Latest Judgments on Divorce in India by Divorce Lawyers.

Thursday, December 8, 2016

Hindu Couple can remarry 90 days after divorce

The decision of the HC comes as a relief to estranged Hindu couples who want challenge the orders, decrees or verdicts of the Family Courts.

The ruling came from a full bench presided over by Justice Naresh Patil, Justice Ramesh Dhanuka and Justice Sadhana Jadhav. In 2014, another division bench headed by Justice Abhay Oka had referred the matter to a full bench, wherein the full bench was requested to deal with the legal controversy of appeal period for Hindu couples.

The basic controversy was that whether the provisions of Family Courts Act which provides for a 30 days deadline will be applicable for divorcing Hindu couples or the provisions mentioned in the Hindu Marriage Act, which provides for a total of 90 days deadline to file appeals.

The significance of the limitation provided by law is that once the appeal deadline ends, the divorced couple is free to remarry without the fear of challenge to the family court decree.

In its 30-page order, the full bench said, “While interpreting the provisions of the said two enactments (Family Courts Act and Hindu Marriage Act), it needs to be considered that we are a country of vast population, millions of people face financial hardship for litigating a matter, people have to spend considerable amount of time, money and energy. The geographical conditions further make easy access to justice difficult.”

“We are of the view that considering the scheme of both the enactments it would not be appropriate to apply different period of limitation, one in case of orders passed by the Family Courts and in another by the regular Civil Courts. Such an approach would frustrate very purpose of legislation,” the bench added.

Accordingly, the bench held that if an appeal is filed by any Hindu individual under the provisions of the Family Courts Act, the period of limitation prescribed under the Hindu Marriage Act (90 days) would apply.

The decision of the HC comes as a relief to estranged Hindu couples who want challenge the orders, decrees or verdicts of the Family Courts.

The controversy was that whether the provisions of Family Courts Act which provides for a 30 days deadline will be applicable for divorcing Hindu couples or the provisions mentioned in the Hindu Marriage Act, which provides for a total of 90 days deadline to file appeals.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FAMILY COURT APPEAL NO. 161 OF 2013

Shri Shivram Dodanna Shetty

Aged 54 years, Occupation : Service,

Residing at Building No. 40, Sumrite

Co-Op. Society, Room No. 2, Sector-7,

New Panvel, Dist. Raigad. .. Appellant

Versus

Sou. Sharmila Shivram Shetty

Aged 31 years, Occupation : Service,

Residing at 2, Ekveera Dharshan

Building, Kisan Nagar No.1,

Thane – 400 604. .. Respondent

Ms. Zenobia S. Irani/Nair a/w Mr. Prashant Tikare a/w Fatima

Rampurwalla for appellant.

Mr. Nitin P. Dalvi for respondent.

Mr. Aspi Chinoy, Senior Counsel, Amicus Curiae.

Mr. Murtaza Najmi, Advocate appeared suo motu.

CORAM: NARESH H. PATIL,

R. D. DHANUKA &

SMT. SADHANA S. JADHAV, JJ.

RESERVED ON : AUGUST 26, 2016.

PRONOUNCED ON : DECEMBER 01, 2016

JUDGMENT [ Per Naresh H. Patil, J.] :

1. A question framed by the Division Bench of this court was

referred to a Larger Bench by the then Hon'ble the Acting Chief Justice of

this Court. The question was framed by the Division Bench (Coram:A. S.

Oka & A. S. Gadkari, JJ.) by an order dated 10/12/2014. The said question

reads as under :-

“Whether an appeal under sub-section (1) of section 19 of the

Family Courts Act, 1984 will be governed by the period of

limitation under sub-section (3) of section 19 or whether the

period of limitation provided under sub-section (4) of section

28 of the Hindu Marriage Act, 1955 will apply to such

Appeal?

2. The Hindu Marriage Act, 1955 (for short “the Act of 1955)

was enacted by Parliament for amending and codifying the law relating to

marriage amongst Hindus. The Act of 1955 became law on 18/5/1955.

The Act of 1955 was amended by Amendment Act 68 of 1976, Amendment

Act 2 of 1978 and Amendment Act 50 of 2003. The proceedings under

the Act of 1955 were to be instituted in District Court. Section 3(b) defines

“District Court” as under:-

“(3) Definitions.- In this Act, unless the context otherwise

requires, -

(a)

(b) “district Court” means, in any area for which there is a

City Civil Court, that Court, and in any other area the principal

Civil Court of original jurisdiction, and includes any other

Civil Court which may be specified by the State Government,

by notification in the Official Gazette, as having jurisdiction in

respect of the matters dealt with in this Act;”

The provision for filing of appeals from decrees and orders is prescribed

under Section 28 of the Act of 1955, which reads as under :-

“28. Appeals from decrees and orders.-(1) All decrees made

by the Court in any proceeding under this Act shall, subject to

the provisions of sub-section (3), be appealable as decrees of

the Court made in the exercise of its original civil jurisdiction,

and every such appeal shall lie to the Court to which appeals

ordinarily lie from the decisions of the Court given in the

exercise of its original civil jurisdiction.

(2) Orders made by the Court in any proceeding under this

Act under section 25 or section 26 shall, subject to the

provisions of sub-section (3), be appealable if they are not

interim orders, and every such appeal shall lie to the Court to

which appeals ordinarily lie from the decisions of the Court

given in exercise of its original civil jurisdiction.

(3) There shall be no appeal under this section on the

subject of costs only.

(4) Every appeal under this section shall be preferred within

a period of ninety days from the date of the decree or order.”

In Section 28(4), the Act prescribed a period of limitation of

thirty days, which came to be substituted to ninety days by way of Act 50

of 2003.

3. The Family Courts Act, 1984 (for short “the Act of 1984) was

enacted to provide establishment of Family Courts with a view to promote

conciliation in, and secure speedy settlement of, disputes relating to

marriage and family affairs and for matters connected therewith. The Act

of 1984 was enacted on 14/9/1984. The said Act provides that the State

Government shall, after consultation with the High Court, establish the

Family Court. Section 3 of the Act of 1984 reads as under :-

“3. Establishment of Family Courts.- (1) For the purpose

of exercising the jurisdiction and powers conferred on a

Family Court by this Act, the State Government, after

consultation with the High Court, and by notification, -

(a) shall, as soon as may be after the commencement

of this Act, establish for every area in the State

comprising a city or town whose population exceeds

one million, a Family Court;

(b) may establish Family Courts for such other areas

in the State as it may deem necessary.

(2) The State Government shall, after consultation with the

High Court, specify, by notification, the local limits of the area

to which the jurisdiction of a Family Court shall extend and

may, at any time, increase reduce or alter such limits.

