932 was repealed does not indicate any intention contrary to the provisions contained in Kerala Interpretation and General Clause Act, 1925 which, will apply with full vigour on the principle that whenever there is a repeal of any enactment, the consequences indicated in Section 4 would follow, unless there was any saving clause in the repealing enactment or any other intention was expressed therein. In the case of a simple repeal, there is hardly any room for the expression of a contrary view. Repeal in the instant case is a case of repeal simplicitor. Hence, in view of section 4(b) of Kerala Interpretation and General Clauses Act, the previous operation of Madras Act will not be affected by the repeal nor will the repeal affect anything July done or suffered thereunder. So also, a liability incurred under that Act will remain unaffected and will not be obliterated by the repeal as indicated in Section 4(c). RN had contracted a second marriage, in the lifetime of his first wife, when Madras Act was in force, which prohibited a second marriage and, therefore, the consequences indicated in the Act that such a marriage would be void would not be affected nor will the previous operation of the Act be affected by the repeal of that Act. The repeal does not mean that Madras Act never existed on the Statute Book nor will the repeal have the effect of validating RN’s second marriage, if it was already a void marriage under that Act. [17-H, 18-A-D] Balakrishna Menon v. Asst. Controller of Estate. Duty, AIR (1971) SC 2390; Venugopala Ravi Verma v. Union of India, AIR (1969) SC 1094; Achuttan Nair v. C. Amma, AIR (1966) SC 411 and Padmavathy Amma v. Amnuni Panicker, AIR (1995) SC 2154, relied on. Bhaurao v. State of Maharashtra, AIR (1965) SC 1564 and Kochunni v. Kuttammni, AIR (1948) PC 47, referred to. 1.2. Since the Rule of Legitimacy under Section 16 of Hindu Marriage Act, 1955 (HMA) was made dependent upon the marriage (void or voidable) being annulled by a decree of annulment, the children born of such marriage, would continue to be illegitimate if the decree of annulment was not passed, which, incidentally, would always be the case if the parties did not approach the Court. The other result was that the illegitimate children came to be divided in two groups; those born of marriage held prior to the Act and those born of marriage after the Act. There was no distinction between these two groups of illegitimate children, but they came to suffer hostile legislative discrimination on account of the language employed therein. Indeed, language is an imperfect instrument for the expression of human thought. [27-E-G] 1.3. The object of Section 16. HMA was to protect legitimacy of children born of void or voidable marriages. In leaving out one group of illegitimate children from” being treated as legitimate, there did not appear to be any nexus between the object sought to be achieved by Section 16, HMA and the classification made in respect of illegitimate children similarly situate or circumstanced. Section 16, HMA was earlier linked with Sections 11 and 12, HMA. On account of the language employed in unamended Section 16 and its linkage with Sections 11 and 12, the provisions had the effect of dividing and classifying the illegitimate children into two groups without there being any nexus in the statutory provisions and the object sought to be achieved thereby. [27-H, 32-F-G] State v. Narsu Appa Mali, ILR (1951) Bombay 775; Srinivasa Iyer v. Saraswathi Ammal, ILR (1953) Madras 78 and G. Sambireddy v. G. Jayamina, AIR (1972) A.P. 156 referred to. 1.4. Legitimacy is a matter of status. Illegitimate children, on the contrary, are children as are not born either in lawful wedlock, or within a competent time after its determination. It is on account of marriage, valid or void, that children are classified as legitimate or illegitimate. That is to say, the social status of children is determined by the act of their parents. If they have entered into a valid marriage, the children are legitimate; but if the parents commit a folly, as a result of which a child is conceived, such child who comes into existence as an innocent human baby is labelled as illegitimate. Realising this situation, Parliament made a law which protected the legitimacy of such innocent children. [26-E, G-H] Ampthill Peerage Case, (1976) All ER 411and Salemi v. Minister for Immigration and Ethnic Affairs, (1977) 14 ALR 1 (7), referred to. “Commentaries on the Hindu Marriage Act, 1955” by K.P. Saksena; “Principles of Hindu Law” by Jogendra Chunder Ghose, 1903 Edn. and “Hindu Law of Marriage Stridhana”, 4th. Edn. (reprinted in India in 1984), referred to. 2.1. Whenever an enactment is attacked on the ground of discrimination, it becomes the duty of the court to look to the legislation as a whole and to find out why class legislation was introduced and what was the nexus between the classification and the object sought to be achieved by it. There is always a presumption that an Act made by the Parliament or the State Legislature is valid; so also there is a strong presumption in favour of the validity of legislative classification. It is for those who challenge the Act as unconstitutional to show and prove beyond all doubts that the legislature arbitrarily discriminated between different persons similarly circumstanced. This presumption, however, can be displaced by showing that the discrimination was so apparent and manifest that any proof was hardly required. Section 16, as originally enacted, fell under this category. To the extent it discriminated between two groups of illegitimate children in the matter of conferment of status of legitimacy, it was violative of Article 14. The vice or the mischief from which unamended Section 16 suffered has been removed or not is the next concern of this Court. [18-G, 30-E-G] 2.2. In order to give full effect to what was intended to be achieved by enacting Section 16, the Parliament intervened and amended Section 16. The words “notwithstanding that a marriage is null and void under Section 11” employed in Section 16(1) indicate undoubtedly the following: (a) Section 16(1) stands delinked from Section 11. (b) Provisions of Section 16(1) which intend to confer legitimacy on children born of void marriages will operate with full vigour in spite of Section 11 which nullifies only those marriages which are held after the enforcement of the Act and in the performance of which Section 5 is contravened. (c) Benefit of legitimacy has been conferred upon the children born either before or after the date on which Section 16(1) was amended. (d) Mischief or the vice which was the basis of unconstitutionality of unamended Section 16 has been effectively removed by amendment. (e) Section 16(1) now stands on its own strength and operates independently of other sections with the result that it is constitutionally valid as it does not discriminate between illegitimate children similarly circumstanced and classifies them as one group for conferment of legitimacy. Section 16, in its present form, is, therefore, not ultra vires the constitution. [33-C-F] K.P. Verghese v. Income-tax Officer, Emakulam and Anr, 131 ITR 597; Bengal Immunity Co. Ltd. v. Slate of Bihar, AIR (1955) SC 661; Goodyear India Ltd. v. State of Haryana, AIR (1990) SC 781; C.I.T., M.P. & Bhopal v. Sodra Devi, AIR (1857) SC 832; Union of India v. G.M. Kokil, [1984] Supp. SCC 196; Chandavarkar Sita Ratna Rao v. Ashalata S. Gumam, [1986] 4 SCC 447 (477); R.S. Ragunath v. State of Kamataka, [1992] 1 SCC 335; Heydon’s case (1584) 3 Co. Rep 7a; Mayfair Property Company, (1898) 2 Ch 28 (CA); Eastman Photographic Materials Company Ltd. v. Comptroller-General of Patents, Designs and Trade-Marks, (1898) AC 571, 576 (HL) and Munsell v. Olins, (1975) 1 All ER 16 (HL) p-29, referred to. T. Ramayammal v. T. Mathummal, AIR (1974) Mad. 321, approved. “Principles of Statutory Interpretation” By G.P. Singh, referred to. 3.1. Section 16 contains a legal fiction. It is by a rule of ‘ficto juris that the legislature has provided that children, though illegitimate, shall, nevertheless, be treated as legitimate notwithstanding that the marriage was void or voidable. [33-H] 3.2. In view of legal fiction contained in Section 16, the illegitimate children, for all practical purposes, including succession to the properties of their parents, have to be treated as legitimate. They cannot, however, succeed to the properties of any other relation on the basis of this rule, which in its operation, is limited to the properties of the parents. [34-E] 3.3. When an Act of Parliament or a State Legislature provides that something shall be deemed to exist of some status shall be deemed to have been acquired, which not have been so acquired or in existence but for the enactment, the Court is bound to ascertain the purpose for which the fiction was created and the parties between whom the fiction was to operation, so that full effect may be given to the intention of the legislature and the purpose may be carried to its logical conclusion. [34- A-B] M/s. J K Cotton Spg. & Wvg. Mills Ltd. v. Union of India, AIR (1988) SC 191, American Home Products Corporation \. Mac Laboratories, [1986] 1 SCC 465 and M. Venugopal v. Divisional Manager, LIC, [1994] 2 SCC 323, relied on. East End Dwellings Co. Ltd. v. Finsbury Borough Council, (1952) AC 109 B, referred to. 4. Appellants 2 to 6 were born prior to the date on which amendments were introduced in Section 16(1), and consequently they would, notwithstanding that the marriage between their parents had taken place at a time when there was a legislative prohibition on the second marriage, to be treated as legitimate, and would, therefore, inherit the properties of their father, RN, under Section 16(3) of the Act. [34-F-G] CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 5473-75 of 1995. =1996 AIR 1963, 1996( 2 )Suppl.SCR 1, 1996( 4 )SCC 76, 1996( 4 )SCALE131 , 1996( 4 )JT 656


