Three Judge Bench To Hear Plea Challenging Restitution Of Conjugal Rights Under Hindu Marriage Act .

The Supreme Court on Tuesday referred to a three-judge bench a plea challenging the power conferred by the Hindu Marriage Act on courts to direct the restitution of conjugal rights of an estranged couple. The petitioners also challenged the identical provision in section 22 of the Special Marriage Act and Rules 32 and 33 of Order XXI of the CPC on the execution of the decree for restitution of conjugal rights.

“When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly”, read the impugned provision.

It may be noted that under section 13(1-A) of the *HMA, if there has been no restitution of conjugal rights between the parties for a period of one year or more after the decree is passed, it qualifies as a valid ground for divorce. Either party may invoke it for the dissolution of the marriage. “When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly”, read the impugned provision.

It may be noted that under section 13(1-A) of the Act, if there has been no restitution of conjugal rights between the parties for a period of one year or more after the decree is passed, it qualifies as a valid ground for divorce. Either party may invoke it for the dissolution of the marriage. In October last year, a woman, an engineer in a multi-national IT major, had also mounted a challenge to the court-mandated restitution of conjugal rights, contenting that such a “coercive act” on the part of the state violates her sexual and decisional autonomy, her right to privacy and her dignity, all of which come within the purview of her right to life and personal liberty under Article 21. It was her case that compelling her to return to her husband against her wish was tantamount to marital rape.

On that occasion, a bench of Justices U. U. Lalit and M. M. Shantanagoudar had refrained from entertaining the petition purely because the court regarded it as premature at that juncture when only a petition for the restitution of conjugal rights had been moved by her husband. By showing that she was facing mental and physical harassment at the hands of her husband, the “reasonable excuse” prerequisite of section 9 would be satisfied.

 

Irretrievable breakdown of marriage ‘debatable’ ground for divorce: SC

: With the government set to reintroduce the marriage laws amendment bill in the Lok Sabha to amend thehindu marriageto make irretrievable breakdown of marriage a ground for divorce, the Supreme Court has urged a rethink if it was an expedient ground for untying the matrimonial knot.

“It is highly debatable whether, in the Indian situation, where there is rampant oppression of women, such a ground would at all be expedient,” said the bench of Justice Vikramajit Sen and Justice Prafulla C. Pant in a recent judgment.

The court hoped that this will be considered by the Lok Sabha.

The Marriage Laws (Amendment) Bill, 2013 that was passed by the Rajya Sabha lapsed before it could be considered by the Lok Sabha, as the lower house was dissolved upon completion of its term and general elections were held.

The court said this while restricting its examination of a divorce plea by K Srinivas on the ground of alleged cruelty by his wife K Sunita under the Hindu Marriage Act, 1955.

Srinivas also raised the issue of irretrievable breakdown of the marriage as a ground for dissolution of the marriage.

Sunita had filed a criminal complaint against Srinivas and seven members of his family on charges of cruelty, attempt to murder, and other provisions of the Dowry Prohibition Act, 1961. This resulted in their arrest.

Speaking for the bench, Justice Sen said: “… if this ground (cruelty) is successfully substantiated by the petitioner (Srinivas), we need not delve any further i.e. whether a marriage can be dissolved by the trial court or the high court on the premise that the marriage has irretrievably broken down…”

Restricting the examination of the divorce plea to cruelty only, the court said irretrievable breakdown of marriage as a ground for divorce “has not found statutory acceptance till date”.

“Under Article 142 of the Constitution, the Supreme Court has plenary powers to pass such decree or make such order as is necessary for doing complete justice in any case or order pending before it. This power has not been bestowed by our Constitution on any other Court.

“It is for these reasons that we have confined arguments only to the aspect of whether the filing of a false criminal complaint sufficiently proves matrimonial cruelty as would entitle the injured party to claim dissolution of marriage,” the court said.

It said the Law Commission in its reports in 1978 and 2009 recommended the introduction of irretrievable breakdown of marriage as a ground for its dissolution, and the amendment bill has received the assent of the Rajya Sabha.

In an apparent caution, the court said it was “highly debatable whether, in the Indian situation, where there is rampant oppression of women, such a ground would at all be expedient”.

However, in the instant case, the court granted divorce to Srinivas saying the complaint filed by Sunita was thrown out by the Hyderabad Mahila Court June 30, 2000 and the said order has attained finality.

Even before the complaint was declined by the Mahila Court, the Hyderabad Family Court had Dec 30, 1999 granted Srinivas divorce on the grounds of cruelty.

The court also said filing of a false complaint by either spouse amounted to matrimonial cruelty, and it would entitle the other spouse to claim divorce.

 

HC rejects Parsi man’s plea to nullify wedlock to Hindu

Bombay High CourtThe Bombay High Court has rejected the plea of a Parsi man to declare his 15-year-old marriage to a Hindu as null and void as their wedlock was arranged in accordance with Hindu rituals though they professed different religions.