Section 7 of the Act of 1984 prescribed as under:

“7. Jurisdiction. - (1) Subject to the other provisions of this

Act, a Family Court shall -

(a) have and exercise all the jurisdiction exercisable

by any district Court or any subordinate civil Court

under any law for the time being in force in respect of

suits and proceedings of the nature referred to in the

Explanation; and

(b) be deemed, for the purposes of exercising such

jurisdiction under such law, to be a district Court or, as

the case may be, such subordinate civil Court for the

area to which the jurisdiction of the Family Court

extends.

Explanation. - The suits and proceedings referred to in this

sub-section are suits and proceedings of the following nature,

namely:-

(a) a suit or proceeding between the parties to a

marriage for a decree of nullity of marriage (declaring

the marriage to be null and void or, as the case may be,

annulling the marriage) or restitution of conjugal rights

or judicial separation or dissolution of marriage;

(b) a suit or proceeding for a declaration as to the

validity of a marriage or as to the matrimonial status of

any person;

marriage with respect to the property of the parties or of

either of them;

(d) a suit or proceeding for an order or injunction in

circumstances arising out of a marital relationship;

(e) a suit or proceeding for a declaration as to the

legitimacy of any person;

(f) a suit or proceeding for maintenance;

(g) a suit or proceeding in relation to the guardianship

of the person or the custody of, or access to, any minor.

(2) Subject to the other provisions of this Act, a Family

Court shall also have and exercise -

(a) the jurisdiction exercisable by a Magistrate of the

first class under Chapter IX (relating to order for

maintenance of wife, children and parents) of the Code

of Criminal Procedure, 1973 (2 of 1974); and

(b) such other jurisdiction as may be conferred on it

by any other enactment.

Section 8 of the Act of 1984 reads as under :-

“8. Exclusion of jurisdiction and pending proceedings. -

Where a Family Court has been established for any area, -

(a) no district Court or any subordinate civil Court

referred to in sub-section (1) of section 7 shall, in

relation to such area, have or exercise any jurisdiction in

respect of any suit or proceeding of the nature referred

to in the Explanation to that sub-section;

(b) no Magistrate shall, in relation to such area, have

or exercise any jurisdiction or powers under Chapter IX

of the Code of Criminal Procedure, 1973 (2 of 1974);

in the Explanation to sub-section (1) of section 7 and

every proceeding under Chapter IX of the Code of

Criminal Procedure, 1973 (2 of 1974), -

(i) which is pending immediately before the

establishment of such Family Court before any

district Court or subordinate Court referred to in

that sub-section or, as the case may be, before any

Magistrate under the said Code; and

(ii) which would have been required to be

instituted or taken before or by such Family Court

if, before the date on which such suit or

proceeding was instituted or taken, this Act had

come into force and such Family Court had been

established,

shall stand transferred to such Family Court on

the date on which it is established.

The provision of appeal is prescribed under Section 19, which

reads as under :-

“19. Appeal. - (1) Save as provided in sub-section (2) and

notwithstanding anything contained in the Code of Civil

Procedure, 1908 (5 of 1908) or in the Code of Criminal

Procedure, 1973 (2 of 1974), or in any other law, an appeal

shall lie from every judgment or order, not being an

interlocutory order, of a Family Court to the High Court both

on facts and on law.

(2) No appeal shall lie from a decree or order passed by the

Family Court with the consent of the parties or from an order

passed under Chapter IX of the Code of Criminal Procedure,

1973 (2 of 1974):

Provided that nothing in this sub-section shall apply to

any appeal pending before a High Court or any order passed

under Chapter IX of the Code of Criminal Procedure, 1973 (2

of 1974) before the commencement of the Family Courts

(Amendment) Act, 1991.

(3) Every appeal under this section shall be preferred within

a period of thirty days from the date of the judgment or order

of a Family Court.

(4) The High Court may, of its own motion or otherwise,

call for and examine the record of any proceeding in which the

Family Court situate within its jurisdiction passed an order

under Chapter IX of the Code of Criminal Procedure, 1973 (2

of 1974) for the purpose of satisfying itself as to the

correctness, legality or propriety of order, not being an

interlocutory order, and as to the regularity of such

proceeding.

(5) Except as aforesaid, no appeal or revision shall lie to

any Court from any judgment, order or decree of a Family

Court.

(6) An appeal preferred under sub-section (1) shall be heard

by a Bench consisting of two or more judges.”

4. Section 19(3) of the Act of 1984 prescribed a period of thirty

days for filing appeal from every judgment or order not being an

interlocutory order by Family Court to the High Court, both on facts and on

law.

Section 20 of the Act of 1984 reads as under :-

“20. Act to have overriding effect. - The provisions of this

Act shall have effect notwithstanding anything inconsistent

therewith contained in any other law for the time being in

force or in any instrument having effect by virtue of any law

other than this Act.”

5. The provisions of Section 28(4) of the Act of 1955 came to be

amended by substituting the period of limitation from thirty days to ninety

days consequent to the judgment of the Apex Court delivered in the case

of Savitri Pandey vs. Prem Chandra Pandey1

. The Family Courts were

established at some places in the State of Maharashtra. At places where the

Family Courts could not be established, proceedings are being initiated in

the regular civil courts.

6. An issue was framed by the Division Bench that whether an

appeal under sub-section (1) of Section 19 of the Act of 1984 will be

governed by the period of limitation under sub-section (3) of Section 19 of

the Act of 1984 or under sub-section (4) of Section 28 of the Act of 1955?

7. Mr. Aspi Chinoy, learned Senior Counsel, assisted the

court as an Amicus Curiae. We have heard the learned Senior Counsel at

length. It was submitted by the learned Senior Counsel that if the two

statutes are so construed and understood, there is no conflict between the

1.AIR 2002 SC 591

two laws, both of which are enacted by Parliament. In his submission, no

question arises of invoking non obstante provision under Section 20 of the

Act of 1984. The Act of 1984 and the non obstante provision is not

intended to and cannot have the result of impliedly repealing provisions

made in the substantive law i.e. the Hindu Marriage Act, 1955. The Act of

1984 provides for a special forum / court to decide such matrimonial

disputes and it also provides for special rules or procedure in such cases.

In this context, the non obstante provision prescribed in Section 20 of the

Act of 1984 is required to be construed, according to the learned Senior

Counsel.

