Monday, October 29, 2012

Foreign Divorce Decree in India



Foreign Divorce Decree is not conclusive if wife not contested in proceeding.






IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 990/2010
SHEENAM RAHEJA ... Plaintiff Through: Mr. Deepak Anand, Advocate
along with plaintiff in person.
versus
AMIT WADHWA ..... Defendant Through: Defendant is ex parte.
% Date of Decision : September 10, 2012
CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
JUDGMENT
: REVA KHETRAPAL, J.
1. The plaintiff has filed the present suit seeking a decree of
declaration in favour of the plaintiff and against the defendant,
declaring that the proceedings initiated by the defendant for the
dissolution of marriage between the parties on the ground of
irreconcilable differences, arising out of File No.1-09-FL-149089,
pending before the Superior Court of California, County of Santa
Clara, San Jose, USA are illegal, invalid and void ab-initio.
2. During the pendency of the present suit, however, a decree of
dissolution was passed by the Superior Court of California, County of
CS (OS) No.990/2010 Page 1 of 21 Santa Clara, San Jose, USA in favour of the defendant/Husband and
thereupon the plaintiff amended her plaint to seek appropriate orders
declaring the order of dissolution of marriage dated January 14, 2011
and January 18, 2011 passed by the Superior Court of California as
null and void and non-est in the eyes of law.
3. The plaintiff and defendant were married on 15th April, 2000
according to Hindu rites and ceremonies at New Delhi. The marriage
was duly registered under the Hindu Marriage Act, 1955 on 24th
April, 2000. From the wedlock two female children were born on 17th
August, 2001 and 2nd July, 2004, aged 9 years and 6 years
respectively. Both the children are presently in the custody of the
defendant, who, as detailed in the plaint, has taken them away
clandestinely. Shorn of details, the marriage of the plaintiff ran into
troubled waters on account of cruelty inflicted upon her by the
defendant, his mother, sister and other relatives. The mother and sister
of the defendant publicly humiliated the plaintiff for dowry, whenever
she visited India, even though for short spells. On account of said
cruelty and harassment, the plaintiff had become unwell, and on 7th
July, 2008, when the plaintiff came to India along with her two
CS (OS) No.990/2010 Page 2 of 21 children she had to be hospitalized at New Delhi. During this period
the mother-in- law of the plaintiff, without the knowledge and consent
of plaintiff, preponed the already confirmed tickets of the two
children for 17th August, 2008 and took them away with her to USA
on 5th August, 2008. The aforesaid act of the plaintiff's mother-in-law
naturally caused apprehension in the mind of the plaintiff about her
safety and security in USA, as it became clear to her that the
defendant had no intention to call her to USA. The mother-in-law of
the plaintiff with malafide intentions locked the matrimonial home i.e
H-87, Kirti Nagar, New Delhi and all the belongings of the plaintiff
therein. Since the parents of the plaintiff had limited financial
resources, the plaintiff in order to withdraw money from her savings
bank account visited the State Bank of Patiala, Branch Pusa Road,
New Delhi and was flabbergasted to discover that her savings had
already been withdrawn fraudulently by the defendant and his
relatives by forging her signatures. On coming to know that her bank
account had been cleaned out in this manner, the plaintiff informed
the law enforcing agencies and got registered FIR bearing
No.164/2009 under Sections 420/467/468/471/120-B IPC with the
CS (OS) No.990/2010 Page 3 of 21 Economic Offences Wing, Crime Branch (Delhi Police), where the
matter is still pending for investigation. To be noted at this juncture
that the plaintiff had also lodged a complaint in USA against the
defendant for domestic violence committed in the USA.
4. As averred in the plaint, the plaintiff in the third week of
March, 2010, through a whisper campaign amongst close relatives of
the plaintiff and defendant, came to know that the defendant has filed
some proceedings before a Court in USA. The plaintiff checked the
website of the said Court and came to know that a case for dissolution
of marriage of the parties on the ground of irreconcilable differences
had been filed by the defendant before the Superior Court of
California, County of Santa Clara, San Jose, USA. It is the allegation
of the plaintiff that the plaintiff was never served with the petition and
other pleadings by the defendant, who has played a fraud on the
judicial process to the extent that he did not even disclose the address
of the plaintiff to the Californian Court. The plaintiff on 8th April,
2010 after obtaining copies of the Court papers through her friends in
USA sent a letter to the Court at California, disputing the jurisdiction
of the said Court to entertain the petition of the defendant for
CS (OS) No.990/2010 Page 4 of 21 dissolution of her marriage, solemnized and registered under the
provisions of the Hindu Marriage Act, 1955. The plaintiff also
instituted the present suit seeking a declaration that the proceedings
before the Superior Court at California were illegal, invalid and void
ab-initio.
5. During the pendency of this suit, the plaintiff learnt that a final
order of dissolution of marriage was granted by the Superior Court of
California, County of Santa Clara, San Jose, USA in favour of the
defendant on January 14, 2011 (vide notice of entry judgment dated
January 18, 2011). The plaintiff now seeks to assail the said order of
dissolution of the marriage as null, void and non-est by amendment of
the plaint.
6. Summons of the institution of the present suit were issued to
the defendant on 18th May, 2010. By an order of the same date this
Court opined that prima facie the continuance of proceedings in the
Superior Court of California, County of Santa Clara, San Jose, USA
would act to the prejudice of the plaintiff, as she did not appear to
have any means to contest the said proceedings, and, in the
circumstances, the defendant was restrained from proceeding further
CS (OS) No.990/2010 Page 5 of 21 with the aforesaid case. The defendant was duly served with the order
of this Court along with the copy of plaint and application by all
modes including E-mail, Registered A.D post and UPC at the local
address and at the USA address-3651, Cabernet, Vineyards Circle,
San Jose, CA 95117, USA. Acknowledgement dated 5th June, 2010,
signifying the receipt of the copy of the plaint and the injunction
order of this Court, duly served upon the defendant by the United
States Postal Service and Indian Postal Service, are placed on record
by the plaintiff. It is pleaded that despite being aware of the restraint
order passed by this Court, the defendant knowingly, wilfully and
intentionally continued to proceed with the case in USA in breach of
the interim injunction passed by this court. The plaintiff also served
upon the defendant legal notice dated 12th October, 2010, making the
defendant aware of the consequences ensuing from the breach of
injunction order dated 18th May, 2010 passed by this Court, but to no
avail.
7. Mr. Deepak Anand, the learned counsel representing the
plaintiff, had drawn my attention to the fact that the order of the
Superior Court of California, County of Santa Clara, San Jose, USA
CS (OS) No.990/2010 Page 6 of 21 dated September 3, 2010 unequivocally shows that the order of this
Court was on the file of the said Court. The relevant portion of the
order of the Superior Court of California states:
"The Court notes that it received a letter from Wife dated May 28, 2010, to which she attached a non-certified copy of an order dated May 18, 2010, from the High Court of New Delhi in New Delhi, India. The order, which appears to bear two case numbers-6701/2010 and 99/2010
(sic.)-purports to prohibit Husband from
proceeding with his divorce action in
California based on the theory that California recognizes divorce based on a finding of
irreconcilable differences which, according to the order, is contrary to Indian marriage law."
8. After noting that this Court had prohibited the husband from
proceeding with the divorce action in California, the Court at
California, however, observed that the Indian order did not indicate
that the husband was ever served with the Indian order. The learned
counsel for the plaintiff contended and I think rightly so, that the said
observation is of no consequence in view of the fact that there is proof
of service upon the defendant on 5th June, 2010, through the United
States Postal Service, which even bears the signatures of the
defendant, namely, Amit Wadhwa with the date and time of service
i.e 05-June-2010 - 10.35 A.M endorsed on it. This is quite apart from
CS (OS) No.990/2010 Page 7 of 21 the fact that the defendant was served through all other modes
including E-mail, proof whereof has been placed on record. The
learned Superior Court of California, despite full and complete
knowledge of the existence of the injunction order passed by this
Court, authorized the defendant to proceed with his request to enter
the plaintiff's default in case bearing No.1-09-FL-149089 for legal
separation and dissolution of marriage initiated by the defendant in
USA.
9. The learned counsel for the plaintiff on the aforesaid facts and
on the basis of the affidavits by way of evidence filed by the plaintiff
contends that the marriage between the parties having been
solemnized and registered under the provisions of the Hindu Marriage
Act, 1955 in New Delhi, within the jurisdiction of this Court, its
dissolution could be effected only under the said Act. Both the parties
are Indian citizens holding Indian passports and are permanent
residents of India, hence are governed by Indian laws. The Superior
Court of California does not have the jurisdiction to grant decree of
divorce as per the provisions of Hindu Marriage Act, 1955, as neither
the marriage between the parties was solemnized in USA nor the
CS (OS) No.990/2010 Page 8 of 21 plaintiff was residing within the jurisdiction of the Superior Court of
California at the time of the presentation of the petition. The
jurisdiction assumed by the foreign Court as well as the grounds on
which the relief is claimed must be in accordance with the
matrimonial law under which the parties are married i.e. the Hindu
Marriage Act, 1955. The plaintiff and the defendant have both resided
together in India and hence as per Section 19 of the Hindu Marriage
Act, 1955, the jurisdiction for the grant of decree of divorce vests
with the Courts in India. It is further the contention of the learned
counsel for the plaintiff that the plaintiff has till date not submitted
herself to the jurisdiction of the foreign Court i.e Superior Court of
California, County of Santa Clara, San Jose, USA nor was she
represented through counsel and the Court passed the decree in her
absence.
10. The learned counsel placed reliance on the provisions of
Section 13 of the Code of Civil Procedure, 1908 to contend that the
plaintiff is entitled to a decree of declaration as claimed by her. For
the sake of facility of reference, the provisions of Section 13 of the
CPC are reproduced hereunder:-
CS (OS) No.990/2010 Page 9 of 21 "13. When foreign judgment not conclusive- A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon
between the same parties or between parties
under whom they or any of them claim
litigating under the same title except-
(a) where it has not been pronounced by a
Court of competent jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the
proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable;
(d) where the proceedings in which the
judgment was obtained are opposed to natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a
breach of any law in force in India."
11. Mr. Anand relied on the decision in the case of Y. Narasimha
Rao and Others Vs. Y.Venkata Lakshmi and Another, (1991) 3 SCC
451, where the Hon'ble Supreme Court interpreted each and every
clause of Section 13 of the Civil Procedure Code vis-à-vis
matrimonial law with a view to secure required certainty and protect
the sanctity of the institution of marriage and the unity of family
which are the cornerstones of our societal life. Clauses (b), (c), (d)
CS (OS) No.990/2010 Page 10 of 21 and (f) of Section 13 were interpreted by the Supreme Court in the
following manner :
"16. Clause (b) of Section 13 states that if a foreign judgment has not been given on the
merits of the case, the courts in this country will not recognise such judgment. This clause
should be interpreted to mean (a) that the
decision of the foreign court should be on a ground available under the law under which
the parties are married, and (b) that the
decision should be a result of the contest
between the parties. The latter requirement is fulfilled only when the respondent is duly
served and voluntarily and unconditionally
submits himself/herself to the jurisdiction of the court and contests the claim, or agrees to the passing of the decree with or without
appearance. A mere filing of the reply to the claim under protest and without submitting to the jurisdiction of the court, or an appearance in the court either in person or through a
representative for objecting to the jurisdiction of the court, should not be considered as a
decision on the merits of the case. In this
respect the general rules of the acquiscence to the jurisdiction of the court which may be valid in other matters and areas should be ignored and deemed inappropriate.
