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.

 

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)

 

HC quashes divorce decree on ground that wife should be heard

A divorce decree has been set aside by the Bombay High Court which has granted by a family court eight years ago to a man who had claimed that his Australian wife had deserted him in 1991.

The court opined that the consequences of a decree of divorce had far-reaching effects on the marital status of the parties and hence adequate opportunity of hearing was required to be given to the wife who claimed that she was not heard.

“At the same time, care has to be taken that no party deliberately delays hearing of proceedings or intentionally avoids participation in the proceedings before Family Court,” mentioned by the Justices Naresh Patil and A R Joshi in a recent order.

“We are therefore of the view that though the appeal (of wife against divorce) is pending since 2005 and that substantial valuable time is lost, the same could be remedied by directing the Family Court to dispose of the petition after hearing the parties on its own merits, in accordance with law, within a stipulated time limit,” the bench noted.

Accordingly, the Judges directed the Family Court to dispose of the appeal within six months and directed the couple to remain present in the Family Court in the first week of March so that it can hear the matter afresh.

However, if the appellant-wife did not appear before the Family Court on two consecutive dates or failed to cooperate with the Family Court then that court would be entitled to decide the matter finally in accordance with law, the High Court bench ruled.

The Judges remarked, “we are of the view that an opportunity is required to be provided to the appellant (wife) to participate in the proceedings.”

“Though she had taken a stand that summons were not served on her personally but that grievance is not sustainable as she had engaged a counsel and she had personally appeared before the court. Thereafter she ought to have taken steps to participate in the proceedings,” they said.

The respondent-husband had filed a petition under Section 18 of the Foreign Marriage Act, 1969 read with Section 27(1)(b) of the Special Marriage Act, 1954 for a decree of divorce on the ground of desertion.

According to him, he got married to an Australian woman on November 11, 1988 and they decided to settle down permanently in Mumbai thereafter.

The husband contended that on March 12, 1988, he went to Tasmania via Melbourne to study at the Australian Marine Time College. During that period he met the appellant-wife. She was already married to someone else but promised to take a divorce and lead a life with him. She took divorce from her first husband on October 20, 1988 and married him.

However, after marriage the wife informed the husband that she had already undergone hysterectomy operation and therefore it could not be possible for her to have children.

The respondent felt cheated. They had decided to adopt a baby and ultimately to settle down in India. The wife was older to him by 12 years, the husband contended.

On December 20, 1990, they decided to return to India with a view to settle down permanently. The husband argued that his wife was guilty of deserting him since May 1991 for more than two years. Thereafter he filed for divorce and the Family Court issued summons to his wife to appear in the case.

The wife contended that summons was never served on her and that the packet containing summons and petition was given to the tenant residing in her flat. The packet was returned to the Consulate of India in Australia. On her instructions, her lawyer appeared in the Family Court.

In 2004, she came to India and assured the Court that she would not leave for Australia till the matter was decided. Later, she asked permission from the Court to leave for Australia as her ticket was to expire. The Family Court rejected her plea. Eventually, she left for Australia without taking permission.

The High Court observed, “From the record it emerges that the wife did not participate in the proceedings filed by the husband. She could have been more diligent in taking part in the proceedings before the Family Court. Inspite of an undertaking to the Court she had left India for Australia saying that her air ticket was to expire.”

Youth gets 10 yrs jail for raping girl

A young man has been awarded for 10 years of imprisonment by a fast track court for raping a girl on the false promise of marriage and leaving her after she became pregnant.

The court told that after maintaining physical relations with the Muslim girl for over two years, Deepak Dogra refused to marry her and to save himself from legal punishment, he went through “farce of marriage ceremony” despite knowing that it was neither lawful nor valid.

“It is clear from the girl’s evidence that a farce of marriage ceremony was conducted in a temple by Deepak and they exchanged garlands and he had put vermilion on her head. “This indicates that he never had any intention to marry her. Knowing fully well that he is a Hindu and the girl is a Muslim and the fact that the marriage cannot be solemnized without a priest, the accused went ahead with the farce of the marriage ceremony even after being told by a priest that the marriage is not performed in that temple,” Additional Sessions Judge Nivedita Anil Sharma told.

The court also awarded a compensation of Rs one lakh to the girl under the Delhi Victims Compensation Scheme.

It also imposed a fine of Rs 60,000 on Mubarakpur- resident Deepak stating that if realised the amount should be given to the victim as compensation.