On the principle of interpretation of statutes, learned Senior

Counsel submitted that both the statutes are to be construed and read

harmoniously. The Act of 1984 does not expressly repeal Section 28 of the

Act of 1955. When there is no express repeal, courts have not favoured

such repeal by implication. On the other hand, it is indicated by the courts

that if earlier and later statutes can reasonably be construed in such a way

that both can be effective, the same may be done. The legislature, while

enacting a law, is presumed to have complete knowledge of law on the

same subject matter and, therefore, when it does not provide a repealing

provision, it gives out an intention not to repeal the existing legislation.

Learned Senior Counsel further submitted that the Act of 1955

is a special law vis-a-vis the Act of 1984, which is a general law, which

provides a forum for the adjudication of matrimonial disputes arising under

all the diverse substantive laws. It was submitted that it is well settled

principle of interpretation of law that general law does not abrogate earlier

special law by mere implication. The Act of 1984 is essentially a

procedural law. It is a settled principle of interpretation of law that the

legislature while enacting a law in the year 2003 was presumed to be

aware of the provisions of the existing legislation, including Section 19(3)

of the Act of 1984. Therefore, it would be contrary to the purpose and

object of the scheme of law to read the amendment of Section 28(4) as

operating only where the proceedings are brought in the ordinary civil

court and as not applying / operating when proceedings under the Act of

1955 are brought in the Family Court. Learned Senior Counsel referred to

the following judgments :-

(a) Savitri Pandey vs. Prem Chandra Pandey [AIR 2002 SC

591].

(b) R. S. Raghunath vs. State of Karnataka and anr. [(1992)

1 SCC 335].

OnLine Ker 4124].

(d) Sonia Kunwar Singh Bedi vs. Kunwar Singh Bedi [2015

(1) Mh. L. J. 954].

8. Learned counsel Mr. Murtaza Najmi, who appeared suo motu,

submitted that the Act of 1984 is a later law and it has a overriding effect in

respect of the provisions relating to the limitation prescribed for filing an

appeal. Learned counsel submitted that the appeals arising out of the

proceedings initiated in Family Court shall be governed by the provisions

of Section 19(3) of the Act of 1984 and the appeals arising out of the

ordinary civil court under the Act of 1955 shall be governed by the

provisions of Section 28(4) of the Act of 1984. The counsel submitted that

in a way, in respect of provisions of limitation, both the Acts have certain

inconsistencies, but considering the scheme of the provisions of the Act of

1984, Section 19(3) of the said Act will have be to given precedence over

the provisions of Section 28(4) of the Act of 1955. Learned counsel

submitted that the later general law can repeal prior special law.

9. Ms. Zenobia Irani, learned counsel appearing for the appellant

submitted that it is a matter of record that the Parliament did not amend the

provisions relating to limitation as prescribed under the Act of 1984. The

Act of 1984 is partly procedural and partly substantial. A discriminatory

type of provisions are prescribed relating to two different forums

considering the subject matter of appeals prescribed. Keeping in view the

purpose of enactment of both the statutes, the provisions of these statutes

will have to be construed. Learned counsel differs in respect of the

interpretation placed by the learned Senior Counsel Mr. Aspi Chinoy, as

stated above.

10. Mr. Nitin Dalvi, learned counsel appearing for respondent,

supported the submissions made by the learned Senior Counsel Mr. Aspi

Chinoy. Learned counsel submitted that both the provisions prescribed

under both the Acts must be considered and construed harmoniously and be

held that a period prescribed under the Act of 1955 under Section 28(4)

shall be applicable to the appeals preferred in the High Court arising out of

the judgments and orders passed by the Family Court or the Civil Court.

Learned counsel submitted that with a view to secure speedy settlement of

disputes relating to marriage and family affairs, separate Family Courts

were established pursuant to the Act 66 of 1984. The Act of 1984 is a

procedural law prescribing procedure to be adopted in the Family Courts.

Prior to the enactment of the Act of 1984, all the family matters were

adjudicated under Order XXXIIA of Civil Procedure Code, 1908 before the

concerned District Courts.

11. We have considered the submissions advanced before us,

perused the provisions of the relevant statutes and the judgments cited.

We have also gone through some of the Parliamentary debates in respect of

passing of both the enactments.

12. In the case of Seaford Court Estates, Ltd. vs. Asher2

Lord

Denning stated as under :-

“........Whenever a statute comes up for consideration it must

be remembered that it is not within human powers to foresee

the manifold sets of facts which may arise, and, even if it

were, it is not possible to provide for them in terms free from

all ambiguity. The English language is not an instrument of

mathematical precision. Our literature would be much the

poorer if it were. This is where the draftsmen of Acts of

Parliament have often been unfairly criticised. A judge,

2 1949 (2) All England Report 155

believing himself to be fettered by the supposed rule that he

must look to the language and nothing else, laments that the

draftsmen have not provided for this or that, or have been

guilty of some or other ambiguity.........”

13. The provisions of Section 28 (4) of the Act of 1955 came to be

amended consequent to the suggestion given by the Apex Court in Savitri

Pandey's case (Supra). In its letter and spirit, the views of the Apex Court

in the case of Savitri Pandey are required to be considered. The Apex

Court observed that period of limitation prescribed for filing appeal under

Section 28(4) was apparently inadequate which facilitates frustration of

the marriages by unscrupulous litigant spouses. It is necessary to refer to

the observations of the Apex Court in para 18 of the said judgment here

itself:-

“18. At this stage we would like to observe that the period of

limitation prescribed for filing the appeal under Section 28(4)

is apparently inadequate which facilitates the frustration of the

marriages by the unscrupulous litigant spouses. In a vast

country like ours, the powers under the Act are generally

exercisable by the District Court and the first appeal has to be

filed in the High Court. The distance, the geographical

conditions, the financial position of the parties and the time

required for filing a regular appeal, if kept in mind, would

certainly show that the period of 30 days prescribed for filing

the appeal is insufficient and inadequate. In the absence of

appeal, the other party can solemnise the marriage and attempt

to frustrate the appeal right of the other side as appears to have

been done in the instant case. We are of the opinion that a

minimum period of 90 days may be prescribed for filing the

appeal against any judgment and decree under the Act and any

marriage solemnised during the aforesaid period be deemed to

be void. Appropriate legislation is required to be made in this

regard. We direct the Registry that the copy of this judgment

may be forwarded to the Ministry of Law & Justice for such

action as it may deem fit to take in this behalf.”

(Emphasis supplied)

14. Consequent to the observations and suggestions given by the

Apex Court, quoted above, the Parliament amended the provisions of

Section 28(4) of the Act of 1955. Therefore, the purpose and object

behind amending the said Act in the year 2003 is required to be considered.

