Sunil Sharma

A lawyer, who supports marriage more than divorces. Until there is a balance in the rights and duties of a couple, there can not be a happy marriage. So fighting against the injustices caused to men & their familes, in the present legal scenario.

Wife insisting husband to live separately from parents – Husband entitled to seek divorce.

Leave a Comment / Divorce /

SUPREME COURT OF INDIA Before:- Anil R. Dave and L. Nageswara Rao, JJ. Civil Appeal No. 3253 of 2008. D/d. 6.10.2016. Narendra – Appellant Versus K. Meena – Respondent For the Appellant :- H.K. Naik, B. Vishwanath Bhandarkar, V.N. Raghupathy, Advocates. For the Respondent :- Ms. Kamakshi S. Mehlwal, Advocate. Cases Referred :- Pankaj Mahajan v. Dimple @ Kajal, 2011(4) RCR (Civil) 534 : 2011(5) Recent Apex Judgments (R.A.J.) 269 : (2011) 12 SCC 1. Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, 2003(2) RCR (Civil) 813 : 2003 (6) SCC 334. JUDGMENT Anil R. Dave, J. – This appeal has been filed by the Appellant husband, whose decree for divorce passed by the trial Court has been set aside by the impugned judgment dated 8th March, 2006 passed by the High Court of Karnataka at Bangalore in Miscellaneous First Appeal No.171 of 2002 (FC). 2. The facts giving rise to the present appeal, in a nutshell, are as under : The Respondent wife filed Miscellaneous First Appeal under Section 28(1) of the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act”) before the High Court as she was aggrieved by the judgment and decree dated 17th November, 2001, passed by the Principal Judge, Family Court, Bangalore in M.C. No.603 of 1995 under Section 13(1)(ia) of the Act filed by the Appellant husband seeking divorce. 3. The Appellant husband had married the Respondent wife on 26th February, 1992. Out of the wedlock, a female child named Ranjitha was born on 13th November, 1993. The case of the Appellant was that the Respondent did not live happily with the Appellant even for a month after the marriage. The reason for filing the divorce petition was that the Respondent wife had become cruel because of her highly suspicious nature and she used to level absolutely frivolous but serious allegations against him regarding his character and more particularly about his extra-marital relationship. Behaviour of the Respondent wife made life of the Appellant husband miserable and it became impossible for the Appellant to stay with the Respondent for the afore stated reasons. Moreover, the Respondent wanted the Appellant to leave his parents and other family members and to get separated from them so that the Respondent can live independently; and in that event it would become more torturous for the Appellant to stay only with the Respondent wife with her such nature and behaviour. The main ground was cruelty, as serious allegations were levelled about the moral character of the Appellant to the effect that he was having an extra-marital affair with a maid, named Kamla. Another important allegation was that the Respondent would very often threaten the Appellant that she would commit suicide. In fact, on 2th July, 1995, she picked up a quarrel with the Appellant, went to the bathroom, locked the door from inside and poured kerosene on her body and attempted to commit suicide. On getting smell of kerosene coming from the bathroom, the Appellant, his elder brother and some of the neighbours broke open the door of the bathroom and prevented the Respondent wife from committing suicide. The afore stated facts were found to be sufficient by the learned Family Court for granting the Appellant a decree of divorce dated 17th November, 2001, after considering the evidence adduced by both the parties. 4. Being aggrieved by the judgment and decree of divorce dated 17th November, 2001, the Respondent wife had filed Miscellaneous First Appeal No.171 of 2002 (FC), which has been allowed by the High Court on 8th March, 2006, whereby the decree of divorce dated 17th November, 2001 has been set aside. Being aggrieved by the judgment and order passed by the High Court, the Appellant has filed this appeal. 5. The learned counsel appearing for the Respondent was not present when the appeal was called out for hearing. The matter was kept back but for the whole day, the learned counsel for the Respondent did not appear. Even on an earlier occasion on 31st March, 2016, when the appeal was called out, the learned counsel appearing for the Respondent wife was not present and therefore, the Court had heard the learned counsel appearing for the Appellant. 6. The learned counsel appearing for the Appellant submitted that the High Court had committed a grave error in the process of re-appreciating the evidence and by setting aside the decree of divorce granted in favour of the Appellant. He submitted that there was no reason to believe that there was no cruelty on the part of the Respondent wife. He highlighted the observations made by the Family Court and took us through the evidence, which was recorded before the Family Court. He drew our attention to the depositions made by independent witnesses, neighbours of the Appellant, who had rescued the Respondent wife from committing suicide by breaking open the door of the bathroom when the Respondent was on the verge of committing suicide by pouring kerosene on herself and by lighting a match stick. Our attention was also drawn to the fact that serious allegations levelled against the character of the Appellant in relation to an extra-marital affair with a maid were absolutely baseless as no maid named Kamla had ever worked in the house of the Appellant. It was also stated that the Respondent wife was insisting the Appellant to get separated from his family members and on 12th July, 1995 i.e. the date of the attempt to commit suicide, the Respondent wife deserted the Appellant husband. According to the learned counsel, the facts recorded by the learned Family Court after appreciating the evidence were sufficient to show that the Appellant was entitled to a decree of divorce as per the provisions of Section 13(1)(ia) of the Act. 7. We have carefully gone through the evidence adduced by the parties before the trial Court and we tried to find out as to why the appellate Court had taken a different view than the one taken by the Family Court i.e. the trial Court. 8. The High Court

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Accusing spouse of adultery is cruel; intention not necessary element for offence of cruelty

