Hindu Law & Family matters
Summary of Question- Adverse possession against co-sharer
Question – Whether Adverse possession can be claimed against a co-sharer.
Answer- Normally, where the property is joint, co-shares are the representatives of each another, so it is difficult to raise the plea of adverse possession by one co-sharer against the other.
In a three Judge bench of the Hon’ble Supreme Court in the case reported in AIR 1995 SC 1789, Mr. Saiyed Saghir Ahmad, J. observed as under:
“ The legislature has not prescribed any period of limitation for filing a suit for partition because partition is an incident attached to the property and there is always a running cause of action for seeking partition by one of the co-sharers if and when he decides not to keep his share joint with other co-sharers. Since the filing of the suit is wholly dependent upon the will of the co-sharer, the period of limitation, specially the date or time from which such period would commence, could not have been possibly provided for by the legislature and, therefore, in this Act also a period of limitation, so far as suits for partition are concerned, has not been prescribed. This, however, does not mean that a co-sharer who is arrayed as a defendant in the suit cannot raise the plea of adverse possession against the co-sharer who has come before the Court as a plaintiff seeking partition of his share in the joint property.
“ Normally, where the property is joint, co-shares are the representatives of each another. The co-sharer who might be in possession of the joint property shall be deemed to be in possession on behalf of all the co-sharers. As such, it would be difficult to raise the plea of adverse possession by one co-sharer against the other. But if the co-sharer or the joint owner had been professing hostile title as against other co-sharers openly and to the knowledge of others joint owners, he can, provided the hostile title or possession has continued uninterruptedly for the whole period prescribed for recovery of possession, legitimately acquire title by adverse possession and can plead such title in defence to the claim for partition.”
“It is a matter of fundamental principle of law that where possession can be referred to a lawful title, it will not be considered to be adverse. It is on the basis of this principle.
Summary of Question- Mental Cruelty and Divorce
Question – What is the legal position of Mental Cruelty as a ground for Divorce under Hindu Marriage Act.
Answer-. “Cruelty” is a ground for divorced under section 13(1) (ia) of the Hindu Marriage Act but “Cruelty” has not been defined. However, Apex Court has held that it includes Mental Cruelty also but it is not easy to establish like Physical Cruelty.
1. In the reported in (1988) 1 SCC 105, while dealing with 'cruelty' under Section 13(1)(ia) of the Hindu Marriage Act , the Hon’ble Supreme Court observed that the said provision does not define 'cruelty' and the same could not be defined. The 'cruelty' may be mental or physical, intentional or unintentional. If it is physical, the court will have no problem to determine it. It is a question of fact and degree. If it is mental, the problem presents difficulty.
2. In the case reported in (1994) 1 SCC 337, the Hon’ble Supreme observed that mental cruelty can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. To put it differently, the mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It was further observed, while arriving at such conclusion, that regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances. What is cruelty in one case may not amount to cruelty in another case and it has to be determined in each case keeping in view the facts and circumstances of that case. That apart, the accusations and allegations have to be scrutinized in the context in which they are made.
3. In the case reported in AIR 2002 SC 2582, it has been held that mental cruelty is a state of mind and feeling with one of the spouses due to behaviour or behavioural pattern by the other. Mental cruelty cannot be established by direct evidence and it is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment, and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The facts and circumstances are to be assessed emerging from the evidence on record and thereafter, a fair inference has to be drawn whether the Petitioner in the divorce petition has been subjected to mental cruelty due to the conduct of the other.
4. In the case reported in (2005) 2 SCC 22, it has been ruled that the question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status and environment in which they live. If from the conduct of the spouse, it is established and/or an inference can legitimately be drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse about his or her mental welfare, then the same would amount to cruelty. While dealing with the concept of mental cruelty, enquiry must begin as to the nature of cruel treatment and the impact of such treatment in the mind of the spouse. It has to be seen whether the conduct is such that no reasonable person would tolerate it.
5. In the case reported in (2006) 3 SCC 778, it has been ruled that as to what constitutes mental cruelty for the purposes of Section 13 (1)(ia) will not depend upon the numerical count of such incident or only on the continuous course of such conduct but one has to really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude necessary for maintaining a conducive matrimonial home.
Summary of Question- Property of a Female is absolute
Question – What is the legal position of a property of a Female Hindu.