While amending the provisions, the Parliament was aware of the existence

of the Act of 1984. It is presumed that the Parliament was conscious of

the existence of another statute relating to the subject, prescribing forum

and procedure and period of limitation. Therefore, a harmonious

interpretation which would advance the object and purpose of the

legislation will have to be adopted.

15. As the Act of 1955 was amended by the Parliament in the year

2003, in that sense, the period of limitation of ninety days was prescribed

by a later law which would override the provisions relating to period of

limitation prescribed in the earlier enactment i.e. Act of 1984. The

substantive provision of law was amended at a later stage and the same

shall prevail being later in point of time.

16. Even if both the Acts are considered on certain subjects and

situations to be special and general, even then, as a matter of sound

interpretation and keeping in view the purpose for providing a larger period

of limitation, it must be construed that the appeals arising out of the

judgment and orders passed by the Family Court shall be governed by a

larger period of limitation prescribed under Section 28(4) of the Act of

1955. Any contrary interpretation would frustrate the very object of the

enactment which was made on the suggestion of the Apex Court in the case

of Savitri Pandey.

17. Considering the provisions of the Act of 1984 and the Act of

1955, we do not find that there is an express repeal of the provisions of

Section 28(4).

18. The Apex Court, in para 11, in the case of R. S. Raghunath

vs. State of Karnataka and anr.3

, by referring to earlier judgment in the

case of Chandavarkar Sita Ratna Rao v. Ashalata S. Guram [(1986) 4 SCC

447], observed as under:-

“..... In Chandavarkar Sita Ratna Rao v. Ashalata S. Guram the

scope of non-obstante clause is explained in the following

words: (SCCp.477-78, para 67)

“ A clause beginning with the expression

`notwithstanding anything contained in this Act or in

some particular provision in the Act or in some

particular Act or in any law for the time being in force,

or in any contract' is more often than not appended to a

section in the beginning with a view to give the enacting

part of the section in case of conflict an overriding effect

over the provision of the Act or the contract mentioned

in the non-obstante clause. It is equivalent to saying that

in spite of the provision of the Act or any other Act

mentioned in the non-obstante clause or any contract or

document mentioned the enactment following it will

3 (1992) 1 SCC 335

have its full operation or that the provisions embraced in

the non-obtante clause would not be an impediment for

an operation of the enactment.”

On a conspectus of the above authorities it emerges that the

non-obstante clause is appended to a provision with a view to

give the enacting part of the provision an overriding effect in

case of conflict. But the non-obstante clause need not

necessarily and always be co-extensive with the operative part

so as to have the effect of cutting down the clear terms of an

enactment and if the words of the enactment are clear and are

capable of a clear interpretation on a plain and grammatical

construction of the words the non-obstante clause cannot cut

down the construction and restrict the scope of its operation.

In such cases the non-obstante clause has to be read as

clarifying the whole position and must be understood to have

been incorporated in the enactment by the legislature by way

of abundant caution and not by way of limiting the ambit and

scope of the Special Rules.”

In the above case, in para 7, the Apex Court referred to the

Maxwell on The Interpretation of Statutes (11th Edition, page 168). The

principle of law was stated as under :

“ A general later law does not abrogate an earlier special

one by mere implication. Generalia specialibus non derogant,

or, in other words, `where there are general words in a later

Act capable of reasonable and sensible application without

extending them to subjects specially dealt with by earlier

legislation, you are not to hold that earlier and special

legislation indirectly repealed, altered, or derogated from

merely by force of such general words, without any indication

of a particular intention to do so. In such cases it is presumed

to have only general cases in view, and not particular cases

which have been already otherwise provided for by the special

Act.”

19. Learned Senior Counsel, Mr. Aspi Chinoy, referred to the

observations made by the Division Bench of Kerala High Court in paras 17

and 20 of the judgment in the case of Viswanathan P. K. vs. Sindhu M.

K.4

, which read as under :

“17. In this case, there is no specific non-obstante clause

available in either statute. But both stipulations occupy the

same field. The dictum above can hence be relied on safely.

The learned counsel contend that the purpose and object of

Marriage Laws Amendment Act 2003 must be taken into

consideration and evidently the Marriage Laws Amendment

Act was enacted in the light of the observations in paragraph

19 of Savitri Pandey (supra) which we have already extracted

4 2009 SCC OnLine Ker 4124

above. The purpose of amending Section 28(4) obviously was

the inconvenience and hardship noted by the Supreme Court

in Savitri Pandey (AIR 2002 SC 591). The Supreme Court

observed that to prefer an appeal before the High Court

against an order passed by the District Court, a period of 30

days may not be sufficient and that such a stipulation is

working out injustice as was revealed in the facts of that case.

The purpose of the Marriage Laws Amendment Act, by which

Section 28(4) of the Hindu Marriage Act was amended, was

obviously to give a larger period of limitation for the parties

aggrieved by the orders passed in matrimonial cases under the

Hindu Marriage Act and the Special Marriage Act. In this

view of the matter, considering the purpose and object of the

Act it is evident that the period of limitation under Section

28(4) of the Hindu Marriage Act which amendment was

brought in with effect from 23-12-2003 must be given

prominence and predominance.

20. Fifthly, the learned counsel contends that the principle

of law is well settled that when a later enactment prescribes a

different period of limitation, such later enactment must be

preferred. Of course, the Hindu Marriage Act was enacted in

1955. The Family Courts Act was enacted in 1984. But the

crucial amendment to Section 28 (4) was enacted later in

2003. The parliament must be presumed to have known the

relevant stipulations of general nature in Section 19(3) while

bringing in the amendment to Section 28(4). In support of this

proposition, the learned counsel relies on the following

observations of the Supreme Court in paragraph 21 of Sarwan

Singh (AIR 1977 SC 265) (Supra):”

20. We may refer to the observations made by the Division Bench

of this Court in paras 20, 21, 24 and 25 of the judgment in the case of

Sonia Kunwar Singh Bedi vs. Kunwar Singh Bedi5

, which read as

under:-

“20. Thus, later enactment must prevail over the former. The

same test was approved by the Supreme Court in Shri Ram

Narain vs. Simla Banking and Industrial Co. Ltd., 1956 SCR

603 : AIR 1956 SC 614. On the principle that the later

enactment i.e. Marriage Laws Amendment Act, 2003 must

prevail over the earlier enactment i.e. Family Courts Act, the

larger period of limitation prescribed under section 28(4) of

the Hindu Marriage Act must prevail. On the principle of

equality under Article 14 of the Constitution of India also an

identical period of limitation must be held to be applicable

against all orders appealable under section 28 of the Hindu

Marriage Act. Merely because the order is passed by a

District Court, a larger period of limitation i.e. 90 days and

merely because the order is passed by the Family Court, a

lesser period of limitation of 30 days would be unreasonable

5 2015 (1) Mh.L.J. 954

and will not stand the test of equality. The interpretation must

be such that an identical period of limitation would be

available for orders appealable under section 28 of the Hindu

Marriage Act – whether such order is passed by the District

Court or the Family Court.