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

Indian Evidence Act (1 of 1872), s. 112-Presumption of law-Conclusive proof of legitimacy-Birth during lawful wedlock. =The presumption under section 112 of the Indian Evidence Act is a conclusive presumption of law which can be displaced only by non-access between the parties to the marriage at a time when according to the ordinary course of nature the husband could have been the father of the child. Access and non-access connote existence and non- existence of opportunities for marital intercourse. Karapaya v. Mayandy referred to. Non-access can be proved by evidence direct or circumstantial though the proof of non-access must be clear and satisfactory as the presumption of legitimacy is highly favoured by law. The principle of English common law according to which neither a husband nor a wife is permitted to give evidence of non-access after marriage to bastardize a child born in lawful wedlock, does not apply to legitimacy proceedings in India as no such rule is to be found anywhere in the Indian Evidence Act and the old common law doctrine itself has been abrogated in England by the provisions of section 7 of the Matrimonial Cause Act, 1950. That by the evidence on the record the defendant No. 1 (husband) did not succeed in proving that there was no opportunity for intercourse between him and defendant No. 2 (his wife) at the time when the infant plaintiff was conceived and the High Court erred in holding that there was no opportunity for access between the parties at the material period.

PETITIONER: CHILUKURI VENKATESWARLU Vs. RESPONDENT: CHILUKURI VENKATANARAYANA. DATE OF JUDGMENT: 08/12/1953 BENCH: MUKHERJEA, B.K. BENCH: MUKHERJEA, B.K. BHAGWATI, NATWARLAL H. JAGANNADHADAS, B. CITATION: 1954 AIR 176 1954 SCR 424 CITATOR INFO : R 1971 SC2352 (13) ACT: Indian Evidence Act (1 of 1872), s. 112-Presumption of law-Conclusive proof of legitimacy-Birth during lawful wedlock. HEADNOTE: The … 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

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