Answer with rationale -
The property of Female Hindu is her absolute property in view of section 14 of the Hindu Succession Act. It has been held by the Hon’ble Supreme Court in the case reported in 2011 (10) SCALE 214 that Section 14 of the Hindu Succession Act, 1956 clearly mandates that any property of a female Hindu is her absolute property and she, therefore, has full ownership. The Explanation to Sub-section 1 further clarifies that a Hindu woman has full ownership over any property that she has acquired on her own or as stridhana. As a consequence, she may dispose of the same as per her wish, and that the same shall not be treated as a part of the joint Hindu family property.
Summary of Question – Gift by Hindu Father of Ancestral Property
Question – Can a Hindu father make gift of his Ancestral Property.
Answer- Gift of movable ancestral property, out of affection, may be made to a wife, to a daughter , to a son provided the gift is within reasonable limits. But a Gift of Immovable Ancestral Property is very limited .
The Hon’ble Supreme Court held in the case reported in AIR1967SC569 as under :
“Hindu law on the question of gifts of ancestral property is well-settled. So far as movable ancestral property is concerned, a gift out of affection may be made to a wife, to a daughter and even to a son, provided the gift is within reasonable limits. A gift for example of the whole or almost the whole of the ancestral movable property cannot be upheld as a gift through affection : (see Mulla's Hindu Law, 13th Edn. p. 252, para 225). But so far so immovable ancestral property is concerned, the power of gift is much more circumscribed than in the case of movable ancestral property. A Hindu father or any other managing member has power to make a gift of ancestral immovable property within reasonable limits for "pious purposes", (see Mulla's Hindu Law, 13th Edn. para 226 p. 252). Now what is generally understood by "pious purposes" is gift for charitable and/or religious purposes. But this Court has extended the meaning of "pious purposes" to cases where a Hindu father makes a gift within reasonable limits of immovable ancestral property to his daughter in fulfilment of an antenuptial promise made on the occasion of the settlement of the terms of her marriage, and the same can also be done by the mother in case the father is dead”
Summary of question- Joint Family property or Separate Property
Question- Whether a property acquired by a Karta is Joint Family Property or his separate property.
Answer – It is Joint family property if acquired with the aid or assistance of joint family assets.
The general doctrine of Hindu Law is that property acquired by a karta or a coparcener with the aid or assistance of joint family assets is impressed with the character of joint family property. To put it differently, it is an essential feature of self-acquired property that it should have been acquired without assistance or aid of the joint family property. The test of self-acquisition by the karta or coparcener is that it should be without detriment to the ancestral estate. It is therefore clear that before an acquisition can be claimed to be a separate property, it must be shown that it was made without any aid or assistance from the ancestral or joint family property. [ AIR 1968 SC 682]
Summary of Question- Succession in case of Female Hindu.
Question – To whom property of a Female Hindu dying intestate devolves ?
Answer with rationale-
1. In short , property of a female Hindu dying intestate shall devolve , according to the rules set out in section 16, firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the husband. Section 16 deals with the manner of distribution among legal heirs.
2. Vide section 15(1) of the Hindu Succession Act, the property of a female Hindu dying intestate shall devolve according to the rules set out in section 16.—
(a) firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
3. Section 15(2) then provides that notwithstanding anything contained in subsection (1)-
(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in subsection (1) in the order specified therein, but upon the heirs of the father; and
(b) any property inherited by a female Hindu from her husband or from her father in law Shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in subsection (1) in the order specified therein, but upon the heirs of the husband.
4. In the case reported in AIR 1992 SC 2214, Hon’ble Supreme Court held as quoted below:
“Sub-section (1) of section 15 groups the heirs of a female intestate into five categories and they are specified under clauses (a) to (e). As per Section 16 Rule 1 those in one clause shall be preferred to those in the succeeding clauses and those included in the same clause shall take simultaneously. Sub-section (2) of section 15 begins with a non obstante clause providing that the order of succession is not that prescribed under subsection (1) of section 15. It carves out two exceptions to the general order of succession provided under sub-section (1), The first exception relates to the property inherited by a female Hindu from her father or mother. That property shall devolve, in the absence of any son or daughter of the deceased (including the children of the pre-deceased son or daughter), not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father. The second exception is in relation to the property inherited by a female Hindu from her husband or from her father-in-law. That property shall devolve, in the absence of any son or daughter of the deceased (including the children of the pre-deceased son or daughter) not upon the other heirs referred to under sub-section (1) in the order specified thereunder but upon the heirs of the husband.”
