Hindu Law & Family matters part 2

Summary of Question- Prosecution 498A IPC / DP Act after  Divorce long back.

Question-  Can prosecution 498A / Dowry Prohibition Act would be maintainable if there was Divorce long back say 4 years.

Answer- No.

Rationale-


 

The Hon’ble Supreme Court in Criminal Appeal No. 1048 of 2008 observed and held as under:

"In view of her own averment that she was divorced four years ago, we are of the view that the prosecution is not sustainable under section 498A of the IPC and Sections 3/4 of the Dowry Prohibition Act, 1961.

Section 498A1 of the IPC opens with the words “ Whoever, being the husband or the relative of the husband  of a woman….” Therefore, where the complainant approaches with a case that there has been a divorce long back i.e. four years ago before filing of the FIR, section 498A of IPC in terms would not be attracted. We accordingly consider it appropriate to quash the prosecution against all the accused persons under section 498A of IPC and Sections 3/4 of the Dowry Prohibition Act, 1961."


Summary of Question- Sanction for Prosecution under Dowry Prohibition Act

Question-  Whether sanction  for prosecution under section 4 of the Dowry Prohibition Act is required as the Act stands after amendment in 1984. 

Answer- No.

Rationale-

Following observation of the a Division Bench  of the Hon’ble Jharkhand High Court in the case reported in 2008 (57) BLJR 129 :

 

“Section 4 of the Dowry Prohibition Act, 1961, is comprehensive Code covering the field of punishment for the offences under the Act and the procedure has been prescribed therein for launching prosecution. In the Central law, i.e. Dowry Prohibition Act 1961 as it stands today after amendment made in the year 1984 by Acts 63 of 1984, now there is no requirement for obtaining prior sanction of the Government for launching prosecution under Section 4 of the Dowry Prohibition Act, whereas in the State Law as amended by Bihar Act IV of 1976, such requirement of prior sanction of the Government for launching prosecution under Section 4 of the Act is still there. The provision of Section 4 of the Dowry Prohibition Act, 1961 made by the Parliament and Section 4 as amended by Bihar Act IV of 1976 made by the State Legislature are, therefore, clearly in respect of the same matter and they are operating in the same field because for the purpose of launching prosecution under Section 4 of the Dowry prohibition Act, the Central Law does not speak about the requirement of prior sanction, whereas the State Law envisages that prior sanction of the Government is require to be taken before launching prosecution.”

“Now, so far as the decision of the Supreme Court in the case of Rajesh Kumar Kejriwal and Ors. v. State of Bihar and Anr. reported in : (1997)10SCC524  is concerned, in our view, the submission of the learned Counsel for the opposite parties is correct that in the said case this point was not raised before the Supreme Court as to what would be the effect of the proviso to Section 4 of the State Act as amended by Bihar Act IV of 1976 after the enactment of Central Law by way of amended Act 63 of 1984. In this case it was only held after noticing the State amendment made in Section 4 of the Dowry Prohibition Act that requirement of prior sanction for launching prosecution was there. The Central amendment made by the Parliament by Act 63 of 1984 was not placed before the Supreme Court and, therefore, the point as to whether there is a conflict in between the Central law and the State law was neither raised nor decided in the said case.”

 

Summary of Question- Limitation for Partition Suit. 

Question-  Whether any period of Limitation has been prescribed for s suit for partition.

Answer- No.

Rationale-

Following observation of a  three Judges Bench decision of the  supreme Court in a case reported in AIR 1995 SC 1789:

“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.”

 

Summary of Question-  Oral relinquishment of Joint Hindu Property.

Question-   Can there be a valid relinquishment of Joint Hindu Property orally i.e., without registered a deed of relinquishment.

Answer-  Yes.