21. Thereafter the learned counsel for the applicant also

raised the contention that in view of section 20 of the Family

Courts Act in which there is non-obstante clause, the Family

Court Act would prevail over the Hindu Marriage Act.

The short question that remains to be considered is

whether the non-obstante clauses in section 19 and 20 can

override the applicability of the period of limitation

prescribed for an appeal under section 28. A non-obstante

clause cannot be read mechanically. The totality of the

circumstances have to be taken into account. The precise

intention of the legislature will have to ascertained. Vague and

general non-obstante clauses cannot operate to militate against

specific stipulations made in enactments to meet specific

situations. We have already discussed above why section 28

(4) of Hindu Marriage Act was amended, this circumstance has

to be given due weightage.

24. The first two decisions relied upon by Mr. Jaisinghani

are not applicable to the facts of the present case. The

remaining three decisions which are pressed into service by

Mr. Jaisinghani were rendered by Allahabad High Court,

Madras High Court and Karnataka High Court, whereas the

last two decisions in the case of Milan Tandel and Surekha

Sawant (supra) are by Division Benches of this Court. We

have already observed that the decisions by the Allahabad,

Madras and Karnataka High Courts can at the most only have

persuasive value.

25. We do not find any reason to take a different view from

the one taken by the Division Bench of our Court in Milan

Laxman Tandel's and Surekha Savant's cases. In view thereof,

we reject the preliminary objection and hold that there is no

delay in filing the appeal. In other words, we hold that the

appeal having been filed within 90 days, as contemplated by

section 28(4) of the Hindu Marriage Act, is within limitation.

Hence, there is no merit in this application and the same is

rejected.”

21. Considering the scheme of the enactments of the Act of 1955

and the Act of 1984, more precisely the provisions of limitation and non

obstante provision provided in the Act of 1984, we do not find a clear

inconsistency between the two enactments. It is principle of law that for

giving a overriding effect to a non obstante provision, there should be clear

inconsistency between the two enactments.

22. The principle of law of interpretation further lays down that in

a given case both the enactments could be special statutes dealing with

different situations and there could be non obstante provision in both the

special statutes. In such a situation, the conflict between two enactments

need to be resolved, considering the purpose and object of the Act.

23. It is settled rule of interpretation that if one construction leads

to a conflict, whereas on another construction, two Acts can be

harmoniously constructed, then the later must be adopted. On such

interpretation, the objects of both the enactments would be fulfilled and

there would be no conflict.

24. While interpreting the provisions of the said two enactments, it

needs to be considered that we are a country of vast population, millions of

people face financial hardship for litigating a matter, people have to spend

considerable amount of time, money and energy. The geographical

conditions further make easy access to justice difficult and taking into

consideration all these circumstances, coupled with the peculiar situation

faced by the parties while litigating matrimonial, family related issues, the

Apex Court made certain observations in the case of Savitri Pandey which

full bench matter - fca-161-13

suggestion was accepted by the Parliament and accordingly the law was

amended.

25. We are convinced of the interpretation put up by the learned

Senior Counsel that if the two statutes are construed and understood in its

proper sense, then there is no conflict between the two laws and, therefore,

no question arises of invoking non obstante provision in Section 20 of the

Act of 1984. The enactment of the Act of 1984 or non obstante provision

in Section 20 is not intended to impliedly repeal provisions made in the

Act of 1955. The Act of 1984 provides for a special forum relating to

matrimonial disputes and with that view, special procedure was devised for

expeditious adjudication of the cases. It is in that context the non obstante

provision of Section 20 is required to be construed.

26. A non obstante clause must be given effect to the extent

Parliament intended and not beyond the same. It may be used as a

legislative device to modify the scope of provision or law mentioned in

the said clause. The non obstante clause would throw some light as to the

scope and ambit of the enacting part in case of its ambiguity. But if the

enacting part is clear, its scope cannot be cut down or enlarge by resorting

to non obstante clause.

27. In our view, considering the scheme of the Act of 1984 and the

object and purpose for its enactment, largely the Act is procedural in

nature. The Act of 1984 provides for special forum to decide matrimonial

related disputes and prescribes for special rules and procedure. In this

context, the non obstante provision in Section 20 is required to be

construed.

28. We are of the view that considering the scheme of both the

enactments and the purpose behind amending the provisions of Section 28

(4) of the Act of 1955, it would not be appropriate to apply different period

of limitation, one in case of orders passed by the Family Courts and in

another by the regular Civil Courts. Such an approach would frustrate

very purpose of legislation.

29. For the reasons stated above, we hold that for an appeal filed

under sub-section (1) of Section 19 of the Family Courts Act, 1984, period

of limitation prescribed under sub-section (4) of Section 28 of the Hindu

Marriage Act, 1955 shall apply.

30. Reference is answered accordingly.

31. We record our appreciation for valuable assistance rendered to

us by the Amicus Curiae, learned Senior Counsel Shri Aspi Chinoy.

We also appreciate the assistance rendered to us by learned counsel

Shri Murtaza Najmi.

32. We direct the Registry to place the matter before the

appropriate court.

(NARESH H. PATIL,J.)

(R. D. DHANUKA, J.)

(SMT. SADHANA S. JADHAV,J.)

Triple talaq unconstitutional, it violates rights of Muslim women in India

The Petitioners claim to have married as per muslim custom under personal law. First petitioner, i.e. the lady is aged about 23 years, whereas, second petitioner is aged about 53 years; both are illiterate. The document in support of their age is the Aadhar card. Both the petitioners are present in the Court, and have been identified by their counsel. In para-11 of the petition, it is averred that the second petitioner has contracted the present marriage after effecting instant talak (Triple Talaq) to his wife. The second petitioner admits before the Court that from his first marriage, he has two minor children, one residing with the wife and other with him. On a specific query as to when and why the instant divorce was effected, the second petitioner would state that to contract second marriage he has divorced his wife, no other reason is pleaded or stated before the Court.