Summary of Question: Exercise of Jurisdiction by High Court under section 482 Cr.P.C in the matter of Matrimonial Disputes in case of Compromise
Question: Whether jurisdiction under section 482 Cr. P.C may be exercised in case where an offence is relating to matrimonial Dispute and it has been compromised.
Answer: High Court may exercise power of quashing under 482 cr. P.C if an offence is relating to a Matrimonial dispute and it has been compromised.
A three Judge Bench of the Hon’ble supreme Court in the case reported in 2013 (4) SCC 58 observed and held as quoted below:
“ There has been an outburst of matrimonial disputes in recent times. The institution of marriage occupies an important place and it has an important role to play in the society. Therefore, every effort should be made in the interest of the individuals in order to enable them to settle down in life and live peacefully. If the parties ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law, in order to do complete justice in the matrimonial matters, the courts should be less hesitant in exercising its extraordinary jurisdiction………..”
“……..we hold that the High Court in exercise of its inherent powers can quash the criminal proceedings or FIR or complaint in appropriate cases in order to meet the ends of justice and Section 320 of the Code does not limit or affect the powers of the High Court Under Section 482 of the Code……….”
Summary of Question- Can Divorce be sought if wife does not like husband’s parents to stay with her husband.
Question- Whether a Petition for Divorce can be filed on the ground of cruelty under section 13(1)(ia) of the Hindu Marriage Act by husband if his wife refuses to live with him when her husband keeps his parents with him.
The Hon’ble Supreme Court in the case reported in AIR 2016 SC 4599 observed as under:
“The Respondent wife wanted the Appellant to get separated from his family. The evidence shows that the family was virtually maintained from the income of the Appellant husband. It is not a common practice or desirable culture for a Hindu son in India to get separated from the parents upon getting married at the instance of the wife, especially when the son is the only earning member in the family. A son , brought up and given education by his parents , has a moral and legal to take care and maintain the parents, when they become old and when they have either no income or have a meagre income. In India, generally people do not subscribe to the western thought, where, upon getting married or attaining majority, the son gets separated from the family. In normal circumstances, a wife is expected to be with the family of the husband after the marriage. She becomes integral to and forms part of the family of the husband and normally without any justifiable strong reason, she would never insist that her husband should get separated from the family and live only with her........................The persistent effort of the Respondent wife to constrain the Appellant to be separated from the family would be torturous for the husband and in our opinion, the trial Court was right when it came to the conclusion that this constitutes an act of 'cruelty'.”
Summary of question – Wife’s claim for Monetary Relief under DV Act in addition to maintenance under 125 Cr. P. C.
Question- Whether wife is entitled to Monetary Relief under section 20 of the DV Act while she is getting maintenance under 125 Cr.P.C.
Section 20 (1) of the Protection of Domestic Violence Act , 2005 is relevant which is quoted below:
“(1) While disposing of an application under subsection(1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include but is not limited to
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and
(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of CriminalProcedure, 1973 or any other law for the time being in force.”
2. It is clear from the said section 20(1)(d) that the Magistrate may to pass order for grant of monetary relief including maintenance under or in addition to section 125 of the Code of Civil Procedure 1973. It is, therefore, in the discretion of the Magistrate to include the maintenance under section 125 Cr.P.C or to pass an order in addition to maintenance under 125 Cr.P.C
3.In the case of Virginia Regina vs. Julio Cosmo Lobo decided on 26.08.2008, the Hon’ble Bombay High Court interpreted the section 20 in the following words:
“ Section 20 deals with providing for monetary reliefs which includes a provision for medical expenses, maintenance for the aggrieved person, or even for maintenance in addition to an order for maintenance under Section 125 of the Code of Criminal Procedure, 1973”
Summary of Question – Complaint for Bigamy during pendency of Appeal against Decree of Divorce
Question – Can magistrate proceed on complaint filed for Bigamy even if appeal against decree of Divorce is pending.
Answer – Yes
In the case reported 2002 (3) ACR 2481 , decided by the Hon’ble Allahabad High Court, Decree of divorce against wife was challenged in appeal within period of limitation. During pendency of the Appeal husband re-married. Wife filed Complaint under Section 494. Magistrate examined the complainant and her witnesses but was not passing order keeping it pending till decision of appeal against divorce.
