Plea in High Court for making marital rape a ground for divorce

A plea was filed in the Delhi High Court on Wednesday seeking direction to the Centre to frame guidelines for registration of FIR for marital rape as also laws for making it a ground for divorce.

The PIL sought that there should be a clear guideline for registration of cases related to marital rape under framed guidelines and laws, so that accountability, responsibility and liability of the authorities concerned can be fixed.

The plea, likely to be listed next week, was filed after the Supreme Court on Monday refused to entertain it and asked the petitioner, advocate Anuja Kapur, to approach the high court for relief.

She also sought direction to the government for fixing appropriate punishment/ penalties for violation of the guidelines and laws to be framed and enacted respectively.

“Marital rape is no less an offence than murder, culpable homicide or rape per se. It denigrates the honour and dignity of a human being, and reduces her to a chattel to be utilised for one’s self convenience and comfort. It reduces a woman to a corpse, living under the constant fear of hurt or injury. Medical evidence proves that rape has severe and long-lasting consequences for women,” the plea said.

Kapur said in her plea that at present there is an ambiguity in the implementation of the context of marital rape as a ground of punishment or penalty during the registration of such a case in ambit of law.

“There is a lot of confusion with the concerned authorities that under which law they should register an FIR / case related to marital rape. There should be a clear guideline for registration of the case of marital rape under framed guidelines and laws, so that accountability, responsibility and liability of the concerned authorities can be assigned and, penalties and punishments be awarded to safeguard the fundamental right guaranteed by the Constitution and dignity of the woman in marriage,” the plea said.

Since marital rape at present is not a crime, there is no FIR registered by a wife against her husband in any police station, it said.

Rather, it is being compromised by the police authorities to maintain the sanctity of the marriage between the victim and the husband, it added.

“As marital rape is not a ground for a divorce in Hindu Marriage Act, 1955, Muslim Personal Law (Shariat) Application Act, 1937 and Special Marriage Act, 1954, it cannot be used as a ground for divorce and cruelty against husband,” it said.

Unilateral withdrawal of consent for divorce is mental cruelty

Unilateral withdrawal of consent for divorce is mental cruelty
Unilateral withdrawal of consent for divorce is mental cruelty

Unilateral withdrawal of consent by a spouse at the time of mutual divorce without any grounds amounts to mental cruelty, the Delhi High Court has said.

A bench of justices Pradeep Nandrajog and Yogesh Khanna said this while dealing with a case filed by a husband against a trial court’s order by which the couple, who got married in March 2004, mutually decided to separate.

The bench noted that the respondent (woman) was always willing to abide by the terms and conditions of the settlement deed and had voluntarily given up her claim of alimony and honoured her commitment arising out of the settlement.

“Thus, the unilateral withdrawal of consent by the appellant herein without any sufficient or just cause, in the circumstances, rather added to the cruelty meted to her,” the court said.

The trial court in June this year had allowed the woman’s petition for divorce on the ground of cruelty.

Challenging the trial court verdict, the husband moved the high court denying the allegation of cruelty and claimed that the issues were trivial arising out of child care, upbringing, interference of her parents, her repeated demand to live near her parents, her refusal to take care of his elderly and ill parents.

Brushing aside the man’s claim, the high court said “the fact is where he has entered into a settlement with his wife and there being no allegation that he ever signed such settlement due to force, fraud or under influence and also when the respondent (woman) had acted upon such settlement by withdrawing her divorce petition; foresaking her claim to custody of their son and of her permanent alimony, then the withdrawal of consent would have a different connotation as it adds to the misery of the respondent.”

Upholding the trial court’s order, the bench said the “unilateral withdrawal of the consent by the husband rather leads to an anomalous situation where the wife, a law-abiding lady, adhering to the terms and conditions of settlement, dated May 24, 2014 was left high and dry with a dead marriage and whereas the husband kept on enjoying his freedom without paying any maintenance, alimony”.

“The apology letter (of the husband) proves that he used to beat her, did not allow her to visit her home, cast aspersions upon her character, snatched her salary, took money from her father, which he did not return and rather asked for dowry, thus committed cruelty upon her,” the court noted in its 15-page judgement.