Leave a Comment / Divorce /

HIMACHAL PRADESH HIGH COURT (DB)Before:- Vivek Singh Thakur and Sandeep Sharma, JJ.FAO (FC) No. 2 of 2019. D/d. 18.12.2023.Ms. Kamlesh Thakur – AppellantVersusShri Sushil Thakur – Respondent For the Appellant: Mr. Ajay Kochhar, Senior Advocate with Mr. Vivek Sharma and Mr. Anubhav Chopra, Advocates.For the Respondent: Mr. G.C. Gupta, Senior Advocate with Ms. Meera Devi, Advocate. Cases Referred :-Manish Tyagi v. Deepak, (2010) 4 SCC 105Ravi Kumar v. Julmi Devi, 2010 (4) SCC 476Vijay Kumar Ramchandra Bhate v. Neela Vijay Kumar Bhate, (2003) 6 SCC 334 JUDGMENT Sandeep Sharma, J. – Being aggrieved and dissatisfied with judgment dated 14.8.2019, passed by the learned District Judge, (Family Court) Shimla, District Shimla in HMA Petition No. 5-S/3 of 2019/14, whereby petition filed under Section 13 (1) (i-a) of the Hindu Marriage Act (herein after referred to as “the Act”), praying therein for decree of divorce by way of dissolution of marriage on the ground of cruelty having been filed by the respondent-husband came to be allowed, appellant-wife has approached this Court in the instant appeal filed under section 19 of the Family Courts Act read with Section 28 of the Act, praying therein to set-aside the aforesaid judgment. 2. For having bird’s eye view, facts which may be relevant for adjudication of the case at hand are that marriage inter-se parties to the lis was solemnized on 10.5.2005 at village Ani, as per Hindu Rites and ceremonies and out of their wedlock, one daughter named Ms. Swastika was born on 8.3.2006. Though initially, parties to the lis lived together cordially, but subsequently, on account of certain differences, marital relations inter-se them became sour. Father of the respondent-husband was compelled to reside at Chandigarh on account of his employment in a private company and his sister is already married and as such, appellant-wife had to reside in the house of the respondent-husband at Village Ani with her husband i.e. respondent as well as her mother-in-law. Relationship inter-se appellant-wife and mother of the respondent-husband were not very cordial, as a result thereof, relations inter-se appellant-wife and respondent-husband also became strained. Though respondent-husband tried to pacify the appellant-wife, but allegedly she threatened to implicate him as well as mother in law in a false criminal case. Just after seven months of the birth of the daughter of the parties, appellant-wife joined a job as History Lecturer in Village Sarahar, Tehsil Nirmand, District Kullu, Himachal Pradesh, as a result of which, she started residing at Nirmand that too leaving behind her tender age daughter with mother in law at Ani. Respondent-husband resided at Village Ani till February 2009 and thereafter, was transferred to Theog, District Shimla. Daughter of the parties was being looked after by mother in law of the appellant-wife from day one, but yet she never appreciated her mother in law, rather humiliated and insulted her repeatedly. Respondent-husband as well as his mother remained under mental tension and stress on account of allegations/threats leveled/extended by the appellant-wife that she would implicate them in a false criminal case. At one point of time, appellant-wife threatened the respondent-husband as well as his mother (her mother in law) to consume poison and as such, mother in law of the appellant-wife lodged FIR at a concerned Police Station. Besides above, appellant-wife also started claiming/leveling allegations that respondent-husband is having illicit relations with one Pooja Raj, who is known to respondent-husband since his childhood, as a result thereof, respondent-husband suffered great harassment, mental stress and agony. Allegedly, the appellant-wife, her parents and brother repeatedly made telephonic calls on the mobile of the respondent-husband during office hours and late night hours to abuse and threaten him. On 24.6.2014, appellant-wife came to the office of the respondent-husband and started abusing in front of other staff and alleged that he is a womanizer and has caused harassment, mental stress and agony to her. On account of the aforesaid allegations, parties to the lis filed cross cases against each other. Respondent-husband admitted his daughter in Roots Public School Bagi and her entire expenses were being borne by him, but interestingly, one day, appellant-wife visited the hostel of their daughter without informing the respondent-husband and took the daughter to village Sarahar. Since appellant-wife repeatedly compelled the respondent-husband to reside either separately or with family member, he started residing in the house of the brother of the appellant-wife in Shimla. Since marriage inter-se parties failed irreparably and there were no chance of rapprochement, respondent-husband filed petition under Section 13 (1) (i-a) of the Act in the competent court of law, praying therein for passing decree of divorce by way of dissolution of marriage. 3. After having received notice in the aforesaid petition, appellant-wife filed detailed reply and refuted all the allegations leveled by the respondent-husband. Appellant-wife alleged that from day one, she has been constantly harassed by her husband and mother-in-law, but she alleged that after seven months of the birth of her daughter, she joined as PTA Teacher at Sr. Secondary School Sarahar, which is just 50 kms away from the house of the respondent-husband and it was a joint decision of the parties in consultation with her mother in law, but yet she was repeatedly compelled by the respondent-husband and his mother to leave the job. Though appellant-wife admitted that her minor daughter was left in the care and custody of the mother of the respondent-husband, but she alleged that her daughter was not taken care properly because household chores and entire work of the daughter was being done by her. She also denied that on 12.7.2014, she forcibly took the daughter from the hostel without any consent of the respondent-husband, rather school was closed for summer break and she after doing all the formalities took the daughter with her and thereafter, after completion of summer vacation again dropped her in the hostel. She alleged that during summer vacation, she alongwith her daughter came to Theog, where she was allegedly manhandled by the respondent-husband and as such, was compelled to lodge a complaint at concerned Police Station on

