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 dissolves strained marriage of couple.

relationSource : PTI

A couple trying to take advantage of an “unfortunate incident” of abortion in their litigation against each other, indicated their strained relations, Delhi High Court has said while dissolving their marriage.

A bench of Justices Pradeep Nandrajog and Pratibha Rani observed that their marriage was a “total wreck” and could not be salvaged despite several efforts for conciliation before the trial court.

The court said that allegations levelled by the husband that his wife got the foetus aborted without his consent was false and similarly the assertion by the woman that miscarriage was caused as she was beaten up by her in-laws and spouse was also “ex-facie false”.

“From the incident of abortion, the two trying to take advantage by painting the backdrop to the incident … is an indication of the relations between the two being extremely strained from very inception of their marriage,” the bench said.

The bench, which allowed the plea of the husband seeking divorce, observed that within four months of their marriage in March 2011, the couple had made a “fair mess” of themselves and “exaggerated every minute aspect which occurred in their day-to-day life”.

“Evidence establishes that both (wife) and (husband) gave a very serious twist to the unfortunate abortion which she had. It establishes that the couple has the propensity to twist facts so as to suit their convenience,” the bench noted.

The couple had filed separate petitions in the high court challenging the January 2014 orders passed by the trial court which had dismissed their separate pleas in which the man had sought divorce while the woman had sought restitution of conjugal rights.

During adjudication of their pleas before high court, both of them had denied the allegations levelled against them.

However, the bench said, “We hasten to add that since both parties have tried to take advantage of an unfortunate incident, there is complete blurring of evidence as to which gynaecologist (the wife) went to armed with the ultrasound report. Both parties have withheld said evidence because its production would be fatal to the respective stand.”

“Human may tell a lie, but documents don’t. The ultrasound report tells its own story,” the bench said while adding that abortion was the “compulsion of medical science” as the foetus did not have any cardiac activity.

“It is a case of mutual cruelty inflicted against each other. Senseless mental torture continued all through when the parties cohabited,” it said and dismissed the plea filed by the wife.

Marriage Amendment Bill a cruelty to men

 “Dilli Chalo” this famous slogan is again in picture. At that time I mean to say pre independence period S C Bose gave this slogan to enrage the sleeping blood of Indians to achieve liberation and at this time I mean to say the 21st Century men,s rights groups are giving this slogan to enrage the sleeping blood of Indian mens so that they can achieve liberation from the women favoring laws, and get rid from this cruel domination of women’s rule.  Men,s rights group have convened a protest on August 18 in Delhi to protest the amendments in the Marriage Bill which legally recognise a wife’s right to property acquired by her spouse during their marriage.

 A men,s rights group Save Indian Family Foundation president Rajesh Vakharia said although the government is projecting the Marriage Amendment Bill, 2010 as a “short cut to divorce”, in realty the divorce will become expensive for men.

“In the event of divorce, men facing abusive marriage would have to part with their property, made from hard earned money,” he said.

The men’s rights group are demanding roll back of the amendments made in the Marriage Amendment bill and seek an open debate on it before the society.

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.

Action against violators of rules on marriage processions

With the onset of the wedding season, Delhi Police Wednesday asked the residents of the city to strictly adhere to guidelines on marriage processions issued by the Delhi High Court or face strict action for violations.

In advertisements issued in major dailies, Delhi Police said marriage processions on road create traffic congestion.

‘Traffic congestion on road can have serious consequences like delay in emergency services, delay in reaching railway stations, airport and other destinations,’ the police said.

According to the police, processions, horses, horse-drawn carriages, bands and lights are not allowed on the road and people should not obstruct carriageways either by dancing or parking their vehicles in a haphazard way.

‘The function venue must have the parking space to accommodate all the vehicles as no parking outside the venue is allowed. In addition, no firecrackers should be used on the road and people should refrain from using loudspeakers/loud music after 10 p.m.,’ the advisory said.

It added that the function must have the ‘No objection certificate’ from the traffic police and civic agencies concerned, and eschew illegal stationing of generators and catering vans outside the venue.