The couple, both of whom are teachers, have been living separately since 2009.

( Source – PTI )

Malaika, Arbaaz attend counselling session after filing for

Malaika, Arbaaz attend counselling session after filing for
Malaika, Arbaaz attend counselling session after filing for

Bollywood actress Malaika Arora Khan and Arbaaz Khan attended their first counselling session after filing for divorce by mutual consent.

The couple filed for divorce last month and attended the first mandatory counselling session on November 29 in Bandra Family Court.

According to family court sources, on Tuesday they were given counselling in the family court and asked whether any force was used to separate them. Both said they wanted divorce by mutual consent.

The case is now adjourned to May 2017.

Malaika and Arbaaz announced their separation early this year after mutually deciding for the dissolution of their marriage.

Reports of troubles between them started doing the rounds when the duo stopped appearing together on a TV series they were hosting.

After the initial episodes, only Arbaaz anchored the show while Malaika went missing, only to return to shoot for the finale.

Even after announcing their split, the couple were seen together at social events maintaining a cordial relationship.

( Source – PTI )

Affair during subsistence of marriage is cruelty: Delhi HC

Affair during subsistence of marriage is cruelty: Delhi HC
Affair during subsistence of marriage is cruelty: Delhi HC

Having an affair during subsistence of marriage by either of the spouses amounts to cruelty, the Delhi High Court has observed while setting aside a trial court’s judgement granting divorce to a man who was in an “open adulterous relationship”.

A bench of Justices Pradeep Nandrajog and Yogesh Khanna allowed the appeal filed by a woman, who had challenged the divorce granted by a trial court on her husband’s plea, saying the man was involved in an “extra marital affair”.

It observed that the man had admitted that he had married the woman, with whom he was in a relationship, after he was granted divorce by a trial court in May last year and when the marriage was subsisting, he had fathered a child with his paramour in February 2008.

“The totality of evidence rather establishes the mental cruelty upon the appellant (wife) rather than upon the respondent (husband) herein who is now stated to be blissfully married with a woman with whom he had a son during subsistence of marriage with the appellant (wife) herein,” the bench said in its judgement.

About the man’s allegation that he was treated “cruelly by his wife and she had demanded share in his ancestral property”, it said, “The conduct of the appellant (wife), even if correct as stated by the respondent (husband), has to be seen in the light of the fact that the respondent was in an open adulterous relationship with a woman”.

The bench also observed that the husband, in his statement before the trial court, had said he had visited the house of the woman several times before separating with his wife which showed his inclination toward his paramour.

“This gives credence that she (wife) never denied sex to the respondent (husband) and he did not come to her because of him being in relationship with a woman. Having an affair during the subsistence of marriage by either of the spouses amounts to cruelty upon the other,” the high court said.

The woman had moved the high court challenging the divorce granted by the trial court in May 2015 on a petition filed by her husband. She had claimed that during the subsistence of marriage, her husband had an extra-marital relationship with another woman, who was a divorcee and was working in his office.

The couple had tied knots in July 1993 and the husband had moved the trial court seeking divorce in July 2004. The wife had denied the allegations levelled against her and had claimed that she was treated cruelly by her husband and in-laws.

The trial court had granted divorce to the man on various grounds, including the woman’s demand for share in ancestral house and denial of sex to her husband.

About the allegations levelled by the man against against his wife, the high court said, “The appellant (wife) would naturally be feeling insecure for herself and her daughter and thus even if she made a demand for an immovable property in her name, it would not be an act of cruelty but the helpless cry by a wife, who was cheated, to ensure that she and her daughter had a roof above their head”.

“Now, where a respondent was involved in an extra marital affair, asking for a share in his property just to secure the future of her neglected child would not be inflicting cruelty upon the father,” it said.

( Source – PTI )

HC dismisses Muslim woman’s appeal against divorce

madras-high-courtThe Madras High Court has dismissed an appeal by a woman seeking to set aside the “forged” ‘khula’ produced by her husband on the basis of which a cleric granted a fatwa dissolving the marriage.

S Basheria submitted she was married to T C A Mohamed Yusuf, a beef merchant on August 20, 1987 as per Islamic customary rites and practice and the marriage was duly recorded in the Nikah register of a local mosque.