The Hon’ble High Court held that the order passed under Section 13 of the Hindu Marriage Act, 1955, dissolving the marriage between the parties is appealable under Section 28 of the Hindu Marriage Act and limitation for filing appeal is 30 days (now 90 days) from the date of decree or order. In case the appeal was filed and was pending the opposite party No. 3 (husband) could not legally perform second marriage. Therefore, by virtue of Section 15 of the Hindu Marriage Act, the Magistrate had not to wait till the decision of the appeal as during the pendency of appeal, the opposite party No. 3 had no right to perform second marriage and the Magistrate ought to have passed appropriate order on the complaint after enquiry under Sections 200 and 202, Criminal Procedure Code.
Summary of question- Daughter’s right prior to and subsequent to amendment in 2005 in section 6 of H.S. Act.
Question- Whether Daughter is entitled for share in her father’s property who died intestate prior to amendment in 2005 (i.e., September 9, 2005) in section 6 of the Hindu Succession Act ?
Answer – Yes.
1. Legal position pertaining to section 6 of the Hindu Succession before the amendment made in 2005 is , in brief, is as under:
(i) Law relating to partition under Hindu Law was that female member of Joint Family was not entitled to demand or compel partition of Coparcenary. The question, however, as to whether female members were entitled to their respective shares in notional partition to coparcenary property ( in cases where proviso to section 6 read with its Explanation I of the H.S Act applied) find answered by Hon’ble supreme Court in the case reported in AIR 1978 SC 1139. Short fact of this case was that one Khandappa died survived by his widow , 2 sons and 3 daughters. Khandappa and his 2 sons constituted coparcenary. As Khandappa died leaving behind female relatives of Class I, notional partition among (a) Khandappa ,(b) his 2 sons and (c) his Widow was effected whereby the widow was first entitled to 1/4th share in the coparcenary property. Thereafter, in the 1/4th. interest (share) of her husband in the coparcenary property (as a result of notional partition) , she (widow), 2 sons and three daughters took equally by application section 8 and section 10 read with its Rules 1 and 2 of the Hindu Succession Act.
(ii) In the case reported in 2006(8) SCC 656 , the Hon’ble Supreme Court observed and held as quoted below:
‘Reference in this connection may be made to a passage from the most authoritative Treatise of Mulla, Principles on Hindu Law, Seventeenth Edition, page 250 wherein while interpreting Explanation I to Section 6 of the Act, the learned author stated that
"Explanation I defines the expression 'the interest of the deceased in Mitakshara coparcenary property' and incorporates into the subject the concept of a notional partition. It is essential to note that this notional partition is for the purpose of enabling succession to and computation of an interest, which was otherwise liable to devolve by survivorship and for the ascertainment of the shares in that interest of the relatives mentioned in Class I of the Schedule. Subject to such carving out of the interest of the deceased coparcener the other incidents of the coparcenary are left undisturbed and the coparcenary can continue without disruption. A statutory fiction which treats an imaginary state of affairs as real requires that the consequences and incidents of the putative state of affairs must flow from or accompany it as if the putative state of affairs had in fact existed and effect must be given to the inevitable corollaries of that state of affairs’
‘Thus we hold that according to Section 6 of the Act when a coparcener dies leaving behind any female relative specified in Class I of the Schedule to the Act or male relative specified in that class claiming through such female relative, his undivided interest in the Mitakshara coparcenary property would not devolve upon the surviving coparcener, by survivorship but upon his heirs by intestate succession. Explanation 1 to Section 6 of the Act provides a mechanism under which undivided interest of a deceased coparcener can be ascertained and, i.e., that the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. It means for the purposes of finding out undivided interest of a deceased coparcener, a notional partition has to be assumed immediately before his death and the same shall devolve upon his heirs by succession which would obviously include the surviving coparcener who, apart from the devolution of the undivided interest of the deceased upon him by succession, would also be entitled to claim his undivided interest in the coparcenary property which he could have got in notional partition.’
(iii) In this connection, it is also relevant to quote below following observation of the Hon’ble supreme Court in a case reported in 1994 (6) SCC 342:
“Under the main provision of Section 6, the interest of Jamuna Prasad in the coparcenary property would have devolved by survivorship upon the surviving members of the coparcenary and not in accordance with the provisions of the Act. But in the facts and circumstances of the case, the proviso to Section 6 along with the Explanation I is attracted since the widow and daughters are amongst the family relatives specified in Class I of Schedule to the Act. Proviso to Section 6 come into operation, if the deceased leaves behind any female relative specified in Class I of the Schedule of the Act or a male relative, specified in that Class, who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property. Then in that event, it shall devolve by intestate succession under the provisions of the Act and not by survivorship. As Jamuna Prasad leaving behind his widow the appellant and four daughter who shall be deemed to be family relatives specified in class I of the Schedule to the Act, the proviso to Section 6 shall come into play and the interest of Jamuna Prasad shall devolve according to the said proviso by way of intestate succession under the Act.”