Rationale-

1.  AIR 1965 Bom 74
 
“The question then arises whether it is open to the mother to relinquish her interest in the joint family properties orally when the joint family properties consist of immovable properties like the suit fields and the value of her share therein is more than Rs.100/-. Mr. Deshpande drew my attention to the case reported in Dattatraya Govind v. Narayan Gangaram, AIR 1936 Nag 186. It was held by Vivian Bose J. in that case that "except in the case of partition among the members of a joint Hindu family, where the unities of possession, interest, title and time are complete and except in the case of entrance to a religious order involving complete renunciation of the world, no person can divest himself of interests which have once vested in him by a mere disclaimer. A title once vested can be divested only by a recognized conveyance or one of the other means allowed by law. It cannot pass by admission, relinquishment, or disclaimer when the law requires a deed." This case does not lay down that relinquishment cannot be made orally. All that it says is that the title once vested can be divested only by a recognized conveyance or by one of the other means allowed by law. It further says that the title once vested cannot pass by relinquishment when the law requires that relinquishment can only be made by a deed or by an instrument. Transfer of Property Act clearly recognizes oral transfers. Section 9 of the Act provides that "a transfer of property may be made without writing in every case in which a writing is not expressly required by law." It follows, therefore, that an oral transfer of property is rule unless there is law which expressly requires that it should be made in writing. Transfer of Property Act contains various transfers where writing is necessary. Under S. 54, a sale of tangible immovable property of the value of Rs.100/- or upwards, or of a reversion or other intangible thing is required to be made only by a registered instrument. Under Section 59, a writing is necessary in the case of a simple mortgage by deposit of title-deeds where the principal sum secured in Rs.100/- or upwards. Under Sec. 107, a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, is required to be made in writing. Under Section 123, a gift of immovable property can only be made by a writing. Under Sec. 130, all transfers of actionable claims have to be made by writing and, under Sec. 118, all exchanges are subject to the same rules as are applicable to sales. Thus, when the law requires that there should be an instrument in writing and that instrument must be registered, the transfer can only be effected in that manner. But where no writing is required by the Transfer of Property Act or any other law, the transfer may be made orally. Mr. Deshpande is unable to point out any statute which requires that the relinquishment by the mother of her interest in the joint family property, when the property consists of immovable property and the value of the share therein exceeds Rs. 100/- can only be made in writing or by an instrument registered.”
“In Imperial Bank of India, v. Bengal National Bank, Ltd. AIR1931Cal223 Rankin C.J. said that partition, release and surrender are all forms of transfer but that so far as the Transfer of Property Act is concerned, they come under no restrictions. A right to recover a share of immovable property may be relinquished orally and without an instrument in writing.”
“Mr. Deshpande, however, drew my attention to the provisions of Section 17 of the Registration Act. There is nothing in the Registration Act or the provisions of Section 17 thereof, which requires any particular transaction to be recorded in writing. That Act requires only that when certain transactions are so recorded, the writing shall be registered. There is nothing in the Transfer of Property Act or any other law that I am so far aware which requires that a mere extinguishment of an interest in the immovable property shall be in writing. The relinquishment by Bainabai of her interest in the joint family property was merely abandonment of here interest in the joint family property in favour of her two sons. Such a relinquishment or abandonment of interest in the joint family property, even though it consists of immovable properties and is of the value of Rs.100/- and upwards, can be effected without a written instrument, though if one is executed, it would undoubtedly require registration under Section 17 of the Registration Act,………..”
 

2.   2008 (2) MhLJ 334 
 

“The law is well settled that a co-parcener or a sharer in joint family property can surrender his share orally at the time of partition. In a decision cited by the leaned counsel for the appellant, reported in  1964 Mh.L.J.736 (Ramdas Chimna v. Pralhadj Deorao), it is held that oral relinquishment of share in a joint family property is valid. As; said earlier, the plaintiff's case is of oral surrender and that too of self-acquired property. Such alleged surrender, if any, of self acquired property was therefore invalid and Pithuji continued to be the owner and no title under the alleged surrender ever vested in the plaintiff or defendant No. 2.”
 
3.   1996 (2) Bom CR 183  
 

“It may be that there can be valid oral relinquishment as held by this Court in Ramdas Chimna v. Pralhad Deorao, 1964 Mah.L.J. 736 and Hivabai w/o Harji Ingale v. Babu Manika Ingale, 1980 Mah.L.J. 494 and there can be an oral maintenance arrangement but then such an oral arrangement must satisfy the requirements of a family arrangement as held by the Supreme Court in the case of Kale and others v. Dy. Director of Consolidation, 1976 (3) SCR 202 , while holding that the family arrangement can be oral in which case no registration is necessary, the Supreme Court has inter alia held in the said case that the family arrangement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family and that it must be voluntary and should not be induced by fraud, coercion or undue influence. In the facts and circumstances narrated above it cannot be held that the maintenance arrangement in question satisfies the above tests. It cannot thus be held to be valid.”
 

4.  AIR 1980 Bom 315 
 

“As far as oral surrender by a Hindu in such property is concerned, there is good authority of this Court in Ramdas Chimna v. Pralhad Deorao,  AIR 1965 Bom 74 , that it can be done without any document, there being no impediment of effecting such surrender in terms enacted by the provisions of the T. P. Act. We are in agreement with what is observed by the learned single Judge of this Court in Ramdas Chimna's case that the oral relinquishment by the mother of her interest in Hindu Joint Family property exceeding Rs. 100/- in value is valid and effective. There is also the authority for such proposition of a Division Bench of this Court in Kisansingh v. Vishnu,  AIR 1951 Bom 4 , where the father by recourse to division of property evidenced by oral declarations settled the same on his sons……….”
 

Summary of Question-   Divorce by  husband if acquitted in false case filed by wife 

Question- Can husband seek Divorce on the ground of Cruelty if he is acquitted in false case filed by wife.  