According to the prosecution, the 20-year-old girl had lodged a complaint against Deepak in October, 2010 alleging that he had raped her several times in a factory and at her house for over two years on false promise of marriage.

She had told the police that 21-year-old Deepak, residing in her neighborhood, had assured her that he would marry her but after she became pregnant, he refused to do so and also ask her to abort the child.

After his refusal, the victim approached the police and in order to save himself, Deepak along with his family members took her to a temple and exchanged garlands saying he has married her and left her after taking photographs as proof.

The court said, “Needless to mention here that Deepak is a Hindu and the girl is a Muslim and the two could not have married unless one of them converted to the religion of the other, or they got married under the Special Marriage Act.”

The accused was held guilty for raping and fraudulently performing marriage ceremony without lawful marriage.

Regarding the girl’s consent in having physical relations with the accused, the judge said it was clear from her evidence that Deepak developed physical relations with her on the promise of marrying her after the marriage of his sister.

“Had he not so promised, she would not have allowed him to have physical relations with her…”The girl reacted immediately upon coming to know that the accused has broken his promise to marry her and had been establishing sexual relations with her on the basis of false promise, implying thereby that her consent for the sexual act was obtained under a misconception of fact, thus constituting rape within the meaning of Section 375 IPC,” the court added.

The convict had sought leniency on the ground that he was a factory worker and his family was dependent on him.

The court, however, refused to show leniency saying that he has raped a young woman who was helpless, defenceless, and vulnerable and an easy prey and he has violated the sanctity of the relationship between them.

Bengal women’s panel seeks report on newly-wed couple

The West Bengal Commission for Women Wednesday sought a police report on the arrest of a man and harassment of his newly-wed wife following complaints from her family that she had allegedly been abducted.

The relatives of the woman, Komal Srivas, who comes from a rich diamond merchants’ family, lodged the complaint against her husband, Sagar Srivas, July 27, six days after the couple left Kolkata and married July 22.

Sagar Srivas was detained in Madhya Pradesh and brought to the city where he was arrested Aug 4 by officers under the Bidhannagar police commissionerate.

After spending a month in custody, he was granted bail by the Calcutta High Court Tuesday.

“We have written to the Biddhanagar police commissionerate asking for details of the case, why he (Sagar Srivas) was arrested and his wife harassed,” said the women’s commission chief Sunanda Mukherjee.

She said the police action contravened the Special Marriage Act, 1956, which provided that two consenting adults could tie the knot irrespective of their caste or religion.

Komal Srivas alleged that some of her relatives had filed the complaint as they were against the marriage.

She alleged that when she furnished the marriage certificate to officers from Bidhannagar, they threw it away. “They misbehaved with me. They did not even care to listen to us when we said we were legally married”.

Komal Srivas had moved the high court Monday pleading for police protection as her family members were “threatening” her.

”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.

Special law to adopt transgenders on the anvil

The National Legal Services Authority is working on a special law to safeguard the interests and welfare of transgenders on the lines of Special Marriage Act, Supreme Court judge Altamas Kabir said Sunday.

“Transgenders are in a most disadvantageous position, not of their own making. Some of them are rejected not just by society, but even by their parents,” said Kabir at a day-long seminar here on ‘Transgenders and the Law’, organised by the Karnataka State Legal Services Authority and the Karnataka High Court Legal Services Committee.

Regretting discrimination against transgenders’, Kabir said a transgender who became a doctor was not allowed to practice in hospital and had to give up the job as patients refused to be treated by her.

“We have public toilets for men and women but not transgenders and they are not allowed to use either. Where should they go? Do you want them to eke-out their livelihood by begging, dancing or by sex work,” Kabir asked, saying it was high time for providing a public toilet for the third sex.

Similarly, for admission to schools/colleges or employment, application forms have only two columns for male and female but not for transgenders.

“It’s not only male and female, but we have to provide one more category – ‘Others’ to include transgenders,” he said.

Describing transgenders as men wrapped up in women’s body and vice-versa, the executive chairman of the National Legal Services Authority said it was both a physical and psychological problem.

“If society is not accepting transgenders, we have to change its mindset, at least now,” Kabir noted.

Karnataka High Court Acting Chief Justice Vikramajit Sen said that the social stigma attached to transgenders should be eradicated.

“They should also be recognised and respected. They should be provided a means for their livelihood and should be treated on par with others,” he said.

The transgenders’ population is about 1.2 million in the country.

The seminar threw light on social, medical, emotional and legal issues relating to the community. About 250 transgenders from 11 districts across the state attended the seminar.