17. The second part of clause (c) of Section 13 states that where the judgment is founded on a refusal to recognise the law of this country in cases in which such law is applicable, the
judgment will not be recognised by the courts in this country. The marriages which take place in this country can only be under either the
CS (OS) No.990/2010 Page 11 of 21 customary or the statutory law in force in this country. Hence, the only law that can be
applicable to the matrimonial disputes is the one under which the parties are married, and no other law. When, therefore, a foreign
judgment is founded on a jurisdiction or on a ground not recognised by such law, it is a
judgment which is in defiance of the law.
Hence, it is not conclusive of the matters
adjudicated therein and, therefore, unenforceable in this country. For the same
reason, such a judgment will also be
unenforceable under clause (f) of Section 13, since such a judgment would obviously be in
breach of the matrimonial law in force in this country.
18. Clause (d) of Section 13 which makes a
foreign judgment unenforceable on the ground that the proceedings in which it is obtained are opposed to natural justice, states no more than an elementary principle on which any civilised system of justice rests. However, in matters concerning the family law such as the
matrimonial disputes, this principle has to be extended to mean something more than mere
compliance with the technical rules of
procedure. If the rule of audi alteram partem has any meaning with reference to the
proceedings in a foreign court, for the
purposes of the rule it should not be deemed sufficient that the respondent has been duly served with the process of the court. It is
necessary to ascertain whether the respondent was in a position to present or represent
himself/herself and contest effectively the said proceedings. This requirement should apply
equally to the appellate proceedings if and
CS (OS) No.990/2010 Page 12 of 21 when they are filed by either party. If the
foreign court has not ascertained and ensured such effective contest by requiring the
petitioner to make all necessary provisions for the respondent to defend including the costs of travel, residence and litigation where
necessary, it should be held that the
proceedings are in breach of the principles of natural justice. It is for this reason that we find that the rules of Private International Law of some countries insist, even in commercial
matters, that the action should be filed in the forum where the defendant is either domiciled or is habitually resident. It is only in special cases which is called special jurisdiction where the claim has some real link with other forum that a judgment of such forum is recognised. This jurisdictional principle is also recognised by the Judgments Convention of the European
Community. If, therefore, the courts in this country also insist as a matter of rule that foreign matrimonial judgment will be
recognised only if it is of the forum where the respondent is domiciled or habitually and
permanently resides, the provisions of clause (d) may be held to have been satisfied."
12. The Supreme Court thereafter deduced the following rule as
regards to the binding effect of a decree of dissolution of marriage
passed by a foreign court :-
"The jurisdiction assumed by the foreign Court as well as the grounds on which the relief is granted must be in accordance with the
matrimonial law under which the parties are
CS (OS) No.990/2010 Page 13 of 21 married. The exceptions to this rule may be as follows:- (i) where the matrimonial action is filed in the forum where the respondent is
domiciled or habitually and permanently
resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the
respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii)
where the respondent consents to the grant of relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties."
13. Reliance was also placed by Mr. Anand on the decision of
Veena Kalia v. Dr. Jatinder Nath Kalia and Anr., 59 (1995) DLT
635, wherein a learned Single Judge of this Court, Hon'ble Mr.
Justice D.P.Wadhwa (as his Lordship then was) after noting that the
petitioner had never contested the proceedings for divorce filed by the
respondent in the Supreme Court at Nova Scotia, held that it would
not mean that she conceded the jurisdiction of that Court or that the
Supreme Court at Nova Scotia was the Court of competent
jurisdiction. The silence of the wife, which the learned Judge
observed, was not because of her own volition but because of the
CS (OS) No.990/2010 Page 14 of 21 constraints which she could not overcome to contest the proceedings
there, could not confer jurisdiction on that Court, more so as the
husband was not permanently residing within the jurisdiction of the
Supreme Court of Nova Scotia. The Court further observed as under:-
"It is also clear that the ground on which
the decree of divorce had been granted by
the foreign Court is not a ground on which
such a decree could be granted under the
Act. Since the petitioner wife was not in a
position to contest the proceedings in a
foreign Court as she had no means to go
there and the foreign Court did not see to it whether the wife was possessed of sufficient funds and her documentation to visit
Canada complete, the rules of natural
justice stood violated. It is a matter of
common knowledge that mere buying an air
ticket is not enough to visit Canada. There
are various other formalities to be
completed. I am of the firm view that the
foreign judgment on which the husband
relied has no legal validity in this country."
14. In Smt.Anubha v. Vikas Aggarwal & Ors, 100 (2002) DLT
682, this Court relying upon the decision of the Supreme Court in the
case of Narasimha Rao (supra), held that as laid down by the
Supreme Court, the first and foremost requirement of recognising a
foreign matrimonial judgment is that the relief should be granted to
the petitioner on a ground available under the matrimonial law under
CS (OS) No.990/2010 Page 15 of 21 which the parties are married, or where the respondent voluntarily and
effectively submits to the jurisdiction of the forum and contests the
claim which is based on a ground available under the matrimonial law
under which the parties are married. On the facts of the case before it,
the Court further held as under:-
"25. The ground on which the marriage of
the defendant was dissolved is not available in the Hindu Marriage Act. The parties are
Hindus. Their marriage was solemnised
according to the Hindu rites. Their
matrimonial dispute or relationship was,
therefore, governable by the provisions of
Hindu Marriage Act. Since the plaintiff did
not submit to the jurisdiction of the USA
Court nor did she consent for the grant of
divorce in the US Court the decree obtained
by the defendant from the Connecticut Court
of USA is neither recognisable nor
enforceable in India."
15. The learned counsel for the plaintiff also vehemently contended
that the defendant-husband has practiced fraud upon the Court at
USA inasmuch as no summons were ever served on the plaintiff at
any point of time. The proof of service of summons do not have any
acknowledgement/receipt/signature of the person to whom the
summons and copies were delivered. The issue of service of
CS (OS) No.990/2010 Page 16 of 21 summons, however, need not be delved into in view of the
observations made hereinafter.
16. In the instant case, the Superior Court of California has passed
the decree of dissolution of marriage on the ground of irreconcilable
differences. The said ground, not being a ground available for
dissolution of marriage under Section 13 of the Hindu Marriage Act,
1955 under which the marriage between the parties was contracted, it
cannot be said that the judgment is passed on merits. Further, it can,
by no stretch of imagination, be said that the decision of the Superior
Court of California was the result of the contest between the parties.
On the contrary, the judgment dated 14.01.2011 shows no application
of mind or appreciation of facts and is merely mechanical in its form
as well as substance. Moreover, the impugned proceedings and the
decree of dissolution are in violation of the principles of natural
justice, which the Supreme Court in the case of Narasimha (supra)
interpreted to mean something more than mere compliance with the
technical rules of procedure. It was observed by the Supreme Court
that it should not be deemed sufficient that the respondent had been
duly served with the process of the court but it must also be
CS (OS) No.990/2010 Page 17 of 21 ascertained whether the respondent was in a position to present or
represent himself/herself and contest effectively the said proceedings
and if the foreign court had not ascertained and ensured effective
contest by requiring the petitioner to make all necessary provisions
for the respondent to defend including the costs of travel, residence
and litigation where necessary, it should be held that the proceedings
were in breach of the principles of natural justice. In this regard, the
order dated 18.05.2010 passed by this Court and the order dated
03.09.2010 passed by the Superior Court of California are of
significance. This Court on 18.05.2010 concluded that prima facie the
continuance of proceedings in the Superior Court of California would
act to the prejudice of the plaintiff, as she did not appear to have any
means to contest the said proceedings, and, in the circumstances, the
defendant was restrained from proceeding further with the aforesaid
case till the next date of hearing which was 21.10.2010. The Superior
Court of California on 03.09.2010, despite being aware of the order of
this Court, disregarded the same merely on the technical ground that
the order did not indicate that the husband was ever served with the
Indian order and in completely ignoring the principles of natural
CS (OS) No.990/2010 Page 18 of 21 justice, concluded that the Court had the jurisdiction to hear the
husband's petition for dissolution of marriage and that there was no
legal basis to stay the divorce proceedings, authorizing the husband to
proceed with his request to enter wife's default.
17. The cumulative effect of the aforesaid facts, in my considered
opinion, is that the decree of dissolution of marriage passed by the
Superior Court of California cannot be said to have been passed on
merits nor can it be said to be in compliance with the principles of
natural justice. The plaintiff-wife did not contest the claim nor agree
to the passing of the decree. In fact, the plaintiff in the present case
did not have the wherewithal to contest the impugned proceedings. As
noticed above even her bank account had been fraudulently operated
by the defendant and his relatives by forging her signatures and First
Information Report in this regard was lodged by her being FIR
No.164/2009 under Sections 420/467/468/471/120-B IPC, in respect
of which Status Report has been filed by the Investigating Agency
from time to time. In these circumstances, the judgment, having been
passed in default of wife's appearance, is clearly in violation of the
principle of audi alteram partem as enunciated by the Supreme Court
CS (OS) No.990/2010 Page 19 of 21 with reference to foreign judgments rendered in matrimonial disputes,
where the wife is not in a position to contest the case in a foreign
jurisdiction, resulting in grave injustice to the wife.
18. Lastly, this Court cannot help but refer to the following
observations made by the Hon'ble Supreme Court in Neeraja Saraph
(Smt) v. Jayant V.Saraph and Anr, (1994) 6 SCC 461, which case
pertained to desertion of an Indian wife by an NRI husband:-
"...But the rule of domicile replacing the
nationality rule in most of the countries for assumption of jurisdiction and granting relief in matrimonial matters has resulted in conflict of laws. What this domicile rule is not necessary to be gone into. But feasibility of a legislation safeguarding interest of women may be
examined by incorporating such provisions as-
(1) No marriage between a NRI and an
Indian woman which has taken place in
India may be annulled by a foreign
court;
(2) Provision may be made for adequate
alimony to the wife in the property of the
husband both in India and abroad.
(3) The decree granted by Indian courts
may be made executable in foreign
courts both on principle of comity and by
entering into reciprocal agreements like
Section 44-A of the Civil Procedure Code
which makes a foreign decree executable
as it would have been a decree passed by
that court."
CS (OS) No.990/2010 Page 20 of 21
19. Regretfully the plight of women and their exploitation by NRI
husbands is yet to be ameliorated through legislative measures as
suggested in the said case.
20. In view of the aforesaid, the decree of dissolution of marriage
passed by the Superior Court of California in favour of the defendant
can not be said to be conclusive under Section 13 of the Civil
Procedure Code and hence is not enforceable in India. The decree of
dissolution of marriage dated January 14, 2011 and judgment entered
on January 18, 2011 passed by the Superior Court of California,
County of Santa Clara, San Jose, USA in favour of the defendant be
and is hereby declared null and void and unenforceable in India being
opposed to the laws in force in this country.
21. Resultantly, the suit stands decreed in terms of the prayer made
by the plaintiff. The plaintiff shall also be entitled to recover cost in
the sum of Rs.2 lakhs from the defendant.
22. CS(OS) No.990/2010 and IA Nos.182/2012 and 183/2012
stand disposed of.
REVA KHETRAPAL