Answer- Yes, 

Rationale-

1. The  Hon’ble Supreme court in a case reported in 2014 (16) SCC 34 observed and held :

“The Respondent-Wife has admitted in her cross-examination that she did not mention all the incidents on which her Complaint is predicated, in her statement under Section 161 of the Cr.P.C. It is not her case that she had actually narrated all these facts to the Investigating Officer, but that he had neglected to mention them. This, it seems to us, is clearly indicative of the fact that the criminal complaint was a contrived afterthought. We affirm the view of the High Court that the criminal complaint was “ill advised”. Adding thereto is the factor that the High Court had been informed of the acquittal of the Appellant-Husband and members of his family. In these circumstances, the High Court ought to have concluded that the Respondent-Wife knowingly and intentionally filed a false complaint, calculated to embarrass and incarcerate the Appellant and seven members of his family and that such conduct unquestionably constitutes cruelty as postulated in Section 13(1)(ia) of the Hindu Marriage Act.”

2. The  Hon’ble Bombay High Court  in a case reported in 2016 (2) Bom CR 553 observed and held:

“In my view, the order passed by the lower appellate Court is totally erroneous and contrary to law laid down by the Supreme Court and this Court holding that if the wife had filed a false case against the husband and his family members in which the appellant husband and his family members are acquitted, it amounted to cruelty and the husband on the said ground was entitled to seek divorce. The impugned order passed by the lower appellate Court thus deserves to be set aside.”

 

Summary of Question-  No Strict Proof of Marriage in 125 Cr.P.C  proceedings.

Question- Whether strict proof of marriage in a proceeding for Maintenance under 125 Cr.P.C is essential like matrimonial proceedings.

Answer- No. 

Rationale-

In ther case reported in2018 (14) SCALE 257   , the Apex Court observed and held as under:

"Unlike matrimonial proceedings where strict proof of marriage is essential, in the proceedings under Section 125 Cr.P.C., such strict standard of proof is not necessary as it is summary in nature meant to prevent vagrancy. "

"We are of the opinion that a broad and expansive interpretation should be given to the term “wife” to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a precondition for maintenance under Section 125 CrPC, so as to fulfil  the true spirit and essence of the beneficial provision of maintenance under Section 125. We also believe that such an interpretation would be a just application of the principles enshrined in the Preamble to our Constitution, namely, social justice and upholding the dignity of the individual.”

 

Summary of question- Liv-in-Partner and  under D V Act. 

Question- Whether Liv-in- Partner is also entitled for relief under D.V Act.

Answer- Yes.

Rationale-

A three judges bench of the Hon’ble Supreme Court disposed of the CRIMINAL APPEAL No. 1656/2015  on 30th October 2018; the Apex Court  observed  as under:

"In fact, under the provisions of the DVC Act, 2005, the victim i.e. estranged wife or live-in-partner would be entitled to more relief than what is contemplated under Section 125 of the Code of Criminal Procedure, 1973, namely, to a shared household also.”

 

Summary of Question-   Father’s application for visitation right under DV Act.

Question- Can father apply for visitation right under section 21 of the DV Act if wife files complaint for Domestic Violence and the child is in the custody of the wife.  

Answer- Yes, 

Rationale-

In Criminal  Application No. 186 of 2018, the Appellant (wife)  contended  that unless wife prefers any application under Section 21 for custody order, the access cannot be granted to the husband on an independent application by husband  and that since Section 21 does not provide any right to the husband to prefer such application, and since the legislature has not provided such right to the husband, except as stipulated in Section 21 of DV Act, the Court below ought not to have entertained the application and granted relief to  respondent no.1(husband),  Hon’ble Bombay High Court vide decision dated 2nd. November 2018 observed and held as under:

“….The respondent had not asked for custody of the child for the simple reason that the child is already in her custody. It is the respondent i.e. father who has sought merely visitation right to his son which right was granted to him by the Trial Court that too for limited days. In case the visitation right is not given to the petitioner, minor child would be deprived of father's love and affection. The paramount consideration is welfare of child. The petitioner could not be faced to seek remedy either under the Guardians and Wards Act, 1890 and Hindu Minority and Guardianship Act, 1956, as observed by the Sessions Court as it would lead to multiplicity of litigation. The Act is a self contained code. The endeavour of the code should be to cut short the litigation and to ensure that the child gets love and affection of both parents i.e. mother and father. The approach of the Court should be practicable to work out the modalities in practical manner in evolving the process whereby the child suffers minimum trauma. The interpretation of the statute should be purposive…”

 

Summary of question- Cancellation of Gift to son / daughter under Maintenance and welfare of Parents Act.

Question-   Whether Gift made by Senior Citizen to son / daughter can be cancelled under Maintenance and Welfare of Parents and Senior Citizens Act, 2007,  even if the Gift is unconditional

Answer-  Yes.  