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No maintenance without compliance of guidelines under “Rajnesh vs. Neha” – Supreme Court of India (06.11.2023)

Leave a Comment / Maintenance / Alimony /

SUPREME COURT OF INDIABefore:- Vikram Nath and Rajesh Bindal, JJ.Criminal Appeal Nos. 3446 of 2023 (Arising out of S.L.P.(Crl.) No.11954 of 2023). D/d. 06.11.2023. Aditi Alias Mithi – AppellantsVersusJitesh Sharma – Respondents For the Appellants :- Ms. Pragati Neekhra, Mr. Aditya Bhanu Neekhra, Mr. Aniket Patil, Advocates. Cases Referred :-Kaushalya v. Mukesh Jain, (2020) 17 SCC 822 : 2019 SCC OnLine SC 1915.Neha Tyagi v. Lieutenant Colonel Deepak Tyagi, (2022) 3 SCC 86.Rajnesh v. Neha, (2021) 2 SCC 324. JUDGMENT Rajesh Bindal, J. – Leave granted. 2. As per the office report dated 30.10.2023, the respondent had refused to receive notice, hence, the service is deemed to be complete. 3. The appellant-minor daughter of the respondent-father is aggrieved of the order[1*] passed by the High Court[2*] by which the order[3*] passed by the Family Court[4*] was modified. The Family Court had fixed maintenance for the appellant Rs. 20,000/- per month, which was reduced to Rs. 7,500/- per month by the High Court. [1* Dated 28.06.2023 in Criminal Revision No.4939 of 2022] [2* High Court of Madhya Pradesh at Gwalior] [3* Dated 30.11.2022] [4* Family Court, Guna ] 4. Learned counsel for the appellant submitted that the marriage between the mother of the appellant and the respondent was solemnized in the year 2008. Out of the wedlock a boy and a girl were born. The custody of the boy is with the respondent whereas the appellant is living with the mother. A divorce petition was filed by the respondent-husband in January 2018 before the Family Court. In May 2018 the appellant and her mother-Shikha Sharma filed an application under Section 125 Cr.P.C., 1973 before the Family Court. The divorce petition filed by the respondent-husband was allowed by the Family Court on 10.09.2022. Vide order dated 30.11.2022, the Family Court partly allowed the application filed by the appellant and her mother under Section 125 Cr.P.C., 1973 and awarded maintenance of Rs. 20,000/- per month for the appellant-minor daughter. The wife was denied any maintenance. The order qua that became final. 5. The High Court vide impugned cryptic order has reduced the amount of maintenance from Rs. 20,000/- to Rs. 7,500/-. Despite service the respondent has not chosen to appear before this Court. He is shirking to take care of the appellant (minor daughter) who is 6-7 years of age at present. Prayer is that the impugned order passed by the High Court be set aside and that the order of the Family Court be restored. 6. We have heard learned counsel for the appellant and perused the paper book. 7. From a perusal of the order passed by the Family Court awarding maintenance of Rs. 20,000/- per month to the appellant (minor daughter), it is evident that the court had considered the material placed before it. However, the High Court in revision, filed against the aforesaid order by the respondent, recorded that earlier the respondent was doing private work and at present he is financially distressed. 8. The manner in which maintenance payable under Section 24 of the Hindu Marriage Act, 1955 or Section 125 Cr.P.C., 1973 is to be assessed, was considered by this Court in its celebrated judgment in Rajnesh v. Neha and Another, (2021) 2 SCC 324. Detailed guidelines were issued. It was noticed that the terms of maintenance are decided on the basis of pleadings of parties and on the basis of some amount of guess work. It is often seen that both the parties submit scanty material and do not disclose correct details. The tendency of the wife is to exaggerate her needs, whereas the husband tends to conceal his actual income. Keeping that in view, this Court laid down the procedure to streamline grant of maintenance. The judgments of various courts were referred to and response from various State Legal Services Authorities was sought. This Court even requested the National Legal Services Authority to submit a report on the suggestions received from the State Legal Services Authorities for framing guidelines on the affidavit of disclosure of assets and liabilities to be filed by the parties. Guidelines were issued in exercise of powers under Article 136 read with Article 142 of the Constitution of India, prescribing a uniform format of Affidavit of Disclosure of Assets and Liabilities to be filed in maintenance proceedings. The judgment was delivered on 04.11.2020. The affidavit was to be submitted in all maintenance proceedings including pending proceedings. The directions given are extracted as under: “72. Keeping in mind the need for a uniform format of Affidavit of Disclosure of Assets and Liabilities to be filed in maintenance proceedings, this Court considers it necessary to frame guidelines in exercise of our powers under Article 136 read with Article 142 of the Constitution of India: 72.1. (a) The Affidavit of Disclosure of Assets and Liabilities annexed at Enclosures I, II and III of this judgment, as may be applicable, shall be filed by the parties in all maintenance proceedings, including pending proceedings before the Family Court/District Court/Magistrate’s Court concerned, as the case may be, throughout the country; 72.2. (b) The applicant making the claim for maintenance will be required to file a concise application accompanied with the Affidavit of Disclosure of Assets; 72.3. (c) The respondent must submit the reply along with the Affidavit of Disclosure within a maximum period of four weeks. The courts may not grant more than two opportunities for submission of the Affidavit of Disclosure of Assets and Liabilities to the respondent. If the respondent delays in filing the reply with the affidavit, and seeks more than two adjournments for this purpose, the court may consider exercising the power to strike off the defence of the respondent, if the conduct is found to be wilful and contumacious in delaying the proceedings [Kaushalya v. Mukesh Jain, (2020) 17 SCC 822 : 2019 SCC OnLine SC 1915] . On the failure to file the affidavit within the prescribed time, the Family Court may proceed to decide the application for maintenance on