She came to know that in July 2006, her husband had got married to another woman at his native place and was living with her separately.

She submitted that her husband had obtained a fatwa from the government chief Kazi dissolving her marriage with her husband by producing forged letter alleged to have been written by her.

She contended she had not opted to get divorce from her husband.

Though she submitted a representation to the Kazi asking to intervene in the matter, he informed he gave his opinion based on the letter of her husband.

She submitted she was approaching the court to call for the records of the Kazi in the Khulanama certified by the Kazi and for a consequential direction to respondents to pay her and her children Rs 7 lakh as damages.

The division bench said the court cannot go into question of facts and only can go into the question of law.

While concurring with the order of single judge, the bench said, “For the very allegations made by the appellants criminal proceedings have already been initiated and the same are pending before the criminal court. The veracity or otherwise of the allegations can be gone into by the criminal court after following the due process of law.”

“The fact also remains that the criminal proceedings and the claim with regard to the relief sought in the writ petition are independent of each other. The allegations made by the appellants are disputed questions of fact.”

It is well settled that the disputed questions of fact cannot be gone into by this court under Article 226 of the Constitution.

“Hence, in our considered opinion, the writ petition is not maintainable, as the appellants have to work out their remedy only before the appropriate forum or authority under the appropriate law.”

“The learned single judge has dealt with the matter in detail and rightly come to the conclusion. Therefore, we do not find any infirmity with the order passed by the learned single judge,” the bench said.

SC waives 6-month waiting period, grants divorce to couple

lawThe Supreme Court has allowed an estranged couple’s plea for divorce by mutual consent by waiving the waiting period of six months, exercising its powers under the Constitution to do “complete justice”.

A bench of justices Kurian Joseph and Rohinton Fali Nariman granted the relief to the couple after taking into consideration their several years of litigation, separation after a few days of marriage, and both parties’ desire to move on with life.

The bench also noted that they had amicably settled their disputes and the monetary part of the settlement had been complied with, and all that remained were the criminal cases against each other and the plea for divorce by mutual consent.

Taking on record the submissions made by the parties that they have to move on with their respective lives, the bench said, “We are of the view that it is a fit case to invoke our jurisdiction under Article 142 of the Constitution of India and grant a decree of divorce by mutual consent by waiving the statutory period of waiting.”

The bench was also of the view that since the parties had settled their disputes amicably, “the interest of justice would be met, in case, the whole disputes are also finally settled” and quashed the criminal cases the couple had lodged against each other and their respective family members.

The couple had submitted before the court that they had lived as husband and wife only for a few days in 2010 when they were married and that “they have exercised their free will and have taken a conscious decision to part and put an end to all other litigation as well”.

High Court quashes ex-parte divorce order, sends case to family court

Describing it as “erroneous”, the Bombay High Court has set aside an order of Nashik family court granting a divorce decree ex-parte to a man in the absence of his wife who did not attend the proceedings Allowing an appeal filed by the aggrieved wife against the impugned judgement of December 7, 2011, a high court benc recently reverted the case to the Family Court for final disposal after hearing both sides.

Quashing the lower court judgement which granted divorce ex-parte (in absence of the other side) and restoring the case, justices Naresh Patil and A R Joshi asked both wife and husband to appear before the Family Court on February 25 in the same matter.

The Judges asked the family court to dispose of the petition (filed by the husband seeking divorce) on its own merits. They also asked both the parties to co-operate with the court in final disposal of the petition.

“The appellant (wife) could have been more diligent in prosecuting her remedies and participating in the proceedings before the family court. Certainly, the issue was relating to claim of divorce. Serious consequences flow from the orders passed in the matter of this nature. The relationship between the parties gets affected”, the judges observed.

The family court had rejected the application filed bythe wife observing that the matter was posted for judgement and there was no scope to review the order.

“The view expressed by the trial court (family court) is erroneous and in contrast with settled principles of law. The court ought to have looked into prayer made by the appellant (wife) substantially instead of taking technical view of the matter”, observed the high court bench.

“In the facts of the case, we find that adequate opportunity is required to be provided to the appellant (wife)to test the matter on merits. We are inclined to remand matterto the family court for expeditious disposal on merits”, the judges noted.