The question which disturbs the Court is should muslim wives suffer this tyranny for all times? Should their personal law remain so cruel towards these unfortunate wives? Whether the personal law can be amended suitably to alleviate their sufferings? The judicial conscience is disturbed at this monstrosity. The first wife has to live life for no fault of her but for the reason that her husband got attracted to a lady half of her age which is the reason for being divorced. The view that the Muslim husband enjoys an arbitrary, unilateral power to inflict instant divorce does not accord with Islamic injunctions. It is a popular fallacy that a Muslim male enjoys, under the Quaranic Law, unbridled authority to liquidate the marriage. The whole Quoran expressly forbids a man to seek pretexts for divorcing his wife, so long as she remains faithful and obedient to him. The Islamic law gives to the man primarily the faculty of dissolving the marriage, if the wife, by her indocility or her bad character, renders the married life unhappy; but in the absence of serious reasons, no man can justify a divorce, either in the eye of religion or the law. If he abandons his wife or puts her away in simple caprice, he draws upon himself the divine anger, for the curse of God, said the Prophet, rests on him who repudiates his wife capriciously. In other Islamic State, where the husband must satisfy the court about the reasons for divorce.

However, Muslim law, as applied in India, has taken a course contrary to the spirit of what the Prophet or the Holy Quoran laid down and the same misconception vitiates the law dealing with the wife's right to divorce. The divorce is permissible in Islam only in cases of extreme emergency. When all efforts for effecting a reconciliation have failed, the parties may proceed to a dissolution of the marriage by 'Talaq' or by 'Khola'. The statement that "the whimsical and capricious divorce by the husband is good in law, though bad in theology" cannot be approved as the correct law. The correct law of talaq as ordained by the Holy Quran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters- one from the wife's family and the other from the husband's; if the attempts fail, talaq may be effected. (Ref: Pathayi v. Moideen 1968 KLT 763; A. Yousuf Rawther Vs. Sowramma, AIR 1971 Kerala 261; referred to with approval by the Supreme Court in Shamim Ara vs State Of U.P. & another : 2002 (7) SCC 518). The decision in Shamim Ara was rendered in 2002, wherein, the observation of the Division Bench judgment of the Kerala High Court was noticed and approved, which was rendered 20-30 years before.

Country has in recent times marched steps ahead in all walks of life including progressive interpretation of laws which cannot be lost sight of except by compromising with regressive trends.... "Law is dynamic and its meaning cannot be pedantic but purposeful." (Refer-- Bai Tahira Vs. Ali Hussain AIR 1979 SC 362).

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Read the Hon"ble Allahabad High Court Judgments:

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. - 58

Case :- WRIT - C No. - 51421 of 2016

Petitioner :- Smt. Hina And Another

Respondent :- State Of U.P. And 2 Others

Counsel for Petitioner :- Sunil Kumar Dwivedi

Counsel for Respondent :- C.S.C.

Hon'ble Suneet Kumar,J.

Petitioners claim to have married as per muslim custom under personal law. First petitioner, i.e. the lady is aged about 23 years, whereas, second petitioner is aged about 53 years; both are illiterate. The document in support of their age is the Aadhar card. Both the petitioners are present in the Court, and have been identified by their counsel. In para-11 of the petition, it is averred that the second petitioner has contracted the present marriage after effecting instant talak (Triple Talaq) to his wife. The second petitioner admits before the Court that from his first marriage, he has two minor children, one residing with the wife and other with him. On a specific query as to when and why the instant divorce was effected, the second petitioner would state that to contract second marriage he has divorced his wife, no other reason is pleaded or stated before the Court.

The petitioners seek a direction to restrain the respondent police authorities and the third respondent, who is the mother of the lady from harassing them, further, to ensure security and safety of the petitioners and in particular to the first petitioner. It is alleged that the respondents are harassing the petitioners living as man and woman.

Learned counsel for the petitioner would submit that the petitioners are adult and are at liberty to choose their own partner on attaining age of majority within social framework of the society and the country, therefore, the petitioners cannot be deprived of their life and personal liberty except in accordance with the procedure established by law under Article 21 of the Constitution.

There can be no dispute to the proposition that is being advanced by learned counsel, nor difference in age is an issue, what is disturbing is that the instrument of instant divorce (Triple Talaq), in the facts of the present case, has been used for ulterior purpose for divorcing the wife. It is not being disputed that the first petitioner used to visit Mohalla, Tehsil Rokan Sarai, District Bulandshahar, where she met the second petitioner and fell in love, thereafter, decided to marry. First petitioner left her family and joined the company of second petitioner, consequently, the second petitioner decided to get rid of his first wife by divorcing her by pronouncing instant talaq.

The purpose of Law in a modern secular State based upon the Constitution is to bring about social change. The muslim community comprise a large percentage of Indian population, therefore, a large section of citizen, in particularly women, cannot be left to themselves to be governed by archaic customs and social practise under the garb of personal law purportedly having divine sanction. The women of the community continue to suffer bias, deprived of the protection, they should otherwise get through provisions in the Constitution that provide for equality and non discrimination.

India is a nation in the making, geographical boundaries alone do not define a nation. It is to be adjudged, amongst others, on the parameter of overall human development and how the society in particular treat their women; leaving such a large population to the whims & fancy of personal law which perpetuate gender inequality and is regressive, is not in the interest of society and the country. It impedes and drags India from becoming a nation. The instant divorce (Triple Talaq) though has been deprecated and not followed by all sects of muslim community in the country, however, is a cruel and the most demeaning form of divorce practised by the muslim community at large. Women cannot remain at the mercy of the patriarchal setup held under the clutches of sundry clerics having their own interpretation of the holy Quoran. Personal laws, of any community, cannot claim supremacy over the rights granted to the individuals by the Constitution.

I would not like to say anything further for the reason that the Supreme Court is seized with the matter.

In Shamim Ara, a statement merely made in the pleadings "written statement" though unsubstantiated that the wife was divorced upon delivering copy of the written statement, was not accepted by the Supreme Court and the subsequent marriage contracted by the husband was held void.

In the facts and circumstances of the present case, the petition stands dismissed. The legality of the marriage/divorce and rights of parties is kept open.

No cost.

Order Date :- 5.11.2016

Mukesh Kr.