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Wife not entitled to live in the house owned by mother of husband

Leave a Comment / Domestic Violence Act /

SUPREME COURT OF INDIABefore:- S.B. Sinha and Markandey Katju, JJ.Civil Appeal No. 5837 of 2006 (Arising out of Special Leave Petition (Civil Nos. 6651-6652/2005). D/d. 15.12.2006.S.R. Batra & Another – AppellantsVersusSmt. Taruna Batra – Respondent WITH Contempt Petition (C) No. 38 of 2006. For the Appellants :- Uday Umesh Lalit, Sr. Advocate, Ms. Meera Agarwal and R.C. Mishra, Advocates.For the Respondent :- L.N. Rao, Sr. Advocate, Sudhir Nandrajog, Advocate. JUDGMENT Markandey Katju, J. – Leave Granted. 2. This appeal has been filed against the impugned judgment of the Delhi High Court dated 17.1.2005 in C.M.M. No. 1367 of 2004 and C.M.M. No. 1420 of 2004. 3. Heard learned counsel for the parties and perused the record. 4. The facts of the case are that respondent Smt. Taruna Batra was married to Amit Batra, son of the appellants, on 14.4.2000. 5. After the marriage respondent Taruna Batra started living with her husband Amit Batra in the house of the appellant No. 2 in the second floor. It is not disputed that the said house which is at B-135, Ashok Vihar, Phase-I, Delhi belongs to the appellant No. 2 and not to her son Amit Batra. 6. Amit Batra filed a divorce petition against his wife Taruna Batra, and it is alleged that as a counter blast to the divorce petition Smt. Taruna Batra filed on F.I.R. under Sections 406/498A/506 and 34 of the Indian Penal Code and got her father-in-law, mother-in-law, her husband and married sister-in-law arrested by the police and they were granted bail only after three days. 7. It is admitted that Smt. Taruna Batra had shifted to her parent’s residence because of the dispute with her husband. She alleged that later on when she tried to enter the house of the appellant No. 2 which is at property No. B- 135, Ashok Vihar, Phase-I, Delhi she found the main entrance locked and hence she filed Suit No. 87/2003 for a mandatory injunction to enable her to enter the house. The case of the appellants was that before any order could be passed by the trial Judge on the suit filed by their daughter-in-law, Smt. Taruna Batra, along with her parents forcibly broke open the locks of the house of Ashok Vihar belonging to appellant No. 2, the mother-in-law of Smt. Taruna Batra. The appellants alleged that they have been terrorised by their daughter-in-law and for some time they had to stay in their office. 8. It is stated by the appellants that their son Amit Batra, husband of the respondent, had shifted to his own flat at Mohan Nagar, Ghaziabad before the above litigation between the parties had started. 9. The learned trial Judge decided both the applications for temporary injunction filed in suit No. 87/2003 by the parties by his order on 4.3.2003. He held that the petitioner was in possession of the second floor of the property and he granted a temporary injunction restraining the appellants from interfering with the possession of Smt. Taruna Batra, respondent herein. 10. Against the aforesaid order the appellant filed an appeal before the Senior Civil Judge, Delhi who by his order dated 17.9.2004 held that Smt. Taruna Batra was not residing in the second floor of the premises in question. He also held that her husband Amit Batra was not living in the suit property and the matrimonial home could not be said to be a place where only wife was residing. He also held that Smt. Taruna Batra had no right to the properties other than that of her husband. Hence, he allowed the appeal and dismissed the temporary injunction application. 11. Aggrieved Smt. Taruna Batra filed a petition under Article 227 of the Constitution which was disposed of by the impugned judgment. Hence, these appeals. 12. The learned Single Judge of the High Court in the impugned judgment held that the second floor of the property in question was the matrimonial home of Smt. Taruna Batra. He further held that even if her husband Amit Batra had shifted to Ghaziabad that would not make Ghaziabad the matrimonial home of Smt. Taruna Batra. The Learned Judge was of the view that mere change of the residence by the husband would not shift the matrimonial home from Ashok Vihar, particularly when the husband had filed a divorce petition against his wife. On this reasoning, the learned Judge of the High Court held that Smt. Taruna Batra was entitled to continue to reside in the second floor of B-135, Ashok Vihar, Phase-I, Delhi as that is her matrimonial home. 13. With respect, we are unable to agree with the view taken by the High Court. 14. As held by this Court in B.R. Mehta v. Atma Devi and others, 1987 RCR (Rent) 464 (SC) : (1987) 4 SCC 183, whereas in England the rights of the spouses to the matrimonial home are governed by the Matrimonial Homes Act, 1967, no such right exists in India. 15. In the same decision it was observed “it may be that with change of situation and complex problems arising it is high time to give the wife or the husband a right of occupation in a truly matrimonial home, in case of the marriage breaking up or in case of strained relationship between the husband and the wife.” 16. In our opinion, the above observation is merely an expression of hope and it does not lay down any law. It is only the legislature which can create a law and not the Court. The courts do not legislate, and whatever may be the personal view of a Judge, he cannot create or amend the law, and must maintain judicial restraint. 17. There is no such law in India, like the British Matrimonial Homes Act, 1967, and in any case, the rights which may be available under any law can only be as against the husband and not against the father-in-law. 18. Here, the house in question belongs to the mother-in-law of Smt. Taruna Batra and it does not belong to her husband Amit Batra. Hence, Smt. Taruna Batra cannot

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Children are getting all the love, affection and care from their father – No bar in law in their custody remaining with the father – Mother not entitled for custody