The husband had filed an application under section 13(1)(ia) (ib) of the Hindu Marriage Act seeking divorce from his wife. The couple got married on February 14, 1996, and have a son and a daughter.

After marriage both were staying together in Nashik. However, the husband alleged that his wife never cohabited with him properly since beginning and insulted him every now and then. The husband contended that he tolerated her alleged misbehaviour and humiliating treatment for quite some time and when she did not change, he initiated divorce proceedings claiming that his wife was behaving whimsically and eccentrically.

The husband submitted that he had purchased a flat in Nashik from his own income. However, his wife, her parents and brother were staying there and he was denied entry in his own house. He alleged that he was driven out of the house along with his disabled son after he had filed divorce petition in court.

The husband said that on December 2, 2009, he had sent a notice to his wife for resumption of cohabitation but did not get any response. He said his wife was a teacher earningRs 25,000 to Rs 30,000 monthly and only the daughter was dependent on her hence she was able to maintain herself and the child.

On the other hand, he had a meagre salary and his disabled son was dependent on him. On June 8, 2011, the notice for conciliation was sent to the wife and on June 23, 2011 the meeting was fixed for this purpose. As the wife did not turn up, a failure report was filed on July 1, 2011, and on the same day an ex-parte order was passed by the family court.

The wife moved the family court for setting aside the ex-parte order but it was rejected. The court then proceeded to decide the case ex-parte and impugned order was passed on December 7, 2011, granting the divorce decree.

 

PTI

HC quashes order giving divorce to husband exparte

Observing that a court should use its discretion, the Bombay High Court has set aside an order of a civil judge in Baramati, who refused to condone the delay made by a woman in an application urging to dismiss a divorce decree granted to her husband ex-parte.

Saying that this was a fit case where the concerned judge should have deemed proper to exercise his jurisdiction, Justice Roshan Dalvi recently quashed the order of Baramati Civil Judge passed on July 9, 2004, refusing to condone the delay made by the woman in making an application.

The High Court judge observed that the concerned judge ought to have heard her application for setting aside the decree of divorce on merits. “The delay if any, which has been refused to be condoned is seen to be deserving of condonation and hence condoned”, Justice Dalvi said.

The High Court asked the concerned judge to expeditiously hear the plea of the wife for setting aside the decree of divorce dated December 31, 2001, on merits.

The woman, Snhel alias Nandini Ghante, pleaded that she was not served at her last known residence. She said that this fact had been admitted by the respondent husband in his cross-examination, which has been stated in her application.

“Once it is seen that the petition was not served at the last known address of the petitioner, the divorce decree would be required to be reconsidered,” Justice Dalvi observed.

The judge noted that the divorce decree was passed on December 31, 2001. Husband, Dattatraya Ghante, has since remarried. The right of wife to claim maintenance may yet be not affected, even despite the remarriage of the husband.

“Such merits of the case are most material to bear in mind by a court whilst considering the right of a party in having the matter re-agitated on the ground of want of service and in considering the validity of decree of divorce in the first place,” Justice Dalvi remarked.

The court noted that the divorce decree having been passed was served upon the woman on June 14, 2002. Hence she obtained the knowledge of the decree from that date. It is her case that she got a mental shock and was hospitalised from June 15, 2002 to June 27, 2002. However, she had not produced any hospital records.

 

PTI

Marriages can be ended before cooling period: Apex court

By invoking provisions of Article 142, the dissolution of marriage through mutual consent can be permitted before the cooling period of six months under the Hindu Marriage Act, the Supreme Court has said. (15:40)

“We are of the opinion that in appropriate cases invocation of such power would not be unjustified and may even prove to be necessary,” said the apex court bench of Justice Altamas Kabir and Justice J. Chelameswar in a recent judgment.

Article 142 of the constitution provides that “the Supreme Court, in the exercise of its jurisdiction, may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it”.

However, the apex court added that it was not inclined to accept the proposition that in every case of dissolution of marriage under Section 13-B of the Hindu Marriage Act, 1955, the court has to exercise its powers under Article 142.

Section 13-B of the Hindu Marriage Act, 1955, provides for the couple seeking divorce through mutual consent to wait for a period of six months after making first joint application for divorce.