__________________________________________________________________________________________________________________________________



"If, the petitioner is a citizen of California, and he is entitled to file a petition for Dissolution of Marriage at California he should reveal the same to the respondent herein before the solemnisation of marriage. Without disclosing such material things to a poor woman and married her and deserted her is not only SIN but also amount to cheating."


Madras High Court

CORAM:
THE HONOURABLE MRS. JUSTICE R.BANUMATHI
and
THE HONOURABLE MRS. JUSTICE S.VIMALA
C.M.A.No.929 of 2002
against
O.S.No.38 of 2000
Bhashyam Ramesh @ Rajagopalan
rep. by Power Agent
Mr.V.S.Vhasyam ... Appellant/Defendant
.. Vs ..
R.Saroja @ K.K.Saroja
35/2, T.P.Koil Street,
Triplicane, Chennai-5. ... Respondent/Plaintiff
Civil Miscellaneous Appeal in C.M.A.929 of 2001 is filed under Section 19 of the Family Court Act,1984, against the judgment and decree of the 1st Additional Family Court at Madras, passed in O.S.No.38 of 2000, dated 19.12.2000.
For Appellant : Mr.Kuberan for M/s. Rank Associates
For Respondent : Mr.K.Ethirajalu
JUDGMENT
S.Vimala, J.
The short lived marriage which got solemnized on 24.6.1999 was dissolved on 17.4.2000 by a decree passed by Superior Court of California, County San Diego, Family Division, in Case No.D.454571 ABC, filed by the husband/appellant herein. 1.1. The wife filed the suit before the 1st Additional Principal Family Court, Chennai, for a declaration that the decree of divorce passed by the Superior Court of California is abinitio void, inoperative and not binding on the plaintiff, which came to be decreed. The said judgment passed by the 1st Additional Principal Family Court, decreeing the suit, is under challenge in this appeal.
2. Brief facts:-
The marriage between the appellant and the respondent took place on 24.6.1999 at Sholingapuram, Vellore District as per Hindu Rites and Customs. They started living as husband and wife at Virugambakkam at Chennai. The appellant left the respondent on 12.7.1999 for United States, with promise to take her soon. After going to U.S.A. the communication and the contact between the sources came to an end, as the husband became mute. 2.1. The plaintiff/wife filed a petition for Restitution of Conjugal Rights in O.P.No.383 of 2000. The plaintiff received the summons from the Superior Court of California on 1.10.99. She expressed her desire to contest her proceedings by sending the defence statement in writing. She also prayed for waiver of payment of fee. Thereafter, a decree of divorce was passed by the foreign Court on 17.4.2000. 2.2. Contending that the decree of divorce passed on 17.4.2000 by the Superior Court of California is not binding upon her, the wife filed a suit for declaration to that effect. In the suit, the appellant remained exparte. The main contention of the respondent/plaintiff before the Family Court was that decree for dissolution of marriage made by a foreign Court cannot be regarded as a binding decree on the parties in India. After perusing the oral and documentary evidence, the Family Court has decreed the suit granting the prayer of the plaintiff.
3. The husband has challenged the judgment of the Family Court on the following contentions:-
(i) The wife/respondent after receiving the summons from the Superior Court of California sent her response to the petition and contested the matter by raising various defences. Considering the defences raised, the Superior Court has passed an order on merits. The wife having submitted herself to the jurisdiction of the Foreign Court is now estopped from questioning the jurisdiction of the Foreign Court. (ii) The Family Court has no jurisdiction and power to entertain the suit.
(iii) Even though the husband remained exparte, there is a duty caused upon the Family Court to see whether the relief sought for is within the scope, ambit and jurisdiction of the Court. (iv) The judgment of the Family Court did not take into account the participation of the wife before the Superior Court of California.
(v) The respondent/wife did not dispute the jurisdiction of Superior Court of California. Therefore, the suit challenging jurisdiction of Superior Court of California is not maintainable.
4. In view of the contentions raised in the grounds of appeal the following points arises for determination:-
(i) Whether the suit filed by the wife/respondent before the Family Court in O.S.No.38 of 2000 is maintainable?
(ii) Whether the Family Court has got jurisdiction to entertain the suit?
(iii) Whether the conduct of the wife in sending response to the Superior Court of California would amount to submitting herself to the jurisdiction of Foreign Court? If so, the wife having submitted herself to the jurisdiction of Foreign Court is whether estopped from disputing the legality of the order passed by the Foreign Court? (iv) Whether the decree of divorce passed by the Foreign Court is legal and valid and binding upon the wife ?
5. The first contention of the learned counsel for the appellant is that the Family Court cannot grant a decree as prayed for in the petition, just because the husband remained exparte and has got an independent duty to examine the validity and the legality of the issues raised irrespective of the stand taken by the parties to the case. 5.1. This contention is correct provided the order of the Lower Court is without consideration of evidence and Law. But, in this case, the Family Court while passing the judgment has not passed a mechanical order, just because the respondent has remained exparte. The Family Court has not only considered the evidence of the wife and also the judgment reported in 1955 (a) Law Weekly 53 Dr. David C. Arumainayagam Vs. Geetha C. Arumainayagam by the Madras High Court wherein, it has been held that a decree for dissolution of marriage made by a foreign Court cannot be regarded as binding on the parties in India. The legal proposition has been correctly applied. Therefore, the contention that the Family Court has mechanically passed the order is not correct and therefore, the Judgment of the Family Court is correct.
6. The second contention of the learned counsel for appellant is that the Family Courts in India have no competency and jurisdiction to declare the Judgment of a Foreign Court as null and void. But, the contention of the learned counsel for the respondent is other way round, and it is his contention that it is not the Family Court which lacks jurisdiction and competency but, it is only the Foreign Court which lacks jurisdiction and competency to pass a decree for divorce. 6.1. In order to appreciate the contentions raised on both sides, it is appropriate to consider the decision reported in Ruchi Majoo Vs. Sanjeev Majoo reported in (2011) 6 SCC 479 wherein the Hon'ble Supreme Court has pointed out, (though in the context of the case of child custody) that as no system of private international law exists that can claim universal recognition on this issue, Indian Courts have to decide the issue regarding the validity of the decree passed by foreign court in accordance with Indian law. The relevant portion of the observation of the Hon'ble Supreme Court is extracted hereunder: "Recognition of decrees and orders passed by foreign courts remains an eternal dilemma inasmuch as whenever called upon to do so, courts in this country are bound to determine the validity of such decrees and orders keeping in view the provisions of Section 13 CPC as amended by the Amendment Acts of 1999 and 2002. ............." "Simply because a foreign court has taken a particular view on any aspect concerning the welfare of the minor is not enough for the courts in this country to shut out an independent consideration of the matter. Objectivity and not abject surrender is the mantra in such cases. Judicial pronouncements on the subject are not on virgin ground. Since no system of private international law exists that can claim universal recognition on this issue, Indian Courts have to decide the issue regarding the validity of the decree in accordance with Indian law. Comity of courts simply demands consideration of any such order issued by foreign courts and not necessarily their enforcement." (emphasis supplied)
6.2. The learned counsel for the respondent has relied upon the following rulings in order to support the contention that the Foreign Court has no jurisdiction to pass a decree for divorce when the marriage has taken place in India under the provision of Hindu Marriage Act. a) 2010 (4) CTC 822 (R.Sridharan Vs.The presiding Officer, Principal Family Court, Chennai-600 106 and another)