Tuesday, October 11, 2016

Forcing Husband to Get Separated From His Parents, Amounts To Cruelty and divorce granted

. The question that requires to be answered first is as to whether the

averments, accusations and character assassination of the wife by the

appellant husband in the written statement constitutes mental cruelty for

sustaining the claim for divorce under Section 13(1)(i-a) of the Act. The

position of law in this regard has come to be well settled and declared

that levelling disgusting accusations of unchastity and indecent

familiarity with a person outside wedlock and allegations of extramarital

relationship is a grave assault on the character, honour, reputation,

status as well as the health of the wife. Such aspersions of perfidiousness

attributed to the wife, viewed in the context of an educated Indian wife

and judged by Indian conditions and standards would amount to worst form of

insult and cruelty, sufficient by itself to substantiate cruelty in law,

warranting the claim of the wife being allowed. That such allegations made

in the written statement or suggested in the course of examination and by

way of cross-examination satisfy the requirement of law has also come to be

firmly laid down by this Court. On going through the relevant portions of

such allegations, we find that no exception could be taken to the findings

recorded by the Family Court as well as the High Court. We find that they

are of such quality, magnitude and consequence as to cause mental pain,

agony and suffering amounting to the reformulated concept of cruelty in

matrimonial law causing profound and lasting disruption and driving the

wife to feel deeply hurt and reasonably apprehend that it would be

dangerous for her to live with a husband who was taunting her like that and

rendered the maintenance of matrimonial home impossible.”

Applying the said ratio to the facts of this case, we are inclined to

hold that the unsubstantiated allegations levelled by the Respondent wife

and the threats and attempt to commit suicide by her amounted to mental

cruelty and therefore, the marriage deserves to be dissolved by a decree of

divorce on the ground stated in Section 13(1)(ia) of the Act.

Taking an overall view of the entire evidence and the judgment

delivered by the trial Court, we firmly believe that there was no need to

take a different view than the one taken by the trial Court. The behaviour

of the Respondent wife appears to be terrifying and horrible. One would

find it difficult to live with such a person with tranquility and peace of

mind. Such torture would adversely affect the life of the husband. It is

also not in dispute that the Respondent wife had left the matrimonial house

on 12th July, 1995 i.e. more than 20 years back. Though not on record, the

learned counsel submitted that till today, the Respondent wife is not

staying with the Appellant. The daughter of the Appellant and Respondent

has also grown up and according to the learned counsel, she is working in

an IT company. We have no reason to disbelieve the aforestated facts

because with the passage of time, the daughter must have grown up and the

separation of the Appellant and the wife must have also become normal for

her and therefore, at this juncture it would not be proper to bring them

together, especially when the Appellant husband was treated so cruelly by

the Respondent wife.

We, therefore, quash and set aside the impugned judgment delivered by

the High Court. The decree of divorce dated 17th November, 2001 passed by

the Principal Judge, Family Court, Bangalore in M.C. No.603 of 1995 is

hereby restored.

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3253 OF 2008

NARENDRA … APPELLANT

VERSUS

K. MEENA … RESPONDENT

J U D G M E N T

ANIL R. DAVE, J.

1. This appeal has been filed by the Appellant husband, whose decree for

divorce passed by the trial Court has been set aside by the impugned

judgment dated 8th March, 2006 passed by the High Court of Karnataka at

Bangalore in Miscellaneous First Appeal No.171 of 2002 (FC).

2. The facts giving rise to the present appeal, in a nutshell, are as

under :

The Respondent wife filed Miscellaneous First Appeal under Section

28(1) of the Hindu Marriage Act, 1955 (hereinafter referred to as “the

Act”) before the High Court as she was aggrieved by the judgment and decree

dated 17th November, 2001, passed by the Principal Judge, Family Court,

Bangalore in M.C. No.603 of 1995 under Section 13(1)(ia) of the Act filed

by the Appellant husband seeking divorce.

3. The Appellant husband had married the Respondent wife on 26th

February, 1992. Out of the wedlock, a female child named Ranjitha was born

on 13th November, 1993. The case of the Appellant was that the Respondent

did not live happily with the Appellant even for a month after the

marriage. The reason for filing the divorce petition was that the

Respondent wife had become cruel because of her highly suspicious nature

and she used to level absolutely frivolous but serious allegations against

him regarding his character and more particularly about his extra-marital

relationship. Behaviour of the Respondent wife made life of the Appellant

husband miserable and it became impossible for the Appellant to stay with

the Respondent for the aforestated reasons. Moreover, the Respondent

wanted the Appellant to leave his parents and other family members and to

get separated from them so that the Respondent can live independently; and

in that event it would become more torturous for the Appellant to stay only

with the Respondent wife with her such nature and behaviour. The main

ground was cruelty, as serious allegations were levelled about the moral

character of the Appellant to the effect that he was having an extra-

marital affair with a maid, named Kamla. Another important allegation was

that the Respondent would very often threaten the Appellant that she would

commit suicide. In fact, on 2th July, 1995, she picked up a quarrel with

the Appellant, went to the bathroom, locked the door from inside and poured

kerosene on her body and attempted to commit suicide. On getting smell of

kerosene coming from the bathroom, the Appellant, his elder brother and

some of the neighbours broke open the door of the bathroom and prevented

the Respondent wife from committing suicide. The aforestated facts were

found to be sufficient by the learned Family Court for granting the

Appellant a decree of divorce dated 17th November, 2001, after considering

the evidence adduced by both the parties.

4. Being aggrieved by the judgment and decree of divorce dated 17th

November, 2001, the Respondent wife had filed Miscellaneous First Appeal

No.171 of 2002 (FC), which has been allowed by the High Court on 8th March,

2006, whereby the decree of divorce dated 17th November, 2001 has been set

aside. Being aggrieved by the judgment and order passed by the High Court,

the Appellant has filed this appeal.

5. The learned counsel appearing for the Respondent was not present when

the appeal was called out for hearing. The matter was kept back but for

the whole day, the learned counsel for the Respondent did not appear. Even

on an earlier occasion on 31st March, 2016, when the appeal was called out,

the learned counsel appearing for the Respondent wife was not present and

therefore, the Court had heard the learned counsel appearing for the

Appellant.

6. The learned counsel appearing for the Appellant submitted that the

High Court had committed a grave error in the process of re-appreciating

the evidence and by setting aside the decree of divorce granted in favour

of the Appellant. He submitted that there was no reason to believe that

there was no cruelty on the part of the Respondent wife. He highlighted

the observations made by the Family Court and took us through the evidence,

which was recorded before the Family Court. He drew our attention to the

depositions made by independent witnesses, neighbours of the Appellant, who

had rescued the Respondent wife from committing suicide by breaking open

the door of the bathroom when the Respondent was on the verge of committing

suicide by pouring kerosene on herself and by lighting a match stick. Our

attention was also drawn to the fact that serious allegations levelled

against the character of the Appellant in relation to an extra-marital

affair with a maid were absolutely baseless as no maid named Kamla had ever

worked in the house of the Appellant. It was also stated that the

Respondent wife was insisting the Appellant to get separated from his

family members and on 12th July, 1995 i.e. the date of the attempt to

commit suicide, the Respondent wife deserted the Appellant husband.