Leave a Comment / Child Custody /

PUNJAB AND HARYANA HIGH COURTBefore:- Sudhir Mittal, J.CR-419 of 2021 (O&M). D/d. 26.2.2021. Sunita – PetitionerVersusSatish Kumar – Respondent For the Petitioner:- Mr. Suresh Dhull, Advocate. Cases Referred :-Mukul Chauhan v. Neha Aggarwal, 2019 (3) LH 2611.Narender Kaur v. Purshotam Singh, 1988 (93) PLR 42. JUDGMENT Sudhir Mittal, J. (Oral) – The petitioner has filed a petition for custody of the minor children. In the said petition, an application under Section 25 read with section 12 of the Guardians And Wards Act, 1890 has been preferred for grant of interim custody, which has been dismissed vide the impugned order dated 24.12.2020. 2. The parties got married on 07.02.2012 and two children, a boy and a girl have been born out of the wedlock. The boy was aged 8 years on the date of passing of the impugned order whereas the girl was aged about 4-1/2 years. The parties have been residing separately since October, 2018 whereas the petition has been filed on 04.02.2020. Thus, on the date of separation from the husband, the daughter was about 2-1/2 years of age and the son was about 5 years of age. 3. The learned Court below has rejected the application for interim custody on the ground that the father is looking after the minor children very well. He is educating them in good schools and is also saving money for their benefit. The economic condition of the mother is not known and the fact that petition for custody was filed about one year and four months after the separation shows that the mother is not very keen for custody. 4. Learned counsel for the petitioner has argued that proviso to section 6(a) of the Hindu Minority and Guardianship Act, 1956 envisages the custody of a child below 5 years of age with the mother. The daughter is less than 5 years of age and, thus, the trial Court was in error in rejecting her interim custody. It has further been submitted that poor economic condition is not a sufficient ground for denying custody. Love and affection of a mother are paramount and have to be taken into consideration. Reliance has been placed on Narender Kaur v. Purshotam Singh 1988 (93) PLR 42 and Mukul Chauhan v. Neha Aggarwal and Others, 2019 (3) LH 2611. 5. Proviso to section 6(a) of the Hindu Minority and Guardianship Act, 1956 states that custody of a minor below 5 years of age shall ordinarily be with the mother. It does not stipulate that under all circumstances a child below 5 years must remain in the company of the mother. Thus, reliance on the said provision by counsel for the petitioner is misplaced. The Court below has found as a matter of fact that the children are getting all the love, affection and care from their father and, thus, there is no bar in law in their custody remaining with the father. It is true that there is no substitute for a mother’s love and affection but economic conditions play a major role in the upbringing of children. If, the children were not being well looked after in the custody of their father, probably the contention of learned counsel for the petitioner may have been well founded but under the circumstances existing in the present case, the contention cannot be accepted. Judgments in Narender Kaur (supra) and Mukul Chauhan (supra) have been delivered in the peculiar facts and circumstances of the said cases and are not applicable to this case. 6. For the aforementioned reasons, the revision petition has no merit and is dismissed.

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A mother or father, may be morally bad in the societal sense, but that parent may be good for the child

Leave a Comment / Child Custody /

PUNJAB AND HARYANA HIGH COURTBefore:-Mrs. Archana Puri, J.CR-7808 of 2018(O&M). D/d. 04.12.2023. Jaspreet Singh – PetitionerVersusRoopali Dhillon – Respondent Mr. Kanwaljit Singh, Senior Advocate with Mr. K.S. Brar, Advocate for the Petitioner.Mr. Abhishek Sharma, Advocate for the Respondent. JUDGMENT Mrs. Archana Puri, J. – The petitioner has invoked the jurisdiction of this Court under Article 226/227 of the Constitution of India, thereby seeking quashing/modification of the order dated 01.11.2018 (Annexure P-10) for grant of appropriate visitation rights of the minor and also for the interim custody to the petitioner and his parents. 2. Initially, petitioner-Jaspreet Singh had filed a petition under section 25 of the Guardians And Wards Act for seeking custody of the minor daughter. Therein, an application for interim custody was disposed of vide impugned order, wherein, it was held that no ground is made out for handing over the custody of the minor child to the petitioner, but however, visitation rights were granted to the petitioner-father. 3. Feeling aggrieved by the order passed by the Court below for not handing over the custody of the minor child to the father and also granting only visitation rights, Jaspreet Singh has filed the present revision petition. 4. In pursuance of notice issued, respondent made appearance. 5. Learned counsel for the parties heard. 6. The facts, as culled from the paperbook, are as follows:- That, marriage between the petitioner and respondent was solemnized on 23.11.2008 and the girl child was born from their wedlock in the year 2012. However, matrimonial dispute arose between the parties, as a result whereof, the petitioner and the respondent parted ways and the girl child continued to be in the custody of the mother. Amidst the matrimonial discord, there is unfortunate dispute between the petitioner-husband and respondent-wife, with regard to handing over of the custody of the minor child. 7. In a custody tussle, the matter is to be decided, not on consideration of the legal rights of the parties, but on the sole and predominant criterion of what would be best to serve the interest and welfare of the child. The various provisions of the Guardians and Wards Act, makes it manifestly clear that the paramount consideration, is the welfare of the minor child and not the statutory rights of the parents. 8. What is ‘welfare of the child’ depends upon several factors. It has to be measured not only in terms of money and physical comfort, but also in view of the age of the child and the manner, in which, ‘needs’ can be fulfilled, more particularly, moral and ethical aspects of the shaping of the minor’s personality. The welfare of the child depends upon the facts and circumstances of each particular case. The legal right or the financial affluence is not decisive, but the welfare of the minor is decisive for the claim of the custody. 9. In a matter involving the question of custody of a child, it has to be borne in mind that the question ‘what is the wish/desire of the child’ is different and distinct from the question ‘what would be in the best interest of the child’. Certainly, the wish/desire of the child can be ascertained through interaction but then, the question as to ‘what would be in the best interest of the child’ is a matter to be decided by the Court, while taking into account, all the relevant circumstances. When the couples are at loggerheads and want to part ways, they may level extreme allegations against each other, so as to depict the other unworthy, to have the custody of the child. In the circumstances, unless and until, there is proven bad conduct of one of the parent, which makes him/her unworthy to claim the custody of the child concerned, the question can and shall be decided, solely looking into the question as to, ‘what would be the best interest of the child concerned’. 10. A custody dispute involves human issues, which are always complex and complicated. There can never be a straight jacket formula, even to adjudicate the question of interim custody. However, it is fact dependent exercise to be conducted by the Courts in the backdrop of the welfare of the child, while observing how the child’s interest can be protected while custody being given to either parent. 11. In the pleadings, the parties to the lis have raised allegations and counter allegations regarding bad behaviour and conduct of each other. However, at this stage, there is no need to dilate upon the same. It should be always kept in mind that the girl child in question was five and half years old, at the time when the petition was filed in the year 2018. As such, it is evident that the child is now 10-11 years old. Welfare of the child is of utmost importance and consideration, but however, to work upon the well-being of the child, the aspect of age of the child also weighs in the mind of the Court. Keeping in view the same, a conscious attempt is made by the Court not to dilate on the allegations and counter allegations, against each other by father and mother, lest it may hamper not only the case build up by the parents, but also, shall not be in the interest of the child. Considering the same, also it is pertinent to mention that a compromise has been effected between the parties and the compromise deed, coming on record is Annexure P-2. On the basis of the same, it was pleaded at the instance of the petitioner that the petitioner had not willingly reached the said compromise. Rather, he was made to sign the same under constrained circumstances and one of the recitals of the said compromise is that the petitioner, who is father, will not claim the custody of the minor child, at a later stage. However, this clause of compromise is not acceptable to the father. However, at this stage, there is no need to go into the genuineness of the