In Narasimha Rao's case, the Supreme Court categorically stated that marriages performed under the Hindu Marriage Act can be dissolved only under the said Act. Naturally, the provisions of the Hindu Marriage Act with regard to jurisdiction would also come into play. Section 19 clearly gives jurisdiction to the Court to deal with Matrimonial proceedings initiated by the wife, if she is residing within the jurisdiction of the said Court. There is no question of the Second Respondent initiating Divorce proceedings before the Court at United States of America invoking the provisions of the Hindu Marriage Act. The moment the Appellant has married the Second Respondent, he has subjected himself to the jurisdiction of the Court designated to deal with matrimonial disputes under Section 19 of the Hindu Marriage Act. Applying the ratio to the facts of this case, it is clear that the moment the appellant/husband herein has married the respondent wife, he has subjected himself to the jurisdiction of the Courts designated (Family Courts), to deal with matrimonial disputes under Section 19 of the Hindu Marriage Act. There is no question of the husband/appellant initiating divorce proceedings before the Superior Court of California as the husband could not have initiated the proceedings, invoking the provisions of Hindu Marriage Act. The marriage between the appellant and respondent herein could be resolved only on the grounds set out under Section 13 of the Hindu Marriage Act. It is not the case of the appellant/husband that application for divorce could be made before the Superior Court of California on the grounds mentioned in the Hindu Marriage Act. Therefore, as contended by the learned counsel for the respondent, the Foreign Court i.e. The Superior Court of California which is not a Court of competent jurisdiction and only the Family Court at Chennai which has complete competency and jurisdiction. b) In 2010 (5) CTC 858 (Deepalakshmi Vs.K.Murugesh) a Single Judge of this Court has held as under:-
"Thus, it is clear that only that Court will be a Court of competent jurisdiction which the Act or the law under which the parties are married recognises as a Court of competent jurisdiction to entertain the matrimonial dispute. Any other Court should be held to be a Court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that Court. The marriages which take place in this country can only be under either the customary or the statutory law in force in this country. Hence, the only law that can be applicable to the matrimonial dispute is the one under which the parties are married, and no other law.... Therefore, the decisions quoted above would clearly go to show that the Superior Court of California is not a court of competent jurisdiction to decide the matrimonial dispute of the appellant/husband as they have married under the Hindu Marriage Act and the marriage having been taken place in India. Therefore, the finding of the Family Court that order passed by the Foreign Court is not binding upon the wife is correct.
7. It is an admitted case of both parties that the wife received summons from the superior Court of California and has sent written response it. According to the learned counsel for the appellant the sending of written response amounts to submitting herself to the jurisdiction of Superior Court of California and therefore, the suit filed by wife challenging the judgment of the Superior Court of California is not maintainable. 7.1. Therefore, the question falling for consideration is whether the conduct of the wife in sending response to the Superior Court of California would amount to submitting herself to the jurisdiction of Foreign Court? If so, the wife having submitted herself to the jurisdiction of Foreign Court is estopped from disputing the legality of the order passed by the Foreign Court is the issue to be decided. 7.2. The learned counsel for the husband has relied upon the decision reported in Supreme Court Reports (1963) (Shaligram Vs. Daulat Ram), wherein it has been held as follows:- That a person who appeared in obedience to the process of a foreign Court and applied for leave to defend the suit without challenging the jurisdiction of the Court must be held to have voluntarily submitted to the jurisdiction of such Court and therefore this decree did not suffer from any defect which a foreign decree would suffer without such submission. (underlining added) 7.3. From the facts and circumstances available in this case whether the conduct of the wife in submitting a written representation in response to the summons issued can be construed as amounting to voluntarily submitting herself to the jurisdiction of the Superior Court of California is to be considered. It is necessary to consider the content of the written representation sent by the wife. 7.4. By perusal of the response, it is seen the wife has raised very pertinent issue regarding (a) jurisdiction of the Foreign Court (b) maintainability of the petition for divorce within one year of the marriage (c) maintainability of the petition filed by the husband seeking divorce in a foreign court which lacks jurisdiction, when the wife has initiated a proceeding for Restitution of Conjugal Right in a competent court and (d) inability of her to submit herself to the jurisdiction of the superior court of California. The details are as extracted below:
(a) Issue regarding jurisdiction:
" Both spouses are admittedly Hindus and born at Tamilnadu and brought up at Tamilnadu and their marriage was solemnized in Tamilnadu, India, under the Hindu rites and Customs. So, if at all the parties wanted to seek any remedy that should be under the Courts at Tamilnadu and under the HINDU MARRIAGE ACT." (b) The next issue raised by the wife is with reference to maintainability of petition for divorce under Section 14 of the Hindu Marriage Act under which no petition for divorce could be presented within one year of the marriage. "As per the Hindu Marriage Act, no spouse is entitled to terminate the marriage within one year from the date of its solemnisation. But unfortunately, the petitioner herein seeks dissolution of marriage, within one year, that Too from the Superior Court of California."
(c) Expressing her anguish that due to distance and financial constraints and lack of legal knowledge that she will not be able to come to California to contest the case she would state thus:- Further, the respondent is a poor helpless lady and she is unable to meet out her basic needs without the support from her kins. Under such circumstances, how is it possible to the respondent to come over to California and contest the case. The respondent did not know the existing law at California and the procedure is being adopted at the Superior Court California, Family Division. As a law abiding citizen she is hereby communicated her response to the Hon'ble Court's notice. If, the petitioner is a citizen of California, and he is entitled to file a petition for Dissolution of Marriage at California he should reveal the same to the respondent herein before the solemnisation of marriage. Without disclosing such material things to a poor woman and married her and deserted her is not only SIN but also amount to cheating. (d) After expressing the social stigma faced by the Indian Women, as a divorcee, the respondent has conveyed the message that she has already moved the Indian Courts for restitution of conjugal rights. It is stated as follows:- The respondent further submits that, she has filed a petition under Section 9 of the Hindu Marriage Act, for Restitution of Conjugal Right before the 1 Additional family Court at Chennai, Tamilnadu, India, in Hindu Matrimonial Original Petition No.383 of 2000 and the same is posted to 4th May 2000 for the appearance of the petitioner herein (let, the petitioner herein may treat this as Notice to him for his appearance in H.M.O.P.383 of 2000 on 4th May 2000) 7.5. Whether the contents of the communication/response sent by the Wife can be construed as amounting to submitting herself to the jurisdiction of California Court is the issue to be decided. The meaning of the word "submit" as downloaded from the site www.thefree dictionary.com is as follows: "1. To yield or surrender (oneself) to the will or
authority of another.
2. To subject to a condition or process.
3. To commit (something) to the consideration or
judgment of another.
4. To offer as a proposition or contention: I submit
that the terms are entirely unreasonable."
If the written submissions are considered then it would be evident that the wife has offered a proposition challenging the very jurisdiction of the court for consideration. It will not amount to submitting herself to the jurisdiction of the court. 7.6. What is crucial is that the wife has challenged jurisdiction of the Foreign Courts. Only, if a party applies for leave to participate in the proceedings without challenging the jurisdiction one can infer that the party has submitted to the jurisdiction of the Court. But, in this case, the wife on receipt of summons has challenged the jurisdiction of the Foreign Court. While so challenging the wife has categorically stated that due to financial and legal constraints her access to justice has been denied. The contents of written submissions made by the wife to the Superior Court of California itself would clearly go to show that the respondent/wife neither wanted to participate in the proceedings nor subjected herself to the jurisdiction of the Foreign Court, either voluntarily or involuntarily. Under such circumstances, the contention that she has submitted herself to the jurisdiction of the Foreign Court cannot be accepted.
8. The issues discussed above will go to show that the suit filed challenging judgment passed by the Superior Court of California by the wife is perfectly maintainable. The order passed by the Family Court is in accordance with well settled principles and the materials on records. Therefore, the appeal has no merits and is liable to be dismissed.
9. In the result, the appeal filed by the appellant/husband is dismissed with costs. The judgment and decree passed by the 1st Additional Family Court is confirmed.

__________________________________________________________________________________________________________________________________



IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 25th January, 2012
+ CRL.M.C. 3845/2010
% DR. MEENA CHAUDHARY
@ DR. MEENA P.N. SINGH ..... Petitioner Through: None.
Versus
BASANT KUMAR CHAUDHARY & ORS. ..... Respondents Through: Mr. Atul Jha, Adv.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
JUDGMENT
RAJIV SAHAI ENDLAW, J.
1. This petition has been preferred under Article 227 of the Constitution of India read with Section 482 of the Criminal Procedure Code (Cr.P.C.) impugning the order dated 26.08.2010 of the learned Metropolitan Magistrate dismissing the complaint under Section 200 of the Cr.P.C. filed by the petitioner of offence under Section 120-B read with Section 494 and Section 498A of the Indian Penal Code (IPC). This petition was listed before the learned Single Judge on 10.12.2010 when the CRL.M.C. 3845/2010 Page 1 of 8 petitioner appearing in person sought adjournment. The petitioner had also filed LPA No.64/2009 and contempt case No.C-386/2010. The petitioner on 03.05.2011, while appearing before the Division Bench in LPA No.64/2009 sought consolidation of the contempt petition as well this petition with the LPA and the matter was accordingly placed before Hon'ble the Chief Justice who vide order dated 22.05.2011 directed that the contempt petition as well as this petition be placed before the same Division Bench before which the LPA was pending. It is for this reason that the matter is before us. We may also notice that though the LPA and the contempt petition have since been disposed of but the petitioner appearing in person stated that rather than sending back this petition to the learned Single Judge, we only should hear the same. In view of the said request and for the reason that by doing so, the petitioner is not being deprived of any remedy had the matter been considered by the learned Single Judge, we proceeded to hear the petitioner. The petitioner sought and was granted liberty to file written arguments which have also been filed.
CRL.M.C. 3845/2010 Page 2 of 8
2. The learned Metropolitan Magistrate after recording the statements of the petitioner and her witnesses held no case for summoning of the accused / respondent to have been made out for the reason of the petitioner herself having obtained decree of dissolution of her marriage with the respondent from the Court in U.K. and the respondent having so ceased to be the husband of the petitioner there being no question of his being guilty of the offence of bigamy under Section 494 of the IPC or of causing cruelty to the petitioner as wife under Section 498-A of the IPC. Qua the offence under Section 498-A of the IPC, reliance was also placed on the status report submitted by the police and on the petitioner having failed to make out any case of cruelty.
3. The argument of the petitioner before us, orally as well as in writing, is that the divorce decree obtained by her in U.K. being not a valid decree and hence not bringing to an end the relationship of husband and wife between the petitioner and the respondent. Reliance in this regard is placed on Smt. Satya Vs. Shri Teja Singh (1975) 1 SCC 120 and on Y. Narasimha Rao Vs. Y. Venkata Lakshmi (1991) 3 SCC 451. The CRL.M.C. 3845/2010 Page 3 of 8 Supreme Court in both Smt. Satya and Y. Narasimha Rao (supra) was faced with a situation of the husband setting up a decree of a foreign Court of dissolution of marriage as a defence to the claim / charge of the wife in the Indian Courts for maintenance or of bigamy. In both cases, the husband was found to have obtained the decree of foreign Court fraudulently.
4. The situation here is however converse. It is the petitioner herself who had obtained the decree from the foreign Court of dissolution of marriage and who now wants our Courts to ignore the same. Obviously, no case of the foreign decree having been obtained fraudulently can be said to exist in this scenario. Rather the said foreign decree was at the sole initiative of the petitioner with the respondent having no role in the same and having not even contested the same. The question which arises is, can the petitioner, who by obtaining the said decree led the respondent to believe that his marriage with the petitioner stood dissolved and that he was free to remarry, can now be permitted to challenge the foreign decree obtained herself and charge the respondent with the offence of bigamy. In CRL.M.C. 3845/2010 Page 4 of 8 our opinion, no and the complaint has been rightly dismissed by the learned Metropolitan Magistrate. As far back as in Asanalli Nagoor Meera Vs. K.M. Madhu Meera MANU/TN/0707/1925, a division bench of the Madras High Court held that a litigant cannot be allowed to deny the jurisdiction which he himself invoked. The same principle was recently applied by a Single Judge of the same Court in Ms. Dorothy Thomas Vs. Rex Arul MANU/TN/2876/2011 in near similar facts.
5. We may also notice that under Section 13 of CPC a foreign judgment is conclusive as to any matter thereby directly adjudicated upon between the same parties except in cases specified thereunder. However the right if any to contend that the said foreign judgment is not conclusive can be only of the party who had himself / herself / itself not initiated the process of obtaining the said judgment and cannot be of a party at whose instance such foreign judgment has been obtained. No litigant can be allowed to abuse the process of the Courts or to approbate and reprobate as per convenience. Mention at this stage may also be made of the finding recorded by the learned Metropolitan Magistrate and not disputed before us CRL.M.C. 3845/2010 Page 5 of 8 that the petitioner in the disputes with her siblings before another Indian Court sought to justify her claim by contending herself to be a divorcee by virtue of the said foreign judgment.
6. Thus, whichever way we may look, we cannot find any error in the order of dismissal of the complaint aforesaid. We had also called for the records of the Court of the Metropolitan Magistrate and have perused the pre-summoning evidence led by the petitioner. The petitioner had deposed that she was in U.K. from 1993 to 1999. She has not even whispered, alleged or made out any case of any of the grounds for the foreign judgment of dissolution of her marriage with the respondent being not conclusive. For the said foreign judgment to be not conclusive, the petitioner was required to make out a case of the same being either pronounced by a Court having no jurisdiction and / or having been not given on the merits of the case or being founded on an incorrect view of international law or the proceedings resulting therein being opposed to natural justice or having been obtained by fraud or sustaining a claim founded on a breach of any law in force in India. Moreover all the grounds CRL.M.C. 3845/2010 Page 6 of 8 specified in Section 13 of the CPC and on establishment whereof a foreign judgment can be said to be not conclusive are such which can be set up only by a party not himself/herself/itself approaching the foreign Court. The judgments cited by the petitioner cannot be read as laying down and indeed do not lay down any absolute principle that a marriage under the Hindu Marriage Act, 1955 cannot be dissolved by a foreign Court. Here the petitioner who is challenging the judgment was at the relevant time resident for a fairly long time within the jurisdiction of the foreign Court, did not approach the foreign Court under the dictates of the respondent and made out a case before the foreign Court for obtaining the judgment. Indeed in Y. Narasimha Rao (supra) itself the Supreme Court held matrimonial action filed in the forum where the wife is domiciled or habitually and permanently resides or where the wife voluntarily and effectively submits to the foreign jurisdiction or where the wife consents to the grant of the relief by the foreign Court although the jurisdiction of the foreign Court is not in accordance with the provisions of the Matrimonial Law of the parties, to be valid and the judgment of such foreign Court to be conclusive. We, therefore, do not find any merit in this petition. CRL.M.C. 3845/2010 Page 7 of 8
7. Before parting with the case, we may observe that though the order of the Metropolitan Magistrate of dismissal of complaint is under Section 203 of the Cr.P.C. and is challengeable by way of Revision Petition under Section 397 read with Section 401 of the Cr.P.C. but since the matter had remained pending before this Court, though in the circumstances aforesaid for considerable time, we did not deem it appropriate to reject this petition on the said ground.
The petition is accordingly dismissed. No order as to costs. RAJIV SAHAI ENDLAW, J
ACTING CHIEF JUSTICE
JANUARY 25, 2012











Saturday, May 26, 2012

Denying sex to spouse a ground for divorce: Delhi High Court.

.

Denying sex to spouse a ground for Divorce:


Delhi High Court. IN THE HIGH COURT OF DELHI AT NEW DELHI
 Judgment delivered on: 21.03.2012
 FAO No.185/2001
 Smt. Shashi Bala ……appellant. Through: Mr. Atul Bandhu, Adv.
 Vs. Shri Rajiv Arora ……Respondents Through: Mr. R.G. Srivastava, Adv
.
 CORAM: HON'BLE MR. JUSTICE KAILASH GAMBHIR KAILASH GAMBHIR
, J.

 1. By this appeal filed under section 28 of the Hindu Marriage Act, 1955, the appellant seeks to challenge the impugned order and decree dated 12.2.2001 passed by the learned Trial Court whereby a decree of divorce in favour of the respondent husband under Section 13(i)(a) of the Hindu Marriage Act was granted and the counter claim FAO 185/01 Page 2 of 19 filed by the appellant seeking a decree for restitution of conjugal rights under Section 9 of the Hindu Marriage Act was dismissed

. 2. Brief facts of the case relevant for deciding the present appeal is that the marriage between the parties was solemnized on 17.2.1991 according to Hindu rites and ceremonies. It was stated by the husband in his divorce petition that after the solemnization of the marriage, right from the inception, the attitude of the appellant was indifferent and she complained that the marriage had not been solemnized with a man of her taste. As per the respondent husband, the appellant had refused to participate in the traditional ceremony of dud-mundri by saying that she did not like all this but without disclosing any reasons. As per the respondent, the appellant also did not take any interest in the dinner which was served on the wedding night i.e. 18.2.1991. It is also the case of the respondent that when both of them went to their bedroom around 11.30 p.m. the appellant was not responsive and she did not allow the respondent to have sexual intercourse with her. The respondent has alleged that it is only on 25.2.1991, that he was allowed to have sexual intercourse with the appellant for the first time, but again the appellant remained unresponsive and such conduct of the appellant caused mental cruelty to the respondent. It is also the case of the respondent husband that on 13.4.1991, the appellant refused to perform “chuda ceremony” which not only hurt the sentiments of the respondent but his parents as well. It was also stated that the appellant in fact removed the chuda and threw it under the bed by saying that she did not believe in all these things. It is also the case of the respondent that the appellant used to visit her parents on her own without even informing the respondent and finally left the matrimonial home on 16.4.1992 and since then she did not come back. It is also the case of the respondent that he had sexual intercourse with the appellant only for about 10-15 times during her stay with him for a period of about 5 months. It is also the case of the respondent that the appellant used to quarrel with his old parents and she also used to insist to shift to her parents’ house at Palam colony. The respondent also alleged that on 11th March, 1991 the appellant tried to illegally remove the jewellery from the almirah which belonged to his mother and which was kept for his unmarried sister and while doing so she was caught red handed. It is also the case of the respondent that the appellant made a false complaint with the Crime Against Women Cell and Family Counsel Office, which complaints were ultimately withdrawn by her. Based on these allegations the respondent husband claimed the decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act. 3. In the written statement filed by the appellant wife, she denied all the abovesaid allegations leveled by the respondent husband. She denied that she had refused to participate in the “Dud Mundari Ceremony”. The appellant had also stated that after taking lunch on the wedding day, one lady relative of her in-laws and parents of the respondent remarked that she did not bring bed and sofa sets in her dowry and in response she informed them that her father had given a bank draft of Rs. 30,000/- besides presenting costly clothes, ornaments, TV, clothes for relatives, utensils and other articles in the marriage. It is also the defence of the appellant that on the wedding night the respondent entered the bedroom showering filthy abuses on the appellant and told her that she had not brought the dowry according to their expectations. It is also her case that she was also told by the respondent that the bank drafts should have been prepared either in the name of the respondent or in the name of his father. It was denied by the appellant that her attitude was indifferent at the time of dinner. She also denied the allegation of nonconsummation of the marriage on the wedding night. The appellant took a stand that right from the wedding night i.e. 18.2.1991 the parties had normal physical relationship with each other. She also denied that she did not perform “chuda ceremony” or threw the chuda under the bed. She also denied that she left the matrimonial home on 16.4.1992. The appellant also took a stand that on 23.4.1992 the respondent, his parents and two sisters asked her to bring Rs. 50,000/- or otherwise leave the matrimonial home and on her refusal to meet the said demand, she was thrown out of the matrimonial home. The appellant denied that she had sexual relationship with the respondent only 10-15 times or she had refused to have sex with the respondent. She also denied that she never insisted the respondent to live in the house of her parents. She also denied that on 11th March, 1991 she made any attempt to steal the jewellery or she was caught red handed. She also stated that in the last week of April, 1991 she was told by the respondent to withdraw Rs. 30,000/- from her bank account as the old sofa lying in the house required replacement but no new sofa set was purchased when she brought the said money and gave the same to the mother of the respondent. The appellant also took a stand that she was prepared to live with the respondent as she had withdrawn from her society without any reasonable cause and without any fault on her part.
 4. Based on the pleadings of the parties, the learned Trial Court framed the following issues:- (i) Whether the respondent has treated the petitioner with cruelty? (ii) Relief. (iii) Whether the petitioner has withdrawn from the company of the respondent without any reasonable cause or excuse? If so, its effect. The respondent in evidence examined himself as PW2 besides examining Shri Dalveer Singh, Head Constable as PW1 and Shri Vishwamitra, father of the respondent as PW 3, his colleague Shri Vijay Kumar Taygi PW4. The appellant on the other hand examined herself as RW1 with no other evidence in support.