2. The proviso to section 6 of H.S Act, prior to amendment, laid down that if a deceased coparcener was survived by any female relative specified in class I of the Schedule of the H.S Act (or male relative specified in that class claiming through such female relative) then the interest of deceased in Mitakshara Coparcenary property shall devolve by intestate succession as per H.S Act .
2.1. Explanation I to the section 6 provided for Deemed (Fictional/Notional) Partition. In view of this Explanation, it was deemed that that there was partition immediately before the death of the deceased coparcener .
2.2. In a case reported in AIR 2016 SC 1169, the Hon’ble supreme Court observed and held as quoted below:
“The law, therefore, insofar as it applies to joint family property governed by the Mitakshara School, prior to the amendment of 2005, could therefore be summarized as follows:
(i) When a male Hindu dies after the commencement of the Hindu Succession Act, 1956, having at the time of his death an interest in Mitakshara coparcenary property, his interest in the property will devolve by survivorship upon the surviving members of the coparcenary (vide Section 6).
(ii) To proposition (i), an exception is contained in Section 30 Explanation of the Act, making it clear that notwithstanding anything contained in the Act, the interest of a male Hindu in Mitakshara coparcenary property is property that can be disposed of by him by will or other testamentary disposition.
(iii) A second exception engrafted on proposition (i) is contained in the proviso to Section 6, which states that if such a male Hindu had died leaving behind a female relative specified in Class I of the Schedule or a male relative specified in that Class who claims through such female relative surviving him, then the interest of the deceased in the coparcenary property would devolve by testamentary or intestate succession, and not by survivorship.
(iv) In order to determine the share of the Hindu male coparcener who is governed by Section 6 proviso, a partition is effected by operation of law immediately before his death. In this partition, all the coparceners and the male Hindu's widow get a share in the joint family property.
(v) On the application of Section 8 of the Act, either by reason of the death of a male Hindu leaving self-acquired property or by the application of Section 6 proviso, such property would devolve only by intestacy and not survivorship.
(vi) On a conjoint reading of Sections 4, 8 and 19 of the Act, after joint family property has been distributed in accordance with Section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants in common and not as joint tenants. ”
3. In this connection, it is relevant to refer to the Hon’ble Supreme Court decision in the case reported in AIR 2012 SC 169 in which it has been observed as under:
“The new Section 6 provides for parity of rights in the coparcenary property among male and female members of a joint Hindu family on and from September 9, 2005. The Legislature has now conferred substantive right in favour of the daughters. According to the new Section 6, the daughter of a copercener becomes a coparcener by birth in her own rights and liabilities in the same manner as the son. The declaration in Section 6 that the daughter of the coparcener shall have same rights and liabilities in the coparcenary property as she would have been a son is unambiguous and unequivocal.”
4. Following paragraphs from the Apex Court in a case reported in AIR 2009 SC 2649, is also relevant:
“We may in the aforementioned backdrop notice the relevant portion of the Statement of Objects and Reasons of the 2005 Act, which reads as under:
5. It is proposed to remove the discrimination as contained in Section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have. Section 23 of the Act disentitles a female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family until the male heirs choose to divide their respective shares therein. It is also proposed to omit the same section so as to remove the disability on female heirs contained in that section.
It is, therefore, evident that the Parliament intended to achieve the goal of removal of discrimination not only as contained in Section 6 of the Act but also conferring an absolute right in a female heir to ask for a partition in a dwelling house wholly occupied by a joint family as provided for in terms of Section 23 of the Act.”
6. Vide section 6 of the H.S Act (consequent upon amendment in 2005), daughter has been made a coparcener by birth like son, which is not in the un-enacted Hindu Law. As daughter has been made coparcener like son, section 23 of the H.S Act has also been omitted by the same amendment in 2005. Before amendment in 2005 , there was a provision in section 23 which disentitled a female heir to ask for partition in respect of a dwelling house.
7. In my opinion, therefore, provision contained in section 8 read with class-I of the Hindu Succession Act, which gave right to daughter in the matter of succession before amendment in section 6 in 2005, has NOT been taken away by the Amendment made in 2005 in section 6. As such, Daughter(s) is entitled to succeed as per section 8 of the Hindu Succession Act in the deemed / notional partition effected in terms of proviso to the old section 6 read with its Explanation I, if Father died intestate before September 9, 2005.