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Transgender who has changed gender to a female, needs to be termed as an aggrieved person

Leave a Comment / Domestic Violence Act /

BOMBAY HIGH COURTBefore:- Amit Borkar, J.Writ Petition No. 4037 of 2021. D/d. 16.03.2023.Vithal Manik Khatri – PetitionerVersusSagar Sanjay Kamble @ Sakshi Vithal Khatri and Anr. – Respondents Mr. Sushant S. Prabhunne, Advocate for the Petitioner.Mr. M.G. Patil, APP for the State.Ms. Vrushali Mainded a/w Shaheen Kapadia, Shrusthi Tupe, Advocates for Respondent No.1. Case Referred :-National Legal Services Authority v. Union of India, Writ Petition (Civil) No.400 of 2012 dated 15.4.2014 JUDGMENT Amit Borkar, J. – The challenge in this petition is to the order dated 5th October 2021 passed by learned Additional Sessions Judge, Baramati, in Criminal Appeal No. 75 of 2019 confirming the Judgment and Order dated 11th November 2019 passed by Judicial Magistrate First Class, Baramati in Miscellaneous application No.573 of 2018. 2. Respondent No.1, who initially was Transgender, filed a proceeding under the provisions of the Domestic Violence Act, 2005 as a woman under the Domestic Violence Act. According to the case of respondent No.1, she converted her gender from Transgender to female by performing surgery on 1st June 2016. On 21st July 2016, there was a marriage between the petitioner and respondent. Due to differences between the parties, the respondent filed Criminal Miscellaneous Application No.573 of 2018 under the provision of the Domestic Violence Act, 2005. In the said proceedings respondent filed an application seeking interim maintenance. The Judicial Magistrate First Class, Baramati, by order dated 11th November 2019, directed payment of Rs.12,000/- per month from the date of application.Aggrieved thereby, the petitioner filed an appeal before the learned Additional Sessions Judge, Baramati, by the impugned Judgment and Order, the said appeal has been dismissed. Aggrieved thereby, the petitioner has filed the present Writ Petition. 3. Learned advocate for the petitioner submitted that the respondent does not fall within the definition of aggrieved person as such right has been conferred on “women” in a domestic relationship. Additionally, it is submitted that there is no certificate issued to her under Section 7 of the Transgender Persons (Protection of Rights) Act, 2019, and therefore she cannot be treated as a woman under the provisions of the Domestic Violence Act, 2005. Finally, he submitted that in the absence of cogent evidence of the petitioners’ income, the order of payment of Rs.12,000/- per month could not be justified. 4. Learned advocate for the respondent has filed a medical certificate of Doctor and in that certificate held as under:- This is to certify that Ms. Sakshi Vitthal Khatri, Age-24 yrs, female has been appears for vaginoplasty (Net vagiana creation by penile in versien technique with penile amptutation) urethroplasty & Bilateral orchidetomy in sicinovate layer & Cosmetic surgery center. 5. Per contra, the learned advocate for the respondent relying on the judgment of Apex Court in the Case of National Legal Services Authority v. Union of India and others, in Writ Petition (Civil) No.400 of 2012 dated 15th April 2014, submitted that the Apex Court, by the said judgment, recognized the right of transgender persons to decide self-identified Transgender. Inviting the attention of this Court in paragraph 105 of the said judgment, it is submitted that the Apex Court has recognized the right of a person who has changed his/her sex in tune with his/her gender characteristics and perception can be granted due recognition to the gender identity based on the reassigned sex after under undergoing SRS. She also submitted that the petitioner’s income exceeds Rs. 25,000/- per day; therefore, the direction to pay Rs.12,000/- is legal and proper. 6. Rival contentions call for consideration. 7. The issue involved is as to whether a transgender person who converts himself into a woman by performing surgery can be termed as an aggrieved person within the meaning of Section 2(a) of the Domestic Violence Act, 2005. To decide the question, relevant provisions of the statute need to be noted which are as under:- 2.(a)”aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent; 2.(f) “domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;2.(g) “domestic violence” has the same meaning as assigned to it in section 3;23. Power to grant interim and ex parte orders. -(1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper.(2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex-parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section against the respondent.Section 2(k) of Transgender Persons (Protection of Rights) Act, 2019.Section 2(k) “transgender person” means a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex reassignment surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, gender-queer and person having such sociocultural identities as kinner, hijra, aravani and jogta.Section 7 of Transgender Persons (Protection of Rights) Act, 2019.7. Change to gender-(I) After the issue of a certificate under sub-section (I) of section 6, if a transgender person undergoes surgery to change gender either as a male or female, such person may make an application, along with a certificate issued to that effect by the Medical Superintendent or Chief Medical Officer of the medical institution in which that person has undergone surgery, to the District Magistrate for revised certificate, in such form and