According to the learned counsel, the facts recorded by the learned Family

Court after appreciating the evidence were sufficient to show that the

Appellant was entitled to a decree of divorce as per the provisions of

Section 13(1)(ia) of the Act.

7. We have carefully gone through the evidence adduced by the parties

before the trial Court and we tried to find out as to why the appellate

Court had taken a different view than the one taken by the Family Court

i.e. the trial Court.

8. The High Court came to the conclusion that there was no cruelty meted

out to the Appellant, which would enable him to get a decree of divorce, as

per the provisions of the Act. The allegations with regard to the

character of the Appellant and the extra-marital affair with a maid were

taken very seriously by the Family Court, but the High Court did not give

much importance to the false allegations made. The constant persuasion by

the Respondent for getting separated from the family members of the

Appellant and constraining the Appellant to live separately and only with

her was also not considered to be of any importance by the High Court. No

importance was given to the incident with regard to an attempt to commit

suicide made by the Respondent wife. On the contrary, it appears that the

High Court found some justification in the request made by the Respondent

to live separately from the family of the Appellant husband. According to

the High Court, the trial Court did not appreciate the evidence properly.

For the aforestated reasons, the High Court reversed the findings arrived

at by the learned Family Court and set aside the decree of divorce.

9. We do not agree with the manner in which the High Court has re-

appreciated the evidence and has come to a different conclusion.

10. With regard to the allegations of cruelty levelled by the Appellant,

we are in agreement with the findings of the trial Court. First of all,

let us look at the incident with regard to an attempt to commit suicide by

the Respondent. Upon perusal of the evidence of the witnesses, the

findings arrived at by the trial Court to the effect that the Respondent

wife had locked herself in the bathroom and had poured kerosene on herself

so as to commit suicide, are not in dispute. Fortunately for the

Appellant, because of the noise and disturbance, even the neighbours of the

Appellant rushed to help and the door of the bathroom was broken open and

the Respondent was saved. Had she been successful in her attempt to commit

suicide, then one can foresee the consequences and the plight of the

Appellant because in that event the Appellant would have been put to

immense difficulties because of the legal provisions. We feel that there

was no fault on the part of the Appellant nor was there any reason for the

Respondent wife to make an attempt to commit suicide. No husband would

ever be comfortable with or tolerate such an act by his wife and if the

wife succeeds in committing suicide, then one can imagine how a poor

husband would get entangled into the clutches of law, which would virtually

ruin his sanity, peace of mind, career and probably his entire life. The

mere idea with regard to facing legal consequences would put a husband

under tremendous stress. The thought itself is distressing. Such a mental

cruelty could not have been taken lightly by the High Court. In our

opinion, only this one event was sufficient for the Appellant husband to

get a decree of divorce on the ground of cruelty. It is needless to add

that such threats or acts constitute cruelty. Our aforesaid view is

fortified by a decision of this Court in the case of Pankaj Mahajan v.

Dimple @ Kajal (2011) 12 SCC 1, wherein it has been held that giving

repeated threats to commit suicide amounts to cruelty.

11. The Respondent wife wanted the Appellant to get separated from his

family. The evidence shows that the family was virtually maintained from

the income of the Appellant husband. It is not a common practice or

desirable culture for a Hindu son in India to get separated from the

parents upon getting married at the instance of the wife, especially when

the son is the only earning member in the family. A son, brought up and

given education by his parents, has a moral and legal obligation to take

care and maintain the parents, when they become old and when they have

either no income or have a meagre income. In India, generally people do

not subscribe to the western thought, where, upon getting married or

attaining majority, the son gets separated from the family. In normal

circumstances, a wife is expected to be with the family of the husband

after the marriage. She becomes integral to and forms part of the family

of the husband and normally without any justifiable strong reason, she

would never insist that her husband should get separated from the family

and live only with her. In the instant case, upon appreciation of the

evidence, the trial Court came to the conclusion that merely for monetary

considerations, the Respondent wife wanted to get her husband separated

from his family. The averment of the Respondent was to the effect that the

income of the Appellant was also spent for maintaining his family. The

said grievance of the Respondent is absolutely unjustified. A son

maintaining his parents is absolutely normal in Indian culture and ethos.

There is no other reason for which the Respondent wanted the Appellant to

be separated from the family - the sole reason was to enjoy the income of

the Appellant. Unfortunately, the High Court considered this to be a

justifiable reason. In the opinion of the High Court, the wife had a

legitimate expectation to see that the income of her husband is used for

her and not for the family members of the Respondent husband. We do not

see any reason to justify the said view of the High Court. As stated

hereinabove, in a Hindu society, it is a pious obligation of the son to

maintain the parents. If a wife makes an attempt to deviate from the

normal practice and normal custom of the society, she must have some

justifiable reason for that and in this case, we do not find any

justifiable reason, except monetary consideration of the Respondent wife.

In our opinion, normally, no husband would tolerate this and no son would

like to be separated from his old parents and other family members, who are

also dependent upon his income. The persistent effort of the Respondent

wife to constrain the Appellant to be separated from the family would be

torturous for the husband and in our opinion, the trial Court was right

when it came to the conclusion that this constitutes an act of ‘cruelty’.

12. With regard to the allegations about an extra-marital affair with

maid named Kamla, the re-appreciation of the evidence by the High Court

does not appear to be correct. There is sufficient evidence to the effect

that there was no maid named Kamla working at the residence of the

Appellant. Some averment with regard to some relative has been relied upon

by the High Court to come to a conclusion that there was a lady named Kamla

but the High Court has ignored the fact that the Respondent wife had

levelled allegations with regard to an extra-marital affair of the

Appellant with the maid and not with someone else. Even if there was some

relative named Kamla, who might have visited the Appellant, there is

nothing to substantiate the allegations levelled by the Respondent with

regard to an extra-marital affair. True, it is very difficult to establish

such allegations but at the same time, it is equally true that to suffer an

allegation pertaining to one’s character of having an extra-marital affair

is quite torturous for any person – be it a husband or a wife. We have

carefully gone through the evidence but we could not find any reliable

evidence to show that the Appellant had an extra-marital affair with

someone. Except for the baseless and reckless allegations, there is not

even the slightest evidence that would suggest that there was something

like an affair of the Appellant with the maid named by the Respondent. We

consider levelling of absolutely false allegations and that too, with

regard to an extra-marital life to be quite serious and that can surely be

a cause for metal cruelty.

13. This Court, in the case of Vijaykumar Ramchandra Bhate v. Neela

Vijaykumar Bhate, 2003 (6) SCC 334 has held as under:-

“7. The question that requires to be answered first is as to whether the