7.1. BUT a daughter cannot seek partition as coparcener if the Father died prior to September 9, 2005 because the amendment in 2005 in section 6 is not retrospective vide Supreme Court decision reported in 2016 (2) SCC 36.
Summary of question- Proof of Inpotency vis a vis Article 21
Question- In matrimonial cases, whether proof of Impotency violates right given under Article 21 of the Constitution of India?
Answer – No.
A three Judge Bench decision of the Hon’ble Supreme Court in case reported in AIR 2003 SC 3450 observed and held as under:
“………………….. In all such matrimonial cases where divorce is sought, say on the ground of impotency, schizophrenia...etc. normally without there being medical examination, it would be difficult to arrive at a conclusion as to whether the allegation made by his spouse against the other spouses seeking divorce on such a ground, is correct or not. In order to substantiate such allegation, the petitioner would always insist on medical examination. If respondent avoids such medical examination on the ground that it violates his/her right to privacy or for a matter right to personal liberty as enshrined under Article 21 of the Constitution of India, then it may in most of such cases become impossible to arrive at a conclusion. It may render the very grounds on which divorce is permissible nugatory. Therefore, when there is no right to privacy specifically conferred by Article 21 of the Constitution of India and with the extensive interpretation of the phrase "personal liberty" this right has been read into Article 21, it cannot be treated as absolute right. What is emphasized is that some limitations on this right have to be imposed and particularly where two competing interests clash. In mattes of aforesaid nature where the legislature has conferred a right upon his spouse to seek divorce on such grounds, it would be the right of that spouse which comes in conflict with the so-called right to privacy of the respondent. Thus the Court has to reconcile these competing interests by balancing the interests involved.”
Summary of question- Bigamy Committed outside India
Question- Can a person who committed Bigamy outside India be prosecuted in India.
Answer – Yes.
1. In this connection, section 4 of The Indian Penal Code is relevant which reads :
The provisions of this Code apply also to any offence committed by--
(1) any citizen of India in any place without and beyond India
Explanation--In this section--
(a) the word "offence" includes every act committed outside India which, if committed in India, would be punishable under this Code;
2. The above Section Section 4 of the IPC spell out that if a person committing the offence at that point of time is a citizen of India, then, even if the offence is committed beyond the contours of India, he will be subject to the jurisdiction of the courts in India for commission of offence under IPC.
3. Therefore, if an Offence of Bigamy under section 494 of the India Penal code is committed outside India , he will be prosecuted in India for the offence of bigamy.
Summary of question- Proof of Adultery in matrimonial matters
Question- Can Adultery in matrimonial matters is required to be proved beyond a reasonable doubt as is required in criminal cases ?
Answer – No.
In this connection , following observation of a three Judge Bench decision of the Hon’ble Gauhati High Court reported in the case of reported in AIR 1986 Gau 24 is noteworthy:
“It is necessary to take note of the trend in the law as to the standard of proof in materimonial causes, which is more often than not overlooked by the courts trying matrimonial causes. A petition for divorce is a civil proceeding and not a criminal proceeding. There is, however, some overlapping in view of the character of imputation, in view of necessary to prove the allegations of adultery, cruelty, bigamy, sodomy, beastiality, etc. in divorce proceedings. The onus of proof of adultery etc. is undoubtedly on the person who alleges adultery etc. Direct evidence of adultery is rare. In most of the cases the fact of adultery is required to be inferred from the surrounding facts and circumstances of the case. There must be proof of disposition and opportunity for committing adultery. If a prima facie case is made out and the party charged fails to give evidence in disproof, that may be a fact, which the court is entitled to take into consideration in favour of the petitioner…………………There are two main ways in which adultery is normally sought to be proved. The first is where there is no direct evidence of the commission of the offence but it is sought to be proved circumstantially, by inference from the fact that there is a guilty affection between the two parties coupled with opportunity. Secondly, it may be proved by direct evidence.”
Summary of question- DV Act applies irrespective of Religion
Question- Whether DV Act applies if the parties are governed by Muslim Personal Law.
Answer – Yes.