‘Meanwhile, detailed guidelines have been issued by the Delhi High Court. If there is any violation, the organiser of the function shall be held responsible and proceedings shall be initiated against him,’ it warned.

Giving dowry to save proposed marriage no offence: Court

The Delhi High Court has held that giving dowry under the fear that a proposed marriage may be called off is not an offence.

The court gave the ruling while quashing a first information report (FIR) filed against a bride and her family for conceding the dowry demand of the groom’s family.

Justice Ajit Bharihoke quashed the criminal proceedings against the woman and her family after they convinced the court that the dowry was given under pressure as the groom’s family had threatened to cancel the marriage.

‘As per the allegations in the complaint made by the petitioner (bride), the demand for dowry was made by the father of respondent (groom) at the time of engagement ceremony when he allegedly asked the father of the girl to concede to his demand for dowry, failing which he would call off the marriage,’ the court said.

‘It is obvious that the petitioner and her parents were confronted with the unenviable situation either to concede to the demand or face the loss of honour of their family in society, and if under that fear, the petitioner and her parents conceded to the demand for dowry, they cannot be faulted as they were victims of the circumstances,’ the court added.

The court said she cannot be subjected to prosecution for the offence under the Dowry Prohibition Act.

Few isolated incidents in marriage not cruelty: Apex court

The Supreme Court Friday said married life should be assessed as a whole and few isolated incidents over a period of time would not amount to cruelty.

“Sustained unjustifiable and reprehensible conduct affecting physical and mental health of the other spouse may lead to mental cruelty,” said a bench of Justice P. Sathasivam and Justice B.S. Chauhan in their judgment.

Speaking for the bench, Justice Sathasivam said that the ill-conduct amounting to mental cruelty must be for a fairly lengthy period, thereby deteriorating the relationship to an extent where one of the spouse finds it extremely difficult to live with the other.

The order case as the court dismissed the appeal of Gurbux Singh who has accused his estranged wife Harminder Kaur of being cruel and disrespectful towards his aging parents and sought a divorce.

Both were married Nov 23, 1997 and had a tiff on their first ‘Lohri’ (Punjabi festival heralding end of winter) in January 1998 when Harminder Kaur allegedly used filthy language for her in-laws.

The couple had a child May 15, 1999 but May 10, 2002, Harminder walked out of her matrimonial house and never came back. She, in turn, accused Gurbux of being greedy and a regular drinker who used to beat her on trivial issues.

“Making certain statements on the spur of the moment and expressing certain displeasure about the behaviour of elders may not be characterized as cruelty,” the judgment said.

Justice Sathasivam said: “Mere trivial irritations, quarrels, normal wear and tear of married life which happens in day to day life in all families would not be adequate for grant of divorce on the ground of cruelty”.

“An isolated friction on some occasion like festival of Lohri even in the presence of others cannot be a valid ground for dissolving the marriage.”

Earlier, Gurbux Singh’s plea for divorce was rejected by the Amritsar additional district judge and subsequently by the Punjab and Haryana High Court.

On the question of law, the judgment said that Gurbux has sought dissolution of marriage under Section 13 of Hindu Marriage Act, 1955 and in the petition, he only talks about the cruelty being meted out to him and his parents. It noted that cruelty has not been defined in the law and an act which might be cruel in one instance may not be so in another.

Thus, there could be no presumption that a certain act would be cruel in all circumstances, it said.

“We have verified all the averments in the petitions, reply statements, written submissions as well as the evidence of both parties. We are satisfied that on the basis of such instances, the marriage cannot be dissolved,” the judgment said.

Good news for couples, Delhi relaxes marriage rules

Haryana’s khap panchayats, infamous for driving people to death or out of their clans and villages, be damned. Delhi is offering itself as the haven to run-away couples.

Providing a helping hand to couples, the Delhi government Monday declared that a couple can marry in the capital and register their marriage within hours even if they don’t have a residential address here.

At a meeting chaired by Chief Minister Sheila Dikshit, the Delhi cabinet decided to issue a notification to amend the Delhi Hindu Marriage Registration Rules, 1956.