 5. After taking into consideration the pleadings of the parties, the learned Trial Court found that the refusal of the appellant wife to participate in the “Dud Mundari ceremony” and thereafter “Chudha ceremony”, which were customary rituals in the family of the respondent husband caused embarrassment and humiliation to the respondent and such acts on the part of the appellant amounted to cruelty. The learned Trial Court also found that in the span of one year and two months of the married life, the parties had sex only for about 10-15 times and also denial of the appellant for sexual relationship on the very first night of the marriage is a grave act of cruelty as healthy sexual relationship is one of the basic ingredients of a happy marriage. The learned Trial Court also found that filing of the complaints by the appellant with the Crime Against Women Cell and Family Counsel Office also collectively caused mental cruelty to the respondent husband. Accordingly, the learned trial court granted a decree of divorce in favour of the respondent and against the appellant and consequently also dismissed her counter claim for restitution of conjugal rights

. 6. Mr. Atul Bandhu, learned counsel appearing for the appellant before this court vehemently argued that the learned Trial Court did not refer to the evidence of the appellant wife wherein she has denied all the allegations leveled by the respondent husband in his petition for divorce. Counsel also contended that the marriage was consummated on the very first night and the appellant wife never denied sexual relationship to the respondent husband. Counsel also submitted that nowhere the respondent husband has stated that as to when he was refused any such sexual relationship by the appellant. Counsel thus argued that the learned Trial Court has granted the decree of divorce merely on the ground that the appellant wife did not participate in the dud-mundari ceremony and chudha ceremony and also she did not allow the husband to have sexual intercourse more than 10-15 times in a period of 5 months and as per the counsel, these grounds cannot be treated sufficient enough to constitute cruelty as envisaged under Section 13(ia) of the Hindu Marriage Act. In support of his arguments, counsel for the appellant placed reliance on the judgment of the Hon’ble Supreme Court in Savitri Pandey vs Prem Chandra Pandey AIR2002SC591 and V. Bhagat vs D. Bhagat (Mrs) (1994) 1 SCC 337. 7. Mr. R.G. Srivastava, learned counsel appearing for the respondent on the other hand fully supported the reasons given by the learned Trial Court which entitled him to claim a decree of divorce under Section 13(ia) of the Hindu Marriage Act. Counsel for the respondent also submitted that the appellant did not respect the sentiments of the respondent and his family members by refusing to perform customary rituals like dud-mundari ceremony and chudha ceremony. Counsel also argued that the appellant did not discharge her matrimonial obligations either towards her husband or even towards his old parents. Counsel also submitted that the appellant made false complaints to the Crime Against Women Cell and to the Family Counsel Office, which she later withdrew and such act of the appellant also caused mental cruelty to the respondent. Counsel also submitted that by denying normal sexual relationship to the respondent, the appellant had shaken and destroyed the very foundation of a sound marriage. Counsel also submitted that the respondent had duly discharged his burden to prove the case set up by him where as the appellant failed to discharge her burden and even could not prove her defence. In support of his arguments, counsel for the respondent placed reliance on the following judgments:- 1. Vinita Saxena vs Pankaj Pandit 2006(3) SCALE (SC) 367. 2. Naveen Kohli vs Neelu Kohli 2006(4) SCC 558. 3. Samar Ghosh vs Jaya Ghosh 2007 (4) SCC 511. 4. Praveen Mehta vs Inderjit Mehta AIR 2002 SC 2582 5. Rajinder Bhardwaj vs Anita Sharma AIR 1993 Delhi 135. 8. I have heard learned counsel for the parties and given my thoughtful consideration to the arguments advanced by them. 9. Cruelty as a ground for divorce is nowhere defined in the Hindu Marriage Act as it is not capable of precise definition. There cannot be any straitjacket formula for determining whether there is cruelty or not and each case depends on its own facts and circumstances. What may be cruelty in one case may not be cruelty in other and the parameter to judge cruelty as developed through judicial pronouncements is that when the conduct complained of is such that it is impossible for the parties to stay with each other without mental agony, torture and stress. It has to be something much more than the ordinary wear and tear of married life. The conduct complained of should be grave and weighty and touch a pitch of severity to satisfy the conscience of the court that the parties cannot live together with each other anymore without mental agony, distress and torture. The main grievance of the respondent herein is the denial of the appellant to have normal sexual relationship with the respondent. As per the case of the respondent, during the short period of 5 months he had sexual intercourse with the appellant only 10-15 time while the plea taken by the appellant is that she had never denied sex to the respondent. The courts have through various judicial pronouncements taken a view that sex is the foundation of marriage and marriage without sex is an anathema. The Division Bench of this Court in the celebrated pronouncement of Mrs. Rita Nijhawan vs. Mr.Bal Kishan Nijhawan AIR1973Delhi200 held as under: “In these days it would be unthinkable proposition to suggest that the wife is not an active participant in the sexual life and therefore, the sexual weakness of the husband which denied normal sexual pleasure to the wife is of no consequence and therefore cannot amount to cruelty. Marriage without sex is an anathema. Sex is the foundation of marriage and without a vigorous and harmonious sexual activity it would be impossible for any marriage to continue for long. It cannot be denied that the sexual activity in marriage has an extremely favorable influence on a woman's mind and body, the result being that if she does not get proper sexual satisfaction it will lead to depression and frustration. It has been said that the sexual relations when happy and harmonious vivifies woman's brain, develops her character and trebles her vitality. It must be recognised that nothing is more fatal to marriage than disappointments in sexual intercourse.” The learned Trial Court referred to the judgment of this court in the case of Shankuntla Kumari vs. Om Prakash Ghai AIR1983Delhi53 wherein it was held that: “(25) A normal and healthy sexual relationship is one of the basic ingredients of a happy and harmonious marriage. If this is not possible due to ill health on the part of one of the spouses, it may or may not amount to cruelty depending on the circumstances of the case. But willful denial of sexual relationship by a spouse when the other spouse is anxious for it, would amount to mental cruelty, especially when the parties are young and newly married.” Hence, it is evident from the aforesaid that willful denial of sexual intercourse without reasonable cause would amount to cruelty. In the authoritative pronouncement of the Hon’ble Supreme Court in Samar Ghosh vs Jaya Ghosh (2007)4SCC511, the Hon’ble Supreme Court took into account the parameters of cruelty as a ground for divorce in various countries and then laid down illustrations, though not exhaustive, which would amount to cruelty. It would be relevant to refer to the following para 101 (xii) wherein it was held as under:- “(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.” Although it is difficult to exactly lay down as to how many times any healthy couple should have sexual intercourse in a particular period of time as it is not a mechanical but a mutual act, however, there cannot be any two ways about the fact that marriage without sex will be an insipid relation. Frequency of sex cannot be the only parameter to assess the success or failure of a marriage as it differs from couple to couple as to how much importance they attach to sexual relation vis a vis emotional relation. There may be cases where one partner to the marriage may be over sexual and the other partner may not have desire to the same level, but otherwise is fully potent. Marriage is an institution through which a man and a woman enter into a sacred bond and to state that sexual relationship is the mainstay or the motive to be achieved through marriage would be making a mockery of this pious institution. By getting married, a couple agrees to share their lives together with all its moments of joy, happiness and sorrow and the sexual relationship between them brings them close and intimate by which their marital bond is reinforced and fortified. There may not be sexual compatibility of a couple right from inception of the relationship and depending upon physical, emotional, psychological and social factors, the compatibility between some couples may be there from the beginning and amongst some may come later. Undoubtedly, a normal and healthy couple should indulge into regular sexual relationship but there may be exceptions to this and what may be normal for some may not be normal for others as it would depend upon various factors such nature of job, stress levels, social and educational background, mood patterns, physical well being etc. Indisputably, there has to be a healthy sexual relationship between a normal couple, but what is normal cannot be put down in black and white. 10. Adverting back to the facts of the present case, the marriage between the parties was solemnized on 17.2.1991 and according to the appellant she was forced to leave the matrimonial house on 16.4.1992, whereas as per the respondent husband, the appellant wife practically stayed at the matrimonial home only for a period of five months as for rest of the period she stayed at her parental house. The case of the respondent is that he had sex with the appellant only for about 10-15 times in a span of five months of married life and that he was denied sexual relationship on the very first night of their marriage and denial of sex at the wedding night caused great mental cruelty to him. The respondent husband also stated that he was allowed to have sexual intercourse by the appellant for the first time only on 25.2.1991.The appellant wife has denied the said allegations of the respondent husband and in defence stated that she was having normal sexual relationship with her husband and even had sexual intercourse on the wedding night. The learned Trial Court after analyzing the evidence adduced by both the parties found the version of the appellant untrustworthy and unreliable while that of the respondent, much more credible and trustworthy. The appellant on one hand took a stand that on 18.2.1991 the atmosphere on that night was very tense so much so that, both the parties could not sleep and speak to each other and she did not even take proper food and the whole night there was tension between the parties and the atmosphere was fully charged, but at the same time in the crossexamination of PW2 the suggestion was made by counsel that the appellant touched the feet of the respondent when he entered the room on the said wedding night and she also admitted that her husband had never taken liquor in her presence and he had never come to her in drunken state. It would be appropriate to reproduce para 55 of the Trial Court judgment to bring to surface the said contradiction on the part of the appellant. “55.From the evidence on record, it is gathered that on the wedding night i.e. on 18.2.91 a “Dud Mundari” ceremony was to be performed but the respondent wife refused to participate in the same. This version of PW 2 has been fully corroborated by his father PW 3. The husband i.e. Rajiv Arora, had entered by both PW 2 and RW1. RW 1 in her cross-examination has stated that their marriage had been consummated on that very night and her husband had come to her and she did not have to persuade the petitioner. On the other hand the petitioner has stated that their marriage could not be consummated on their wedding night and he had sex with his wife for the first time only on 25.2.91. RW1 in her cross-examination has stated that the atmosphere that night was very tense and both the parties could not sleep and they did not speak to each other and her husband had grievance about the insufficient dowry which had been given in the marriage . RW 1 has also admitted that on 18.2.91, she did not take proper food as she was not feeling well. This version of RW1 that she did not take food that night is corroborated by the version of PW1 who has stated that on the wedding night at the time when the dinner was served the attitude of the respondent was indifferent and she did not take any dinner but she took only a little sweet.” 11. In matrimonial cases, more often than not it is a challenging task to ascertain as to which party is telling truth as usually it is the oral evidence of one party against the oral evidence of the other. What happens in the four walls of the matrimonial home and what goes on inside the bed room of the couple is either known to the couple themselves or at the most to the members of the family, who are either residing there or in whose presence any incident takes place. Whether the couple has had sex and how many times or have had not had sex and what are the reasons; whether it is due to the denial or refusal on the part of the wife or of the husband can only be established through the creditworthiness of the testimonies of the parties themselves. Consequently, the absence of proper rebuttal or failure of not putting one’s case forward would certainly lead to acceptance of testimony of that witness whose deposition remains unchallenged. In the present case, the testimony of the respondent that the appellant was never responsive and was like a dead wood when he had sexual intercourse with her remained unrebutted. It is not thus that the respondent had sex with her wife only about 10-15 times from the date of his marriage within a period of five months, but the cruel act of the appellant of denying sex to the respondent especially on the very first night and then not to actively participate in the sex even for the said limited period for which no contrary suggestion was given by the appellant to the respondent in his crossexamination. The respondent has also successfully proved on record that the appellant did not participate in the customary rituals of dud mundri and that of chudha ceremony, which caused grave mental cruelty to the respondent. It is a matter of common knowledge that after the marriage, certain customary rituals are performed and the purpose of these rituals is to cement the bond of marriage. The question whether there was a refusal on the part of the respondent not to perform the ritual of dud-mundari and chudha ceremony is difficult to be answered as on one hand, the appellant has alleged that she had duly participated in the ceremonies while on the other hand the respondent has taken a stand that there was refusal on the part of the appellant to participate in the ceremonies. No doubt the testimony of the respondent has been supported by the evidence of his father and there is no corroborative evidence from the side of the appellant, although her brother had accompanied her in doli and in such backdrop, adverse inference thus has to be drawn against the appellant for not producing her brother in evidence who could be the best witness to prove the defence of the appellant alleging her participation in the dud-mundari ceremony. Undeniably, these customary ceremonies are part of the marriage ceremony and refusal of the same that too in the presence of the family members of the husband would be an act of cruelty on the part of the wife. The appellant has also failed to prove any demand of dowry made by the respondent or his family members as no evidence to this effect was led by the appellant. The appellant herein also filed criminal complaints against the respondent and his family members and later withdrew the same. Undoubtedly, it is the right of the victim to approach the police and CAW cell to complain the conduct of the offending spouse, however, frivolous and vexatious complaints like in the present case led to cause mental torture and harassment to the respondent and his family members. Thus, taking into account the conduct of the appellant in totality, this court is of the view that the same amounts to causing mental cruelty to the respondent. 12. Before parting with the judgment, this court would like to observe that the sex starved marriages are becoming an undeniable epidemic as the urban living conditions today mount an unprecedented pressure on couples. The sanctity of sexual relationship and its role in reinvigorating the bond of marriage is getting diluted and as a consequence more and more couples are seeking divorce due to sexual incompatibility and absence of sexual satisfaction. As already stated above, to quantify as to how many times a healthy couple should have sexual intercourse is not for this court to say as some couples can feel wholly inadequate and others just fine without enough sex. “That the twain shall become one flesh, so that they are no more twain but one” is the real purpose of marriage and sexual intercourse is a means, and an integral one of achieving this oneness in marriage. 13. This Court therefore, does not find any kind of illegality or perversity in the findings given by the learned Trial Court in the impugned judgment dated 12.2.2001 and the same is accordingly upheld. The present appeal filed by the appellant is devoid of any merits and the same is hereby dismissed. KAILASH GAMBHIR, J