Follwing observation of the Hon’ble Bomabay High Court decision in the case of reported in 2018 (3) RCR (Criminal) 106
“Perusal of the provisions of the Protection of Women from Domestic Violence Act, 2005 would reveal that it is an enactment to provide for more effective protection for rights of women guaranteed under the Indian Constitution who are the victims of the violence. The enactment no way intends to restrict its application to any particular category of women but it intends to protect the women aggrieved, who are victims of Domestic Violence. The definition and connotation of "Domestic Violence" under Section-3 of the enactment do not indicate any intention either express or implied to exclude Muslim women. Section-36 of the said enactment provides that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time any force. Thus, the scheme of the enactment do not restrict the applicability of the provisions of the Act to a particular category of women, nevertheless to a woman belonging to a particular religion. No doubt the Muslim women are also governed by several other enactments in the form of Muslim Women (Protection of Rights on Divorce) Act, 1986, Dissolution of Muslim Marriage Act, 1939 etc., however, the rights conferred under the said enactments can in no way curtail the operation or Protection granted under The Protection of Women from Domestic Violence Act. In these circumstances the contention advanced by the learned counsel for the petitioner that the respondent-wife could not avail the provisions of the Domestic Violence Act is not sustainable.”
Summary of question- Marriage under Special Marriage Act and then under personal law
Question- What would the legal implication if two persons marry under Special Marriage Act and then they marry as per personal law.
Answer – When a person solemnizes marriage under Special Marriage Act then the marriage is not governed by personal laws but by Special Marriage Act. The rights and duties arising out of marriage are governed by the Special Marriage Act and not by the personal laws.
In a case before the Hon’ble Delhi High Court reported in 2018 (248) DLT 466 where husband had challenged jurisdiction of Family Court where wife had filed Divorce petition under Special Marriage Act on the ground that they subsequently performed Nikah Ceremony and , as such, governed by Muslim Personal law. The Hon’ble Court observed and held as under:
“The unique feature of the Special Marriage Act, 1954 is compulsory registration of marriage under the Act which protects the interest of the parties and the children born out of wedlock.
The Registration Certificate of the marriage between the parties is conclusive evidence of the fact that their marriage was solemnised under the Special Marriage Act. Therefore, evidence with regard to the fact that their marriage was actually solemnised under any other Act at any other time, cannot be allowed. There can be no issue that the Special Marriage Act would apply.
When a person solemnizes marriage under this law then the marriage is not governed by personal laws but by Special Marriage Act. The rights and duties arising out of marriage are governed by the Special Marriage Act and the succession is governed by Indian Succession Act, 1925, and not by the personal laws.”
Summary of question- Payment or part payment of Mutually settled amount to wife before second motion in Mutual divorce
Question- Whether it is advisable to make payment or part payment Mutually settled amount to wife ,at least, before completion second motion.
Answer – No. The reason being that a party to the petition for divorce by mutual consent can unilaterally withdraw the consent at any time till the passing of divorce decree. It would be no ground that payment or part payment of mutually settled amount has been paid to wife.
The Hon’ble Gujarat High Court in the case reported in I (1992) DMC 614 observed and held as under:
“The Learned Counsel for the appellant Mr. Trivedi, vehemently contended that the wife has taken undue advantage of the settlement and has obtained all the benefits of compromise. Therefore it was alternatively contended that the respondent should be directed to return the benefits that she availed of for getting divorce by mutual consent, at least, by invoking inherent powers of this Hon'ble Court under Section 151 of the Civil Procedure Code. A plain reading of Section 151 of the Civil Procedure Code would run counter to the proposition advanced by Learned Counsel Mr. Trivedi. No doubt, he has made fervent appeal to the heart and not to the head. At this stage, therefore, it will be open for the husband to recourse to appropriate legal remedies that may be available to him under the law for the return of those items. No provision is indicated or pointed out at either under the provisions of Hindu Marriage Act or any other Act which would empower this Court to grant such a direction or grant the relief in favour of the husband. In fact, it is nothing but polishing a brass when the entire ship is sinking.”
Summary of question- Caste of offspring in case of Inter caste marriage.
Question- What will be the caste of offspring in case of inter caste marriage? Whether the offspring would get the caste of Father.
Answer – Caste of offspring will be decided considering this fact as to how the child has been brought up. It is not necessary that the child would get the caste of father in each and every case.
1. The Hon’ble supreme Court in case reported in (2012) 3 SCC 400 observed and held as under:
“……….in an inter-caste marriage or a marriage between a tribal and a non-tribal the determination of the caste of the offspring is essentially a question of fact to be decided on the basis of the facts adduced in each case. The determination of caste of a person born of an inter-caste marriage or a marriage between a tribal and a non-tribal cannot be determined in complete disregard of attending facts of the case. In an inter-caste marriage or a marriage between a tribal and a non-tribal there may be a presumption that the child has the caste of the father. This presumption may be stronger in the case where in the inter-caste marriage or a marriage between a tribal and a non-tribal the husband belongs to a forward caste. But by no means the presumption is conclusive or irrebuttable and it is open to the child of such marriage to lead evidence to show that he/she was brought up by the mother who belonged to the scheduled caste/scheduled tribe…….”