It’s only after the expiry of the six months that the couple can move second application for the dissolution of their marriage.

Pronouncing the judgment, Justice Altamas Kabir said: “It is no doubt true that the legislature had in its wisdom stipulated a cooling period of six months from the date of filing of a petition for mutual divorce till such divorce is actually granted, with the intention that it would save the institution of marriage.”

“But there may be occasions when in order to do complete justice to the parties it becomes necessary for this court to invoke its powers under Article 142 in an irreconcilable situation (between the couple),” Justice Kabir added.

In dealing with cases that demanded different approach, the court said that it had in the past “invoked its powers under Article 142 of the constitution in order to do complete justice to the parties”.

The court said this while allowing a petition by one Devinder Singh Narula after a Delhi-based trial court, while hearing a joint petition for divorce through mutual consent, asked him to wait for six months before moving the second petition for the dissolution of his marriage.

The petitioner Devinder Singh Narula married Meenakshi Nangia March 26, 2011, and within three months of the marriage he moved a petition seeking divorce.

Allowing the plea for mutual divorce and directing the dissolution of the marriage, the court said: “It is only the provisions of Section 13-B(2) of the aforesaid act (Hindu Marriage Act) which is keeping the formal ties of marriage between the parties subsisting in name only.”

“The marriage is subsisting by a tenuous thread on account of the statutory cooling off period, out of which four months have already expired,” it added.

“When it has not been possible for the parties to live together and to discharge their marital obligations towards each other for more than one year, we see no reason to continue the agony of the parties for another two months,” the apex court bench noted.

Being called pahadi can lead you to divorce

If you use a word like pahadi or Bihari or any word which indicates your spouse and his/her family geographical background can lead you to the divorce path. As people are sensitive about this.

 The Bombay high court observed on Thursday, that a reason for a marriage breaking up was that the wife’s father referred to the husband’s family as ‘pahadis’ as they hail from Himachal Pradesh, and observed that people can be sensitive about such remarks .

 A division bench of Justices V M Kanade and P D Kode heard a petition filed by Major Dheeraj Singh Dhumal challenging a family court August 31, 2010, order dismissing his plea for divorce. Dhumal and his wife Major Sushma are doctors and she serves at the Armed Forces Medical College, Pune, while he is posted in Delhi.

 The couple married on June 11, 1997 but Sushma moved to her parent’s place in Pune for delivery of their son Sudheer, born on August 16, 1999. Post-delivery she suffered a brain haemorrhage and was hospitalized. Dhumal’s parents came to see her and stayed over. His petition said she did not opt for spouse posting, and refused to join him, saying there was no better school for their autistic son. Dhumal filed for divorce in 2006, citing nine grounds for cruelty and desertion. The family court rejected his petition, saying they were not proved.

 Dhumal’s advocate argued they have been staying separately for 12 years and their marriage had broken down irretrievably. But Sushma’s advocate said she wanted the marriage to survive for the “practical purpose” of bringing up Sudheer.

 “He has to be taken to the washroom every half hour. I can’t take him to a male public washroom,” she argued for Sushma.

 His advocate said there was no allegation of cruelty against Dhumal and neither of maltreatment by Sushma of their son. The judges wondered what was the cause for the marriage’s breakdown. “Simply differences, straw by straw, till the last straw on the camel’s back,” he said.

 Dhumal’s advocate then said it was also due to the couple’s cultural differences. He said Sushma’s father called Dhumal’s parents ‘pahadis’ and left no occasion to humiliate and taunt Dhumal and his family. “To call somebody ‘pahadi’ is like calling somebody ‘ghati’, which is indicating the geographical background but is derogatory,” his lawyer said. “People are sensitive about such things,” remarked Justice Kanade.

 Dhumal’s petition said his father-in-law not only called them ‘pahadis‘, which is a “bad word” but also commented on their food habits, saying “they never get enough to eat”. It added that his parents and sister “were driven out” after 40 days. “She did not feel sorry and instead felt proud of what she had done to the petitioner and his parents,” it added. The family court rejected this as cruelty, saying if the father used humiliating words, she could not be blamed. The judges admitted the petition and expedited the final hearing.