Friday, March 23, 2012

See Other Divorce Related Post:

See Other Divorce Related Post:

1.Divorce By Mutual Consent: 
Click at Link bellow.

http://divorce-on-mutual-consent.blogspot.in/


Maintenance by wife u/s 125 Crpc.

Click at Link bellow.

2.http://judgements-on-divorce-india.blogspot.com/2011/05/claiming-maintenance-by-wife-us-125.html


Loc (look Out Circulars meaning)

Click at Link bellow.
3.http://loc-look-out-cerculars-meaning.blogspot.in/

Child Custody Laws in India:

Click at Link bellow.

4.http://child-custody-laws-in-india.blogspot.in/

Validity of Foreign Divorce in India ?

Click at Link bellow.

5.http://validity-of-foreign-divorce-decree.blogspot.in/

Extradition & Treaty Laws in India:

Click at Link bellow.

6.http://extradition-treaty-laws-india.blogspot.in/

Annulment of Marriage Law in India:

Click at Link bellow.

7.http://annulment-of-marriage.blogspot.in/

Restitution of Conjugal Rights of Marriage:

Click at Link bellow.

8.http://restitution-of-conjugal-rights-of-mar.blogspot.in/

Bail/Anticipatory Bail in 498a/406/ipc

Click at Link bellow.

9.http://bail-498aipc.blogspot.in/

Indian Women Can Claim in Marital Property in Divorce

Indian Women Can Claim in Marital Property in Divorce:

Women could stake claim to marital property even if the property in their name. the government has proposed amendments to marriage loss under the Hindu Marriage Act 1955. After this the courts can decide on how property acquired during the marriage.

The Marriage Laws (amended)bill seeks to amend the Hindu Marriage Act 1955 and Special Marriage Act 1954.

Now the Ld. Judges can decide how property acquired after marriage is to be disposed of. the court can also decide amount either husband or wife would pay to get right over the property.

In this amendment adopted children will have same rights as normal children.

Sources: The Times Of India Dated 22/03/2012

:Adv. V.K.Singh :

Tuesday, May 3, 2011

section 24 Hindu Marriage Act for Iterim Maintenance By Wife

"
From the perusal of Section 24, it is abundantly clear that the object and intent of this Section is to enable the husband or the wife, as the case may be, who has no independent source of income for his or her support and necessary expense of proceedings under the
Act to obtain maintenance expenses pendent lite so that the proceedings may be continued without any hardships on his or her part. The benefits granted under this Section are only temporary in nature and there are other provisions of law where a wife, who is not able to maintain herself, can claim maintenance/permanent alimony from the husband e.g. Section 25 of HMA or under provisions of Hindu Adoption and Maintenance Act. "




IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: August 18, 2008
Date of Order: September 18,2008
CM(M) 949/2008
18.09.2008
Manish Kumar …Petitioner
Through: Mr. Rakesh Tiku with Mr. Abhinav Bajaj, Advocate
Versus
Mrs. Pratibha…Respondent
Through: Mr. Sanjeev Sindhwani and Ms. Ekta Kalra, Advocates
JUSTICE SHIV NARAYAN DHINGRA


1. Whether reporters of local papers may be allowed to see the judgment?Yes.
2. To be referred to the reporter or not? Yes.
3. Whether judgment should be reported in Digest? Yes.
JUDGMENT:
1. By this petition under Article 227 of the Constitution of India, the petitioner has assailed an order 25th July 2008 passed by learned trial court whereby the learned ADJ awarded a maintenance of Rs.7,500/- per month to the respondent wife under Section 24 of the Hindu Marriage Act (HMA).
2. There is no dispute about the fact that both husband and wife were gainfully employed. Wife claimed that her monthly salary was Rs.28,500 whereas her husband was having monthly salary of Rs.90,000/- per month. She claimed a maintenance of Rs.30,000/- per month.
3. Both husband and wife were working in private companies and their salary statements and other record was placed before the trial court. The trial court found that the take-home salary of wife was Rs.41,900/- and that of the husband was Rs.75,761/- per month respectively. Finding that the salary of the husband was more than the salary of the wife, the trial court granted maintenance of Rs.7,500/- to the wife.
4. I consider that while awarding maintenance to the wife, the trial court has lost sight of the basic ingredients of Section 24. Section 24 of HMA reads as follows:
“24. Maintenance pendente lite and expenses of proceedings.- Where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay the petitioner the expenses of the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the Court to be reasonable”
5. From the perusal of Section 24, it is abundantly clear that the object and intent of this Section is to enable the husband or the wife, as the case may be, who has no independent source of income for his or her support and necessary expense of proceedings under the
Act to obtain maintenance expenses pendent lite so that the proceedings may be continued without any hardships on his or her part. The benefits granted under this Section are only temporary in nature and there are other provisions of law where a wife, who is not able to maintain herself, can claim maintenance/permanent alimony from the husband e.g. Section 25 of HMA or under provisions of Hindu Adoption and Maintenance Act. The provisions of this Section are not meant for equivalising the income of wife with that of husband but are meant to see that where divorce or other proceedings are filed, either of the party should not suffer because of paucity of source of income and the Court should pass an order even during the pendency of such a petition, for maintenance and litigation expenses. Where a wife has no income or is without any support for maintaining herself, the Court has to pass an order considering the income and living status of the husband. However, where the wife and her husband both are earning and both are having good salary, merely because there is some salary difference, an order is not required to be passed under Section 24 of HMA.
6. In the instant case, it is nowhere pleaded by the wife in her application under Section 24 that the income being earned by her was not sufficient for her maintenance. Her contention in the application was that the petitioner was liable to bring her to the same status and station as if she was living with him in the matrimonial home. In my view, this is not the intent and purpose of Section 24. The purpose and intent of 24 is quite different as stated above.
7. The salary slips of the wife has been placed on record which show that she was having salary in the range of around Rs.50,000/- per month. Her statement of salary account from February 2007 to January 2008 shows that she had a take-home salary during this year of Rs.6,80,188/-. The average monthly salary was thus Rs.56,682/-. This salary was after deduction of tax, employees provident fund, PF contribution etc. Her gross salary inclusive of tax, provident fund etc was around Rs.80,000/- per month. A person who is earning this much of salary can very well maintain herself with such a standard which may be envy of many and under no stretch of imagination it can be said that the income earned by her was not enough to maintain her. There was no other liability on her. There is no offspring from this wedlock.
8. In view of my foregoing discussion, I consider that the trial court has wrongly allowed maintenance to the respondent wife. The petition is allowed and the impugned order dated 25th July 2008, granting maintenance of Rs.7500/- per month to the wife, is hereby set aside. However, the petitioner would be liable to pay the litigation expenses, as ordered by the trial court. No order as to costs.
September 18, 2008
SHIV NARAYAN DHINGRA J.

claiming Maintenance by wife u/s 125 crpc.