2. Relying on the said decision of Apex court, a Division Bench of AP High Court in a case reported in AIR 2016 AP 194 observed:
“ it is clear that the Supreme Court did not say that a child born to a couple, who married transgressing the barriers of Caste, would take the community of his or her father and not that of his or her mother. On the contrary, the Supreme Court categorically pointed out that the answer to the question would depend upon the circumstances in which the child was brought up and that the same was primarily one of facts.”
Summary of question- Validity of Adoption without giving and taking in ceremony
Question- Whether there is valid adoption if giving and taking in ceremony did not take place but there is Registered deed of Adoption.
1. In view of the Hon’ble Supreme Court decision in a case reported in (2002 )3SCC 634 if it is proved that ceremony of giving and taking in adoption did not take place then there is no valid adoption even if there is registered document of adoption.
2. In this connection following observation of Hon’ble Patna High Court in a case reported in AIR 1977 Pat 199 is also relevant :
“The main point for consideration in this appeal is :-- Whether there was any giving and taking ceremony of the adopted son (Plaintiff) between the natural parents of the plaintiff and the adoptive parents of the plaintiff ?
This aspect of the matter has not at all been considered by the lower appellate court. In this connection a reference may be made to the following passages of Mayne's Hindu Law, 11th Edition at p. 237 :--
"The giving and receiving are absolutely necessary to the validity of an adoption. They are the operative part of the ceremony, being that part of it which transfers the boy from one family into another. But the Hindu Law does not require that there shall be any particular form so far as giving and acceptance are concerned For a valid adoption, all that the law requires is that the natural father shall be asked by the adoptive parent to give his son in adoption, and that the- boy shall be handed over and taken for this purpose." Reference was also made to a decision of the Supreme Court…………... In this connection the Supreme Court held as follows :--
'The law may be briefly stated thus: Under the Hindu Law, whether among the regenerate caste or among Sudras, there cannot be a valid adoption unless the adoptive boy is transferred from one family to another and that can be done only by the ceremony of giving and taking. The object of the corporeal giving and receiving in adoption is obviously to secure due publicity. To achieve this object it is essential to have a formal ceremony. No particular form is prescribed for the ceremony, but the law requires that the natural parent shall hand over the adoptive boy and the adoptive parent shall receive him. The nature of the ceremony may vary depending upon the circumstances of each case. But a ceremony there shall be, and giving and taking shall be part of it. The exigencies of the situation arising out of diverse circumstances necessitated the introduction of the doctrine of delegations, and therefore, the parents, after exercising their volition to give and take the boy in adoption, may both or either of them delegate the physical act of handing over the boy or receiving him, as the case may be, to a third party."
Summary of question- Right of Residence under D V Act
Question- Whether a woman is entitled for right of residence in the exclusive property of her in- laws under section 17 of the Protection of Woman from Domestic Violence Act.
The Hon’ble Supreme Court in the case reported in (2007) 3 SCC 169 observed and held as quoted below:
“As regards Section 17(1) of the Act, in our opinion the wife is only entitled to claim a right to residence in a shared household, and a 'shared household' would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member."
Summary of question- Maintenance under section 24 of Hindu Marriage Act.
Question- Whether maintenance under section 24 of the Hindu Marriage Act can be denied to the claimant ( wife or husband as the case may be) on the ground that the claimant is well educated for job and / or claimant’s family is rich / affluent.
The Hon'ble Supreme Court observed in the case reported in AIR 2017 SC 1640
"An order for maintenance pendente lite or for costs of the proceedings is conditional on the circumstance that the wife or husband who makes a claim for the same has no independent income sufficient for her or his support or to meet the necessary expenses of the proceeding. It is no answer to a claim of maintenance that the wife is educated and could support herself. Likewise, the financial position of the wife’s parents is also immaterial. The Court must take into consideration the status of the parties and the capacity of the spouse to pay maintenance and whether the applicant has any independent income sufficient for her or his support. Maintenance is always dependent upon factual situation; the Court should, therefore, mould the claim for maintenance determining the quantum based on various factors brought before the Court."