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Wife not entitled to maintenance after one time settlement is accepted – Punjab & Haryana High Court

Leave a Comment / Maintenance / Alimony /

PUNJAB AND HARYANA HIGH COURTBefore:- Paramjeet Singh, J.CRM M-37915 of 2011. D/d. 5.2.2013. Saroj Bala @ Geeta – Petitioner Versus Ashok Kumar Kalyan – Respondent For the Petitioner :- Mr. P.C. Suman, Advocate. For the Respondent :- Mr. J.S. Saneta, Advocate. Cases Referred :- Sushil Kumar v. Neelam, 2004(2) RCR (Criminal) 760 : 2004, Crl. L.J. 3690(1). Sankar Soren v. State of W.B., 2004(4) RCR (Criminal) 184 : 2004 Crl. L.J. 3088. Shashi alias Mala v. State, 2007(2) RCR (Criminal) 144. Gurmail Singh v. Ramanjeet Kaur, 2007(2) RCR (Civil) 2. Rathina Marie Prema v. Marcel Fernandos, 1997(3) RCR (Criminal) 791. JUDGMENT Paramjeet Singh, J. – Present petition has been filed under section 482 of the Code of Criminal Procedure (hereinafter referred to as the “Code”) read with Article 227 of the Constitution of India, challenging order dated 15.11.2011 (Annexure P/4) passed by the learned Sessions Judge, Ambala, whereby order dated 20.09.2010 (Annexure P/1) passed by learned Judicial Magistrate First Class, Ambala Cantt. in an application under Section 125 of the Code has been set aside and the application under Section 125 of the Code has been ordered to be dismissed. 2. Brief facts of the case are that marriage between the petitioner and respondent was solemnized on 04.11.1996 according to Hindu Rites and Ceremonies. No issue was born from the marriage. Initially, respondent – Ashok Kumar Kalyan filed a petition under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the “Act”). During the pendency of that petition, the parties jointly moved an application under Section 13-B of the Act for grant of decree of divorce by mutual consent. During the course of those proceedings, a compromise was effected between the parties and the statements of the parties were recorded. Statement of the petitioner recorded before the learned Additional District Judge, Ambala reads as under :- “I have heard the above recorded statement of petitioner Ashok. The same is correct. It is true that we after marriage could barely lived together for 20 days and could not adjust with each other’s temperament. I had left the matrimonial home on account of grave differences and is living separately since 12.2.1999. We had entered into compromise Ex.C1. I had received rupees one lac from petitioner Ashok Kumar towards full and final claim of my maintenance etc. andhave already withdrawn complaint under section 498 and 498A Indian Penal Code which was pending at Jammu. The copy of said order is Ex.C2. I had also withdrawn the maintenance petition filed by me and the copy of said order is Ex.C3. It is not possible for us to live together as husband and wife and, therefore, our marriage may be dissolved by granting a decree of divorce.” 3. The petitioner has received Rs. 1.00 lac from the respondent towards full and final claim of maintenance etc. and all the other proceedings had been withdrawn between the parties. Even the maintenance petition filed by the petitioner was also withdrawn. On considering these facts, the learned Sessions Judge set aside order dated 20.09.2010 of the learned Judicial Magistrate First Class. Hence, this instant petition. I have heard learned counsel for the parties. 4. Learned counsel for the petitioner vehemently contended that if the mutual divorce is granted and the amount is received in lump sum in lieu of maintenance as full and final settlement, even then divorced wife is entitled to maintenance till she remarries. Learned counsel for the petitioner relied upon judgment of this Court in the case of Sushil Kumar v. Neelam, 2004(2) RCR (Criminal) 760 : 2004 Crl. L.J. 3690(1) and judgment of Calcutta High Court in the case of Sankar Soren v. State of W.B. and another, 2004(4) RCR (Criminal) 184 : 2004 Crl. L.J. 3088 to contend that the petitioner is entitled to maintenance and the order of the learned Sessions Judge is not sustainable in the eyes of law. 5. Per contra learned counsel for the respondent has vehemently opposed the contentions of the learned counsel for the petitioner. Learned counsel for the respondent submitted that divorce has been granted with mutual consent. The petitioner has accepted the maintenance in lump sum to the tune of L 1.00 lac as per status of the parties and the said amount of maintenance has been paid by the respondent to the petitioner in full and final settlement. The withdrawal of the application for maintenance by the petitioner in pursuance of the compromise is also indicative of the fact that the petitioner has accepted the amount as a full and final settlement which includes maintenance and the parties are residing separately. Learned counsel for the respondent has relied upon judgment of Rajasthan High Court in the case of Shashi alias Mala v. State and another, 2007(2) RCR (Criminal) 144, judgment of this Court in the case of Gurmail Singh v. Ramanjeet Kaur, 2007(2) RCR (Civil) 2, and judgment of Madras High Court in the case of Rathina Marie Prema v. Marcel Fernandos, 1997(3) RCR (Criminal) 791. Learned counsel for the respondent further submitted that when the wife is staying separately by mutual consent, then she is not entitled to maintenance as per Section 125 of the Code. I have considered the rival contentions of the learned counsel for the parties and perused the record. 6. Admittedly, the marriage has been dissolved by decree of divorce with mutual consent under Section 13-B of the Act, wherein the parties have effected compromise and the statements have been recorded before the Matrimonial Court that the petitioner has accepted a lump sum amount of L 1.00 lac as a full and final settlement for maintenance etc. Learned counsel for the petitioner has also admitted this fact, but states that the petitioner being still unmarried is entitled to maintenance under Section 125 of the Code. Specific emphasis has been put in this regard by citing the judgment of this Court in Sushil Kumar’s case (supra). I have perused the judgment in Sushil Kumar’s case (supra). 7. Perusal of said judgment shows that although wife was granted divorce by mutual consent but in that case she had waived her right