Rationale-

The Hon'ble Karnataka High Court, vide decision dated 18th Nov. 2018,  in Writ Petition  No.54488/2017(GM-RES) observed and held :

" 21.  Admittedly in the present case, it is the specific case of the fourth respondent that she is a widow, aged about 82 years as on today and 78 years as on the date of filing application before the Assistant Commissioner and she has been ignored, abandoned and not taken care of by the petitioner after obtaining a registered gift deed. Though a contention was taken by the learned counsel for the petitioner that no condition was mentioned in the gift deed that the petitioner should take care of the fourth respondent and therefore, the Assistant Commissioner has no jurisdiction to nullify the registered gift deed under Section 23 of the ‘Act’, cannot be accepted, for the simple reason that the words used in Section 23 of the ‘Act’ clearly depicts that, ‘where any senior citizen who, after the commencement of the Act, has transferred by way of gift or otherwise, his property, subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs, the said transfer of property shall be deemed to have been made by fraud or coercion or under undue influence and shall at the option of the transferor be declared void by the Tribunal’.

22. Admittedly in the present case, the gift deed was executed by the fourth respondent under the bonafide belief that the petitioner being her daughter will take care of her during her old age. But, after obtaining the gift deed, the petitioner has shown her real colour and deprived the basic amenities and physical needs to the fourth respondent. Therefore, the fourth respondent filed an application before the Assistant Commissioner seeking cancellation of the gift deed executed by her in favour of the petitioner. The contention of the counsel for petitioner that there must be a condition in the gift deed to take care of the transferor cannot be accepted. If such contention is accepted, then the very purpose of enacting the ‘Act’ by the legislators and introducing Sections 23 and 24 in the Act would become futile. That is not the intention of the legislators while enacting the ‘Act’. The main object of the ‘Act’ is to provide for more effective provisions for the maintenance and welfare of parents and senior citizens guaranteed and recognized under the Constitution of India and to protect the Senior Citizens at the fag end of their life. Even otherwise, it is the Duty and Dharma of the children to take care of their aged parents."

                                                                                                                                                      [Emphasis Supplied]

 

Summary of question-  Breach of Promise to marry and criminal law.

Question- Whether breach of promise by boy  to marry amounts to rape.

Answer-  Not in all cases.  If  there is sexual intercourse with consent obtained by fraud, it amounts to rape. But sex during 'deep love affair' does not amount to rape simply because the boy subsequently  refuses to marry. Promise to marry cannot be said to be an inducement in all cases ; it differ from facts of case; where there is mere  breach of promise of marriage, and before breach they have sexual relationship, that sexual indulgence may amount to consensual one and not rape. 

Rationale-


1. Observation of the Hon’ble Supreme Court made in  the case reported in AIR 2003 SC 1639:
 

".. Consensus of Judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under misrepresentation of facts "


2..   The  Hon'ble Supreme Court in  CRIMINAL APPEAL NO. 1443 of 2018 in the case of Dr.. DHRUVARAM MURLIDHAR SONAR Vs. THE STATE OF MAHARASHTRA, decided on 22 Nov. 2018, observed and held:


"20. Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of the IPC."

 

3. The Hon'ble JK High Court in CRMC No. 512/2017 decided on 14.12.2018  quashed FIR. Observation of the court is as under :

"Now-a-days there are cases where boy and girl having love affair, indulging into sexual relationship and ultimately ending into a breakup. Undoubtedly that amounts to consensual sexual relationship as they were in love with each other. In a case of rape, the act of sexual intercourse is forcible and without consent of the woman. However, the consent obtained by fraud amounts to no consent and therefore, if there is sexual intercourse with consent but obtained by fraud, it amounts to rape. When a woman is major and educated, she is supposed to be fully aware of the consequences of having sexual intercourse with a man before marriage. In the event of consent obtained by fraud, inducement is a necessary ingredient. There should be some material on record to believe prima facie that the girl was induced by the accused to such an extent that she was ready to have sexual intercourse with him. Promise to marry cannot be said to be an inducement in all cases, it differ from facts of case. Thus, promise to marry in all cases cannot be a condition precedent to have sex. Had the petitioner fraudulent intention not to solemnize marriage right from the day he met victim in 2010, then he would have not asked the prosecutrix to study further and bore her education expense. Where there is mere  breach of promise of marriage, and before breach they have sexual relationship, that sexual indulgent may amount to consensual one and not rape as defined in section 376 RPC"
 

4.  Goa Banch of the Hon’ble Bombay High court in CRIMINAL APPEAL NO. 16 OF 2015  decided on 17th.Feb.2018 held that a man cannot be convicted for rape for having sexual intercourse with a woman by "a misrepresentation of fact", when there is evidence of "a deep love affair" between the two.