A division bench recently dismissed an appeal filed by Viraf Phiroz Bharucha, a city resident, against a family court order rejecting his plea to grant divorce under the Hindu Marriage Act, saying that there was no merit in the case and that the plea was barred by law.

Upholding the impugned family court order of February 24 this year, justices A R Joshi and Vijaya Tahilramani held that the appellant had taken too long to realise that his marriage to the respondent be declared null and void as they belonged to different religions.

“The appellant has admitted that he got married to the respondent in 1999. The petition was filed before the Family Court in 2011. There was a delay of 12 years (now 15 years) and a baby boy was born to the couple in 2001. No reason is pointed out to show what compelled the appellant to suddenly realise that he belonged to a different religion and hence the marriage should be declared a nullity,” the judges said.

“This shows that the appellant is taking advantage of his own wrong,” the bench remarked.

The bench said the appellant had come up with a very strange case. According to him, he is a ‘Parsi’ by birth and continues to profess his faith in the same religion. However, petition was filed by him before the Family Court under the Hindu Marriage Act.

The Bench held that the provisions of Hindu Marriage Act can be availed and are applicable when both spouses are Hindus and it does not apply to any person who is a Parsi, Jew, Christian or Muslim. “The appellant is a Parsi, so he cannot avail of the provisions of this Act,” the Judges ruled.

“It is also necessary under the Act that at the time of filing of petition, both the spouses are Hindu by religion. If one of the party to such marriage is not a Hindu, the provisions of Hindu Marriage Act cannot be invoked to seek remedy,” the bench held.

Rajya Sabha passes marriage laws amendment bill

In a major step towards making marriage laws more women-friendly, Rajya Sabha on Monday passed the bill to amend the Hindu Marriage Act (1955) and the Special Marriage Act (1954) that provides for “irretrievable breakdown on marriage” as a ground for divorce as well as grants women the right to a share in the property of their husbands.

The Marriage Laws (Amendment) Bill, 2010, will of course also have to be passed by Lok Sabha before it can become law. Most Rajya Sabha MPs cut across party lines to welcome the “progressive” bill, though some held it should have been made more “gender-neutral”, while a few others expressed reservations about its probable misuse against men.

Replying to the debate, law minister Kapil Sibal said there was an urgent need to “protect women rights more” because the Indian society was still quite patriarchal. “So let’s be clear. This historic piece of legislation is a message that MPs are on the side of women in our patriarchal society. Even across the world, women constitute 50% (of the population) but own only 2% of the assets,” he said.

The minister assured MPs that the “irretrievable breakdown on marriage” clause was “gender-neutral” since even men could move the court for it. Both parties have to live apart for at least three years before filing such a divorce petition. “Don’t worry, we are taking care of both men and women,” he said.

Dwelling on the amendments, the minister said courts would decide the “extent” of the wife’s share in her husband’s self-acquired property, both moveable and immoveable, in case of a divorce. While the wife will have no share in inherited property, its value will be taken into account by court while fixing the amount of compensation or alimony to her. “The judge will decide as per the facts and circumstances of each case,” he said.

Earlier, participating in the debate, Najma Heptulla of BJP criticised the UPA government for not bringing in “one law for all women”. Holding that the country’s “100 million Muslim women” were being ignored by the government, she said, “Have they thought of any reforms for Muslim women?”

(Source: IANS)

 

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

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.

After 20, minor girl can get marriage declared void: HC

The husband of a minor girl is entitled to his wife’s custody but cannot consummate his marriage with her till she attains the age of 20 as law gives her the liberty to approach the court to get her marriage declared void.

A Delhi High Court Bench gave this ruling in response to a Division Bench reference as to whether a minor can be said to have reached the age of discretion and thereby walk away from the lawful guardianship of her parents.

“We are of the opinion that simply because the marriage is not void, it should automatically follow that the husband is entitled to the custody of the minor girl,” the three-judge Bench headed by Acting Chief Justice A K Sikri said.

“But, allowing the husband to consummate a marriage may not be appropriate more so when the purpose and rationale behind the PCM (Prevention of Child Marriage) Act is that there should be a marriage of a child at a tender age as he or she is not psychologically or medically fit to get married”.

“Such a marriage, after all, is voidable and the girl child still has the right to approach the court seeking to exercise her option to get the marriage declared as void till she attains the age of 20 years,” said the Bench, also comprising justices Sanjiv Khanna and V K Shali.

“How would she be able to exercise her right if in the meantime the marriage is consummated when she is not even in a position to give consent which also could lead to pregnancy and child bearing. Such marriages, if they are made legally enforceable will have deleterious effect and shall not prevent anyone from entering into such marriages,” the court also said.