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Husband suffeirng from communicable disease is ground for divorce

Leave a Comment / Divorce /

KARNATAKA HIGH COURT(Kalaburagi Bench)(DB)Before:- K.S.Mudagal and J.M.Khazi, JJ.Miscellaneous First Appeal No.201613 of 2016 (FC). D/d. 25.8.2021. Ashik Kataria – Appellant Versus Smt. Sushila @ Shushma – Respondent For the Appellants:- Smt. Chandrakala, Advocate for Sri Shivakumar Kalloor, Advocate. For the Respondent:- Sri Prakash R. Kulkarni, Advocate – Absent. JUDGMENT K.S.Mudagal, J. – None appears for the respondent. Heard the appellant’s counsel. Aggrieved by the judgment and decree dated 20.07.2016 in M.C.No.31/2014 allowing respondent’s petition against him for divorce, the husband has preferred the above appeal. 2. The marriage of the appellant and the respondent was solemnized on 02.02.2006 at Raichur. Out of the said wedlock a daughter by name Ritika was born on 13.07.2008. The respondent filed M.C.No.31/2014 against the appellant seeking decree for divorce on the ground that, after few days of the marriage appellant started inflicting physical and mental cruelty on her and drove her out of the matrimonial home in April 2012. She further alleged that though after the intervention of the elders she joined the matrimonial home, the appellant continued his ill-treatment. 3. Respondent alleged that the appellant twice tried to commit suicide and she had to rescue him and he was infected with deadly disease of HIV. She further alleged that appellant and his parents snatched her jewelries from her locker. She also claimed permanent alimony of ^1,00,00,000 (Rupees One Crore). 4. The appellant contested the petition denying the allegations of cruelty. He admitted that he was infected with HIV, but contended that he suffered that infection due to medical negligence during his treatment for dengue fever in the hospital. 5. The respondent was examined as PW-1 before the trial court. The appellant cross-examined her only in part. He did not lead any evidence. 6. The trial court, on hearing the parties, by the impugned judgment and decree, allowed the petition and granted decree of divorce on the ground that though the appellant suffering HIV disease may not amount to cruelty, but the case of the respondent is covered under section 13(1) (v) of the Hindu Marriage Act, 1955 (for short ‘the Act’). The Trial Court further held that since HIV is a venereal disease of communicable form, the respondent is entitled to decree of divorce. The trial court negatived the claim of the respondent for permanent alimony considering the financial conditions of both the parties. 7. The appellant assails the impugned judgment and decree on the ground that the trial court has failed to appreciate the evidence and the position of law in proper perspective. So far as the allegations of cruelty, PW-1 reiterated the grounds of the petition. She spoke to the appellant ill-treating her and taking away her jewelries. 8. As already point out, the appellant did not cross-examine PW-1 on all material aspects. The cross-examination of PW-1 was concentrated on the financial transaction between the father of respondent and appellant and the appellant contacting HIV infection due to the medical negligence. The attempt of the appellant to commit suicide and he inflicting physical and cruelty to her were not controverted. Therefore, the Trial Court held that during the course of cross-examination of PW-1 the appellant has not denied the allegations of ill-treatment to the respondent by him and his family members. 9. So far as the ground of the appellant’s HIV infection, the trial court rightly held that the said fact itself does not amount to cruelty. The trial court referred to Section 13 (1) (v) of the Act which reads as follows: “13. Divorce – (1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party – (i)…(ia)…(ib)…(ii)…(iii)…(iv)…(v) has been suffering from venereal disease in a communicable form; 10. A perusal of Section 13 (1) (v) of the Act shows that it does not qualify the said ground for divorce on the other spouse suffering such venereal disease due to the mistake of others. The sufferance of such disease itself is a ground for seeking divorce. Since the appellant admitted that he is suffering from HIV which is a venereal disease in a communicable form, the Trial Court was justified in granting a decree for dissolution of the marriage. 11. This Court does not find any ground to interfere with the impugned judgment and order. Therefore, the appeal is dismissed.

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