"
where wife was surviving by
begging, would not amount to her ability to maintain herself.
It can also be not said that the wife has been capable of
earning but she was not making an effort to earn. Whether the
deserted wife was unable to maintain herself, has to be
decided on the basis of the material placed on record. Where
the personal income of the wife is insufficient she can claim
maintenance under Section 125 Cr.P.C. The test is whether
the wife is in a position to maintain herself in the way she was
used to in the place of her husband"


CASE NO.:
Appeal (crl.) 1627 of 2007

PETITIONER:
Chaturbhuj

RESPONDENT:
Sita Bai

DATE OF JUDGMENT: 27/11/2007

BENCH:
Dr. ARIJIT PASAYAT & AFTAB ALAM

JUDGMENT:
J U D G M E N T

CRIMINAL APPEAL NO. 1627 OF 2007
(Arising out of SLP (Crl.) No.4379 of 2006)

Dr. ARIJIT PASAYAT, J.


1. Leave granted.



2. Challenge in this appeal is to the order passed by a
learned Single Judge of the Madhya Pradesh High Court,
Indore Bench, dismissing the revision petition filed by the
appellant in terms of Section 482 of the Code of Criminal
Procedure, 1973 (in short 'Cr.P.C.'). The challenge before the
High Court was to the order passed by learned Judicial
Magistrate, First Class, Neemuch, M.P. as affirmed by the
learned Additional Sessions Judge, Neemuch, M.P. The
respondent had filed an application under Section 125 of
Cr.P.C. claiming maintenance from the appellant.
Undisputedly, the appellant and the respondent had entered
into marital knot about four decades back and for more than
two decades they were living separately. In the application it
was claimed that she was unemployed and unable to maintain
herself. Appellant had retired from the post of Assistant
Director of Agriculture and was getting about Rs.8,000/- as
pension and a similar amount as house rent. Besides this, he
was lending money to people on interest. The appellant
claimed Rs.10,000/- as maintenance. The stand of the
appellant was that the applicant was living in the house
constructed by the present appellant who had purchased 7
bighas of land in Ratlam in the name of the applicant. She let
out the house on rent and since 1979 was residing with one of
their sons. The applicant sold the agricultural land on
13.3.2003. The sale proceeds were still with the applicant.
The appellant was getting pension of about Rs.5,700/- p.m.
and was not getting any house rent regularly. He was getting
2-3 thousand rupees per month. The plea that the appellant
had married another lady was denied. It was further
submitted that the applicant at the relevant point of time was
staying in the house of the appellant and electricity and water
dues were being paid by him. The applicant can maintain
herself from the money received from the sale of agricultural
land and rent. Considering the evidence on record, the trial
Court found that the applicant-respondent did not have
sufficient means to maintain herself.


3. Revision petition was filed by the present appellant.
Challenge was to the direction to pay Rs.1500/- p.m. by the
trial Court. The stand was that the applicant was able to
maintain herself from her income was reiterated. The
revisional court analysed the evidence and held that the
appellant's monthly income was more than Rs.10,000/- and
the amount received as rent by the respondent-claimant was
not sufficient to maintain herself. The revision was
accordingly dismissed. The matter was further carried before
the High Court by filing an application in terms of Section 482
Cr.P.C. The High Court noticed that the conclusions have
been arrived at on appreciation of evidence and, therefore,
there is no scope for any interference.


4. Section 125 Cr.P.C. reads as follows:


"125. (1) If any person having sufficient means
neglects or refuses to maintain
(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child,
whether married or not, unable to maintain
itself, or

(c) his legitimate or illegitimate child (not being
a married daughter) who has attained
majority, where such child is, by reason of any
physical or mental abnormality or injury
unable to maintain itself, or

(d) his father or mother, unable to maintain
himself or herself,
a Magistrate of the First Class may, upon proof of
such neglect or refusal, order such person to make
a monthly allowance for the maintenance of his wife
or such child, father or mother, at such monthly
rate not exceeding five hundred rupees in the whole,
as such Magistrate thinks fit, and to pay the same
to such person as the Magistrate may from time to
time direct:
Provided that the Magistrate may order the
father of a minor female child referred to in clause
(b) to make such allowance, until she attains her
majority, if the Magistrate is satisfied that the
husband of such minor female child, if married, is
not possessed of sufficient means.
Explanation .For the purposes of this Chapter,
(a) 'minor' means a person who, under the
provisions of the Indian Majority Act, 1875 (9
of 1875), is deemed not to have attained his
majority;
(b) 'wife' includes a woman who has been
divorced by, or has obtained a divorce from,
her husband and has not remarried."
["(2) Any such allowance for the maintenance or
interim maintenance and expenses of proceeding
shall be payable from the date of the order, or, if so
ordered, from the date of the application for
maintenance or interim maintenance and expenses
of proceeding, as the case may be.";]
(3) If any person so ordered fails without sufficient
cause to comply with the order, any such Magistrate
may, for every breach of the order, issue a warrant
for levying the amount due in the manner provided
for levying fines, and may sentence such person, for
the whole, or any port of each month's allowance 4
[allowance for the maintenance or the interim
maintenance and expenses of proceeding , as the case
may be] remaining unpaid after the execution of the
warrant, to imprisonment for a term which may
extend to one month or until payment if sooner made:
Provided that no warrant shall be issued for the
recovery of any amount due under this section
unless application be made to the Court to levy
such amount within a period of one year from the
date on which it became due:
Provided further that if such person offers to
maintain his wife on condition of her living with
him, and she refuses to live with him, such
Magistrate may consider any grounds of refusal
stated by her, and may make an order under this
section notwithstanding such offer, if he is satisfied
that there is just ground for so doing.
Explanation.-If a husband has contracted marriage
with another woman or keeps a mistress, it shall
be considered to be just ground for his wife's
refusal to live with him.
(4) No wife shall be entitled to receive an 4 [allowance
for the maintenance or the interim maintenance and
expenses of proceeding , as the case may be] from her
husband under this section if she is living in
adultery, or if, without any sufficient reason, she
refuses to live with her, husband, or if they are living
separately by mutual consent.
(5) On proof that any wife in whose favour an order
has been made under this section is living in
adultery, or that without sufficient reason she
refuses to live with her husband, or that they are
living separately by mutual consent, the Magistrate
shall cancel the order."

5. The object of the maintenance proceedings is not to
punish a person for his past neglect, but to prevent vagrancy
by compelling those who can provide support to those who
are unable to support themselves and who have a moral claim
to support. The phrase "unable to maintain herself" in the
instant case would mean that means available to the deserted
wife while she was living with her husband and would not take
within itself the efforts made by the wife after desertion to
survive somehow. Section 125 Cr.P.C. is a measure of social
justice and is specially enacted to protect women and children
and as noted by this Court in Captain Ramesh Chander
Kaushal v. Mrs. Veena Kaushal and Ors. (AIR 1978 SC 1807)
falls within constitutional sweep of Article 15(3) reinforced by
Article 39 of the Constitution of India, 1950 (in short the
'Constitution'). It is meant to achieve a social purpose. The
object is to prevent vagrancy and destitution. It provides a
speedy remedy for the supply of food, clothing and shelter to
the deserted wife. It gives effect to fundamental rights and
natural duties of a man to maintain his wife, children and
parents when they are unable to maintain themselves. The
aforesaid position was highlighted in Savitaben Somabhai
Bhatiya v. State of Gujarat and Ors. (2005 (2) Supreme 503).

6. Under the law the burden is placed in the first place
upon the wife to show that the means of her husband are
sufficient. In the instant case there is no dispute that the
appellant has the requisite means.

7. But there is an inseparable condition which has also to
be satisfied that the wife was unable to maintain herself.
These two conditions are in addition to the requirement that
the husband must have neglected or refused to maintain his
wife. It is has to be established that the wife was unable to
maintain herself. The appellant has placed material to show
that the respondent-wife was earning some income. That is
not sufficient to rule out application of Section 125 Cr.P.C. It
has to be established that with the amount she earned the
respondent-wife was able to maintain herself.


8. In an illustrative case where wife was surviving by
begging, would not amount to her ability to maintain herself.
It can also be not said that the wife has been capable of
earning but she was not making an effort to earn. Whether the
deserted wife was unable to maintain herself, has to be
decided on the basis of the material placed on record. Where
the personal income of the wife is insufficient she can claim
maintenance under Section 125 Cr.P.C. The test is whether
the wife is in a position to maintain herself in the way she was
used to in the place of her husband. In Bhagwan v. Kamla
Devi (AIR 1975 SC 83) it was observed that the wife should be
in a position to maintain standard of living which is neither
luxurious nor penurious but what is consistent with status of
a family. The expression "unable to maintain herself" does not
mean that the wife must be absolutely destitute before she can
apply for maintenance under Section 125 Cr.P.C.


9. In the instant case the trial Court, the Revisional Court
and the High Court have analyzed the evidence and held that
the respondent wife was unable to maintain herself. The
conclusions are essentially factual and they are not perverse.
That being so there is no scope for interference in this appeal
which is dismissed.