Until now, the Delhi Hindu Marriage Registration Rules, 1956 prohibited any couple from applying for registration of marriage here until it was proved that either of them or their in-laws had lived in the capital for at least 30 days before the wedding.

After the meeting, Dikshit announced that a decision has been taken to do away with the provisions in clause 7 for sub-clause 6 for registration of marriage in Delhi. “The rules have been relaxed and people can now register their marriage after showing the relevant papers,” she added.

The new proposal was moved in the cabinet by Principal Secretary (Revenue) D.M. Sapolia.

Revenue Minister Raj Kumar Chauhan said the only condition the couple need to meet is that their marriage should have taken place in the capital.

Officials believe couples facing the heat from khap panchayats for marrying within the same ‘gotra’ or sub-caste will get a helping hand now.

Furthermore, it would also be easy for them to get police protection in case of a threat to their love marriage or any fear of retaliation from their kin.

There have been many cases of honour killings of young couples at the behest of khap panchayats, or caste councils, which oppose marriages within the same gotra, or sub-caste.

Is a minor’s marriage with consent legal?

The Delhi High Court Friday asked a larger bench to consider whether or not a minor’s marriage, conducted with her/his consent, is to be declared legal.

It also termed void the marriage of 17-year-old Chandni till she attains majority and directed her to stay with her parents till that time.

A division bench of Justice A.K. Sikri and Justice Ajit Bharihoke said: ‘Child marriages are prevalent in many parts of this country and the reality is more complex than what it seems to be. The surprising thing is that almost all communities where this practice is prevalent are well aware of the fact that marrying a child is illegal, now it is even punishable under the law.’

The bench, while hearing the case of Chandni, came to a fix when she told the judges that she married an overaged man with her own consent.

The court was hearing a habeas corpus filed by Association for Social Justice and Research for tracing Chandni, who the NGO feared had been married forcefully to a 40-year-old man for money.

After the court’s direction, the girl with her husband was presented before the court and sent to judicial custody.

On questioning Chandni’s father Vijay Pal, the court came to know that he married Chandni off as he was not able to take care of her properly with his daily wage job as he had five other children.

‘Though NGOs as well as government agencies have been working for decades to root out this evil, the reality is that the evil continues to survive. Sociologists attribute it to reasons like poverty, culture, tradition and values based on patriarchal norms,’ the court said while asking a larger bench to consider whether to declare a minor’s marriage, if done with consent, as legal or not

Irretrievable breakdown of marriage will be ground for divorce

The irretrievable breakdown of a marriage will be made an additional ground for divorce under an amendment to the Hindu Marriage Act and the Special Marriage Act approved by the cabinet Thursday.

“This would provide safeguards to parties who file petitions for grant of divorce by mutual consent but who wilfully avoid coming to court thus causing harassment to the other party,” Information and Broadcasting Minister Ambika Soni told reporters after a cabinet meeting chaired by Prime Minister Manmohan Singh.

The amendment would be effected through the Marriage Laws (Amendment) Bill, 2010 that would be tabled in parliament.

Explaining the rationale for the move, recommended by the Law Commission of India in its 217th report, Soni said various grounds for the dissolution of a marriage through divorce are laid down in section 13 of the Hindu Marriage Act.

These grounds include adultery, cruelty, desertion, conversion to another religion, unsoundness of mind, virulent and incurable form of leprosy, venereal disease in a communicable form, renouncement of the world and not heard as being alive for a period of seven years or more.

Section 27 of the Special Marriage Act also lays down similar grounds.

Section 13-B of the Hindu Marriage Act and Section 28 of the Special Marriage Act provide for divorce by mutual consent. They say that if such a petition is not withdrawn six months after its presentation or not later than 18 months, then a court may grant the divorce.

“However, it has been observed that the parties who have filed a petition for mutual consent suffer in case one of the parties abstains himself or herself from court proceedings and keeps the divorce proceedings inconclusive,” Soni pointed out.

“This has been causing considerable hardship to the party in dire need of divorce and hence the amendment,” she added.

The Law Commission’s recommendation apart, the Supreme Court had on two occasions observed and recommended that irretrievable breakdown of marriage should be incorporated as another ground for granting a divorce, Soni said