The Bench also answered the Division Bench’s another query as to whether the marriage of a boy below 21 with a girl younger than 18 years could be said to be valid and the custody of the girl be given to the husband, if he is not in jail.

The court held that the marriage between a minor girl and a boy can be declared illegal if the spouses move the court before they attain majority.

“The marriage contracted with a female of less than 18 years or a male of less than 21 years would not be a void marriage but voidable one, which would become valid if no steps are taken by such child to get their marriage declared void under relevant legal provisions,” said the Bench.

The Bench gave the ruling while answering a host of legal questions, relating to various conflicting provisions on the right age for a girl for her marriage and her consent for having sex as per various statutory provisions, including those under the Indian Penal Code, Prevention of Child Marriage Act and the Hindu Marriage Act.

In its judgement, the court also said the consummation of marriage with a girl below the age of 15 amounts to raping her despite her consent and the man not protected by the personal law of his religion.

“Consummation, with the wife below the age of 15 years, is an offence under Section 375. No exception can be made to the said legal mandate and the same has to be strictly and diligently enforced,” the Bench also said.

“Consent in such cases is completely immaterial, for consent at such a young age is difficult to conceive and accept. It makes no difference whether the girl is married or not. Personal law applicable to the parties is also immaterial,” it added.

”Court fee, marriage bills tabled in Delhi assembly”

The Court Fees (Delhi Amendment) Bill, 2012 — which proposes a 10-fold hike in fees — was introduced in the Assembly on Thursday.

The Bill, approved by the Delhi cabinet in April, seeks to do away with stamp paper of all denominations and proposes a shift to the electronic-stamping facility, a move aimed at ensuring hassle-free transactions.

Once the new rate comes into effect, revenue collection from court fees is expected to go up to Rs 500 crore annually from Rs 50 crore.

The Delhi government also tabled the Delhi Registration of Marriage Bill in the Assembly. If passed, the bill will make it mandatory for every couple to register their marriage within 60 days of the wedding. Failure to do so will fetch a penalty of Rs 10,000. Also, if the couple provides any faulty information, they can be sent to jail.

The Bill, which will be opened for discussion in the Assembly on Friday, makes registration of all marriages mandatory under the Hindu Marriage Act or Special Marriage Act.

(Source:Times Of India)

Sweet Kiss

Delhi government clears marriage registration bill

With the government Monday clearing the draft Delhi Registration of Marriages Bill 2012, married couples in the capital will soon have to get their marriages registered and failing to do so may invoke a fine of up to Rs.10,000. The bill is likely to be presented in the budget session of the Delhi assembly starting May 28.

The draft was cleared in a cabinet meeting here chaired by Chief Minister Sheila Dikshit.

“Every marriage, solemnised or contracted in Delhi, or out of Delhi by the person who normally resides in Delhi, shall be registered within a period of 60 days from the date of marriage,” Dikshit said after the meeting.

The bill envisages registration of all marriages, be it under Hindu Marriage Act, Special Marriage Act or any other act, or marriage solemnised as per any traditional manner.

Earlier, the Supreme Court had ruled that all marriages should be registered in order to prevent child marriage, check bigamy or polygamy, help women exercise their right of maintenance from the husband and custody of children and enable widows to claim inheritance.

Second appeal under Hindu Marriage Act allowed, rules court

A second appeal under the Hindu Marriage Act is maintainable, the Gujarat High Court has ruled.

Deciding the case of Varshaben Suthar vs Jayshankar Mistri, Justice K.A. Puj ruled, in a judgment made available Friday, that the second appeal against the judgment and decree of the first appellate court under the 1955 act would be maintainable under its section 28 as it stands after the Marriage Laws (Amendment) Act, 1976, and not under Section 100 of the Code of Civil Procedure.

However, the appeal would be regulated by Section 100 of the Code of Civil Procedure.

Mistri had challenged the maintainability of the second appeal on grounds that it is not provided under section 28(1) of the Hindu Marriage Act. He contended that it only provides for one appeal against the decree passed by the court in exercise of its civil jurisdiction. However, the court disagreed.

The court also rejected Suthar’s contention that the first appellate court had passed the decree for divorce only on the ground of irretrievable breakdown of marriage.

Justice Puj observed that the court had discussed various issues including desertion, living adulterous life with another person, the appellant having pregnancy when she was not living with the respondent husband, abortion and so on. It then came to the conclusion that it was not possible for them to live together and there was an irretrievable breaking down of marriage and divorce was the only solution.

Suthar had filed the second appeal in the high court challenging the order of the Sabarkantha district judge in January 2007, allowing the appeal filed by Mistri and granting divorce by quashing and setting aside the order of additional civil judge of Himmatnagar.

Mistri had been asked to pay Rs.2 lakh as permanent alimony, but had also filed a cross objection challenging the said order.

However, Justice Puj dismissed both the second appeal and cross objection.